Digest of Cases reported

Issue 6: January 2008

Court of Appeal

Civil practice and Procedure - representative suit – circumstances in which one or more persons may sue or be sued on behalf of other persons – procedure in bringing a representative suit – meaning of “persons having the same interest” in a suit – whether same interest means the same transaction – Civil Practice and Procedure Rules Order I rule 8. Kenya Airways Corporation Ltd v Tobias Oganya Auma & 6 others

Civil - consent - consent order - review of a consent order - circumstances in which consent may be reviewed - party seeking to have a consent reviewed or set aside on grounds of duress, illegality, public policy, undue influence and misrepresentation - party alleging that the consent was an attempt to enforce an illegal agreement - allegation of unjust enrichment - duty of the person seeking to set aside the consent to establish the grounds for setting it aside - appeal against the decision of the High Court declining to review the consent - whether the High Court had failed to properly consider the matters before it - Civil Procedure Rules Order 2, Order 44 rule 1 Samson Munikah (practicing as Munikah & Company Advocates) v. Wedube Estates Ltd

Civil - court fees - filing fees - suit by advocate - suit against client for fees for services rendered - whether such suits are exempted from court filing fees - whether a Deputy Registrar has power to exempt an advocate plaintiff from paying the fees - whether a plaint that has been filed without the payment of filing fees is a valid plaint - Civil Procedure Rules Order IV rule 2(2) - Advocates Act (Cap. 16) section 48, 49 South Nyanza Sugar Company Ltd v Samuel Osewe Ochillo t/a Ochillo & Company Advocates

Civil – jurisdiction – jurisdiction of the Court of Appeal – whether the Court of Appeal has a residual jurisdiction to re-open an appeal which it has previously heard and decided – notice of motion application seeking to re-open an appeal on the ground that one of the judges who had presided over the appeal was biased – whether such a motion could be entertained - Constitution of Kenya section 64, 77(9) Jasbir Singh Rai & 3 others v Tarlochan Singh Rai & 4 others

Criminal - trial - fair trial - rights of an arrested person – right to be brought to court within a reasonable time - section 72(3) (b) of the Constitution – complaint that the accused had not been brought to court within a reasonable time – complaint being raised for the first time in the Court of Appeal in an appeal against conviction – whether such was the proper time and forum for raising and dealing with such a complaint. Samuel Ndungu Kamau & another v Republic

Damages – special damages – duty of a party to prove special damages before they can be awarded. Kenya Airways Corporation Ltd v Tobias Oganya Auma & 6 others

Employment law – redundancy – termination of employment on account of redundancy -meaning of redundancy – where there exits a contract of employment – whether the rules of natural justice may be applied to employment contracts – whether a court may prevent an employer from discharging its employees on account of redundancy where the laws relating to termination of employment are followed and the consent of Trade Unions obtained – whether it is reasonable for a contracted employee to expect to continue in employment until the age of retirement regardless of his productivity or the financial situation of his employer – whether general damages may be awarded in suits based on termination of employment - Trade Disputes Act (Cap. 234) - Regulation of Wages and conditions of Employment Act (Cap. 229) Kenya Airways Corporation Ltd v Tobias Oganya Auma & 6 others

Evidence - circumstantial evidence - where a case depends wholly on circumstantial evidence - murder - accused person having been with the deceased moments before her death - whether in such circumstances a rebuttable presumption arose that the accused had killed the deceased - accused failing to offer any explanation on the matter - whether the accused had been properly convicted for murder - Penal Code sections 203, 204 - Evidence Act (Cap. 80) section 119. Samuel Ndungu Kamau & another v Republic evidence - witness - hostile witness - procedure in declaring a witness hostile - effect of declaring a witness hostile – where a prosecution witness gives evidence favourable to the accused - prosecution not having sought the leave of the court to cross-examine the Witness - whether in the circumstances the trial court had erred in failing to evaluate the evidence of such a witness - Evidence Act (Cap. 80) section 161, 163 Edusei Asili Malema v Republic

Intellectual Property - trade mark – suit for trade mark infringement and passing off - trade mark dispute between cigarette manufacturers - Horseman and Sportsman cigarette brands - appellant being the registered owner of the Sportsman brand and having applied it in trade for over 30 years - Horseman brand
introduced by the respondent - whether the Horseman brand was so substantially similar to the Sportsman brand as to cause confusion among cigarette smokers or consumers – plaintiff’s burden of proof in a trademark infringement suit. British American Tobacco Kenya Ltd v Cut Tobacco Kenya Ltd

International law – application of international law – international law applicable where domestic law is uncertain or lacking. Kenya Airways Corporation ltd v Tobias Oganya Auma & 6 others

Judicial officer – immunity from suit - privilege of a judge for actions done in the course of duty – scope of the privilege – allegations of bias made against a judge in an application in the Court of Appeal to set aside the judge’s decision – judge filing affidavit in response to the allegations and seeking to be heard in the application – whether it would be proper to admit the documents filed by the judge and to allow him to be heard – Judicature Act (Cap. 8) section 6 – Evidence Act (Cap. 80) section 129 Jasbir Singh Rai & 3 others v Tarlochan Singh Rai & 4 others

High Court Advocates - retainer-where a client contested taxed costs as being inordinately high-where the advocates then filed an application seeking judgment for the taxed costs together with interests thereon under Section 51(2) of the Advocates Act (Cap.16)-where there was no written retainer but the advocates had an affidavit sworn by the Managing Director of the client confirming that the advocates were retained by the client-whether an advocate must have obtained written instructions from a client to enable him to participate on behalf of the client in a particular dispute. Ochieng, Onyango, Kibet & Ohaga Advocates v Adopt A Light Limited

Constitutional law – separation of powers – power of the High Court over the actions of Parliament – constitutional application challenging the election of a Speaker of the National Assembly – applicant seeking to nullify all actions undertaken by the Speaker and the National Assembly subsequent to the election – whether the application undermined parliamentary privilege and the doctrine of separation of powers – circumstances in which the Courts will interfere with the actions of Parliament – Constitution section 37, 38, 56, 57, 58 Peter O. Ngoge v Francis Ole Kaparo & 4 others

Elections – nominations – nomination of parliamentary candidates by political parties – jurisdiction of the High Court to entertain disputes arising from party nominations – whether a court other than an election court has jurisdiction to entertain such a dispute - whether such a dispute should be brought by way of a plaint or by a petition – Constitution of Kenya sections 34(d), 44(1), 42(a) - National Assembly and Presidential Elections Act (Cap. 7) sections 13(3)(b); 17 - Presidential and Parliamentary Elections Regulations 8(3), 14. Jared Mariga Akoro & another v Richard Kwach & 5 others

Environmental Law - noxious weeds-where the Government of Kenya and the Food Agricultural Organization undertook a joint project in 1982 that introduced the weed/plant Prosopis Juliflora in Ngambo, Marigat Division of Baringo District-where some area residents filed a petition under Sections 60,70,71 and 75 of the Constitution and Provisions of the Environmental Management and Coordination Act, and the Suppression of Noxious Weeds Act seeking declarations, inter alia, that their right to life as set out in Section 71 of the Constitution had been compromised by the introduction of the weed-validity of the petition Charles Lekuyen Nabori & 9 Others v Attorney General & 3 Others

Insurance motor vehicle third party insurance- notice under Section 10(2) of the Insurance (Motor Vehicle Third Parties Risks) Act, (Cap.405)-whether a demand notice/letter of notification of accident constituted a statutory notice under the provisions of Section 10 of Cap.405 Philip Kimani Gikonyo v Gateway Insurance Company Limited

Insurance motor vehicle third party insurance - where the appellant obtained judgment against the director and authorized driver of a vehicle owned and insured by a limited liability company-where the appellant was unable to recover the judgment sum from the said driver and proceeded to file a declaratory suit against the insurer of the motor vehicle-where the lower court dismissed the suit holding that judgment was against the insured’s driver, and not the insured itself, therefore the same could not be enforced against the insurer-whether judgment against the insured’s driver was enforceable against the insurer Philip Kimani Gikonyo v Gateway Insurance Company Limited

Land landlord and tenant - where the plaintiffs sued the defendant for selling the suit property to a 3rd party without giving the plaintiffs an option to purchase the same, despite verbal representations having been made to them by the defendants-whether a tenant has the right of first offer upon the landlord deciding to sell the property Dima College Ltd & 2 Others v Kenya Commercial Bank Ltd

Local Government – Mayor – term of office of a Mayor – whether the term of office of a Mayor expires with the dissolution of Parliament and local authorities – whether a Mayor is to remain in office until his successor assumes office – local authorities having been dissolved and the Ministry of Local Government having issued circulars directing Town Clerks that the offices of councilors and Mayors had fallen vacant – Town Clerk preventing a person from continuing to serve in the office of Mayor – whether the circulars were legal – whether the Town Clerk had acted contrary to the law – Local Government Act (Cap. 265) sections 13(2); 14(1),(2) John M. Nyaga v Town Clerk, Municipality of Embu & another

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