Case Search

pillars

Case Action: Judgment


Ocean Blue Limited V Leonard Jefwa Kalama [2016] eKLR

Case Number: Civil Case 55 of 2012 Date Delivered: 26 Feb 2016

Judge: Oscar Angote

Court: High Court at Malindi

Parties: Ocean Blue Limited v Leonard Jefwa Kalama

Citation: Ocean Blue Limited V Leonard Jefwa Kalama [2016] eKLR

Read More

In Re Baby E (2016] eKLR

Case Number: Adoption Cause 6 of 2015 Date Delivered: 26 Feb 2016

Judge: Rose Edwina Atieno Ougo

Court: High Court at Nairobi (Milimani Law Courts)

Parties: In re Baby E

Citation: In Re Baby E (2016] eKLR

Read More

Labour Officer Vihiga County V Esau Kevolwe [2016] eKLR

Case Number: Cause 31 of 2014 Date Delivered: 26 Feb 2016

Judge: Maureen Onyango Atieno

Court: Employment and Labour Relations Court at Kisumu

Parties: Labour Officer Vihiga County v Esau Kevolwe

Citation: Labour Officer Vihiga County V Esau Kevolwe [2016] eKLR

Read More

Kenya National Private Security Workers Union V New Simba Security [2016] eKLR

Case Number: Cause 101 of 2014 Date Delivered: 26 Feb 2016

Judge: Maureen Onyango Atieno

Court: Employment and Labour Relations Court at Kisumu

Parties: Kenya National Private Security Workers Union v New Simba Security

Citation: Kenya National Private Security Workers Union V New Simba Security [2016] eKLR

Read More

George Chengo V Kahindi Katimbo [2016] eKLR

Case Number: Environment and Land Civil Case 18 of 2014 Date Delivered: 26 Feb 2016

Judge: Oscar Angote

Court: Environment and Land Court at Malindi

Parties: George Chengo v Kahindi Katimbo

Citation: George Chengo V Kahindi Katimbo [2016] eKLR

Read More

Joseph Morara Omoke V Invesco Assurance Co. Ltd [2016] eKLR

Case Number: Cause 245 of 2013 Date Delivered: 26 Feb 2016

Judge: Maureen Onyango Atieno

Court: Employment and Labour Relations Court at Kisumu

Parties: Joseph Morara Omoke v Invesco Assurance Co. Ltd

Citation: Joseph Morara Omoke V Invesco Assurance Co. Ltd [2016] eKLR

Read More

Loretta Kambe Mbogholi V Mwangola Estate Ltd [2016] eKLR

Case Number: Cause 947 of 2014 Date Delivered: 26 Feb 2016

Judge: Onesmus Ndambuthi Makau

Court: Employment and Labour Relations Court at Mombasa

Parties: Loretta Kambe Mbogholi v Mwangola Estate Ltd

Citation: Loretta Kambe Mbogholi V Mwangola Estate Ltd [2016] eKLR

Read More

William Kiaritha Gacheru V East African Packaging Industries Ltd [2016] eKLR

Case Number: Cause 797 of 2013 Date Delivered: 26 Feb 2016

Judge: Nelson Jorum Abuodha

Court: Employment and Labour Relations Court at Nairobi

Parties: William Kiaritha Gacheru v East African Packaging Industries Ltd

Citation: William Kiaritha Gacheru V East African Packaging Industries Ltd [2016] eKLR

Dismissal or termination of employment services is at the discretion of the employer

William Kiaritha Gacheru v East African Packaging Industries

Cause No. 797 of 2013

Employment and Labour Relations Court at Nairobi

Abuodha J N, J

February 26, 2016

Reported by Teddy Musiga

Brief facts

The claimant filed the instant claim seeking compensation for unlawful termination and also for award of damages for alleged defamation. The background to the claim was that, the respondent being concerned over loss of paper materials which it suspected was an inside job decided to use polygraph testing to unravel the suspects. The claimant was in the category of employees who were selected to undergo the polygraph test. Subsequent to the tests, the employment services of the claimant were terminated. He then filed the suit for unlawful termination and also that the inclusion of the claimant’s name in the list of people suspected to be involved in the paper theft cartel which was circulated amongst staff was defamatory.

Issues

  1. Whether the termination of an employee’s services based on the results of polygraphic test was unlawful and unfair in the context of the Employment laws.
  2. Whether the polygraphic report, the basis upon which the claimant’s services were terminated defamed the claimant to warrant an order for damages for defamation.

Labour Law – employment – employment relations – termination of employment services – claim where an employee’s employment services were terminated on account of allegations of theft from the employer; allegations which were based on a polygraph report – Employment Act, section 41.

Tort Law – defamation – libel – defamation in the context of employment relationships – claim where an employee challenged an employer’s letter to be defamatory because it was addressed to other employees listing employees to be investigated for an alleged theft at the work place – Defamation Act, section 3

Held:

  1. Reluctance and circumspection had to be exercised when considering issues and procedures in employment which were purely within the margin of managerial discretion. The Court could not usurp that discretion from the management and replaced it with its own.
  2. Polygraph testing as it then stood could do no more than show the existence of or non-existence of deception. Due to its several limitations and margin of error, it was not safe to rely on and could not itself be used as a conclusive proof of guilt of crime or misconduct. Besides, a person could lie without necessarily being guilty of the crime or misconduct he was alleged to have been involved in.
  3. Section 41(2) of the Employment Act required that before termination, an employer had to hear and consider any representation which the employee concerned made. That inherently called for some sort of hearing, however informal, prior to dismissal. To that extent, whilst there was nothing wrong with taking the claimant through polygraphic testing, it was unfair to rely on the result of the test alone to terminate the claimant’s contract, further it was unfair not to afford the claimant an opportunity to defend himself prior to terminating his services.
  4. If the claimant was to be terminated normally, he would have been given a month’s notice or pay in lieu, salary for days worked, leave earned but not taken and pension contributions. The claimant being a contributor to NSSF would not be entitled to service pay.
  5. The claimant’s services were unfairly terminated in terms of reason and procedure. Where a court came to such a conclusion, the claimant was entitled to an award of up to 12 months’ salary as compensation. The award under that head was compensatory and did not take into account terminal benefits which were payable as per contract of employment or in accordance with statute.
  6. An award for unfair termination was compensatory. It took into account the inconvenience, breach of fair administrative process, violation of rules of natural justice and often times, constitutional rights in the context of employment relations. Those rights and inconveniences to an employee were so profound that could not be contracted out. They were provided under section 45 and 46 of the Employment Act hence no party could make a contract or agreement to exclude them. To do so amounted to contracting out of statute without an express provision to do so.
  7. Section 3 of the Defamation Act provided that defamation was a publication without justification, lawful excuse which was calculated to injure reputation, credit or ridicule. It was not enough that the words or material complained about was defamatory, there had to be evidence of publication. Nothing in the letter could be said to have injured or brought the claimant into disrepute in eyes of right thinking members of the community in order to amount to defamation.
  8. Termination and dismissal from employment had to be for a valid reason. The validity of the reason was tested against a matter or matters which the employer at the time of termination or dismissal genuinely believed to exist and which caused the employer to dismiss or terminate the services of an employee.
  9. Dismissal or termination of employment was a matter of management discretion and the Court had to be reluctant to intervene unless for breach of provisions of statute or contract of employment or both. Further an allegation of involvement in theft or other crime against an employer or its property leading to termination or dismissal was tested at a lower standard of proof than when those allegations were prosecuted in a court of law. That was why an acquittal for criminal offence was not a barrier to an employer in deciding whether to dismiss or terminate the services of such employee on the same facts.
  10. Subjecting the claimant to polygraph examination and eventually relying on the report to terminate the claimant’s services did not defame the claimant with the consequence that the claim for defamation had no merit.

Claim for unfair termination partially succeeded. The Court awarded the claimant four months’ salary as compensation for unfair termination.

Claim for defamation dismissed.

Cases

East Africa

1.    Kioga, Kagwiria Mutwiri v Standard Limited & 4 others Civil Case No 85 of 2005- (Followed)

2.    Kudwoli,  J v Eureka Educational and Training Consultants & 2 others  HC [1993] 353 (Consolidated)

3.    Nation Media Group Ltd & 2 others v John Joseph Kamotho & 3 others Civil Suit No 368 of 2001 – (Followed)

4.    Wainaina, Joseph Karanja v National Bank of Kenya Civil Case No 1157 of 2006 – (Followed)

South Africa

1. DHL Supply Chain SA (PTY) Ltd and De Beer, LW N O & 3 others Case No 0738/10 – (Explained)

2. National Union of Mineworkers and another v Commission for Conciliation, Mediation, and Arbitration and, 2 others Case No JR 2512/2007; [2012] ZALCJHB 80; (2013) 34 ILJ 945 (LC) – (Explained)

India

1. SMT, Selvi & others v State of Karnataka Criminal Appeal No 1267 of 2004 – (Explained)

Statutes

East Africa

1.     Constitution of Kenya,2010   articles 22, 23, 48 ,50  - (Interpreted)

2.    Criminal Procedure Act – In general

3.    Employment Act, 2007 (Act No 11 of 2007) sections 41(1) (2); 43; 44 (4) (g); 45; 46 – (Interpreted)

4.    Evidence Act  - In general

Advocates

1. Mr Ndambiri for the Claimant

2. Mr Kabaiku  for the Respondent

 

 

Read More

Republic V Peter Kinyua Mwangi [2015] eKLR

Case Number: Criminal Case 45 of 2009 Date Delivered: 26 Feb 2016

Judge: Nicholas Randa Owano Ombija

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Republic v Peter Kinyua Mwangi

Citation: Republic V Peter Kinyua Mwangi [2015] eKLR

Read More

Joseph Mwangi Mutahi V Gerald Mumo Mutahi [2016] eKLR

Case Number: Environment and Land case 104 of 2014 Date Delivered: 26 Feb 2016

Judge: Boaz Nathan Olao

Court: High Court at Kerugoya

Parties: Joseph Mwangi Mutahi v Gerald Mumo Mutahi

Citation: Joseph Mwangi Mutahi V Gerald Mumo Mutahi [2016] eKLR

Read More

Peterson Makori V Hesbon Onyango [2016] eKLR

Case Number: Cause 1365 of 2014 Date Delivered: 26 Feb 2016

Judge: Nelson Jorum Abuodha

Court: Employment and Labour Relations Court at Nairobi

Parties: Peterson Makori v Hesbon Onyango

Citation: Peterson Makori V Hesbon Onyango [2016] eKLR

Read More

Kenya Pipeline Company Limited V Lucy Njoki Njuru (Suing As The Legal Representative Of The Estate Of John Wamae (Deceased) [2016] eKLR

Case Number: Civil Appeal 44 of 2015 Date Delivered: 26 Feb 2016

Judge: Christine Wanjiku Meoli

Court: High Court at Naivasha

Parties: Kenya Pipeline Company Limited v Lucy Njoki Njuru (Suing as the legal representative of the Estate of John Wamae (Deceased)

Citation: Kenya Pipeline Company Limited V Lucy Njoki Njuru (Suing As The Legal Representative Of The Estate Of John Wamae (Deceased) [2016] eKLR

Read More

Ephantus Gathua Muiyuro V Kenya Power Company Ltd [2016] eKLR

Case Number: Environment and Land Case 247 of 2014 Date Delivered: 26 Feb 2016

Judge: Boaz Nathan Olao

Court: High Court at Kerugoya

Parties: Ephantus Gathua Muiyuro v Kenya Power Company Ltd

Citation: Ephantus Gathua Muiyuro V Kenya Power Company Ltd [2016] eKLR

Read More

Grace Chepkemboi V Daniel Ledama Ole Soya & Another [2016] eKLR

Case Number: Environment & Land Court Case 414 of 2013 Date Delivered: 26 Feb 2016

Judge: John Mutungi

Court: Environment and Land Court at Kisii

Parties: Grace Chepkemboi v Daniel Ledama Ole Soya & Frances Kisas Ole Soya

Citation: Grace Chepkemboi V Daniel Ledama Ole Soya & Another [2016] eKLR

Read More

Samuel Maina V Power Group Technologies [2016] eKLR

Case Number: Cause 2038 of 2013 Date Delivered: 26 Feb 2016

Judge: Nelson Jorum Abuodha

Court: Employment and Labour Relations Court at Nairobi

Parties: Samuel Maina v Power Group Technologies

Citation: Samuel Maina V Power Group Technologies [2016] eKLR

Read More

G.A.O V O.O [2016] eKLR

Case Number: Divorce Cause 142 of 2013 Date Delivered: 26 Feb 2016

Judge: Aggrey Otsyula Muchelule

Court: High Court at Nairobi (Milimani Law Courts)

Parties: G.A.O v O.O

Citation: G.A.O V O.O [2016] eKLR

Read More

National Bank Of Kenya Ltd V Harrison Kariuki Muru [2016] eKLR

Case Number: Civil Appeal 159 of 2011 Date Delivered: 26 Feb 2016

Judge: Jairus Ngaah

Court: High Court at Nyeri

Parties: National Bank of Kenya Ltd v Harrison Kariuki Muru

Citation: National Bank Of Kenya Ltd V Harrison Kariuki Muru [2016] eKLR

Read More

Albert Chaurembo Mumba & 7 Others (sued On Their Own Behalf And On Behalf Of Predecessors And Or Successors In Title In Their Capacities As The Registered Trustees Of Kenya Ports Authority Pensions Scheme V Maurice M. Munyao & 148 Others (Suing On Their Own Behalf And On Behalf Of The Plaintiffs And Other Members/ Beneficiaries Of The Kenya Ports Authority Pension Scheme [2016] eKLR

Case Number: Civil Appeal 38 of 2014 Date Delivered: 26 Feb 2016

Judge: William Ouko, James Otieno Odek, Kathurima M'inoti

Court: Court of Appeal at Malindi

Parties: Albert Chaurembo Mumba & 7 Others (sued on their own behalf and on behalf of predecessors and or successors in title in their capacities as the Registered Trustees of Kenya Ports Authority Pensions Scheme v Maurice M. Munyao & 148 Others (Suing on their own behalf and on behalf of the plaintiffs and other members/ beneficiaries of the Kenya Ports Authority Pension Scheme

Citation: Albert Chaurembo Mumba & 7 Others (sued On Their Own Behalf And On Behalf Of Predecessors And Or Successors In Title In Their Capacities As The Registered Trustees Of Kenya Ports Authority Pensions Scheme V Maurice M. Munyao & 148 Others (Suing On Their Own Behalf And On Behalf Of The Plaintiffs And Other Members/ Beneficiaries Of The Kenya Ports Authority Pension Scheme [2016] eKLR

Read More

Republic V Kerugoya Central Land Disputes Tribunal & 2 Others Ex-parte Antony Wachira Ndumbi & Another [2016] eKLR

Case Number: Judicial Review Case 1 of 2015 Date Delivered: 26 Feb 2016

Judge: Boaz Nathan Olao

Court: High Court at Kerugoya

Parties: Republic v Kerugoya Central Land Disputes Tribunal, Senior Resident Magistrate’s Court Kerugoya & Richard Mugo Gichangi exparte Antony Wachira Ndumbi & Peter Wanjohi Gichangi

Citation: Republic V Kerugoya Central Land Disputes Tribunal & 2 Others Ex-parte Antony Wachira Ndumbi & Another [2016] eKLR

Read More

Republic V Francis Kamunyu Kamau Alias Mayai & Another [2016] eKLR

Case Number: Criminal Case 23 of 2014 Date Delivered: 25 Feb 2016

Judge: Jessie Wanjiku Lessit

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Republic v Francis Kamunyu Kamau alias Mayai & Paul Ndai Ndungu

Citation: Republic V Francis Kamunyu Kamau Alias Mayai & Another [2016] eKLR

Read More

Ahmed Mohamed V Republic [2016] eKLR

Case Number: Criminal Appeal 26 of 2015 Date Delivered: 25 Feb 2016

Judge: Mary Muhanji Kasango

Court: High Court at Nanyuki

Parties: Ahmed Mohamed v Republic

Citation: Ahmed Mohamed V Republic [2016] eKLR

Read More

Morris Mutwiri V Republic [2016] eKLR

Case Number: Criminal Appeal 47 of 2015 Date Delivered: 25 Feb 2016

Judge: Mary Muhanji Kasango

Court: High Court at Nanyuki

Parties: Morris Mutwiri v Republic

Citation: Morris Mutwiri V Republic [2016] eKLR

Read More

Joseph Mwaura Wangondu V Republic [2016] eKLR

Case Number: Criminal Appeal 71 of 2010 Date Delivered: 25 Feb 2016

Judge: Abigail Mshila

Court: High Court at Nyeri

Parties: Joseph Mwaura Wangondu v Republic

Citation: Joseph Mwaura Wangondu V Republic [2016] eKLR

Read More

John Ogola Mukenya V Ernest Mangala Ayuga [2016] eKLR

Case Number: Probate and Administration Cause 257 of 2004 Date Delivered: 25 Feb 2016

Judge: Enock Chacha Mwita

Court: High Court at Kakamega

Parties: John Ogola Mukenya v Ernest Mangala Ayuga

Citation: John Ogola Mukenya V Ernest Mangala Ayuga [2016] eKLR

Read More

SGT Catherine Elizabeth Russell V Republic [2016] eKLR

Case Number: Criminal Appeal 34 of 2015 Date Delivered: 25 Feb 2016

Judge: Mary Muhanji Kasango

Court: High Court at Nanyuki

Parties: SGT Catherine Elizabeth Russell v Republic

Citation: SGT Catherine Elizabeth Russell V Republic [2016] eKLR

Read More

Patrick Maina Wanjiru V Republic [2016] eKLR

Case Number: Criminal Appeal 20 of 2015 Date Delivered: 25 Feb 2016

Judge: Mary Muhanji Kasango

Court: High Court at Nanyuki

Parties: Patrick Maina Wanjiru v Republic

Citation: Patrick Maina Wanjiru V Republic [2016] eKLR

Read More

Danson Muriithi V Republic [2016] eKLR

Case Number: Criminal Appeal 33 of 2015 Date Delivered: 25 Feb 2016

Judge: Mary Muhanji Kasango

Court: High Court at Nanyuki

Parties: Danson Muriithi v Republic

Citation: Danson Muriithi V Republic [2016] eKLR

Read More

Johana Kipkemei V Republic [2016] eKLR

Case Number: Criminal Appeal 92 of 2013 Date Delivered: 25 Feb 2016

Judge: George Kanyi Kimondo

Court: High Court at Eldoret

Parties: Johana Kipkemei v Republic

Citation: Johana Kipkemei V Republic [2016] eKLR

Read More

Obadia Orina V Republic [2016] eKLR

Case Number: Criminal Appeal 41 of 2015 Date Delivered: 25 Feb 2016

Judge: Mary Muhanji Kasango

Court: High Court at Nanyuki

Parties: Obadia Orina v Republic

Citation: Obadia Orina V Republic [2016] eKLR

Read More

Republic V Julius Michubu Laibuni [2016] eKLR

Case Number: Criminal Case 41 of 2011 Date Delivered: 25 Feb 2016

Judge: Roseline Pauline Vunoro Wendoh

Court: High Court at Meru

Parties: Republic v Julius Michubu Laibuni

Citation: Republic V Julius Michubu Laibuni [2016] eKLR

Read More

Stanley Kaunga Nkarichia V Meru Teachers College & Another [2016] eKLR

Case Number: Civil Appeal 84 of 2011 Date Delivered: 25 Feb 2016

Judge: Francis Gikonyo

Court: High Court at Meru

Parties: Stanley Kaunga Nkarichia v Meru Teachers College (through the Chairman B.O. G & John Koome Mugambi

Citation: Stanley Kaunga Nkarichia V Meru Teachers College & Another [2016] eKLR

Failure to issue a demand letter does not deny Costs to a successful party in a suit

Stanley Kaunga Nkarichia v Meru Teachers College (thru’ the Chairman B.O.G) & another

Civil Appeal No 84 of 2011

High Court at Meru

F Gikonyo J

February 25, 2016

Reported by Phoebe Ida Ayaya

 

Brief facts

According to the Appellant, lack of a demand letter would only affect costs in a case where the Defendant admitted the case without putting up a fight. The Respondents in this case put up a fight that they eventually lost. Such Defendant would have wasted the Plaintiff’s time and resources. The Appellant submitted that the Defendant filed defence and denied the claim. They only admitted liability after numerous court attendances.  Thus, according to the Appellant, since liability was agreed upon, it was not necessary to produce the demand letters that were in possession of both parties. Similarly, the new rules on filing of documents had not come into force. Again, costs were not subject of the consent judgment on liability, and so, the Appellant urged that the trial court ought to have determined the issue in its discretion under section 27 of the Civil Procedure Act.  The Appellant concluded that the trial court exercised its discretion injudiciously or on wrong principles and gave reasons that were not good reasons in the sense of the law. It did not make a good reason to deny a successful party costs.

 

Issues

  1. Whether the trial court ought to have awarded costs to the Appellant despite the failure to issue a demand letter
  2. Whether the failure to issue a demand letter affected the discretion of the Court to award costs

 

Civil Practice & Procedure-costs-award of costs-discretion of trial courts in awarding costs- whether the trial court ought to have awarded costs to the Appellant despite the failure to issue a demand letter- Civil Procedure Act (cap 21) section 27

 

Civil Practice & Procedure- notice of intention to sue-circumstances in which a notice of intention to sue would arise- whether the failure to issue a demand letter affected the discretion of Court to award costs

 

 

Held

  1. The law was that, the Appellate court would not interfere with the exercise of discretion by trial court on costs, except (1) where the discretion was not exercised judicially or was exercised on wrong principles, or (2) where the trial court gave no reasons for the decision and the Appellate court was satisfied that the decision was wrong; or (3) where reasons are given, the Appellant court considered those reasons not to constitute good reason within the meaning of section 27 of the Civil Procedure Act.
  2.  Applying the test was the reason given by the trial court as good reason to depart from the general rule that costs followed the event.  The trial court stated that as pointed out by counsel for the Defendant, the Plaintiff did not adduce evidence to show there was service of demand and Notice of Intention to sue. Each party was to bear its own costs.
  3. It had never been the law that a defendant could always have notice of intention to bring suit against him before action was filed in court. There were cases that, by their very nature or due to obtaining circumstance, it was impractical to issue a notice of intention to sue or issuing such notice of intention to sue would only be to the detriment of the interests of the Plaintiff and justice.
  4. For instance in trademarks and patent rights cases or where Anton Piller orders or ex- parte temporary injunctions were the subject of the suit, issuance of notice of intention to sue could militate against the very core of the litigation.  So, where there was a possibility that by giving a demand letter, the Defendant could dissipate or destroy evidence, or blow away the substratum of the Plaintiffs’ cause of action, the law did not place a necessity to issue a demand letter before an action was commenced; it could be overlooked. And in such circumstances, it would be injudicious to deny a successful suitor his costs of suit merely on the basis that a demand letter was not given.
  5.  In all other cases the demand letter ought to have been given unless the Plaintiff’s interests were likely to be harmed by prior communication with the opposite party.  However, absence of or failure to issue a demand letter was just one of the considerations that the court was to take into account in awarding costs. If a court made it the sole determinant factor, then, the said court was to give good reason to deny the successful party his costs.
  6. As a matter of general principle, costs follow the event and the successful party would always have costs of his success unless the court had good reason to order otherwise. These words -the events- meant the result of the entire litigation. The result of the entire litigation was that the suit was defended, although, only the Appellant testified in respect of the injuries sustained, and the Defendant did not call any witnesses. It was noted that a party was not disinherited of the title of successful party merely because the suit was not opposed or he met no or little resistance. The Appellant was, therefore, the successful party in the proceedings.
  7. There was an element of carelessness on the part of the Appellant in the way the issue on costs was handled. First, the Respondent in paragraph 10 of the Defence categorically denied that demand and notice of intention to sue was ever given. It was regrettable that the Appellant could state that the demand letter was issued and was in possession of both parties at the time of the prosecution of the primary suit as well as this appeal but he saw no need of tendering them in evidence. There was also no request to adduce additional evidence in this appeal in accordance with Order 42 rules 27, 28 and 29 of the Civil Procedure Rules. A demand letter was not a matter about which the court could take judicial notice of. In fact, nothing would have been easier than to produce the demand letter.
  8. The Appellant ought to have known that the case was not in the category of cases where issuance of a demand letter would harm the Appellant’s interests by communication of intention to sue to the opposite party nor was it in a special class of cases on patent rights and trademarks.
  9. The foregoing notwithstanding, it was instructive to observe that the Respondents did not straight away admit the claim. It seemed, however, that parties entered into negotiations after the suit had been filed. As part of those negotiations, the Plaintiff was referred for a second medical examination.  Ultimately, on March, 31 2011 parties recorded consent judgment on liability and agreed that assessment of damages by the court be done on May 26, 2011.  The matter was surely heard on the appointed date.
  10.  The nuances that the suit may have been avoided were it not for the Appellant’s conduct in not issuing a demand and notice of intention to sue did not hold sway. The mere fact that a demand may not have been issued- and even if it was, none was produced in court- was not, alone, a good reason to deny a successful party his costs of the suit. The omission to produce the demand letter may have been inadvertent or careless act; this was most regrettable.
  11. The overall impression of the case was that the Appellant was not moved by mala fides or impropriety in not producing the demand letter. There was every possibility that he was under false impression that in view of the consent on liability there was no need of producing the demand letter.
  12. The suit was also defended by the Defendant and continued on assessment of damages on the understanding of the parties. There was nothing that showed that issuance of notice of intention to sue would have made the suit unnecessary.
  13. The Appellant was the successful party to whom costs ought to have been awarded. There was absolutely no reason given by the trial court that would deny the successful party costs of the suit.
  14.  In the circumstances, the trial court did not exercise discretion judicially; it did not take into account the relevant factors; it did not apply the correct principles of law; it did not give any reasons to depart from the general principle of law that costs followed the event, and eventually the decision was wrong.
  15. The court was, therefore, entitled to interfere with the trial court’s discretion on costs. The Appellant was the successful party and mere fact that a demand letter was not issued or was by inadvertent or otherwise not produced in evidence could not justify an order to deny him costs of the suit. He was entitled to a recompense of expenses he had expended in the litigation.

 

Order of the trial court set aside and costs of the suit in the lower court awarded to the Appellant

Read More

Benjamin Anaya Isaya V Bob Morgan Services Limited [2016] eKLR

Case Number: Cause 26 of 2012 Date Delivered: 25 Feb 2016

Judge: Hellen Wasilwa Seruya

Court: Employment and Labour Relations Court at Nairobi

Parties: Benjamin Anaya Isaya v Bob Morgan Services Limited

Citation: Benjamin Anaya Isaya V Bob Morgan Services Limited [2016] eKLR

Read More

Republic V Benard Kimathi Kithee & Another [2016] eKLR

Case Number: Criminal Case 42 of 2011 Date Delivered: 25 Feb 2016

Judge: Roseline Pauline Vunoro Wendoh

Court: High Court at Meru

Parties: Republic v Benard Kimathi Kithee & Gerald Kayoyi Kimaruri

Citation: Republic V Benard Kimathi Kithee & Another [2016] eKLR

Read More

K M & Another V Republic [2016] eKLR

Case Number: Criminal Appeal 54 of 2014 Date Delivered: 25 Feb 2016

Judge: Roseline Pauline Vunoro Wendoh

Court: High Court at Meru

Parties: K M & Moses Ngolua M’muithu v Republic

Citation: K M & Another V Republic [2016] eKLR

Read More

James Barasa Ngala V Republic [2016] eKLR

Case Number: Criminal Appeal 93 of 2014 Date Delivered: 25 Feb 2016

Judge: Ruth Nekoye Sitati

Court: High Court at Kakamega

Parties: James Barasa Ngala v Republic

Citation: James Barasa Ngala V Republic [2016] eKLR

Read More

Danson Mwangi Kiawano V County Secretary Nairobi City County [2016] eKLR

Case Number: Miscellanous Civil Application 207 of 2015 (Judicial Review) Date Delivered: 25 Feb 2016

Judge: George Vincent Odunga

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Danson Mwangi Kiawano v County Secretary Nairobi City County

Citation: Danson Mwangi Kiawano V County Secretary Nairobi City County [2016] eKLR

Read More

Livingstone Mwambugu Mwakhungo & Another V Sarah Anyango Jaoko [2016] eKLR

Case Number: Civil Appeal 29 of 2013 Date Delivered: 25 Feb 2016

Judge: Esther Nyambura Maina

Court: High Court at Kisumu

Parties: Livingstone Mwambugu Mwakhungo & Fresh ''N'' Juicy Limited v Sarah Anyango Jaoko

Citation: Livingstone Mwambugu Mwakhungo & Another V Sarah Anyango Jaoko [2016] eKLR

Read More

Devna Pandit V Kennedy Otieno Obara & Another [2016] eKLR

Case Number: Civil Suit 494 of 2011 Date Delivered: 25 Feb 2016

Judge: Lucy Mwihaki Njuguna

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Devna Pandit v Kennedy Otieno Obara & Safaricom Limited

Citation: Devna Pandit V Kennedy Otieno Obara & Another [2016] eKLR

Read More

Elfas Shisia Wambetsa V Republic [2016] eKLR

Case Number: Criminal Appeal 78 of 2013 Date Delivered: 25 Feb 2016

Judge: Ruth Nekoye Sitati

Court: High Court at Kakamega

Parties: Elfas Shisia Wambetsa v Republic

Citation: Elfas Shisia Wambetsa V Republic [2016] eKLR

Read More

Felix Mbevo V Republic [2016] eKLR

Case Number: Criminal Appeal 1 of 2015 Date Delivered: 25 Feb 2016

Judge: Lilian Nabwire Mutende

Court: High Court at Kitui

Parties: Felix Mbevo v Republic

Citation: Felix Mbevo V Republic [2016] eKLR

Read More

Samuel Kamau Irungu V Ritz Enterprises Limited [2016] eKLR

Case Number: Cause 1387 of 2014 Date Delivered: 25 Feb 2016

Judge: Monica Mbaru

Court: Employment and Labour Relations Court at Nairobi

Parties: Samuel Kamau Irungu v Ritz Enterprises Limited

Citation: Samuel Kamau Irungu V Ritz Enterprises Limited [2016] eKLR

Read More

Republic V Dan Claus Murunga [2016] eKLR

Case Number: Criminal (Murder) Case 27 of 2012 Date Delivered: 25 Feb 2016

Judge: Ruth Nekoye Sitati

Court: High Court at Kakamega

Parties: Republic v Dan Claus Murunga

Citation: Republic V Dan Claus Murunga [2016] eKLR

Read More

James Ntwiga Kanake & Another V Aileen Mukwanjeru Jediel (Suing As The Administratrix Of The Estate Late Jediel Ntwiga) [2016] eKLR

Case Number: Civil Appeal 22 of 2015 (Formerly Meru HCA 23 of 2012) Date Delivered: 25 Feb 2016

Judge: Alfred Mabeya

Court: High Court at Chuka

Parties: James Ntwiga Kanake & Gulzar Ahmed Motors Ltd v Aileen Mukwanjeru Jediel (Suing as the Administratrix of the Estate Late Jediel Ntwiga

Citation: James Ntwiga Kanake & Another V Aileen Mukwanjeru Jediel (Suing As The Administratrix Of The Estate Late Jediel Ntwiga) [2016] eKLR

Read More

John Wanjala Wanyama V Wanandege Co-operative Savivings Sacco And Credit Society [2016] eKLR

Case Number: Cause 157 of 2015 Date Delivered: 25 Feb 2016

Judge: Monica Mbaru

Court: Employment and Labour Relations Court at Nairobi

Parties: John Wanjala Wanyama v Wanandege Co-operative Savivings Sacco and Credit Society

Citation: John Wanjala Wanyama V Wanandege Co-operative Savivings Sacco And Credit Society [2016] eKLR

Read More

Kiti Soso V Insight Management Consultants Ltd [2016] eKLR

Case Number: Cause 1954 of 2014 Date Delivered: 25 Feb 2016

Judge: Monica Mbaru

Court: Employment and Labour Relations Court at Nairobi

Parties: Kiti Soso v Insight Management Consultants Ltd

Citation: Kiti Soso V Insight Management Consultants Ltd [2016] eKLR

Read More

C I M V V M N [2016] eKLR

Case Number: Divorce Cause 158 of 2014 Date Delivered: 25 Feb 2016

Judge: Lydia Awino Achode

Court: High Court at Nairobi (Milimani Law Courts)

Parties: C I M v V M N

Citation: C I M V V M N [2016] eKLR

Read More

Gladys Wambui Muchina V Republic [2016] eKLR

Case Number: Criminal Appeal 67 of 2015 Date Delivered: 25 Feb 2016

Judge: Bwonwong'a Justus Momanyi

Court: High Court at Embu

Parties: Gladys Wambui Muchina v Republic

Citation: Gladys Wambui Muchina V Republic [2016] eKLR

Read More

Nduhiu Kanja V Francis Kanake Wahome [2016] eKLR

Case Number: Environment And Land 509 of 2014 (O.S) Date Delivered: 25 Feb 2016

Judge: Lucy Waithaka

Court: Environment and Land Court at Nyeri

Parties: Nduhiu Kanja v Francis Kanake Wahome

Citation: Nduhiu Kanja V Francis Kanake Wahome [2016] eKLR

Read More

B I I V Republic [2016] eKLR

Case Number: Criminal Appeal 130 of 2015 Date Delivered: 25 Feb 2016

Judge: Grace Wangui Ngenye

Court: High Court at Nairobi (Milimani Law Courts)

Parties: B I I v Republic

Citation: B I I V Republic [2016] eKLR

Read More

Kitheka Syanda V Garissa Parcel Service Ltd & 2 Others [2016] eKLR

Case Number: Civil Appeal 16 of 2013 Date Delivered: 24 Feb 2016

Judge: George Matatia Abaleka Dulu

Court: High Court at Garissa

Parties: Kitheka Syanda v Garissa Parcel Service Ltd, Imperial Bank & Firoz Muhamed

Citation: Kitheka Syanda V Garissa Parcel Service Ltd & 2 Others [2016] eKLR

Read More