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Thomas Mutuku Wambua V Republic [2014] eKLR

Case Number: Criminal Appeal 238 of 2010 Date Delivered: 28 May 2014

Judge: Beatrice Thuranira Jaden

Court: High Court at Machakos

Parties: Thomas Mutuku Wambua v Republic

Citation: Thomas Mutuku Wambua V Republic [2014] eKLR

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Republic V Dalmas Machanga & 2 Others [2014] eKLR

Case Number: Criminal Case 19 of 2013 Date Delivered: 28 May 2014

Judge: Martin Muya

Court: High Court at Mombasa

Parties: Republic v Dalmas Machanga, Modesty Ngure & Dalmas Kivumba Shake

Citation: Republic V Dalmas Machanga & 2 Others [2014] eKLR

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Darren Mbithi Kalunda V Republic [2014] eKLR

Case Number: Criminal Appeal 260 of 2013 Date Delivered: 28 May 2014

Judge: Beatrice Thuranira Jaden

Court: High Court at Machakos

Parties: Darren Mbithi Kalunda v Republic

Citation: Darren Mbithi Kalunda V Republic [2014] eKLR

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Darren Mbithi Kalunda V Republic [2014] eKLR

Case Number: Criminal Appeal 262 of 2013 Date Delivered: 28 May 2014

Judge: Beatrice Thuranira Jaden

Court: High Court at Machakos

Parties: Darren Mbithi Kalunda v Republic

Citation: Darren Mbithi Kalunda V Republic [2014] eKLR

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Darren Mbithi Kalunda V Republic [2014] eKLR

Case Number: Criminal Appeal 265 of 2013 Date Delivered: 28 May 2014

Judge: Beatrice Thuranira Jaden

Court: High Court at Machakos

Parties: Darren Mbithi Kalunda v Republic

Citation: Darren Mbithi Kalunda V Republic [2014] eKLR

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Samson Mwange & Another V Republic [2014] eKLR

Case Number: Criminal Appeals 204 & 205 of 2012 Date Delivered: 28 May 2014

Judge: George Matatia Abaleka Dulu, Said Juma Chitembwe

Court: High Court at Kakamega

Parties: Samson Mwange & Yassin Chogo Juma v Republic

Citation: Samson Mwange & Another V Republic [2014] eKLR

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Darren Mbithi Kalunda V Republic [2014] eKLR

Case Number: Criminal Appeal 263 of 2013 Date Delivered: 28 May 2014

Judge: Beatrice Thuranira Jaden

Court: High Court at Machakos

Parties: Darren Mbithi Kalunda v Republic

Citation: Darren Mbithi Kalunda V Republic [2014] eKLR

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George Mike Wanjohi V Steven Kariuki & 2 Others [2014] eKLR

Case Number: Petition 2A of 2014 Date Delivered: 28 May 2014

Judge: Philip Kiptoo Tunoi, Kalpana Hasmukhrai Rawal, Jackton Boma Ojwang, Mohammed Khadhar Ibrahim, Willy Munywoki Mutunga, Smokin C Wanjala, Susanna Njoki Ndung'u

Court: Supreme Court of Kenya

Parties: George Mike Wanjohi v Steven Kariuki,Independent Electoral and Boundaries Commission & Millam Wanjiru Gachihi

Citation: George Mike Wanjohi V Steven Kariuki & 2 Others [2014] eKLR

SUPREME COURT UPHOLDS COURT OF APPEAL’S DECISION TO CONDUCT FRESH ELECTIONS IN MATHARE CONSTITUENCY

 

George Mike Wanjohi v Steven  Kariuki & 2 Others [2014] eKLR

Petition No 2A 2014

Supreme Court of Kenya

W Mutunga, KH Rawal, PK Tunoi, MK Ibrahim, JB Ojwang, SC Wanjala, SN Ndung’u SCJJ

May 28th, 2014

 

Reported by Emma Kinya Mwobobia & Opiyo Lorraine

 

Brief Facts

The matter herein was an Appeal against the decision of the Court of Appeal in Election Petition No 2 of 2013 in which the court had overuled the decision of  the High Court thereby nullifying the election of the Appellant as the dully elected Member of Parliament of Mathare Constituency in the 2013 General Elections. The 1st Respondent herein, Mr Steven Kariuki had been declared the winner before but had had his certififcate cancelled in favour of the Appellant on the basis that it had been issued wrongfully. The trial court determined that the initial results acnnounced by the Returning Officer and the certificate of election issued thereafter were merely provisional results and could be corrected the moment an error was realised. Aggrieved by this determination, the 1st Respondent appealed to the Court of appeal seeking to set aside the trial court’s judgement. In overturning the decision of the high Court, the Court of Appeal observed that it could not ascertain the winner of the subject election. The appellate court therefore ordered that fresh elections be held for Member of the National Assembly for Mathare Constituency. In making this determination, the court applied the reasoning in the Supreme Court decision in Hassan Ali Joho & Another v Suleiman said Shahbal & 2 Others Supreme Court Petition No. 10 of 2013 (the Joho case) for the principle that a certificate in Form 38 declares the winner of the election and terminates the mandate of the Returning Officer who acts on behalf of the Independent electoral & Boundaries Commission (IEBC). According to the joho case, any grievance regarding the electoral process, challenging the results of an election already conducte, is to be lodged in the election court. The Court of Appeal held that it was bound by this decision by dint of Article 163(7) of the Constitution and ruled that the 2nd and 3rd responded were precluded from cancelling the certificate in Form 38 issued to the 1st Respondent. Consequently, the appellant made an application to the Supreme Court for a stay of execution of the Court of Appeal orders from conducting fresh elections, which was granted pending the hearing and determination of the appeal. 

Issues

  1. Whether the Court of Appeal exceeded its jurisdiction as specified under Article 164(3) of the Constitution by applying the law retrospectively in determining the matter before it
  2. Whether the Court of Appeal erred in allowing further bundle of authorities to be filed after the hearing of the main appeal had been concluded but before the judgment was issued
  3. Whether the Court of Appeal applied the principle of stare decisis (precedent) as enshrined in Article 163(7) of the Constitution in applying the Joho decision in determination of the appeal before them.
  4. Under what circumstances would another court distinguish a decision of the Supreme Court, and find it to be inapplicable to a case before it?
  5. Whether a Returning Officer and the Independent Electoral and Boundaries Commissions (IEBC) had the power to cancel Form 38 (Certificate of Election) which it had issued been in respect to the winning candidate and issue it to another candidate on the premise that an error had been been made in the previous issuance.
  6. Whether the Court of Appeal contravened Article 27 of the Constitution, in awarding costs to the 1st Respondent only.

 

Election Law- election petition - parliamentray elections – revocation of Form 38 for certififcation of elections – where the IEBC had issued Form 38 to the 1st Respondent in error and subsequently revoked it and issued another one to the appellant - functions of a Retuning Officer - whether a returning officer could revoke a Certificate of Elections issued to a candidate and issue it to another candidate where an error was said to have occurred during tallying of votes - Elections Act section 80.

Election Law – election results – declaration of election results – what constitutes declaration of election results – what instrument is used to declare election results - Constitution of Kenya, 2010, article 87(2) – Elections Act sections 76(1)(a)

Election law- costs- costs of an election petition- whether the Court of Appeal could award costs to one party only in circumstances where both the Appellant and the Respondent had been adversely affected by the error committed by an agent of the IEBC, the returning officer- Elections Act, section 84, Election petition rules,  rules 36.

Common law – precedence - Doctrine of stare decisis – applicability of the doctrine – applicability of the doctrine of restrictive  or un-restrictive distinguishing in relying on the Joho case - whether the Supreme Court could make a distinction between the decisions it had previously delivered with regard to a case before – factors to be considered in such circumstances - Constitution of Kenya, 2010 article 163 (7).

 

The Constitution of Kenya, 2010

Article 88 (4)

“ The Commission is responsible for conducting or supervising referenda and elections to any elective body or office established by this Constitution, and any other elections as prescribed by an Act of Parliament and, in particular, for—….

(e) the settlement of electoral disputes, including disputes relating to or arising from nominations but excluding election petitions and disputes subsequent to the declaration of election results….”

Article 164

“(3) The Court of Appeal has jurisdiction to hear appeals from –

  1. The High Court; and
  2. Any other court or tribunal as prescribed by an Act of Parliament.”

 

Elections (General) Regulations 2012

Regulation 79

“ (1) The Presiding Officer, the candidates or agents shall sign the declaration in respect of the elections.

(2) For purposes of sub-regulation (1), the declaration for –

 (a)  National Assembly, county women representatives, Senator, county governor and county assembly elections shall be in Form 35 set out in the Schedule.

(3) The Presiding Officer shall –

  1. immediately announce the results of the voting at that polling station before communicating the results to the returning officer;
  2. request each of the candidates or agent then present to append his or her signature;
  3. provide each political party, candidate, or their agent with a copy of the declaration of the results; and
  4. affix a copy of the declaration of the results at the public entrance to the polling station or at any other place convenient and accessible to the public at the polling station” (Emphasis added).”

 

Elections Act, Cap 7

“(84) An election court shall award the costs of and incidental to a petition and such costs shall follow the cause.”

 

Section 80

“(1) An election court may by order direct the Commission to issue a certificate of election to a President, a member of Parliament or a member of a county assembly if-

  1. upon recount of the ballots cast, the winner is apparent; and
  2. that winner is found not to have committed an election offence.”

 

Regulation 87

“ (2) The returning officer shall after tallying of votes at the constituency level –

  1. announce the results cast for all candidates;
  2. issue certificates to persons elected in the National Assembly and county assembly elections in Form 38 set out in the Schedule; and
  3. electronically transmit the provisional results to the Commission.”

 

Election Petition Rules

Rule 36

“(1) The court shall, at the conclusion of an election petition, make an order specifying—

  1. the total amount of costs payable; and
  2. the persons by and to whom the costs shall be paid.

(2) When making an order under sub-rule (1), the court may —

  1. disallow any costs which may, in the opinion of the court, have been caused by vexatious conduct, unfounded allegations or unfounded objections, on the part of either the petitioner or the respondent; and
  2. impose the burden of payment on the party who has caused an unnecessary expense, whether such party is successful or not, in order to discourage any such expense.”

 

Held

  1. Jurisdiction flowed from the law, and the recipient-Court was to apply the same, with any limitations embodied therein. Such a court may not arrogate to itself jurisdiction through the craft of interpretation, or by way of endeavours to discern or interpret the intentions of Parliament, where the wording of legislation was clear and there was no ambiguity. In the case of the Supreme Court, Court of Appeal and High Court, their respective jurisdictions were donated by the Constitution. Thus, Article 164(3)(a) of the Constitution restricted the jurisdiction of the Court of Appeal.
  2. The introduction of the further bundle of authorities did not require the reopening of the facts before the Court, and it was not of any prejudicial effect upon the parties, particularly where the parties were allowed to address the Court on a binding decision of the Supreme Court, and on its effect upon them. The Supreme  Court’s previous decisions established the principle that its decision had a retrospective effect on cases pending before the lower Courts.
  3. The Court perceived the requirements of Regulation 87 as the “final step” of declaration of results, which culminated in the Returning Officer tallying the votes at the constituency level.
  4. Declaration of results, for the various elections, was made at different (progressive) stages by use of Forms 34, 35, 36, 37 and  38 as prescribed by the Regulations. In the election of a Member of the Naional Assembly, declaration of the results was first made at the polling station where Form 35 was completed by the Presiding Officer, indicating the votes cast in favour of the various candidates. Another declaration was made at the tallying centre upon completion of the tallying process, and the returning officer completes Form 36 indicating among others, the votes cast for each candidate. The Returning Officer was required to deliver the original Form 35 together with Form 36 containing the results of the election of Member of the national Assembly to the County Returning Officer. The Returning officer was also required to announce the results of all candidates at the constituency level after tallying and to issue a certificate to the person elected in the National Assembly elections in Form 38.
  5. Article 163(7) of the Constitution incorporated the doctrine of stare decisis, as understood at common law. That doctrine held that decisions of a higher court, unless distinguished or overruled, bore the quality of law, and bound all lower Courts in similar or like cases.
  6. The value of certainty and consistency in the law was the justification for upholding the doctrine of stare decisis, or binding precedent. The guiding principle, therefore, was that decisions of the Supreme Court, as a matter of constitutional imperative, were binding on all other courts, and were to be adhered to so that certainty, predictability and consistency in the law was institutionalized within the legal system. It was, however, recognized that due to society’s constant social mobility and re-ordering, the attendant dynamics may necessitate either a departure from, or a distinguishing of legal norms laid down by the Court. 
  7. Different sets of facts presented themselves in the adjudication of disputes before the Courts. These varying facts fell for evaluation, interpretation and analysis, outcomes of which were then weighed, in a process of judicial reasoning, against some defined principles of law, so as to determine the respective rights of parties. Indubitably, the differing fact-situations made every given case peculiar, and quite apart from the other.
  8. Bearing in mind that ascertained legal principles of binding precedent were applied to ascertained factual situations, regard should be had in the course of identifying an applicable rule, to the principle that similar fact-situations were to be treated in a similar fashion.  Where facts were materially dissimilar, or the case was not analogous to the previous decision, the Supreme Court would always distinguish the rule and would, in the interest of justice, choose not to apply its previous decision.  That was the guiding principle to be applied by the Supreme Court in distinguishing its decisions.
  9. Where the facts were different, the ratio decidendi of the precedent-setting case would not injudiciously be applied to a later decision. The earlier decision would be distinguished, on a case-by-case basis, through a circumspect process of judicial reasoning, that gave a basis for a different ratio, even when the outcome was similar to that in the earlier case.
  10. The determination in the Joho case is a principled enunciation by the Supreme Court marking the essence of a declaration of election results. By that definition, the issuance of a certificate in Form 38 connotes final results which can only be contested before the court under Article 105 (1)(a) and (2) of the Constitution. Since the definition bore a broad span, it took quite a specific illustration to portray a differing circumstance such as should be admitted as a qualification to the norm. No such meritorious exception had been brought up in the instant case.
  11. Whether prospective or retrospective effect attended a declaration of nullity, was to be determined on a case-by-case basis. In the instant case, the lack of transparency, attended with breaches of the law, on the part of the 2nd and 3rd Respondents brought harm both to the Appellant and the 1st Respondent.  As this was a ‘live matter’ before the Court, the Application of the rule in the Joho case was essential.
  12. Elections were conducted, managed and supervised by the IEBC pursuant to its mandate under Article 88 of the Constitution.  Article 88(4)(e) dealt with  the settlement of electoral disputes, which included disputes relating to and arising from nominations, but excluded election petitions and disputes subsequent to the declaration of election results. This was restated in Section 4 of the Independent Electoral and Boundaries Commission Act and Section 74(1) of the Elections Act.
  13. By the design of the general principles of the electoral system, and of voting, in Articles 81 and 86 the Constitution, it was envisaged that no electoral malpractice or impropriety would occur that impaired the conduct of elections.  That was the basis for the public expectation that elections were valid, until the contrary was shown, through a recognized legal mechanism founded in law or the Constitution.  Any contests as to the credibility, fairness or integrity of elections, belonged to no other forum than the Courts. The charge of commission of administrative error, fraud, deliberate misconduct, or some element of corrupt practice in elections, were questions that wen to the root of the validity of elections and which, if apparent subsequent to the declaration of results, were expressly excluded from the scope of the dispute resolution powers of the IEBC under Article 88(4)(e) of the Constitution.
  14. In the instant case, the Returning Officer could not have, after issuing the Certificate of Results in favour of the 1st respondent, subsequently cancelled it and issued a fresh Form 38 to the appellant. The Returning Officer having declared the 1st respondent as the winning candidate, and duly issued the Form 38, became functus officio. There was neither scope for the Returning Officer to withdraw a declaration of the election result once made, and to cancel the certificate issued in favour of the winning candidate, nor was there a mandate to rectify the Form 38. Once the votes were polled, counted and results declared, it would be perilous to allow the Returning Officer to nullify the result, purportedly in rectification of some error. That would not only have affected the very sanctity of the election process, but also encroached on the powers of the Election Court.
  15. Apart from the priority attaching to the political and constitutional scheme for the election of representatives in governance agencies, the weight of the people’s franchise-interest was far too substantial to permit one official, or a couple of them, including the Returning Officer, unilaterally to undo the voters’ verdict, without having the matter resolved according to law, by the judicial organ of State. It was manifest to the Court that an error regarding the electors’ final choice, if indeed there was one, raised vital issues of justice such as could only be resolved before the Courts of law.
  16. The question whether the 2nd and 3rd respondents could casually revoke a certificate of election results (Form 38) which they had issued in favour of the 1st respondent, issued with publicity and in the glare of the voters, was one to be governed by legal principle. Such a context of issuance of the certificate bore such enormity, as to rule out the possibility of a unilateral cancellation such as would not only occasion grave prejudice to the first respondent, but would also undermine the legitimacy of the electoral process in the perception of the voters.
  17. An action of such gravity fell squarely to resolution through the judicial process. Withdrawal of the Form 38 from the 1st Respondent was contrary to law and was a nullity prima facie. However, by the common law concept, omnia praesumuntur rite et solemniter esse acta (‘all acts are presumed to have been done rightly and regularly’), the issuance of Form 38 to the appellant stood as an invalid process, and the Court would declare its status henceforth as a nullity.
  18. Once the Returning Officer issued Form 38, his or her mandate was exhausted. The Returning Officer did not have the power to unilaterally  correct any decisional errors after the declaration of the election result. The alternative would amount to conferring a power which was not recognized under the Constitution, the Elections Act, and the Rules and Regulations framed thereunder, as well as the IEBC Act.
  19. In light of Article 88(4)(e) of the Constitution, section 74(1) of the Elections Act and the decision in the Joho case, the jurisdiction of the 3rd Respondent ended at the time the Returning Officer issued the certificate in Form 38 and no alteration could be made by its officers.
  20. In election petition matters, Courts were in principle,to award costs following the event.  In instances where there was a vexatious claim brought by the Petitioner or the Respondents, the Court would determine whether a party was to be disallowed costs, or the burden of paying costs would fall on such a  party. The scope for discretion under section 84 of the Elections Act and rule 36 of the Election Petition Rules was more limited than was the case in normal civil procedure. The purpose was to compensate the successful litigant for expenses incurred in prosecuting the case.
  21. The Court of Appeal should have ordered the 2nd respondent to bear the costs of the 1st respondent, as it was only prudent and in the interests of justice to do so.
  22. It could not be said that the Form 38 issued to the 1st respondent was “not challenged,” merely because the Appellant did not himself file a Petition in an Election Court. When the 1st responden filed an election petition in which he sought a declaration that the election results be invalidated and his Form 38 be declared valid, the validity of Form 38 issued to him became an issue on which the trial court made a determination. For the Court to hold that there was no Petition challenging the 1st Respondent’s Form 38, merely because the Petition filed was by the 1st respondent himself, would be paying undue regard to technicality, in place of the substantive questions.
  23. The Constitution did not bar the winner of an election from filing an election petition, as such a petition may challenge any aspect of the election, in line with the plurality of processes considered by this Court in the Joho case.  The Elections Act did not indicate that a petition by the declared winner laid a basis for a determination. It was simply perceived as a matter of practicality, that one would not challenge one’s own victory. Article 87 of the Constitution had made no provision on who may file an election petition.
  24. The appelant whose Certificate of Results in Form 38 was issued outside the mandate period of the commission, was the sworn in and serving member of the national Assembly for Mathare Constituency. The Court should in principle, not substitute a sitting Member of Parliament with another, without allowing the people to execute their political rights, as enshrined under the Constitution. To do otherwise would be to undermine the values and principles of democratic governance that bind us, in the execution of our judicial authority. It would also lead to an upset in the composition of the elected representatives who bore the people’s sovereignty, and would stand out as a clear disregard of the founding provisions of the Constitution.
  25. In determining whether election results were valid or not, a court would endevour to establish whether such results were broadly reflective of the will of the electorate. If the Court was satisfied that constitutional provisions had been contravened, as a result of which the election results did not reflect the will of the electorate, the Court was not to aggravate the problem by upholding those results. Instead, the Court was to seek the most appropriate remedy that safeguards the will of the electorate. The Court had always to bear in mind that its final determination should not stand out as a substitute for the ballot as that was the preserve of the electorate.
  26. At such an advanced stage of the progression of the instant matter, an order for scrutiny and recount or re-tally was unavailable, since that could only been done by the trial Court. The Supreme Court, therefore, had no means of verifying the validity of the declared results, in light of the discrepancies in results in Forms 35, 36 and 38. Thus, it was  sufficient for the Court to not declare that the Form 38 issued to the 1st respondent was valid.
  27. The issuance to the 1st Respondent of the Certificate of Election Results that had no foundation in authenticated records, was in the first place a gross violation of the mandate reposed in the Independent Electoral and Boundaries Commission under Article 88 of the Constitution. The erratic and unprincipled decision to then revoke the said certificate, and to confer it instead upon the appellant, in total disregard of the law, was so censurable as to call for a properly conducted investigation and requisite redressive action by the relevant authorities.
  28. Article 81(e)(v) of the Constitution imposed a duty on the IEBC to ensure that elections  were administered in an efficient, accurate and accountable manner. In conducting the elections for Mathare Constituency, the 3rd Respondent, as agent of the 2nd Respondent, arrogated to herself a role not bestowed upon her by law. Either singly or in alliance, the said Respondents sacrificed the values, principles and mechanisms of fair election, thus gravely undermining the concept of democratic governance as enshrined in the Constitution.

 

As Per K.H. Rawal, DCJ & Vice-President

  1. The primary consideration of a Judge must be whether the declaration of the election results at every stage of tallying validates the issuance of the final Certificate of Results in Form 38. The references to be looked at must be the Constitution, the Elections Act and the Rules and Regulations thereunder. The principles would apply across the entire spectrum of electoral disputes and a Court before which a matter was presented was to evaluate the facts of each case against those principles. As such, and as elaborated in the Joho case and affirmed by the majority in the instant case, the guiding consideration in electoral disputes must be the electoral process and the principles attendant.
  2. Electoral disputes in Kenya were resolved with particular reference to constitutional values and principles which were to be emphasised and, as demonstrated by the Court, upheld and interpreted in the manner required by the Constitution. Therein lay the distinction of applying the principle of ‘restrictive’ or ‘un-restrictive distinguishing’ in a system of constitutional application and of common law.
  3. The principles set by the honourable Court in the course of its constitutional adjudication were principled and well considered. Therefore, an argument to consider a departure from those principles or to distinguish either restrictively or un-restrictively was to be weighed against the most serious inclinations of justice and social utility. Any departure from the decisions of the Court by a lower Court ought to be viewed as a hazardous expedition and was only to be to the extent that there was an elaborate distinction on the facts.

Orders:

Appeal disallowed, Court of Appeal’s decision upheld. Appellant to bear his own costs and 2nd Respondent to bear the costs of the 1st Respondent.

 

Cases

East Africa

  1. Amoth, Cornel Rasanga v William Odhiambo Oduol & 2 others Civil Application No 26 of 2013 – (Mentioned)

  2. Captain Harry Gandy v Caspar Air Charters Ltd (1956) 23 EACA 139 – (Mentioned)

  3. Gatirau Peter Munya v Dickson Kithinji & 2 others Application No 5 of 2014 - (Followed)

  4. In Re The Matter of the Interim Independent Electoral Commission Constitutional Application No 2 of 2011 – (Explained)

  5. Joho ,Hassan Ali & Another v Suleiman Said Shahbal & 2 others Petition No 10 of 2013 – (Followed))

  6. King’ara, Peter Gichuki v Independent Electoral and Boundaries Commission & 2 others Civil Appeal No 23 of 2013 – (Explained)

  7. Macharia, Samuel & Another v Kenya Commercial Bank Limited & 2 others Application No 2 of 2011 – (Explained)

  8. Munene, Mary Wambui v Peter Gichuki King’ara & 2 others, Petition No 7 of 2014 – (Followed)

  9. Okeyo, Jared Odoyo & Another v Independent Electoral and Boundaries Commission & 6 others, Civil Appeal No 16 of 2013 – (Mentioned)

  10. Odinga ,Raila & 2 others v Independent Electoral and Boundaries Commission & 3 others, Petition No 5,4 & 3  of 2013 ( consolidated ) – (Followed)

  11. Ongari ,Simon Nyaundi & another v Joel Omagwa Onyancha & 2 others Election Petition No 2 of 2008 – (Mentioned)

  12. Rai ,Jasbir Singh & 3 others v Tarlochan Singh & 4 others, Petition 4 of 2012 (Followed)

  13. Thomas De La Rue (K) Ltd v David Opondo Omutelema, Civil Appeal No 65 of 2012 - (Mentioned)

  14. Waititu,Ferdinand Ndung’u v Independent Electoral and Boundaries Commission& 8 others, Civil Application No 137 of 2013 - (Mentioned)

United Kingdom

  1. A v  Governor of Arbour Hill Prison [2006] IESC 45, [2006] 4 IR 88;[2006] IESC 45 [2006] – (Followed)

  2. Balfour v Balfour [1919] 2 KB 571 – (Followed)

  3. Jones v National Coal Board (1957) 2 All ER 15 – (Mentioned)

  4. Merritt v Merritt  [1970] 2 All ER 760; [1970] 1WLR 1211 – (Distinguihsed)

  5. Practice Statement (Judicial Precedent) [1966] 1WLR 1234 (HL); [1966] 3 All ER 77 (Practice Statement) – (Followed)

  6. Peabody Fund v Sir Lindsay Parkinson Ltd [1984] 2 WLR 953 (HL) – (Explained)

     

South Africa

  1. Harksen v Lane NO and others (CCT9/97) [1997] ZACC 12; 1997 (11) BCLR 1489; 1998 (1) SA 300 - (Mentioned)

Statutes

East Africa

  1. Constitution of Kenya,2010 articles 1)(1); 2; 10(2); 25(c); 27;38(2)(3); 51;75(3); 81(e)(v);86(b)(c); 87(1)(2);88(4)(e)(5); 93;94(1); 105(1)(a)(2); 159(2)(e); 163 (3)(a)(7) ;164(3)(7); 259(1)(c) – (Interpreted)

  2. Appellate Jurisdiction Act (cap 9) - Ingeneral

  3. Court of Appeal Rules,2010 (cap 9 Sub Leg) rule 31 - (Interpreted)

  4. Elections Act,2011 (Act No 24 of 2011) sections 39, 74(1)(3)(b) ; 76(1)(a);85A- (Interpreted)

  5. Elections (General) Regulations 2012 (Act No 24 of 2011 Sub Leg) regulations 79,83, 87(9)- (Interpreted)

  6. Elections (Parliamentary and County Election Petition) Rules, 2013 (Act No 24 of 2011 Sub Leg) rules 6,36 -(Interpreted)

  7. Independent Electoral and Boundaries Commission Act, 2011(Act No 9 of 2011) section 4 - (Interpreted)

  8. Supreme Court Act, 2011 (Act No 7 of 2011) section 20 - (Interpreted)

  9. Supreme Court Rules, 2012 (Act No 7 of 2011 Sub Leg) rule 8(1) (2)- (Interpreted)

Texts & Journals

  1. Malleson K ., Moules R ., (Ed) (2010) The Legal System London: Oxford University Press 2010

  2. Williams G., (Ed) (1973) Learning the Law, London: Sweet &Maxwell 9th edn

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Joseph Peter Ngalason V Republic [2014] eKLR

Case Number: Criminal Appeal 437 of 2009 Date Delivered: 28 May 2014

Judge: Amraphael Mbogholi-Msagha

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Joseph Peter Ngalason v Republic

Citation: Joseph Peter Ngalason V Republic [2014] eKLR

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F K V Republic [2014] eKLR

Case Number: Criminal Appeal 53 of 2014 Date Delivered: 28 May 2014

Judge: Said Juma Chitembwe

Court: High Court at Kakamega

Parties: F K v Republic

Citation: F K V Republic [2014] eKLR

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Samuel Ashono Natiri V Republic [2014] eKLR

Case Number: Criminal Appeal 86 of 2012 Date Delivered: 28 May 2014

Judge: Said Juma Chitembwe

Court: High Court at Kakamega

Parties: Samuel Ashono Natiri v Republic

Citation: Samuel Ashono Natiri V Republic [2014] eKLR

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Gideon Johnson Liboywa V Republic [2014] eKLR

Case Number: Criminal Appeal 230 of 2011 Date Delivered: 28 May 2014

Judge: Said Juma Chitembwe

Court: High Court at Kakamega

Parties: Gideon Johnson Liboywa v Republic

Citation: Gideon Johnson Liboywa V Republic [2014] eKLR

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Nyamawi Nyawa V Republic [2014] eKLR

Case Number: Criminal Appeal 172 of 2011 Date Delivered: 28 May 2014

Judge: Martin Muya

Court: High Court at Mombasa

Parties: Nyamawi Nyawa v Republic

Citation: Nyamawi Nyawa V Republic [2014] eKLR

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Mwongera Mugambi Rinturi & Another V Florence Imathiu [2014] eKLR

Case Number: Civil Appeal 277 of 2010 Date Delivered: 28 May 2014

Judge: Alnashir Ramazanali Magan Visram, James Otieno Odek, Stephen Gatembu Kairu

Court: Court of Appeal at Nyeri

Parties: Mwongera Mugambi Rinturi & Festus Guantai Mugambi v Florence Imathiu

Citation: Mwongera Mugambi Rinturi & Another V Florence Imathiu [2014] eKLR

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Darren Mbithi Kalunda V Republic [2014] eKLR

Case Number: Criminal Appeal 10 of 2013 Date Delivered: 28 May 2014

Judge: Beatrice Thuranira Jaden

Court: High Court at Machakos

Parties: Darren Mbithi Kalunda v Republic

Citation: Darren Mbithi Kalunda V Republic [2014] eKLR

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George Owalla Okeyo V Director Of Pensions & Another [2014] eKLR

Case Number: Misc. Civil .Appl. 178 of 2011 Date Delivered: 28 May 2014

Judge: David Shikomera Majanja

Court: High Court at Nairobi (Milimani Law Courts)

Parties: George Owalla Okeyo v Director of Pensions & Attorney General

Citation: George Owalla Okeyo V Director Of Pensions & Another [2014] eKLR

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Joseph Nyaga Njagi & 2 Others V Michale Muchira Nduma & Another [2014] eKLR

Case Number: Civil Appeal 4 of 2014 Date Delivered: 28 May 2014

Judge: Alnashir Ramazanali Magan Visram, James Otieno Odek, Stephen Gatembu Kairu

Court: Court of Appeal at Nyeri

Parties: Joseph Nyaga Njagi, Harrison Njiru Njeru & Mugane Itta (Suing as Trustees and Officials of Christ True Vine Ministry Church) v Michale Muchira Nduma & Joseph Njiru Ireri

Citation: Joseph Nyaga Njagi & 2 Others V Michale Muchira Nduma & Another [2014] eKLR

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Emmanuel Safari Yaa V Kenya Power & Lighting Co. Ltd [2014] eKLR

Case Number: Petition 23 of 2011 Date Delivered: 28 May 2014

Judge: Maureen Akinyi Odero

Court: High Court at Mombasa

Parties: Emmanuel Safari Yaa v Kenya Power & Lighting Co. Ltd

Citation: Emmanuel Safari Yaa V Kenya Power & Lighting Co. Ltd [2014] eKLR

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Republic V Attorney General & 2 Others Ex-Parte Joseph Ombaso Masese

Case Number: Misc. Civil Application 107 of 2013 Date Delivered: 28 May 2014

Judge: George Vincent Odunga

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Republic v Attorney General, Inspector General of Police & Principal Secretary Provincial Administration & Internal Security

Citation: Republic V Attorney General & 2 Others Ex-Parte Joseph Ombaso Masese

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Wycliff Otieno Ngode Alias Toti V Republic [2014] eKLR

Case Number: Criminal Appeal 21 of 2013 Date Delivered: 28 May 2014

Judge: Maureen Akinyi Odero, Samwel Ndungu Mukunya

Court: High Court at Mombasa

Parties: Wycliff Otieno Ngode Alias Toti v Republic

Citation: Wycliff Otieno Ngode Alias Toti V Republic [2014] eKLR

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Darren Mbithi Kalunda V Republic [2014] eKLR

Case Number: Criminal Appeal 264 of 2013 Date Delivered: 28 May 2014

Judge: Beatrice Thuranira Jaden

Court: High Court at Machakos

Parties: Darren Mbithi Kalunda v Republic

Citation: Darren Mbithi Kalunda V Republic [2014] eKLR

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Y A O V J L [2014] eKLR

Case Number: Divorce Cause 37 of 2013 Date Delivered: 28 May 2014

Judge: Maureen Akinyi Odero

Court: High Court at Mombasa

Parties: Y A O v J L

Citation: Y A O V J L [2014] eKLR

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Four Famrs Limited V Agricultural Finance Corporation [2014] eKLR

Case Number: Constitutional Petition 45 of 2011 Date Delivered: 28 May 2014

Judge: Francis Tuiyott

Court: High Court at Mombasa

Parties: Four Famrs Limited v Agricultural Finance Corporation

Citation: Four Famrs Limited V Agricultural Finance Corporation [2014] eKLR

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Agatha Bugosi Said V Vegpro Kenya Limited [2014] eKLR

Case Number: Cause 2074 of 2012 Date Delivered: 27 May 2014

Judge: Monica Mbaru

Court: Industrial Court at Nairobi

Parties: Agatha Bugosi Said v Vegpro Kenya Limited

Citation: Agatha Bugosi Said V Vegpro Kenya Limited [2014] eKLR

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Republic V Kazungu Katana Ngoa [2014] eKLR

Case Number: Criminal Case 2 of 2011 Date Delivered: 27 May 2014

Judge: Christine Wanjiku Meoli

Court: High Court at Malindi

Parties: Republic v Kazungu Katana Ngoa

Citation: Republic V Kazungu Katana Ngoa [2014] eKLR

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Sudi Harub Suleiman V Republic [2014] eKLR

Case Number: Criminal Appeal 39 of 2013 Date Delivered: 27 May 2014

Judge: Christine Wanjiku Meoli

Court: High Court at Malindi

Parties: Sudi Harub Suleiman v Republic

Citation: Sudi Harub Suleiman V Republic [2014] eKLR

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Samuel Nyamasi V Vegpro Kenya Ltd [2014] eKLR

Case Number: Industrial Cause 1335 of 2012 Date Delivered: 27 May 2014

Judge: Monica Mbaru

Court: Industrial Court at Nairobi

Parties: Samuel Nyamasi v Vegpro Kenya Ltd

Citation: Samuel Nyamasi V Vegpro Kenya Ltd [2014] eKLR

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Benjamin Nyambati Ondiba V Egerton University [2014] eKLR

Case Number: Industrial Cause 1099 of 2012 Date Delivered: 27 May 2014

Judge: Monica Mbaru

Court: Industrial Court at Nairobi

Parties: Benjamin Nyambati Ondiba v Egerton University

Citation: Benjamin Nyambati Ondiba V Egerton University [2014] eKLR

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Ibrahim Imerikit Papai V Kefa Omanyala Ingura [2014] eKLR

Case Number: Civil Appeal 40 of 2011 Date Delivered: 27 May 2014

Judge: Francis Tuiyott

Court: High Court at Busia

Parties: Ibrahim Imerikit Papai v Kefa Omanyala Ingura

Citation: Ibrahim Imerikit Papai V Kefa Omanyala Ingura [2014] eKLR

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Stephen Ndirangu Ndungo V Wanjuki Muchemi [2014] eKLR

Case Number: Cause 21 of 2012 Date Delivered: 27 May 2014

Judge: Nelson Jorum Abuodha

Court: Industrial Court at Nyeri

Parties: Stephen Ndirangu Ndungo v Wanjuki Muchemi

Citation: Stephen Ndirangu Ndungo V Wanjuki Muchemi [2014] eKLR

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Simon Hungu & Another V Vincent Barasa Wafula & Another [2014] eKLR

Case Number: Civil Appeal 118 of 2000 Date Delivered: 27 May 2014

Judge: Mathew John Anyara Emukule

Court: High Court at Nakuru

Parties: Simon Hungu & Valley; Bakery Limited v Vincent Barasa Wafula & John Baptist

Citation: Simon Hungu & Another V Vincent Barasa Wafula & Another [2014] eKLR

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James Wahome Ndegwa V Republic [2014] eKLR

Case Number: Criminal Appeal 60 of 2011 Date Delivered: 27 May 2014

Judge: Fred Andago Ochieng, Grace Wangui Ngenye

Court: High Court at Eldoret

Parties: James Wahome Ndegwa v Republic

Citation: James Wahome Ndegwa V Republic [2014] eKLR

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Hemed Ronald Mwamburi V Republic [2014] eKLR

Case Number: Criminal Appeal 130 of 2012 Date Delivered: 27 May 2014

Judge: Martin Muya

Court: High Court at Mombasa

Parties: Hemed Ronald Mwamburi v Republic

Citation: Hemed Ronald Mwamburi V Republic [2014] eKLR

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Obedi Kilonzi Kevevo V Republic [2014] eKLR

Case Number: Criminal Appeal 89 of 2013 Date Delivered: 27 May 2014

Judge: Lilian Nabwire Mutende

Court: High Court at Machakos

Parties: Obedi Kilonzi Kevevo v Republic

Citation: Obedi Kilonzi Kevevo V Republic [2014] eKLR

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Mwalongo Chichoro Mwanjembe V Republic [2014] eKLR

Case Number: Criminal Appeal 14 of 2013 Date Delivered: 27 May 2014

Judge: Martin Muya

Court: High Court at Mombasa

Parties: Mwalongo Chichoro Mwanjembe v Republic

Citation: Mwalongo Chichoro Mwanjembe V Republic [2014] eKLR

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Samuel Muniu Wainaina V Republic [2014] eKLR

Case Number: Criminal Appeal 246 of 2011 Date Delivered: 27 May 2014

Judge: Amraphael Mbogholi-Msagha, Lydia Awino Achode

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Samuel Muniu Wainaina v Republic

Citation: Samuel Muniu Wainaina V Republic [2014] eKLR

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Hesbon Kamau Wambo V Republic [2014] eKLR

Case Number: Criminal Appeal 292 of 2012 Date Delivered: 27 May 2014

Judge: Amraphael Mbogholi-Msagha, Lydia Awino Achode

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Hesbon Kamau Wambo v Republic

Citation: Hesbon Kamau Wambo V Republic [2014] eKLR

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M W V Republic [2014] eKLR

Case Number: Cra 13 of 2013 Date Delivered: 26 May 2014

Judge: Alfred Mabeya

Court: High Court at Bungoma

Parties: M W v Republic

Citation: M W V Republic [2014] eKLR

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In The Matter Of Baby I.M. [2014] eKLR

Case Number: Adoption Cause 301 of 2013 (OS) Date Delivered: 26 May 2014

Judge: William Musya Musyoka

Court: High Court at Nairobi (Milimani Law Courts)

Parties: In the Matter of Baby I.M.

Citation: In The Matter Of Baby I.M. [2014] eKLR

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Francis Chege Muthee V Republic [2014] eKLR

Case Number: Criminal Case 84 of 2011 Date Delivered: 26 May 2014

Judge: Amraphael Mbogholi-Msagha, Lydia Awino Achode

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Francis Chege Muthee v Republic

Citation: Francis Chege Muthee V Republic [2014] eKLR

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In Re Adoption Of Baby G H (Minor) [2014] eKLR

Case Number: Adoption Cause 296 of 2013 (OS) Date Delivered: 26 May 2014

Judge: William Musya Musyoka

Court: High Court at Nairobi (Milimani Law Courts)

Parties: In Re Adoption of baby G H (Minor)

Citation: In Re Adoption Of Baby G H (Minor) [2014] eKLR

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James Chumo V Zablon Kiplangat Chumo [2014] eKLR

Case Number: Civil Suit 29 of 2011 Date Delivered: 26 May 2014

Judge: Lucy Waithaka

Court: High Court at Kericho

Parties: James Chumo v Zablon Kiplangat Chumo

Citation: James Chumo V Zablon Kiplangat Chumo [2014] eKLR

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In Re The Matter Of Baby I N [2014] eKLR

Case Number: Adoption Cause 64 of 2014 (Os) Date Delivered: 26 May 2014

Judge: William Musya Musyoka

Court: High Court at Nairobi (Milimani Law Courts)

Parties: In Re The Matter Of Baby I N

Citation: In Re The Matter Of Baby I N [2014] eKLR

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Joseph Njuguna Njoroge V Attorney General & 2 Others [2014] eKLR

Case Number: Petition 151 of 2013 Date Delivered: 26 May 2014

Judge: David Shikomera Majanja

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Joseph Njuguna Njoroge v Attorney General, Inspector General of Police & Director of Public Prosecutions

Citation: Joseph Njuguna Njoroge V Attorney General & 2 Others [2014] eKLR

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Republic V Senior Rsident Magistrate’s Court Kajiado & Another Ex-Parte Ole Mataiyan [2014] eKLR

Case Number: Misc. Civil Appl. 260 of 2013 Date Delivered: 26 May 2014

Judge: David Shikomera Majanja

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Republic v Senior Rsident Magistrate’s Court Kajiado & Kasulo Juma Ex-Parte Ole Mataiyan

Citation: Republic V Senior Rsident Magistrate’s Court Kajiado & Another Ex-Parte Ole Mataiyan [2014] eKLR

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Peter Mwangi Thumbi V Teresia Wanjiku Thumbi & Another [2014] eKLR

Case Number: Succession 104 of 2000 Date Delivered: 26 May 2014

Judge: Alfred Mabeya

Court: High Court at Bungoma

Parties: Peter Mwangi Thumbi v Teresia Wanjiku Thumbi & Nancy Wamuchi Thumbi

Citation: Peter Mwangi Thumbi V Teresia Wanjiku Thumbi & Another [2014] eKLR

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Jamin Kadasia Lubang'a V Festo Lukhanyo [2014] eKLR

Case Number: Land Case 3 of 2014 Date Delivered: 26 May 2014

Judge: Elija Ogoti Obaga

Court: High Court at Kitale

Parties: Jamin Kadasia Lubang'a v Festo Lukhanyo

Citation: Jamin Kadasia Lubang'a V Festo Lukhanyo [2014] eKLR

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Henry N. Bogita V Kenya National Trading Corporation Limited [2014] eKLR

Case Number: Cause 1235 of 2010 Date Delivered: 26 May 2014

Judge: Maureen Onyango Atieno

Court: Industrial Court at Nairobi

Parties: Henry N Bogita v Kenya National Trading Corporation Limited

Citation: Henry N. Bogita V Kenya National Trading Corporation Limited [2014] eKLR

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Joseph Kipkorir Keter V Republic [2014] eKLR

Case Number: Criminal Appeal 148 of 2013 Date Delivered: 23 May 2014

Judge: Roseline Pauline Vunoro Wendoh

Court: High Court at Nakuru

Parties: Joseph Kipkorir Keter v Republic

Citation: Joseph Kipkorir Keter V Republic [2014] eKLR

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Robert Njehia V Republic [2014] eKLR

Case Number: Criminal Appeal 179 of 2007 (R) Date Delivered: 23 May 2014

Judge: David Kenani Maraga, Philomena Mbete Mwilu, Jamila Mohammed

Court: Court of Appeal at Nairobi

Parties: Robert Njehia v Republic

Citation: Robert Njehia V Republic [2014] eKLR

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