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A A R V R R R [2014] eKLR

Case Number: Divorce Cause 24 of 2013 Date Delivered: 13 Feb 2014

Judge: Maureen Akinyi Odero

Court: High Court at Mombasa

Parties: A A R v R R R

Citation: A A R V R R R [2014] eKLR

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A A R V R R R [2014] eKLR

Case Number: Divorce Cause 24 of 2013 Date Delivered: 13 Feb 2014

Judge: Maureen Akinyi Odero

Court: High Court at Mombasa

Parties: A A R v R R R

Citation: A A R V R R R [2014] eKLR

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Faustino Kithumbi Nyaga V Republic [2014] eKLR

Case Number: Criminal Appeal 95 of 2010 Date Delivered: 13 Feb 2014

Judge: Hedwig Imbosa Ong'udi

Court: High Court at Embu

Parties: Magistrate’s Court at Siakago v Republic

Citation: Faustino Kithumbi Nyaga V Republic [2014] eKLR

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Patrick Kapwete V Republic [2014] eKLR

Case Number: Criminal Appeal 138 of 2012 Date Delivered: 13 Feb 2014

Judge: Martin Muya

Court: High Court at Mombasa

Parties: Patrick Kapwete v Republic

Citation: Patrick Kapwete V Republic [2014] eKLR

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Narc Kenya & Another V Independent Electoral And Boundaries Comission Another [2014] eKLR

Case Number: Election Petition 12 of 2013 Date Delivered: 13 Feb 2014

Judge: C.A Otieno

Court: Election Petition in Magistrate Courts

Parties: Narc Kenya & Muhubo Omar v Independent Electoral And Boundaries Comission & Fatuma Mohammed

Citation: Narc Kenya & Another V Independent Electoral And Boundaries Comission Another [2014] eKLR

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David Mutevu & 103 Others V Africa Nazarene University [2014] eKLR

Case Number: Cause 2286 of 2012 Date Delivered: 13 Feb 2014

Judge: Monica Mbaru

Court: Industrial Court at Nairobi

Parties: David Mutevu, William O Adega, Secilia K Karangi, Michael M Titiai, Florence M Kalayu, Benard N Nduati, Boniface K Mbevo, Christopher Maweu, Henry K Kiongo, Peter N Marete, Ephaphrus N Njue, Simon M Mwema, Charles H Asiebela, Edwin K Rotich, David O Oketch, Moses L Kasarani, Peter K Mwithiga, Richard M Mutinda, Kennedy K Lagat, Kyondo Mbathi, Julius M Mailu, Reuben Kaindi, Forence N Mwololo, David I Manjau, Joshua M Malovya, Augustus K Mutuma, Daniel M Mwanzi, Peter K Mwinzai, Leonard M Boke, Christopher Mbisi, Wyclilffe A Shiombe, Davis W Kanyanya, Peter M Muyai, Wambua Kimuli, Fredrick Alubisia, Kiptarus Kibet, Peter M Wahinya, Habel K Mwangi, Joseph Mwandikwa, Hillary Kombo, Rosemary W Gichuhi, Daniel K Sadera, Simon W Gituku, Agnes W Mbaru, Abel O Oguri, Viorenza Mwitiabi, Loid M Nabea, Zephania Kobaai, Stanley Mwongera, Lucy Karimi John, Benard Wahinya, James M Kimuhu, Malavi Joel, Osborn Beku, Ruth Ntirio, Julius Kinama, Dennis M Kirimi, Douglas K Mugira, Kiselu Mwandikwa, Lucy Ndameri, David G Muguna, Evanson K Komu, Reubenson K Maina, Samuel M Kinoti, Elizabeth M Masika, Alex Jaoko, Emmanuel Mate, Stephen Muthomi, James Mugo, Joel Olango, Stephen Mutuku, Simon Ndiku, Moses Kimathi, Gladys Wambui, Samuel Muiruri, Francis Gathendu, Faith Muthoni, Hellen Wanyonyi, Keneth Akumo, Eric Matai, Abraham Mwenda, Jane Imbaga, Nicholas Kinoti, Nancy Githinji, Stanely Kithinji, Benson Kariuki, Henry Anyuki, Prisca Maina, Fredrick Lukase, Eunice Nkirote, Lilian Ogutu, Cheruiyot Tonui, Henry Amakove, Japhet Kiome, Reuben Migan, Joseph Mia, Francis Wambugu, Wilson Kiambi, Beatrice Njeri, Grace Lumumba, Martin Mutisya, Harriet Nyamu, Andrew Gachagua v Africa Nazarene University

Citation: David Mutevu & 103 Others V Africa Nazarene University [2014] eKLR

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George Karimi Macharia V Republic [2014] eKLR

Case Number: Criminal Appeal 101 of 2010 Date Delivered: 13 Feb 2014

Judge: Hedwig Imbosa Ong'udi

Court: High Court at Embu

Parties: George Karimi Macharia v Republic

Citation: George Karimi Macharia V Republic [2014] eKLR

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Charles Njeru Kimani V Republic [2014] eKLR

Case Number: Criminal Appeal 16 of 2011 Date Delivered: 13 Feb 2014

Judge: Hedwig Imbosa Ong'udi

Court: High Court at Embu

Parties: Charles Njeru Kimani v Republic

Citation: Charles Njeru Kimani V Republic [2014] eKLR

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Republic V Kuria West District (Masaba Division) Land Disputes Tribunal & 3 Others & Another [2014]eKLR

Case Number: E & L Judicial Review Application 49 of 2011 Date Delivered: 13 Feb 2014

Judge: Samson Odhiambo Okong'o

Court: High Court at Kisii

Parties: Republic v Kuria West District (Masaba Division) Land Disputes Tribunal, Senior Resident Magistrate, Kehancha, District Land Registrar, District Land Registrar, Kuria West District, District Surveyor Kuria West District & another Exparte Magebo Sabure

Citation: Republic V Kuria West District (Masaba Division) Land Disputes Tribunal & 3 Others & Another [2014] eKLR

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Boaz Ashiono Shisanya V Andrew Ikhunyalo [2014] eKLR

Case Number: Civil Appeal 43 of 2010 Date Delivered: 13 Feb 2014

Judge: George Matatia Abaleka Dulu

Court: High Court at Kakamega

Parties: Boaz Ashiono Shisanya v Andrew Ikhunyalo

Citation: Boaz Ashiono Shisanya V Andrew Ikhunyalo [2014] eKLR

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Vincent Odhiambo Owino & Another V Republic [2014] eKLR

Case Number: Criminal Appeal 95 of 2012 Date Delivered: 13 Feb 2014

Judge: Lydia Awino Achode

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Vincent Odhiambo Owino & Concepta Achitsa Mwanje v Republic

Citation: Vincent Odhiambo Owino & Another V Republic [2014] eKLR

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Mwarua Mfaume V Republic [2014] eKLR

Case Number: Criminal Appeal 142 of 2009 Date Delivered: 13 Feb 2014

Judge: Maureen Akinyi Odero, Martin Muya

Court: High Court at Mombasa

Parties: Mwarua Mfaume v Republic

Citation: Mwarua Mfaume V Republic [2014] eKLR

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Athuman Shushe Bahola V Republic [2014] eKLR

Case Number: Criminal Appeal 17 of 2013 Date Delivered: 13 Feb 2014

Judge: Hannah Magondi Okwengu, Milton Stephen Asike Makhandia, Fatuma sichale

Court: Court of Appeal at Malindi

Parties: Athuman Shushe Bahola v Republic

Citation: Athuman Shushe Bahola V Republic [2014] eKLR

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Dishon Osoro Ombayi V Republic [2014] eKLR

Case Number: Criminal Appeal 46 of 2012 Date Delivered: 13 Feb 2014

Judge: Esther Nyambura Maina, Samson Odhiambo Okong'o

Court: High Court at Kisii

Parties: Dishon Osoro Ombayi v Republic

Citation: Dishon Osoro Ombayi V Republic [2014] eKLR

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Laban Odhiambo Peter V Republic [2014] eKLR

Case Number: Criminal Appeal 256 of 2011 Date Delivered: 13 Feb 2014

Judge: Ruth Nekoye Sitati

Court: High Court at Kisii

Parties: Laban Odhiambo Peter v Republic

Citation: Laban Odhiambo Peter V Republic [2014] eKLR

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Peter Gichuki King’ara V Independent Electoral And Boundaries Commission & 2 Others [2014] eKLR

Case Number: Civil Appeal 31 of 2013 Date Delivered: 13 Feb 2014

Judge: Alnashir Ramazanali Magan Visram, Martha Karambu Koome, James Otieno Odek

Court: Court of Appeal at Nyeri

Parties: Peter Gichuki King’ara v Independent Electoral And Boundaries Commission, James Mbai & Mary Wambui Munene

Citation: Peter Gichuki King’ara V Independent Electoral And Boundaries Commission & 2 Others [2014] eKLR

Court of Appeal nullifies the election of Othaya Member of the National Assembly

Peter Gichuki King’ara v Independent Electoral and Boundaries Commission & 2 others [2014] eKLR

Civil Appeal 31 of 2013

Court of Appeal at Nyeri

A Visram, M K Koome & J Otieno-Odek, JJA

February 13, 2014

Reported by Nelson K. Tunoi

 

Issues:

i.            Whether Mary Wambui Munene (3rd respondent) was eligible to vie for the post of Member for National Assembly for Othaya Constituency during the 4th March, 2013, elections.

ii.            Whether the evidence on record supported Peter Gichuki King’ara’s (the appellant) prayer for a recount and scrutiny.

iii.            Whether Peter Gichuki King’ara (the appellant) proved his case to the required standard that the elections for Member of the National Assembly for Othaya was not conducted in accordance with the principles laid down in the Constitution and the law and whether the irregularities did affect the result of the election.

 

Electoral law-election petition-parliamentary election-appeal against decision of the election court upholding the election of the 3rd respondent as the Member of National Assembly for Othaya Constituency held on 4th March 2013-grounds of appeal, inter alia, the election court erred in law by upholding results espoused by the respondents despite glaring anomalies, irregularities born out of the evidence and that the election failed to order a scrutiny and recount of the votes despite overwhelming evidence of admitted irregularities-whether the evidence on record supported the appellant’s prayer for a recount-whether the appeal had merit-Civil Procedure Act (cap 21) section 72;

Electoral law-electoral qualifications-academic qualifications-claims that the 3rd respondent was inadequately educated to be a parliamentary representative at a constituency level-whether the 3rd respondent was eligible to vie for the post of Member for National Assembly for Othaya Constituency during the 4th March, 2013, elections-Election Act, 2012, section 22(1)(b);

Electoral law-election petition-standard and burden of proof in election petition-whether the burden of proof lay on the appellant to prove his case to the required standard that the elections for Member of the National Assembly for Othaya were not conducted in accordance with the law-whether the irregularities affected the result of the election-Elections (General) Regulations, 2012, Regulations 83(1)(a)

Practice and procedure-appeal-jurisdiction of the Court of Appeal to hear appeals from election courts-whether the grounds of appeal raised by the appellant constituted issues of law or facts-validity of the appeal-Constitution of Kenya, 2010, article 159, 165(3)(a); Elections Act, 2012, sections 82(1),  85; Civil Procedure Act (cap 21) section 72

Held:

1.      Although section 22(1)(b) of the Elections Act which made provisions for academic threshold for the candidates vying for Member of the National Assembly to hold a Post-Secondary School qualification recognized in Kenya, the Election (Amendment) (No.3), Act, suspended the operation and applicability of that section in respect to the first general elections after the new Constitution, and thus in effect, there was no requirement for a person seeking for the position of Member of National Assembly to possess the qualification stated therein.

2.      The Constitution of Kenya, 2010 set out values for persons seeking for leadership; and integrity was one such value that was emphasized. A person(s) presenting themselves for a leadership position were expected to abide by the law.  Even if the election court made an adverse finding against the 3rd Respondent for refusing to avail her educational certificates, nothing much would have turned on it, as the certificates were not a mandatory requirement for that particular election.

3.      On the constitutionality of the amendment suspending the applicability of section 22(1)(b) of the Elections Act, the election court could not be faulted for holding that the decision* by a coordinate court, declaring section 22(1)(b) of the Elections Act unconstitutional because it was discriminatory on the basis of educational qualifications, had the same effect allowing candidates to vie for Parliamentary seats without proof of academic qualifications. There was nothing a court of coordinate jurisdiction could have done in respect to abiding by the principle of stare decisis. [See: *Johnstone Muthama v Minister for Justice & Constitutional Affairs & another, Petition 198 of 2012 - Mumbi Ngugi, J.].

4.      The election court in denying the prayer for scrutiny was exercising judicial discretion. Judicial discretion was always exercised judiciously and for reasons which were stated. The aims that should be encapsulated in the reasons given for the refusal to exercise discretion were meant to further the cause of justice, and to prevent the abuse of the court process. Judicial discretion was never to be exercised capriciously or whimsically. [See: Mbogo & another v Shah 1968 EA 93 at page 95, Sir Charles Newbold P.]

5.      Given that there was no test that was applied by the election court to justify the conclusion that the totality of the errors was negligible, if any attempt was made to examine the evidence critically, it would have been evident to the election court that there was no factual basis for the conclusion that the errors committed during the counting and tallying did not affect the outcome of the results. The only way a correct conclusion could be arrived at, was through a recount and scrutiny of the ballots. However, it was not feasible to order for a recount and scrutiny because that would involve matters of fact that were within the jurisdiction of the election court, but which court failed to consider the matter and hence arrived at an erroneous conclusion. With all the mistakes by the election officers, it was necessary to order the recount and scrutiny of the ballots so as to establish whether the election was substantially conducted according to the law.

6.      A recount or scrutiny of ballots was not rocket science, the terms were synonymous and there could not be one without the other. There was sufficient evidence to show that it was not an exercise meant to abuse the court process or take the court on a ‘wild goose chase’, there were sufficient grounds in the matter to justify the request. 

7.      The aim of a recount was to assist the Court to establish the correctness or otherwise of the allegations by a petitioner. Also a recount is meant to assist the Court in its duty to investigate the validity of alleged breaches of the law and the irregularities. Therefore, there was justification to order a recount and scrutiny in that election so as to ascertain the materiality of the errors alleged by the appellant and those which were admitted by the respondents. [See: Said v Hemed (2008) eKLR (EP) 323].

8.      In civil matters the burden of proof was upon the appellant to provide proof of all the allegations. However, since election petitions touched on the determination of the collective democratic will of the people, and some allegations were quasi criminal, the test to be applied was higher than a balance of probabilities but not ’beyond reasonable doubt’ as in criminal matters. [See: Raila Odinga Vs IEBC & others [2013] eKLR]. Further, Regulation 83(1)(a) of the Election Act was clear and unambiguous, it was not necessary to invite the 2nd Respondent to give reasons why there was over voting which was tantamount to changing goal posts. The election court erred by placing a further burden upon the appellant to prove a matter beyond what was provided for in the law.

9.      Following the admission by the 2nd respondent on cross-examination that the seals the appellant and his agents had collected at two polling stations belonged to the 1st respondent, it was the duty of the 1st and 2nd respondents to secure them, and demonstrate how some accountable election materials left the custody of those who were entrusted with them. To expect the appellant to prove that the seals were not removed in a bid to tamper with the ballot boxes, when the election court declined to allow recount and scrutiny and the production of the polling day diaries was a clear misdirection on the part of the election court.

10. Due to the many breaches of the law and regulations during the 4th March, 2013 elections for Member of the National Assembly for Othaya Constituency, the process was not administered in an efficient, accurate and accountable manner.

Appeal allowed; declaration that the 3rd respondent not validly elected; IEBC directed to issue a certificate to that effect, to be served upon the Speaker of the National Assembly pursuant to section 80 of the Elections Act; costs of the appeal borne by the 1st respondent. 

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In The Matter Of Baby C [2014] eKLR

Case Number: Adoption Cause 23 of 2012 Date Delivered: 13 Feb 2014

Judge: Luka Kiprotich Kimaru

Court: High Court at Nairobi (Milimani Law Courts)

Parties: In the Matter of Baby C

Citation: In The Matter Of Baby C [2014] eKLR

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Republic V Commissioner Of Police & Another Ex- Parte Eerick Mwirigi Mbabu [2014] eKLR

Case Number: Miscellaneous Application 204 of 2012 Date Delivered: 13 Feb 2014

Judge: George Vincent Odunga

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Republic v Commissioner of Police & Director of Public Prosecutions Ex- Parte Eerick Mwirigi Mbabu

Citation: Republic V Commissioner Of Police & Another Ex- Parte Eerick Mwirigi Mbabu [2014] eKLR

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Cherono Komen V Esther Osama Macharia [2014] eKLR

Case Number: E&L 157of 2013 Date Delivered: 13 Feb 2014

Judge: Munyao Sila

Court: High Court at Eldoret

Parties: Cherono Komen v Esther Osama Macharia

Citation: Cherono Komen V Esther Osama Macharia [2014] eKLR

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Muchiri Gachara V John Newton Wachira [2014] eKLR

Case Number: Succession Case 245 of 2009 Date Delivered: 13 Feb 2014

Judge: James wakiaga

Court: High Court at Nyeri

Parties: Muchiri Gachara v John Newton Wachira

Citation: Muchiri Gachara V John Newton Wachira [2014] eKLR

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Dominic Kimaru Tanui V Republic [2014] eKLR

Case Number: HCCRA 12 of 2012 Date Delivered: 13 Feb 2014

Judge: Munyao Sila

Court: High Court at Eldoret

Parties: Dominic Kimaru Tanui v Republic

Citation: Dominic Kimaru Tanui V Republic [2014] eKLR

Scope of the right of an accused person to legal regal representation

Dominic Kimaru Tanui V Republic

HCCRA 12 Of 2012

High Court of Kenya at Eldoret

Munyao Sila J.

February 13, 2014

Reported by Njeri Githang’a

 

Case History

(Being an appeal against the decision of Hon. G. Mutiso, Resident Magistrate, Kapsabet delivered on 26 September 2011 in Kapsabet Criminal Case No.90 of 2008)

 

 

The appellant was charged and convicted of the offence of defilement contrary to Section 8(1) as read with Section 8(2) of the Sexual Offences Act, Act No. 3 of 2006.  Among his grounds for appeal was that the appellant needed to be provided with counsel because the offence was serious. It was also argued that the trial magistrate erred in not recalling witnesses despite there being an application for recall.

 

Issue

  1. Whether a case in which one faces a life sentence is such a serious case that legal representation ought to be provided at State expense if the accused cannot afford counsel.
  2. Whether the failure by the state to provide the appellant with legal representation denied him a fair trial
  3. What was the time frame accorded by the Constitution of Kenya, 2010 to the state to enforce the right to be provided with legal representation at State expense?

 

 

Constitutional Law - fundamental rights and freedoms-right to legal representation-scope of the right- Whether a case in which one faces a life sentence is such a serious case that legal representation ought to be provided at State expense if the accused cannot afford counsel- whether the right to legal representation was to be accorded immediately after the promulgation of the Constitution-whether the petition had merit-Constitution of Kenya, 2010, Article, 50 (2) (h)

 

Constitution of Kenya, 2010 Article 50 (2) (h)

50 (2) Every accused person has the right to a fair trial, which includes the right—

 (h) to have an advocate assigned to the accused person by the State and at State expense, if substantial injustice would otherwise result, and to be informed of this right promptly.

 

Criminal Procedure Code -Section 150

 S.150 A court may, at any stage of a trial or other proceeding under this Code, summon or call any person as a witness, or examine any person in attendance though not summoned as a witness, or recall and re-examine a person already examined, and the court shall summon and examine or recall and re-examine any such person if his evidence appears to it essential to the just decision of the case:

 Provided that the prosecutor or the advocate for the prosecution or the defendant or his advocate shall have the right to cross-examine any such person, and the court shall adjourn the case for such time (if any) as it thinks necessary to enable the cross-examination to be adequately prepared if, in its opinion, either party may be prejudiced by the calling of that person as a witness.

 

Held;

  1. Where the accused faced a capital offence, the State ought to consider providing legal representation. In other instances, it would have to be through a case by case examination, such as where there are complex issues of law or fact, where the accused is unable to conduct his own defence, or where public interest requires that representation be provided.
  2. A case in which one faces a life sentence is a serious case, and would be at the same level as a case in which the penalty is loss of life, so that ideally, legal representation ought to be provided at State expense if the accused cannot afford counsel.
  3. The Constitution of Kenya, 2010 under Article 261 and Schedule 5, provides for a time frame of 4 years, to implement the provisions of Article 50 of the Constitution. The Constitution was promulgated on August 27, 2010, and four years would lapse on August 27, 2014. Thus it was arguable that Article 50, part of which relate to the right to be provided with legal representation at State expense, were yet to be fully enforceable as the State had been accorded time to put the mechanism in place.
  4. Although, as worded, Section 150 seemed to suggest that only the court had the right to recall, a court had inherent power to do justice to all, and if justice was going to be done by recalling a witness, the court would be within the law, if it allowed the application for recall even if made by a party. However, good reason had to be provided, and in the absence of compelling material, the sole ground, that an accused was hitherto unrepresented, was not good enough to allow a recall of a witness. The appellant was hence accorded a fair hearing.

 

Appeal dismissed

 

 
Cases:
East Africa;
1. Macharia v Republic [2009] KLR 214: [2003] 2 EA 559 – (Explained)
2. Owino, Elijah Omondi v Republic Criminal Appeal No 464 of 2009 – (Followed)
3. Swaka, John v Director of Public Procecution & 2 others Constitutional Petition No 318 of 2011 – (Mentioned)
Statutes:
East Africa;
1. Constitution of Kenya, 1969 (Repealed) section 72 – (Interpreted)
2. Constitution of Kenya, 2010 articles 28, 50,50(2)(h); 261 – (Interpreted)
3. Criminal Procedure Code (cap 63) section 150 – (Interpreted)
4. Sexual Offences Act, 2006 (Act No 3 of 2006) section 8(1); 8(2) – (Interpreted)

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Maxwell Muchiri Gatimu V Republic [2014] eKLR

Case Number: Criminal Appeal 26 of 2009 Date Delivered: 13 Feb 2014

Judge: James wakiaga, Anthony Ombwayo

Court: High Court at Nyeri

Parties: Maxwell Muchiri Gatimu v Republic

Citation: Maxwell Muchiri Gatimu V Republic [2014] eKLR

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Patrick Ngunjiri Kariuki & 2 Others V Republic [2009] eKLR

Case Number: Criminal Appeal Nos 233, 231 & 232 of 2009 (Conslidated) Date Delivered: 13 Feb 2014

Judge: James wakiaga, Anthony Ombwayo

Court: High Court at Nyeri

Parties: Patrick Ngunjiri Kariuki, David Kangaita Wanjohi & Stephen Kagongo Kahure v Republic

Citation: Patrick Ngunjiri Kariuki & 2 Others V Republic [2009] eKLR

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Peter Muriithi Warui & 2 Others V Republic [2014] eKLR

Case Number: Criminal Appeal 372, 373 & 376 of 2007 Date Delivered: 13 Feb 2014

Judge: James wakiaga, Anthony Ombwayo

Court: High Court at Nyeri

Parties: Peter Muriithi Warui, Duncan Mwangi Ngatia & Elija Gichina Githinji v Republic

Citation: Peter Muriithi Warui & 2 Others V Republic [2014] eKLR

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Dickson Ngui V Republic [2014] eKLR

Case Number: Criminal Appeal 93 of 2012 Date Delivered: 13 Feb 2014

Judge: Stella Ngali Mutuku

Court: High Court at Garissa

Parties: Dickson Ngui v Republic

Citation: Dickson Ngui V Republic [2014] eKLR

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Simon Rokoo V Republic [2014] eKLR

Case Number: Criminal Appeal 55 of 2012 Date Delivered: 13 Feb 2014

Judge: Munyao Sila

Court: High Court at Eldoret

Parties: Simon Rokoo v Republic

Citation: Simon Rokoo V Republic [2014] eKLR

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Julius Mutheee M’Murithi V Peter Muthaura M’Murithi [2014] eKLR

Case Number: Succession Cause 159 of 2006 Date Delivered: 13 Feb 2014

Judge: James Aaron Makau

Court: High Court at Meru

Parties: Julius Mutheee M’Murithi v Peter Muthaura M’Murithi

Citation: Julius Mutheee M’Murithi V Peter Muthaura M’Murithi [2014] eKLR

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Isaac Njuguna Alias Manga V Republic [2014] eKLR

Case Number: Criminal Appeal 110 of 2012 Date Delivered: 12 Feb 2014

Judge: Lilian Nabwire Mutende

Court: High Court at Machakos

Parties: Isaac Njuguna Alias Manga v Republic

Citation: Isaac Njuguna Alias Manga V Republic [2014] eKLR

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John Gitonga Miatu V Republic [2014] eKLR

Case Number: Criminal Appeal 94 of 2010 Date Delivered: 12 Feb 2014

Judge: James wakiaga, Anthony Ombwayo

Court: High Court at Nyeri

Parties: John Gitonga Miatu v Republic

Citation: John Gitonga Miatu V Republic [2014] eKLR

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Issa Fauz Idhi V Hamisi Hassan Siwa Alias Hamisi Hassani [2014] eKLR

Case Number: Civil Appeal 156 of 2009 Date Delivered: 12 Feb 2014

Judge: Martin Muya

Court: High Court at Mombasa

Parties: Issa Fauz Idhi v Hamisi Hassan Siwa Alias Hamisi Hassani

Citation: Issa Fauz Idhi V Hamisi Hassan Siwa Alias Hamisi Hassani [2014] eKLR

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W I V P G H & Another [2014] eKLR

Case Number: Divorce Cause 23 of 2013 Date Delivered: 12 Feb 2014

Judge: Maureen Akinyi Odero

Court: High Court at Mombasa

Parties: W I v P G H & K

Citation: W I V P G H & Another [2014] eKLR

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Elijah Njeru Mugo & Another V Njiru Samwel M’rwingo [2014] eKLR

Case Number: E.L.C Case 620 of 2013 Date Delivered: 12 Feb 2014

Judge: Boaz Nathan Olao

Court: High Court at Kerugoya

Parties: Elijah Njeru Mugo & Patrick Kinyua Samuel v Njiru Samwel M’rwingo

Citation: Elijah Njeru Mugo & Another V Njiru Samwel M’rwingo [2014] eKLR

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Amos Wafula V Humphrey Wachira & Another [2014] eKLR

Case Number: Civil Appeal 28 of 2010 Date Delivered: 12 Feb 2014

Judge: Joseph Raphael Karanja

Court: High Court at Kitale

Parties: Amos Wafula v Humphrey Wachira & Abraham Kipketer Seurey

Citation: Amos Wafula V Humphrey Wachira & Another [2014] eKLR

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U M M V I M M [2014] eKLR

Case Number: Civil Suit 39 of 2012 Date Delivered: 12 Feb 2014

Judge: Francis Tuiyott

Court: High Court at Busia

Parties: U M M v I M M

Citation: U M M V I M M [2014] eKLR

Division of Matrimonial Property as provided for under the Matrimonial Property Act Vis-à-vis Article 45(3) of the Constitution of Kenya, 2010

 

U M M V I M M

Civil Suit No.39 Of 2012

High Court of Kenya at Busia

F. Tuiyott J.

February 2, 2014

Reported by Njeri Githang’a Kamau

 

The Plaintiff (U) sought for the sharing and division of some property held in the names of her former husband the defendant (I). U got married to I when she was 18 years old and did not bring any money into the marriage.  She joined her husband in an Auto spares business and she helped with the management of the shops. I stated that before having difficulties in their marriage U was a good and hardworking wife.  It was his testimony that some properties were acquired in the course of his marriage to the U.  While one was acquired prior to the marriage but was subdivided in the course of the union.

 

Issues

1.      Whether the equality contemplated by Article 45(3) of the Constitution of Kenya 2010 was an automatic 50:50 sharing of matrimonial property upon dissolution of the marriage.

2.      Whether the Court could apply Article 45(3) in resolving the dispute where the disputed properties were all acquired before the promulgation of the Constitution of Kenya, 2010. 

 

Constitutional law –  fundamental rights and freedoms – right to equality – equality in marriage-equality in distribution of matrimonial property-whether the equality contemplated by Article 45(3) of the Constitution of Kenya 2010 was an automatic 50:50 sharing of matrimonial property upon dissolution of the marriage-whether the Court could apply Article 45(3) in resolving a dispute where the disputed properties were all acquired before the promulgation of the Constitution of Kenya, 2010-Constitution of Kenya, 2010, 45(3)- Matrimonial property Act, 2013, Sections 2,6 and 7

 

Constitution of Kenya, 2010 Article 45(3) provides as follows:-

“45.(3) Parties to a marriage are entitled to equal rights at the time of the marriage, during the marriage and at the dissolution of the marriage.”

The Matrimonial Property Act, 2013 which received assent on 24th December 2013 and commenced on 16th January 2014.

 “7. Subject to section 6(3), ownership of matrimonial property vests in the spouses according to the contribution of either spouse towards its acquisition, and shall be divided between the spouses if they divorce or their marriage is otherwise dissolved.”

Contribution is defined by Section 2 to mean monetary and non-monetary contribution.  And non-monetary contribution includes:-

 a. Domestic work and management of the matrimonial home;

b. Child care;

 c. Companionship;

 d. Management of family business or property; and

e. Farm work;

“Family business” means any business which-

 a)  is run for the benefit of the family by both spouses  or either spouse; and

 b)  generates income or other resources wholly or part  of  which are for the benefit of the family;”

Held;

1.      The provisions of the Matrimonial Property Act, 2013 ameliorate the harshness that was associated with the decision in Echaria v Echaria. The Statute recognized the non-monetary contribution of a spouse. It however did not go as far as what the Court of Appeal had suggested in Agnes Nanjala William –vs- Jacob Petrus Nicolas Vander Goes,Civil Appeal No.127 of 2011where it argued that article 45(3) was perhaps “a Constitutional Statement of the principle that marital property is shared 50-50 in the event that a marriage ends.”

2.      Sections 2, 6 and 7 of the Matrimonial property Act, 2013 fleshed out the right provided by article 45(3) of the Constitution of Kenya, 2010. By    recognizing that both monetary and non-monetary contribution must be taken into account,   it was congruent with the Constitutional   provisions of article 45 (3) of the Constitution that parties to a marriage are entitled to equal rights at the time of the marriage,   during the marriage and at the dissolution of the marriage.

3.      At the dissolution of a marriage each partner should walk away with what he/she deserves.  What one deserves must be arrived at by considering her/his respective contribution whether it be monetary or non-monetary.  The bigger the contribution, the bigger the entitlement.  Where there is evidence that a non-monetary contribution entitles a spouse to half of the marital property then, the Courts   should give it effect. To hold that article 45(3) decrees an automatic 50:50 sharing could imperil the marriage institution.  It would give opportunity to a fortune seeker to contract a marriage, sit back without making any monetary or non-monetary contribution, distress the union and wait to reap half the marital property.  That would be oppressive to the spouse who makes the bigger contribution and that cannot be the sense of equality contemplated by Article 45(3).

4.      Although the suit was filed post the Constitution of Kenya 2010, it related to a dispute over property acquired before the coming into force of the new Constitution.  If the Court were to apply the provisions Constitution 2010 then it would be doing so retroactively. However, since the right to equality is as inherent and indefeasible to all human beings, it mattered not that the cause of action accrued before the current constitutional dispensation. Agnes Nanjala William –vs- Jacob Petrus Nicolas Vander Goes,Civil Appeal No.127 of 2011

5.      Article 45(3) requires that parties to a marriage are entitled to equal rights at the time of the marriage, during the marriage and at the dissolution of the marriage. In division of matrimonial property that right was safeguarded by vesting in each spouse ownership according to their respective contributions be it monetary or non-monetary. For that reason the court would strive to give effect to any monetary or non-monetary contribution that U proved in the acquisition or improvement of the properties in dispute.

6.      The statements by I was that U made some non-monetary contribution towards the developments on the subdivided plots. The contribution made towards the improvement of the property would entitle her to a beneficial interest therein equal to the contribution she made.

7.      The Plaintiff did not give evidence of any financial contribution towards purchase of property bought about 14 days into the marriage.  Although acquired during the coverture, it was acquired in the very nascent days of the union and in the absence of proof of monetary contribution by U, it would be inequitable to hold otherwise than that the property was acquired wholly by I. 

8.      There was evidence that Dr. W who was an uncle to I gave him one of the plots as a gift.  U was unable to prove an allegation that she contributed the whole of the purchase price of ksh.350,000/=.  There was no evidence as to whether there had been any improvements made to the plot.  The property being a gift solely to I did not form part of matrimonial property.

9.      After weighing all evidence, U made a non-monetary contribution to the development of some of the suit plots.   Of significance was that one of them housed the matrimonial home in which she resided. U’s contribution towards the improvement of some of the plots deserved acknowledgement. 

To enable the Court make an informed decision, separate valuations be conducted of each of the plots.  The costs of valuation to be shared equally by the parties.  The Court, after receiving the valuation Reports to give its final orders.

 

Cases

East Africa

1.Echaria v Echaria [2007] 1 KLR  –(Applied)

2.MCN v AWM Environment & Land Case No 208 of 2012 –(Followed)

3.William, Agnes Nanjala v Jacob Petrus Nicolas Vander Goes Civil Appeal No 127 of 2011 (Explained)

 Statutes

East Africa

1.Married Women’s Property Act, 1882 [INDIA] section 7 –(Interpreted)

Advocates

None mentioned

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Peter Karanja Kimani V Republic [2014] eKLR

Case Number: Criminal Appeal 571 of 2009 Date Delivered: 12 Feb 2014

Judge: Lydia Awino Achode

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Peter Karanja Kimani v Republic

Citation: Peter Karanja Kimani V Republic [2014] eKLR

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Republic V Kenya National Examination Council & Another Ex-Parte Martin Phiri And Nancy Phiri Trading As Harvest View Academy [2014] eKLR

Case Number: JR. Civil Application 6 of 2014 Date Delivered: 12 Feb 2014

Judge: George Vincent Odunga

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Republic v Kenya National Examination Council & Principal Secretary, Ministry Of Education Ex-Parte Martin Phiri And Nancy Phiri Trading As Harvest View Academy

Citation: Republic V Kenya National Examination Council & Another Ex-Parte Martin Phiri And Nancy Phiri Trading As Harvest View Academy [2014] eKLR

The National Examinations Council is not bound to hear a candidate before it cancels examination result

 

Republic v Kenya National Examination Council & another Ex-parte Martin Phiri & another Trading as Harvest View Academy

 High Court at Nairobi

JR Civil Application No 6 of 2014

GV Odunga

February 12, 2014

Report by Andrew Halonyere

Issues

  1. Whether Judicial Review orders can be granted in the interim.
  2. Whether the Court could compel the Kenya National Examination Council to release results which had been cancelled.
  3. Whether collusion amounts to examination irregularity as contemplated under the examination regulations.
  4. Whether the National Examinations Council was bound by law to hear the candidates before cancelling examination result.
  5. Whether the KCPE result 2013 without the English marks had contravened the legitimate expectation of the candidates who expected to graduate to O levels with their results intact.

 

Judicial review – certiorari & prohibition - application for orders of certiorari and prohibition to quash the 1st respondents’ decision of cancellation of English subject results pending hearing and determination of the application and to prohibit the 2nd respondent from commencing or continuing with the selection process of candidates joining secondary schools respectively were incompetent – whether judicial review orders can be granted in the interim – whether the respondents could be compelled to release the examination results

Constitutional law – fundamental rights and freedoms – right to fair hearing - where an allegation of examination irregularity is made against a candidate – whether a candidate has a right to be furnished with reasons for cancellation and afforded an opportunity of being heard on that cancellation –Constitution of Kenya 2010 article 43 .

 

Constitution of Kenya, 2010

Article 47 of the Constitution provides:

(1) Every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair.

(2) If a right or fundamental freedom of a person has been or is likely to be adversely affected by administrative action, the person has the right to be given written reasons for the action.

 

Held

  1. Judicial review orders could not be granted in the interim and therefore the orders sought of certiorari and prohibition to quash the 1st respondents’ decision of cancellation of English subject results of sixteen candidates, pending the hearing and determination of the application and to prohibit the 2nd respondent from commencing or continuing with the selection process of candidates joining secondary schools respectively were incompetent.
  2. Rules of procedure were the handmaids and not the mistresses of justice and could not be elevated to a fetish since theirs was to facilitate the administration of justice in a fair, orderly and predictable manner not to fetter or choke it. Deviations from or lapses in form and procedure, which do not go to the jurisdiction of the court or prejudice the adverse party in any fundamental respect ought not to be treated as nullifying the legal instruments affected. In those instances the court should rise to its calling to do justice by saving the proceedings in issue.
  3. The cancelation of the candidates’ results was obviously an administrative action which was required to be expeditious, efficient, lawful, reasonable and procedurally fair. The 1st respondent was or ought to have been aware that the cancellation of the candidates’ results was likely to adversely affect the candidates’ rights under article 43(1(f) of the Constitution hence the candidates were entitled to the reasons for the action. However, the application had not been filed by the candidates whose rights under the said article were affected or likely to be adversely affected.
  4. Although the applicant contends that collusion was not an irregularity as contemplated under the regulations, collusion could well amount to an irregularity since it was capable of bringing the results of the examination in disrepute as the results would then not be said to have reflected the industry of the individual candidates.
  5. Cancellation of results obviously had nothing to do with the merits of the results. Therefore whereas the decision whether or not a candidate had failed may not call for reasons for the failure, where an allegation of impropriety or irregularity is made against a candidate that candidate ought to be furnished with the reasons why such a decision was made and be afforded an opportunity of being heard on that cancellation. Where the Council does not furnish the applicant with the reasons for the decision, the Court could well be entitled to quash the decision.
  6. Where the Court has quashed a decision, it was not for the Court to direct the respondent on how to proceed where the respondent had a discretion to decide on the manner of proceeding. Therefore if the Court finds that the respondents failed in their duty to furnish the reasons or that the reasons given were unreasonable or irrational, the Court would only be entitled to quash the decision and leave it for the respondents to take the next legal course available. Where the respondent fails to release the results without any lawful or justifiable cause the Court would be perfectly entitled to compel them to do so after a demand is made by the applicant.
  7. In the case reasons were given for the cancellation of results. The respondent had explained though not in details the method which was applied across board. Whether or not that method was efficient was a matter which would call for a hearing where evidence would be adduced, witnesses would be examined and be cross-examined. The procedure of judicial review was not appropriate for that purpose.
  8. The question of whether the Council was in law bound to hear a candidate before it cancelled the result had to be remain for consideration on another occasion, though if the court were forced to decide on it, it would be inclined to take the view that it might place an unnecessarily heavy burden on the shoulders of the Council to insist on a hearing before cancellation. That mode of procedure could destroy the confidentiality necessary to the marking of examinations.
  9. It is for public interest to ensure that national examinations results enjoy public confidence and integrity by letting the experts handle them as they deem best provided what they do is applied equally to all candidates with similar complaints against them.
  10. The candidates herein were not subjected to a different method of detecting collusion from the other candidates who took part in the said examination. To compel the Respondents to subject the candidates to a different mode of examination of the papers would not only be discriminatory but would open room for challenge of the decisions made by the respondents in respect of other candidates a process which would bring the whole process of conduct of examinations into disrepute.
  11. The candidates legitimate expectation was that they would be treated fairly. There could not be a legitimate expectation that a candidate would pass examination and move to the next stage. legitimate expectation arises for example where a member of the public as a result of a promise or other conduct expects that he will be treated in one way and the public body wishes to treat him or her in a different way. From the record the respondent had not promised the Candidates that they would pass the examination in question.

 

Application dismissed, no order as to costs.

 

Cases

East Africa

1.Abbas G Essaji v Gordhan Dewji Solanki [1968] EA 218 –(Mentioned)

2.Kenya National Examinations Council v Republic ex parte Geoffery Gathenji Njoroge and 9 others Civil Appeal No 266 of 19976 –(Applied)

3.Kenya National Examinations Council v Republic ex parte Kemunto Regina Ouru Civil Appeal No 127 of 2009 –(Explained)

4.Keroche Industries Limited v Kenya Revenue Authority & 5 others [2007] KLR 240 –(Applied)

5.Matiba v Moi & 2 others (No 2) [2008] 1 KLR (EP) 670 –(Explained)

6.Microsoft Corporation v Mitsumi Garage Ltd & another [2001] 2 EA 460 –(Followed)

7.Pastoli v Kabale District Local Government Council and Others [2008] 2 EA 300 –(Followed)

8.Republic v Attorney General & another ex parte Waswa & 2 others [2005] 1 KLR 280 –(Applied)

9.Re Hardial Singh and Others [1979] KLR 18; [1976-80] 1 KLR 1090 –(Explained)

10.Republic v University of Nairobi [2002] 2 EA 572 –(Explained)

India

1.JP Bansal v State of Rajastan & another Appeal (Civil) 5952 of 2001

United Kingdom

1.Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223; [1947] 2 All ER 680 –(Followed)

Texts & Journals

1.Fowler, HW., Fowler, FG., (Eds) (1982) Concise Oxford Dictionary of Current English Oxford: Oxford University Press 7th Edn

2.Wade, HWR., Forsyth, CF., (Eds) (2009) Administrative Law Oxford: Oxford University Press 10th Edn p 449

Statutes

East Africa

1.Constitution of Kenya, 2010 articles 43(1)(f); 47 –(interpreted)

2.Education Act (cap 211) –(interpreted)

3.Kenya National Examinations Council Act, 2012 (Act No 29 of 2012) section 10–(interpreted)

Advocates

1.Mr Lagat for the Applicant

2.Miss Njenga for the Respondent

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