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Case Action: Judgment


In The Matter Of Baby B [2014] eKLR

Case Number: Adoption Cause 180 of 2012 (Os) Date Delivered: 14 Mar 2014

Judge: William Musya Musyoka

Court: High Court at Nairobi (Milimani Law Courts)

Parties: In the Matter of Baby B

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

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Transport Workers Union V Rift Petroleum Limited [2014] eKLR

Case Number: Cause No. 415 of 2013 Date Delivered: 14 Mar 2014

Judge: Byram Ongaya

Court: Industrial Court at Nakuru

Parties: Transport Workers Union v Rift Petroleum Limited

Citation: Transport Workers Union V Rift Petroleum Limited [2014] eKLR

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Andrew Keter Kirui V Ali Hassan Keter [2014] eKLR

Case Number: Civil Case 91 of 2005 Date Delivered: 14 Mar 2014

Judge: Joseph Kiplagat Sergon

Court: High Court at Kericho

Parties: Andrew Keter Kirui v Ali Hassan Keter

Citation: Andrew Keter Kirui V Ali Hassan Keter [2014] eKLR

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Eric Mungatana V Rinse Fennema & Another [2014] eKLR

Case Number: Cause No. 295 of 2013 Date Delivered: 14 Mar 2014

Judge: Stephen Radido Okiyo

Court: Industrial Court at Mombasa

Parties: Eric Mungatana v Rinse Fennema & Blessed Generation Children Centre

Citation: Eric Mungatana V Rinse Fennema & Another [2014] eKLR

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H.T.S V T.K.W [2014] eKLR

Case Number: Divorce Cause 244 of 2013 Date Delivered: 14 Mar 2014

Judge: William Musya Musyoka

Court: High Court at Nairobi (Milimani Law Courts)

Parties: H.T.S v T.K.W

Citation: H.T.S V T.K.W [2014] eKLR

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Solomon Ngari Gatoto & Another V Daniel Ndiritu Wachira [2014] eKLR

Case Number: Civil Case 80 of 2012 Date Delivered: 14 Mar 2014

Judge: Anthony Ombwayo

Court: High Court at Nyeri

Parties: Solomon Ngari Gatoto & John Peter Ndungu v Daniel Ndiritu Wachira

Citation: Solomon Ngari Gatoto & Another V Daniel Ndiritu Wachira [2014] eKLR

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Abdinasir Ahmed Muse V Geofrey Mwairangu Mwanvongo [2014] eKLR

Case Number: Environment and Land Case 47 of 2012 Date Delivered: 14 Mar 2014

Judge: Samwel Ndungu Mukunya

Court: High Court at Mombasa

Parties: Abdinasir Ahmed Muse v Geofrey Mwairangu Mwanvongo

Citation: Abdinasir Ahmed Muse V Geofrey Mwairangu Mwanvongo [2014] eKLR

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P S V R S [2014] eKLR

Case Number: Divorce Cause189 of 2012 Date Delivered: 14 Mar 2014

Judge: William Musya Musyoka

Court: High Court at Nairobi (Milimani Law Courts)

Parties: P S v R S

Citation: P S V R S [2014] eKLR

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Franci Limited V Defuct Municipal Council Of Malindi & 3 Others [2014] eKLR

Case Number: Judicial Review Misc.App. 13 of 2013 Date Delivered: 14 Mar 2014

Judge: Oscar Angote

Court:

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Parties: Franci Limited v Defuct Municipal Council Of Malindi & 3 others

Citation: Franci Limited V Defuct Municipal Council Of Malindi & 3 Others [2014] eKLR

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Paul Gitenyi Mochorwa V Timothy Moseti E. Bosire & 2 Others [2014] eKLR

Case Number: Civil Appeal 49 of 2013 Date Delivered: 14 Mar 2014

Judge: John walter Onyango Otieno, Daniel Kiio Musinga, Sankale Ole Kantai

Court: Court of Appeal at Kisii

Parties: Paul Gitenyi Mochorwa v Timothy Moseti E. Bosire, Fredrick Hezekiah Owino Odenge Returning officer & Independent Electoral and Boundaries Commission

Citation: Paul Gitenyi Mochorwa V Timothy Moseti E. Bosire & 2 Others [2014] eKLR

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Hussein Abdillahi Ndei Nyambu V Inspector General Of Police & Another [2014] eKLR

Case Number: Petition 387 of 2013 Date Delivered: 14 Mar 2014

Judge: David Shikomera Majanja

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Hussein Abdillahi Ndei Nyambu v Inspector General Of Police & another

Citation: Hussein Abdillahi Ndei Nyambu V Inspector General Of Police & Another [2014] eKLR

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In Re The Estate Of Thomas Mutua Mukumbu – (Deceased) [2014] eKLR

Case Number: Succession Cause 1197 of 1994 Date Delivered: 14 Mar 2014

Judge: William Musya Musyoka

Court: High Court at Nairobi (Milimani Law Courts)

Parties: In Re The Estate of Thomas Mutua Mukumbu – (Deceased)

Citation: In Re The Estate Of Thomas Mutua Mukumbu – (Deceased) [2014] eKLR

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D R V V M M V [2014] eKLR

Case Number: Divorce Cause 3 of 2013 Date Delivered: 14 Mar 2014

Judge: William Musya Musyoka

Court: High Court at Nairobi (Milimani Law Courts)

Parties: D R V v M M V

Citation: D R V V M M V [2014] eKLR

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Mable Muruli V Wycliffe Ambetsa Oparanya & 3 Others [2014]eKLR

Case Number: Civil Appeal 41 of 2013 Date Delivered: 14 Mar 2014

Judge: Festus Azangalala, Jamila Mohammed, Sankale Ole Kantai

Court: Court of Appeal at Kisumu

Parties: Mable Muruli v Wycliffe Ambetsa Oparanya, Philip Museve Kutima, Nicholas Sumba & Independent Electoral and Boundaries Commission (IEBC)

Citation: Mable Muruli V Wycliffe Ambetsa Oparanya & 3 Others [2014] eKLR

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Richard Bwogo Birir V Narok County Government & 2 Others [2014] eKLR

Case Number: Petition 1 of 2014 Date Delivered: 14 Mar 2014

Judge: Byram Ongaya

Court: Industrial Court at Nakuru

Parties: Richard Bwogo Birir v Narok County Government & 2 others

Citation: Richard Bwogo Birir V Narok County Government & 2 Others [2014] eKLR

Pleasure Doctrine” not applicable in Kenya’s Public Service

 

Reported by Nelson K. Tunoi & Riziki Emukule

 

Summary of Facts:

The Petitioner (Richard Bwogo Birir) was appointed as the Executive Committee Member for Livestock and Fisheries in the County Government of Narok. Later, the 2nd Respondent (Samuel K. Tunai, Governor – Narok County) wrote him a letter of dismissal hence the filing of the petition by the Petitioner who alleged infringement of his fundamental rights and freedoms under the Constitution. Conversely, the Respondents submitted that the dismissal was not unlawful and was done in accordance with the County Governments Act, 2012. The Respondents’ further contended that the relationship between the Petitioner and the 1st Respondent (Narok County Government) was a contractual one and as such could be lawfully terminated.

 

Issues:

               i. Whether the pleasure doctrine is applicable in Kenya’s public service.

         ii. Whether the dismissal of a public servant under the pleasure doctrine amounted to contravention of the constitutional and statutory provisions.

            iii. Whether the judicial review order of certiorari was available in circumstances where the pleasure doctrine was applied.

 

Constitutional law-fundamental rights and freedoms-right to fair administrative action-whether the petitioner’s rights to fair administrative action was infringed-where petitioner was dismissed as Executive Committee Member for Agriculture, Livestock and Fisheries-whether the petitioner was entitled to notification and hearing before dismissal on grounds misconduct, poor performance or ill-health-whether the petitioner was entitled to compensation for violation of his rights-whether the petition was merited-Constitution of Kenya, 2010, articles 41, 47, 236; Employment Act, 2007, section 41; County Governments Act, 2012, section 31(a) & 40

Constitutional law-pleasure doctrine-a legal principle under jurisprudence in England that public officers within Her Majesty’s service hold office at the pleasure of the Crown-whether the pleasure doctrine was applicable in Kenya’s public service-values and principles of the public service-Constitution of Kenya, 2010, articles 2(4), 3, 200(2)(c), 232, 235(1), 236; Constitution of Kenya (repealed) section 25

Judicial review-certiorari-petitioner seeking order of certiorari quashing the letter of dismissal by the 2nd respondent-whether the action by the 2nd respondent in respect of the removal and dismissal of the petitioner from his position constituted a conduct that violated the provisions of the Constitution-whether the judicial review order of certiorari was available in the circumstances-Constitution of Kenya, 2010, articles 10, 41 & 236.

 

Definition of term:

Pleasure doctrine” – Is a legal principle under jurisprudence in England that public officers within Her Majesty’s service hold office at the pleasure of the Crown. By reason of that doctrine, the public officers in her Majesty’s service could not question their dismissal from office in judicial proceedings and could only initiate other remedial measures such as political intervention. The classical effect of the pleasure doctrine was considered in Mitchell v. Regina (1896) 1.Q.B. 121 at 122, where Esher M.R. was emphatic on the effect of the pleasure doctrine in the following terms:

The law is as clear as it can be, and it has been laid down over and over again as the rule on this subject that all engagements between those in the military service of the Crown and the Crown are voluntary only on the part of the Crown and give no occasion for an action in respect of any alleged contract.”

Held:

  1. All persons holding public or state office in Kenya in the executive, the legislature, the judiciary or any other public body and in national or county government are servants of the people of Kenya.  Despite the level of rank of state or public office as may be held, no public or state officer is a servant of the other but all are servants of the people.  Thus, the idea of servants of the Crown was substituted with the doctrine of servants of the people under the new Republic as nurtured in the Constitution of Kenya, 2010. 
  2. The string that flowed through the constitutional provisions was that removal from public or state office was constitutionally chained with due process of law. At the heart of due process were the rules of natural justice. Thus, the pleasure doctrine for removal from a state or public office had been replaced with the doctrine of due process of law. Article 236 was particularly clear on the demise of the pleasure doctrine in Kenya’s public or state service. 
  3. Due process of law entailed according the concerned person proceedings in which rules and principles for the protection and enforcement of private rights were upheld by the decision maker or relevant authority. At the core of due process was according the concerned person a reasonable notice with sufficient particulars to prepare for a fair hearing, the second crucial element of due process. Thus, due process would not be said to exist in absence of a reasonable notice with sufficient particulars to prepare for a fair hearing.
  4. The decision in Muriithi  v. Attorney General (1983) KLR 3 was no longer the law in Kenya as it had expressly been overridden by the Constitution of Kenya, 2010 through the demise of the pleasure doctrine. In the new Republic, public service by public and state officers was guided by the doctrine of servants of the people and the doctrine of due process and not by the doctrines of the servants of the Crown and the pleasure doctrine. The demise of the pleasure doctrine and the doctrine of servants of the Crown in the new Republic’s constitutional framework constitute the very foundation of the Republic, namely, Kenya was a sovereign Republic and all sovereign power belonged to the people of Kenya and should be exercised only in accordance with the Constitution.
  5. Under section 31(a) of the County Governments Act, 2012, the Governor was required to make a judgment (consider) that it was suitable (appropriate) or needed (necessary) that the executive member was removed from office. The 1st and 2nd respondents were obligated to accord the petitioner due process of law and to give reasons to satisfy the provisions of the section. Due process of law would establish that the 2nd respondent made a consideration and giving of reasons would show that the removal was appropriate or necessary. However, on the basis of the material on record, nobody knows what went through the 2nd respondent’s mind and whatever may have justified the removal of the petitioner from office. Such mysterious decisions could not obtain under the new Republic. 
  6. A Governor as established and provided for in the Constitution and the enabling legislations was not an imperial ruler.  Tenets of good governance, human rights, transparency and accountability as envisaged in article 10 of the Constitution could not be said to have been upheld by the Respondent and the dismissal could not be said to have met the tests of responsibilities of leadership as provided for in article 73 of the Constitution.  Mysterious decisions like the dismissal of the petitioner by the 2nd respondent in the present case could not be in furtherance of the donated sovereign power that vested in the people because such mysterious decisions were incapable of being submitted to accountability and transparency as they are opaque decisions that belong to the murky world and not a civilized democratic Republic like Kenya.
  7. “Dismissal” in the constitutional and statutory usage meant termination of employment or removal from office on account of an offensive action or omission on the part of the person subjected to the dismissal. The offensive action or omission could entail misconduct, poor performance or contravention of agreed or public interest.  Thus, under the law governing public service and employment, dismissal meant the punishment of termination of employment of a person attributable to the person’s misconduct, poor performance or contravention of agreed or public interest. 
  8. Under section 31 of the County Governments Act, 2012, the procedure for dismissal was initiated by the Governor and concluded by the Governor as an in-house executive process, while under section 40 of the County Governments Act, 2012 the process was initiated by a member of the County Assembly. The mischief was obvious; there may be instances of adverse circumstances against a given county executive committee member and the Governor fails to invoke the executive disciplinary process under section 31(a) and in which event a County Assembly member may invoke the oversight jurisdiction of the County Assembly under section 40 to deal with the mischief.  That is where the difference in the provisions of the two sections ends. Otherwise they are both disciplinary proceedings that demand due process of law.
  9. The Governor’s executive disciplinary process under section 31(a) and the County Assembly’s process under section 40 of the County Governments Act should comply with the established rules of natural justice; the due process of law. In particular, section 76 of the County Governments Act, 2012 provided for prohibition of imposition of punishment contrary to the Constitution. Subsection 76(2) provided that no public officer could be punished in a manner contrary to any provision of the Constitution or any Act of Parliament. The 1st and 2nd respondents were bound by the provision and it was not open for the 2nd respondent to dismiss the petitioner under a fictitious unchained discretion misconceived on the basis of section 31(a) of the County Governments Act.
  10. The dismissal was a punishment and could be imposed only after due process of law.  The step by step procedure for imposing dismissal under sections 31(a) and 40 of the Act was not provided for in the sections but was found in the relevant constitutional and statutory provisions such as article 236 of the Constitution and section 41 of the Employment Act, 2007.
  11. The meaning and effect of the letter for dismissal was that the 2nd respondent imposed the punishment of dismissal against the petitioner without due process. By the dismissal, the 2nd respondent infringed the petitioner’s rights enumerated under the provisions of articles 10, 41, 47, 50(1) and 236 of the Constitution as read together with section 41 of the Employment Act, 2007 that entitled the claimant to a notice and a hearing before termination.
  12. The engagement of public and state officers in the new Republic did not rest and revolve upon the private consent of the persons who were involved to conclude the employment contract. The persons involved concluded the contract for and on behalf of the people of Kenya within the stipulated constitutional and statutory safe-guards and the persons had no private consents that override the safe-guards. The conclusion of the arrangements that constitute the contract of public service was a public rather than a private action. Thus, if only for the dichotomy of private right and public law in the new Republic, public and state officers were employed upon a framework beyond their private consents but predetermined and regulated by constitutional and statutory prescriptions; essentially, largely public and remotely private realms.
  13. A judgment should as far as possible come with precise finality with subsequent steps, as far as possible, limited to satisfaction of the orders made in the judgment. The prayer for compensation was plunged in the petition without the necessary pleading and evidence to urge its justification. Litigants were discouraged from making general and open prayers for compensation for violation of their rights and an inquiry into quantum which in effect, if granted, would reopen disputes rather than bring them to determination with finality.
  14. (Obiter) “It has long been established that the delivery of human resource functions in Kenya’s public service is guided by an objective criteria set by the law and that delivery is not based on subjective judgments of individual government actors. The subjective judgments of individual government persons should not be allowed to override the objective criteria set in the Constitution and relevant statutes for the good delivery of our public and state service. Where such subjective judgments of individual government persons infringe on others constitutional and statutory rights and protections like in the present case, a proper remedy would be available to vanquish the offensive decision. There is no any established bar to the making of an order of certiorari to issue in the circumstances of this case.”

Petition allowed with costs

Cases

East Africa

1.Mburugu, Muguna Geoffrey v Attorney General Civil case No 3472 of 1994 –(Explained)

2.Muriithi v Attorney General [1983] KLR 3 –(Explained)

3.Ngati, Ronald Kimatu v Ukulima Sacco Society Ltd Civil Appeal No 277 of 2009 –(Explained)

4.Staff, Disciplinary Committee of Maseno University & 2 others v Ochong’ Okello Civil Appeal No 182 of 2004 –(Explained)

5.Shollei, Gladys Boss v Judicial Service Commission & another Petition No 39 of 2013–(Explained)

United Kingdom

1.Gould v Stuart (1896) AC 575 –(Explained)

2.Mitchell v Regina [1896] 1 QB 121 –(Explained)

3.Ridge v Baldwin [1963] 2 All ER 66; [1964] AC 40 –(Explained)

Texts & Journals

1.Garner, BA., (Ed) (2009) Black’s Law Dictionary St Paul Minnesota: West Group Publishers 9th Edn

Statutes

East Africa

1.Constitution of Kenya, 2010 articles 1(1)(4); 2(1)(2)(4); 3(1); 10(1), 22; 23(3)(e); 27, 28, 41(2)(b); 47(2); 50, 73(1)(b),(2)(e)(2)(e); 129; 176, 179, 232, 235(1); 236(b)–(Interpreted)

2.Constitution of Kenya (Repealed) sections 23, 25, 108–(Interpreted)

3.County Government Act, 2012 (Act No 17 of 2012) section 31(a); 40; 76(2) –(Interpreted)

2.Employment Act, 2007 (Act No 11 of 2007) sections 41, 44–(Interpreted)

Advocates

1.Geoffrey Otieno & Company Adocates & Gordon Ogola, Kipkoech & Company Advocates for the Petitioner

2.Havi & Company Adocates for the 1st & 2nd Respondents

3.Mr Kirui, State Counsel, for the 3rd Respondent

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Kenya Hotels & Allied Workers Union V Alfajiri Villas (Magufa Ltd) [2014] eKLR

Case Number: Cause 229 of 2013 Date Delivered: 14 Mar 2014

Judge: Stephen Radido Okiyo

Court: Industrial Court at Mombasa

Parties: Kenya Hotels & Allied Workers Union v Alfajiri Villas (Magufa Ltd)

Citation: Kenya Hotels & Allied Workers Union V Alfajiri Villas (Magufa Ltd) [2014] eKLR

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Charles Muma Nyambere V Daniel Owich [2014] eKLR

Case Number: Environment and Land Civil Case 7 of 2013 Date Delivered: 14 Mar 2014

Judge: Samson Odhiambo Okong'o

Court: High Court at Kisii

Parties: Charles Muma Nyambere v Daniel Owich

Citation: Charles Muma Nyambere V Daniel Owich [2014] eKLR

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Joseph Amisi Omukanda V Independent Electoral & Boundaries Commission (I.E.B.C.) & 2 Others [2014] eKLR

Case Number: Civil Appeal 45 of 2013 Date Delivered: 14 Mar 2014

Judge: Daniel Kiio Musinga, Festus Azangalala, Sankale Ole Kantai

Court: Court of Appeal at Kisumu

Parties: Joseph Amisi Omukanda v Independent Electoral & Boundaries Commission (I.E.B.C.), Wilson Kimutai Kipchumba & Emmanuel Wangwe

Citation: Joseph Amisi Omukanda V Independent Electoral & Boundaries Commission (I.E.B.C.) & 2 Others [2014] eKLR

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Stephen Omondi, Paul Otieno &Fredrick; Okoth Kiche V Republic [2014] eKLR

Case Number: Criminal Appeal 12 of 2013 Date Delivered: 13 Mar 2014

Judge: Esther Nyambura Maina

Court: High Court at Homabay

Parties: Stephen Omondi, Paul Otieno &Fredrick; Okoth Kiche v Republic

Citation: Stephen Omondi, Paul Otieno &Fredrick; Okoth Kiche V Republic [2014] eKLR

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Juma Ochieng V Republic [2014] eKLR

Case Number: Criminal Appeal 11 of 2012 Date Delivered: 13 Mar 2014

Judge: Esther Nyambura Maina

Court: High Court at Homabay

Parties: Juma Ochieng v Republic

Citation: Juma Ochieng V Republic [2014] eKLR

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Omar Rashid Nzai & Another V Republic [2014] eKLR

Case Number: Criminal Appeal 15 of 2013 Date Delivered: 13 Mar 2014

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

Court: Court of Appeal at Mombasa

Parties: Omar Rashid Nzai & Alexander Odhiambo Oloo v Republic

Citation: Omar Rashid Nzai & Another V Republic [2014] eKLR

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Robert Njoka Muthara & Another V Barclays Bank Of Kenya Limited & Another [2014] eKLR

Case Number: Civil Case 2 of 2003 Date Delivered: 13 Mar 2014

Judge: Hedwig Imbosa Ong'udi

Court: High Court at Embu

Parties: Robert Njoka Muthara & Evangeline Wanjira Njoka v Barclays Bank of Kenya Limited & El-Dima Limited

Citation: Robert Njoka Muthara & Another V Barclays Bank Of Kenya Limited & Another [2014] eKLR

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Republic V Attorney General & 2 Others Ex-Parte Mwikali Muindi Katunga & Another [2014] eKLR

Case Number: Miscellaneous Civil Application 187 of 2012 Date Delivered: 13 Mar 2014

Judge: George Vincent Odunga

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Republic v Attorney General, Solicitor General & Permanent Secretary Office of the Vice President and Ministry of Home Affairs Ex-Parte Mwikali Muindi Katunga & Benjamin Komu (Suing As Administrators of the Estate of the Late Peter M. Katunga)

Citation: Republic V Attorney General & 2 Others Ex-Parte Mwikali Muindi Katunga & Another [2014] eKLR

Judicial review proceedings in the nature of mandamus cannot be equated to execution proceedings

 

Republic V Attorney General & 2 Others Ex-Parte Mwikali Muindi Katunga & Another

 

Judicial Review Miscellaneous Civil Application 187 of 2012

High Court at Nairobi

G V Odunga, J.

March 13, 2014

 

Reported by Andrew Halonyere & Anne Mbuthia

 

Brief Facts

The Applicants instituted proceedings in the nature of judicial review for an order of mandamus, to enforce a judgment and decree issued in favour of one of them for Kshs.1,447,171.25, together with interest and costs. It was the Applicants’ case that despite having issued the Respondents with a demand notice, they had failed to settle the decree.

The Respondents on their part did not oppose the application.

Issues

  1. Whether judicial review proceedings in the nature of mandamus could be equated with execution proceedings
  2. Whether an order of mandamus could be issued against a public officer in his official capacity rather than against the State, in light of the fact that a public officer was not distinct from the State.

Judicial review – mandamus – application for mandamus to enforce a judgment and decree - Whether judicial review proceedings in the nature of mandamus could be equated with execution proceedings - whether an order of mandamus could be issued against a public officer rather than the State, in light of the fact that a public officer was not distinct from the State – whether the application had merit – Constitution of Kenya, 2010 Article 129

Held:

  1. The Applicant had no other option of realizing the fruits of the judgment awarded in favour of the decree holder, as they were barred from executing against the Government. Apart from the order of mandamus, they had no other way of ensuring that the judgment that had been awarded was realized. That state of affairs could not be allowed to prevail under the Constitutional dispensation, in light of the provisions of Article 48 of the Constitution, which enjoins the State to ensure access to justice for all persons.
  2. Access to justice could not be ensured when persons in whose favour judgments had been decreed by courts of competent jurisdiction could not enjoy the fruits of their judgment due to roadblocks placed on their paths by actions or inactions of public officers. Public offices are held in trust for the people of Kenya and public officers had to carry out their duties for the benefit of the people of Kenya. To deny a citizen his/her lawful rights which had been decreed by a Court of competent jurisdiction was unacceptable in a democratic society. It was obligatory for public officers to remember that under Article 129 of the Constitution, executive authority is derived from the people of Kenya and is to be exercised in accordance with the Constitution in a manner compatible with the principle of service to the people of Kenya, and for their well-being and benefit.
  3. The institution of judicial review proceedings in the nature of mandamus could not be equated with execution proceedings. In seeking an order for mandamus the applicant seeks, not relief against the Government, but to compel a Government official to do what the Government, through Parliament, has directed him to do. The relief sought is not “execution or attachment or process in the nature thereof”. It is not sought to make any person “individually liable for any order for any payment” but merely to oblige a Government officer to pay, out of the funds provided by Parliament, a debt held to be due by the High Court, in accordance with a duty cast upon him by Parliament.
  4. The fact that the Accounting Officer was not distinct from the State, of which he was a servant, did not necessarily mean that he could not owe a duty to a subject as well as to the Government which he served. Whereas it was true that he represented the Government, it did not follow that his duty was therefore confined to his Government employer.
  5. In mandamus cases, when a statutory duty was cast upon a public officer in his official capacity, and the duty was owed, not to the State but to the public, any person having a sufficient legal interest in the performance of the duty could apply to the Courts for an order of mandamus to enforce it. In other words, mandamus was a remedy through which a public officer could be compelled to do a duty imposed upon him by the law. It was in fact the Republic, on whose behalf he undertook his duties, that was compelling him, a servant, to do what he was under a duty, obliged to perform.
  6. Where a public officer declined to perform the duty after the issuance of an order of mandamus, his/her action would amount to insubordination and contempt of Court. An action may perfectly have been commenced to have him cited for such. Such contempt proceedings were no longer execution proceedings, but were meant to show the Court’s displeasure at the failure by a servant of the State to comply with the directive of the Court, given at the instance of the Republic, the employer of the concerned public officer and to uphold the dignity and authority of the court.

Application allowed, order of mandamus issued directed at the Respondent compelling them to pay ex parte applicant 1,447,171.25 together with costs and interest.

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Republic V Chief Magistrate Milimani Commercial Court & 2 Others Ex-Parte Violet Ndanu Mutinda & 5 Others [2014] eKLR

Case Number: Judicial Review Application 262 of 2013 Date Delivered: 13 Mar 2014

Judge: George Vincent Odunga

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Republic v Chief Magistrate Milimani Commercial Court, Inspector General Of Police & Chief Kangemi Location Ex-Parte Violet Ndanu Mutinda, Joel Kiema Mutinda, Mechael W Mwangi, Jeremiah Kiarie Muchendu, Musyoka Mutisya & Edward Kangethe

Citation: Republic V Chief Magistrate Milimani Commercial Court & 2 Others Ex-Parte Violet Ndanu Mutinda & 5 Others [2014] eKLR

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Ibrahim Musa Mohamed & Another V Guardian Bank Limited [2014] eKLR

Case Number: Civil Appeal 33 of 2012 Date Delivered: 13 Mar 2014

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

Court: Court of Appeal at Mombasa

Parties: Ibrahim Musa Mohamed & Ibrahim Musa & Sons Limited v Guardian Bank Limited

Citation: Ibrahim Musa Mohamed & Another V Guardian Bank Limited [2014] eKLR

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In Re Baby G N W (Minor) [2014] eKLR

Case Number: Adoption Cause 219 of 2012 Date Delivered: 13 Mar 2014

Judge: Luka Kiprotich Kimaru

Court: High Court at Nairobi (Milimani Law Courts)

Parties: In Re Baby G N W (Minor)

Citation: In Re Baby G N W (Minor) [2014] eKLR

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Kenneth Kenyani Chavila V China Young Tai Engineering Co Ltd [2014] eKLR

Case Number: Cause 2055 of 2011 Date Delivered: 13 Mar 2014

Judge: Marete D.K. Njagi

Court: Industrial Court at Nairobi

Parties: Kenneth Kenyani Chavila v China Young Tai Engineering Co Ltd

Citation: Kenneth Kenyani Chavila V China Young Tai Engineering Co Ltd [2014] eKLR

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Ronald Ojuku Momanyi V Registrar, Pharmacy And Poisons Board & 3 Others [2014] eKLR

Case Number: Miscellaneous Civil Cause 214 of 2011 Date Delivered: 13 Mar 2014

Judge: George Vincent Odunga

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Ronald Ojuku Momanyi v Registrar, Pharmacy and Poisons Board, Permanent Secretary, Medical Services Ministry, Chairman, Pharmacy and Poisons Board & Director, National Quality Control Laboratory

Citation: Ronald Ojuku Momanyi V Registrar, Pharmacy And Poisons Board & 3 Others [2014] eKLR

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Volenzo Tom Elijah V Attorney General [2014] eKLR

Case Number: Cause No. 1413 of 2010 Date Delivered: 13 Mar 2014

Judge: Marete D.K. Njagi

Court: Industrial Court at Nairobi

Parties: Volenzo Tom Elijah v Attorney General

Citation: Volenzo Tom Elijah V Attorney General [2014] eKLR

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Esther Waithira Chege V Manoah Karega Mboku & 2 Others [2014] eKLR

Case Number: Civil Appeal 4 of 2013 Date Delivered: 13 Mar 2014

Judge: Luka Kiprotich Kimaru

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Esther Waithira Chege v Manoah Karega Mboku, Independent Electoral and Boundaries Commission & Peter K. Muigai

Citation: Esther Waithira Chege V Manoah Karega Mboku & 2 Others [2014] eKLR

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N K C V M N K [2014] eKLR

Case Number: Divorce Cause No. 59 of 2013 Date Delivered: 13 Mar 2014

Judge: Luka Kiprotich Kimaru

Court: High Court at Nairobi (Milimani Law Courts)

Parties: N K C v M N K

Citation: N K C V M N K [2014] eKLR

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Attorney General & 6 Others V Mohamed Balala & 11 Others [2014] eKLR

Case Number: Civil Appeal 191 of 2012 Date Delivered: 13 Mar 2014

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

Court: Court of Appeal at Mombasa

Parties: Attorney General,Commissioner of Lands,Chief Lands Registrar Mombasa,Registrar of Lands Kilifi,Registrar of Lands Lamu,Registrar of Lands Kwale,Registrar of Titles Coast Registry v Mohamed Balala,Michael Sangoro, Janet N. Katisya,Mercy Ngugi,Abed O. Abed,George Odull,Asmina H. Azmarshi,Karim A. Chakera,Jayant Shah,Paul Wamuti Ndegwa,Prisca Obura & Charles Opullu (as officials of the Mombasa Law Society )

Citation: Attorney General & 6 Others V Mohamed Balala & 11 Others [2014] eKLR

Precondition of presidential consent before transfer of 1st and 2nd row beach plots is unconstitutional and illegal

Attorney General & 6 others v Mohamed Balala & 10 others (Law Society of Kenya)

Civil Appeal No 191 of 2012

Court of Appeal at Mombasa

H.M. Okwengu, A. Makhandia, F. Sichale  JJA

March 13th, 2014

Reported by Lynette A. Jakakimba & Valarie Adhiambo

Brief facts

The Law Society Mombasa (respondents) petitioned the High Court for an order prohibiting the appellants from requiring or insisting on presidential consent as a precondition before transferring beach plots in the 1st and 2nd rows. They also contended that it was an illegal and discriminative against the owners of the beach plots. The High Court held that there was no legal basis for requiring consent to be produced when registration of a transaction over beach plots was carried out and also that such requirement amounted to discrimination. The respondents (now appellants) thus appealed to the court of appeal challenging that high court decision.

Issues

  1. Whether the Law Society of Kenya had locus standi to institute the matter in court
  2. Whether the requirement for presidential consent before the transfer of the beach plots was lawful

 

  1. Whether the requirement of presidential consent was in breach of Article 40 by limiting the right of property owners of the said plots  to transfer and control their property

 

  1. What was the rationale for the prerequisite of presidential consent before acquiring beach plots?

 

 

 

Constitutional Law-fundamental rights and freedoms-right of  property-consent to land-presidential consents before acquiring beach plots-whether the directive limited the owners ‘of the property the right to transfer and enjoy the control of their properties-whether the requirement for presidential consent was discriminative- Constitution of Kenya 2010,Article 40

 

 

Land Law –consents to land-presidential consent before acquiring  beach plots-claim challenging the constitutionality of the presidential consent-whether the requirement of presidential consent offends the right to property- Constitution of Kenya 2010, Article 40,

 

Held

  1. Article 258 of the Constitution of Kenya, allowed every person the right to institute court proceedings claiming a right or fundamental freedom had been infringed or was threatened with contravention and that included public interest suits. The Mombasa Law Society (a branch of the Law Society of Kenya) therefore had the locus standi to institute the matter on their own behalf and on behalf of their clients.
  2. Article 40 the Constitution of Kenya, 2010 on the right to property allowed the owner of the land to use, transfer, enjoy and control their property. Therefore a condition of obtaining presidential consent before transferring the plot limited the owners’ right to property and was unnecessary clog or fetter to that freedom and indeed the freedom to contract.
  3. Whatever was done in the name of the country had to have a legal basis and supported by the constitution. The requirement for presidential consent was therefore opaque and could not be traced to any legal ground for evaluation nor rationale.
  4. The arguments that the requirements for presidential consent was done in the interest of national security could not stand. Although national security would ordinarily triumph over the rights of individuals it was however in such instances that the court had to be convinced that it was absolutely necessary before sanctioning it. Furthermore such a decision had to be based on the law so as to prevent abuse. There was no law governing that presidential fiat (of requiring consents) thus it was left open and could be misused and abused.

 

 

Appeal was dismissed with costs to the respondents.

 

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Citation: Emmanuel Anunu V Republic [2014] eKLR

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Parties: Richard Ongweni Bosire & Dominic Matatu Nyakundiv Republic

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Parties: Republic v Attorney General & another Ex-parte Mwikali Katunga & another

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Parties: Republic v Kenya Ordnance Factories Corporation Ex-Parte Anne Gichimo

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Judge: Ruth Nekoye Sitati

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Rose Wangui Mambo & 2 Others V Limuru Country Club & 17 Others [2014] eKLR

Case Number: Constitutional Petition 160 of 2013 Date Delivered: 12 Mar 2014

Judge: Isaac Lenaola, David Shikomera Majanja, Mumbi Ngugi

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Rose Wangui Mambo,Martha Wanjiru Vincent,Caroline Wangari Ngugi v Limuru Country Club,Yassin Awale,Robert Barua,Peter Mungai,Erick Kimuri,Kagochi Mutero,Victor Gichuru,Anthony Wangari,Tom Waiharo,Attorney General,Alfred Kariuki, Francis Okwara, Peter Warui (Sued on Behalf of the Kenya Golf Union),Dorcas Mbalanya, Anastacia Chubi, Joyce Wafula (Sued on behalf of the Kenya Ladies Golf Union),Federation of Women Lawyers (FIDA) & Law Society of Kenya

Citation: Rose Wangui Mambo & 2 Others V Limuru Country Club & 17 Others [2014] eKLR

Golf club rules discriminating between male and female members are unconstitutional

Rose Wangui Mambo & 2 Others V Limuru Country Club & 15 Others

Constitutional Petition No. 160 of 2013

High Court at Nairobi

I Lenaola J, Mumbi Ngugi J   and D.S Majanja J

March 12, 2014

 

 

Reported by Phoebe Ida Ayaya and Maryconcepter Nzakuva

Brief Facts

The petitioners, who were female fully paid up members of the 1st respondent (Limuru Country Club) and who had served senior positions at the said club brought a petition seeking for Declaratory Orders that: a by-law that had been made by the club’s Board of Directors barring lady golfers from participating in the club’s General Meetings was unconstitutional, that due process was not followed in their suspension and removal from their positions in the club, and  an order quashing their expulsion from the club and a subsequent reinstatement to their earlier positions in the club.

The respondents stated that where the law provided for a specific mode of dispute resolution, the court had no jurisdiction and hence the Petitioners ought to have tabled and persued their complaints before the National Gender and Equality Commission.

Issue:

  1. Whether the High Court had the jurisdiction to conduct an inquiry into the affairs of a private members club.
  2.  Whether a private members club’s by-law barring female golfers from participating in its General Meetings was discriminatory or against Constitution provisions.
  3. Whether the disciplinary process employed by the club in removal of the Petitioners from their earlier positions was unlawful.

 

Constitutional Law-Fundamental Rights and Freedoms-Equality and Freedom from Discrimination-Whether a by-law excluding female golfers from participating in the Golf  Club General Meetings was unconstitutional- Constitution of Kenya, 2010-Article 27.

Constitutional law-Principles of Natural Justice-Right to fair hearing-Whether the petitioners were afforded an opportunity to defend themselves before removal from their earlier positions in the club-Constitution of Kenya, 2010-Article 50.

Jurisdiction-Jurisdiction of the High Court-Whether the High Court had jurisdiction to hear matters involving private entities governed by internal rules-Whether the High Court has jurisdiction to hear matters where there existed alternative dispute resolution mechanisms –Whether the High Court had jurisdiction to determine matters which involved violation of Fundamental Rights and Freedoms by a private Club against its members-Constitution of Kenya, 2010-Article165.

Held:

  1. A private members’ club could not be allowed to oust the court’s jurisdiction where there were allegations of breach of Fundamental Rights and Freedoms by its members or any other person by hiding behind the cloak of privacy.
  2. The lodging of a complaint on violation of Fundamental Rights and Freedoms by an aggrieved party before the National Gender and Equality Commission did not oust the court’s jurisdiction because the Commission was limited in the kind of remedies it could grant.
  3. The internal mode of dispute resolution provided by the respondent club was not effective.
  4. Whereas membership of private clubs was by its nature discriminatory, in that it restricted membership to particular groups, any kind of discrimination perpetrated by the club through a by-law against its members was unconstitutional.
  5. By virtue of the by-law in question being rendered void and unconstitutional, the resultant disciplinary process against the petitioners’ was also void.
  6. The Club’s by-law in question was not only discriminatory but contrary to the Club’s constitution, Article 27 of the Constitution of Kenya, 2010 and not permissible in a just and democratic society.

 

The resolution to exclude female golfers was found unconstitutional, null and void and an order of reinstatement of the petitioners was made.

 

Cases

East Africa

1.Ayuma, Satrose & 11 others v Registered Trustees of the Kenya Railways Staff Retirement Benefits Scheme & 3 others Petition No 65 of 2010 –(Explained)

2.International Centre for Policy and Conflict v Attorney General & another Petition No 398 of 2012 –(Explained)

3.Kariuki v Kariuki & another [2006] 2 KLR 356–(Explained)

4.Mureithi, Mwangi Stephen v Daniel Toroitich Arap Moi Petition No 625 of 2009 –(Explained)

5.Mwakwere, Chirau Ali v Robert Mabera & 4 others Petition No 6 of 2012 –(Explained)

6.Mwau, John Harun and 3 others v Attorney General and 2 others Petition No 65 of 2010 –(Mentioned)

7.Ngugi, Isaac v Nairobi Hospital & 3 others Petition No 407 of 2012 [2013] –(Explained)

8.Patel and others v Dhanji & others [1975] EA 301 –(Explained)

9.Rasugu, Sonia Kwamboka v Sandalwood Hotel and Resort Limited t/a Paradise Beach Resort & another Petition No 156 of 2011 [2013] –(Explained)

10Samuel Kamau Macharia v Kenya Commercial Bank and 2 others Civil Application No 2 of 2011-(Explained)

South Africa

1.Motala & Another v University of Natal (1995) 3 BCLR 374 –(Explained)

Zimbabwe

1.Mark Gova Chavunduka and Another v Minister of Home Affairs Civil Appeal No 156 of 1999 –(Approved)

Canada

1.Edmonton Journal v Alberta (Attorney General) (1989) 2 SCR 1326 –(Explained)

2.RWDSU v Dolphin Delivery Ltd (1986) 2 SCR 573 –(Applied)

Germany

1. Okpisz v Germany, No 59140/00, 25th October 2005 –(Explained)

Ireland

1.Equal Authority v Portmarnock Golf Club & others [2005] IEHC 235 –(Applied)

 

United Kingdom

1.Salomon v Salomon [1897] AC 22 –(Explained)

2.Willis v United Kingdom Application No 36042/97, ECHR 2002-IV –(Explained)

United States

1.Boy Scouts of America v Dalle 530 US, 640 (2000) –(Applied)

Texts & Journals

1.Balkan, J., (Ed) (2004) The Corporation: The Pathological Pursuit of Profit and Power New York: Free Press

2.Jolly-Ryan, J., Teed off about Private Club Discrimination on the Tax Payer’s Dime: Tax Exemptions and Other Government Privileges to Discriminatory Private Clubs William and Mary Journal of Women and the Law Vol 13:235 p 236

3.Mackay, JPH., (Lord of Clashfern) (Ed) (2004) Halsbury’s Laws of England London: LexisNexis 4th Edn (Re issue) Vol 7(1) para 481

4.Mill, JS., (Ed) (1946) On Liberty and considerations on Representative Government Oxford: Oxford University Press p 14

Statutes

East Africa

1.Companies Act (cap 486) section 34(b)-(Interpreted)

2.Constitution of Kenya, 2010 articles 2(1); 19(2); 20(1)-(4); 21(1); 22(1); 23; 27(6); 28; 59; 159(2)(c); 165(3); 258; 259(1); 260-(Interpreted)

3.Constitution of Kenya (Repealed) section 84(1)-(Interpreted)

4.Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 (Constitution of Kenya, 2010 Sub Leg) rule 26-(Interpreted)

5.Income Tax Act (cap 470) section 116-(Interpreted)

6.National Gender and Equality Commission Act, 2011 (Act No 15 of 2011) sections 3, 8, 26 (c); 29; 30-(Interpreted)

7.Societies Act (cap 108) –(Interpreted)

8.Sports Act, 2013 (Act No 25 of 2013) –In general-(Interpreted)

International Instruments & Conventions

1.African Charter on Human and Peoples’ Rights (Banjul Charter), 1981 articles 2, 28

2.Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), 1979 articles 1, 2

3.International Covenant on Civil and Political Rights (ICCPR), 1966 article 19(2)

4.United Nations Universal Declaration on Human Rights (UDHR), 1948 articles 1, 2(5)(6); 7

Advocates

1.Mr Opondo, State Counsel, for the Attorney General

2.Mr Kihara for the 1st – 4th, 7th, 8th and 9th Respondents

3.Mr Kinyanjui for the 5th and 6th Respondents

4.Mr Lempaa for the 14th, 15th & 16th Respondents

 

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