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Case Action: Judgment


Florence Cherugut V Cheptum Murei Annah [2014] eKLR

Case Number: Civil Suit 27 of 2009 Date Delivered: 11 Feb 2014

Judge: Joseph Raphael Karanja

Court: High Court at Kitale

Parties: Florence Cherugut v Cheptum Murei Annah

Citation: Florence Cherugut V Cheptum Murei Annah [2014] eKLR

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Kogi Kamau V Jane Nduta Gitutha [2014] eKLR

Case Number: Civil Appeal 13 of 2013 Date Delivered: 11 Feb 2014

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

Court: Court of Appeal at Nyeri

Parties: Kogi Kamau v Jane Nduta Gitutha

Citation: Kogi Kamau V Jane Nduta Gitutha [2014] eKLR

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Express Escorts Limited V Securicor Security Services (K) [2014] eKLR

Case Number: HCCC Case 268 of 2002 Date Delivered: 11 Feb 2014

Judge: Jacqueline Kamau

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Express Escorts Limited v Securicor Security Services (K)

Citation: Express Escorts Limited V Securicor Security Services (K) [2014] eKLR

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Antony Ashinyikwa Burenga & Another V Republic [2014] eKLR

Case Number: Criminal Appeal 142 & 143 of 2012 Date Delivered: 11 Feb 2014

Judge: George Matatia Abaleka Dulu, Said Juma Chitembwe

Court: High Court at Kakamega

Parties: Antony Ashinyikwa Burenga & Chrisandus Amunza Imbwaka v Republic

Citation: Antony Ashinyikwa Burenga & Another V Republic [2014] eKLR

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Republic V James Kamande Wachori [2014]eKLR

Case Number: Criminal Case 46 of 2008 Date Delivered: 11 Feb 2014

Judge: Florence Nyaguthii Muchemi

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Republic v James Kamande Wachori

Citation: Republic V James Kamande Wachori [2014] eKLR

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John Muhatia V Joash Shivukale [2014]eKLR

Case Number: Civil Suit 2 of 2009 Date Delivered: 11 Feb 2014

Judge: Joseph Raphael Karanja

Court: High Court at Kitale

Parties: John Muhatia v Joash Shivukale

Citation: John Muhatia V Joash Shivukale [2014] eKLR

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Ali Mdingila V Republic [2014] eKLR

Case Number: Criminal Appeal 268 of 2011 Date Delivered: 11 Feb 2014

Judge: Martin Muya

Court: High Court at Mombasa

Parties: Ali Mdingila v Republic

Citation: Ali Mdingila V Republic [2014] eKLR

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Ahmed Salat V Republic 2014] eKLR

Case Number: Criminal Appeal 68 of 2012 Date Delivered: 11 Feb 2014

Judge: Stella Ngali Mutuku

Court: High Court at Garissa

Parties: Ahmed Salat v Republic

Citation: Ahmed Salat V Republic 2014] eKLR

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Jane Catherine K. Karani V Daniel Mureithi Wachira [2014] eKLR

Case Number: Civil Appeal 26a of 2013 Date Delivered: 11 Feb 2014

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

Court: Court of Appeal at Nyeri

Parties: Jane Catherine K. Karani v Daniel Mureithi Wachira

Citation: Jane Catherine K. Karani V Daniel Mureithi Wachira [2014] eKLR

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Barnabas Mungo Longit(Suing As The Attorney Of Priscilla Chebet V Philemon Rutto [2014] eKLR

Case Number: Civil Suit 19 of 2009 Date Delivered: 11 Feb 2014

Judge: Joseph Raphael Karanja

Court: High Court at Kitale

Parties: Barnabas Mungo Longit(Suing As The Attorney Of Priscilla Chebet v Philemon Rutto

Citation: Barnabas Mungo Longit(Suing As The Attorney Of Priscilla Chebet V Philemon Rutto [2014] eKLR

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Naomi Chelimo Tarus V Noah Samoei & 3 Others [2014]eKLR

Case Number: E&L 483 of 2012 Date Delivered: 11 Feb 2014

Judge: Munyao Sila

Court: Environment and Land Court at Eldoret

Parties: Naomi Chelimo Tarus v Noah Samoei & 3 Others

Citation: Naomi Chelimo Tarus V Noah Samoei & 3 Others [2014] eKLR

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Republic V Eunice Njeri Njiriri [2014] eKLR

Case Number: Hccr 3 of 2012 Date Delivered: 11 Feb 2014

Judge: Joseph Raphael Karanja

Court: High Court at Kitale

Parties: Republic v Eunice Njeri Njiriri

Citation: Republic V Eunice Njeri Njiriri [2014] eKLR

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Richard Kiosi And Six Others V Alpharama Limited [2014] eKLR

Case Number: Cause 1185 of 2012 Date Delivered: 11 Feb 2014

Judge: Mathews Nderi Nduma

Court: Industrial Court at Nairobi

Parties: Richard Kiosi And Six Others v Alpharama Limited

Citation: Richard Kiosi And Six Others V Alpharama Limited [2014] eKLR

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Anthony Maina Kioi V Republic [2014]eKLR

Case Number: Criminal Appeal154 of 2010 Date Delivered: 10 Feb 2014

Judge: James wakiaga, Anthony Ombwayo

Court: High Court at Nyeri

Parties: Anthony Maina Kioi v Republic

Citation: Anthony Maina Kioi V Republic [2014] eKLR

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Emmanuel Okore Sango & Another V Paul Cheruiyot Kones & 2 Others [2014] eKLR

Case Number: Civil Appeal No 75 of 2013 Date Delivered: 10 Feb 2014

Judge: Hilary Kiplagat Chemitei

Court: High Court at Kisumu

Parties: Emmanuel Okore Sango & Joseph Makokha Ouma v Paul Cheruiyot Kones, Independent Electoral & Boundaries Commission & Stephen Omenda Mukanga [2014] eKLR

Citation: Emmanuel Okore Sango & Another V Paul Cheruiyot Kones & 2 Others [2014] eKLR

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Republic V Alex Dimba Adhola [2014] eKLR

Case Number: Criminal Case 37 of 2008 Date Delivered: 10 Feb 2014

Judge: Hellen Amolo Omondi

Court: High Court at Nakuru

Parties: Republic v Alex Dimba Adhola

Citation: Republic V Alex Dimba Adhola [2014] eKLR

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Julius Mahuru Gichui V Republic [2014] eKLR

Case Number: Criminal Appeal 44 of 2013 Date Delivered: 10 Feb 2014

Judge: Jairus Ngaah

Court: High Court at Murang'a

Parties: Julius Mahuru Gichui v Republic

Citation: Julius Mahuru Gichui V Republic [2014] eKLR

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Garibi Limited V Ogilvy East Africa Ltd [2014] eKLR

Case Number: Civil Case 211 of 2007 Date Delivered: 10 Feb 2014

Judge: George Vincent Odunga

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Garibi Limited v Ogilvy East Africa Ltd

Citation: Garibi Limited V Ogilvy East Africa Ltd [2014] eKLR

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Lufthansa Technik Aero Alzey Gmbh V Five Forty Aviation Limited [2014] eKLR

Case Number: High Court Civil Case 287 of 2011 Date Delivered: 10 Feb 2014

Judge: George Vincent Odunga

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Lufthansa Technik Aero Alzey Gmbh v Five Forty Aviation Limited

Citation: Lufthansa Technik Aero Alzey Gmbh V Five Forty Aviation Limited [2014] eKLR

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Emmanuel Okore Sango & Joseph Makokha Ouma V Paul Cheruiyot Kones & 2 Others [2014] eKLR

Case Number: Civil Appeal 75 of 2013 Date Delivered: 10 Feb 2014

Judge: Hilary Kiplagat Chemitei

Court: High Court at Kisumu

Parties: Emmanuel Okore Sango & Joseph Makokha Ouma v Paul Cheruiyot Kones, Independent Electoral & Boundaries Commission & Stephen Omenda Mukanga

Citation: Emmanuel Okore Sango & Joseph Makokha Ouma V Paul Cheruiyot Kones & 2 Others [2014] eKLR

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Peter Mwangi Njeru V Republic [2014] eKLR

Case Number: Criminal Appeal 119 of 2013 Date Delivered: 10 Feb 2014

Judge: Jairus Ngaah

Court: High Court at Murang'a

Parties: Peter Mwangi Njeru v Republic

Citation: Peter Mwangi Njeru V Republic [2014] eKLR

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N H N O S V Litle Angels Network [2014]eKLR

Case Number: Adoption Cause 28 of 2013 Date Delivered: 10 Feb 2014

Judge: Maureen Akinyi Odero

Court: High Court at Mombasa

Parties: N H N & O S v Litle Angels Network

Citation: N H N O S V Litle Angels Network [2014] eKLR

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Bernard Mwangi Gatiba V Republic [2014] eKLR

Case Number: Criminal Appeal 45 of 2013 Date Delivered: 10 Feb 2014

Judge: Jairus Ngaah

Court: High Court at Murang'a

Parties: Bernard Mwangi Gatiba v Republic

Citation: Bernard Mwangi Gatiba V Republic [2014] eKLR

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Ibrahim Abdi Hassan V Republic [2014] eKLR

Case Number: Criminal Appeal 80 of 2012 Date Delivered: 10 Feb 2014

Judge: Stella Ngali Mutuku

Court: High Court at Garissa

Parties: Ibrahim Abdi Hassan v Republic

Citation: Ibrahim Abdi Hassan V Republic [2014] eKLR

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Robert Tom Martins Kibisu V Republic [2014] eKLR

Case Number: Civil Appeal 259 of 2012 Date Delivered: 07 Feb 2014

Judge: Roselyn Naliaka Nambuye, Daniel Kiio Musinga, Kathurima M'inoti

Court: Court of Appeal at Nairobi

Parties: Robert Tom Martins Kibisu v Republic

Citation: Robert Tom Martins Kibisu V Republic [2014] eKLR

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Republic V Kuria West District (Masaba Division) Land Disputes Tribunal & 5 Others [2014] eKLR

Case Number: E & L Judicial Review Application 49 of 2011 Date Delivered: 07 Feb 2014

Judge: Samson Odhiambo Okong'o

Court: High Court at Kisii

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

Citation: Republic V Kuria West District (Masaba Division) Land Disputes Tribunal & 5 Others [2014] eKLR

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J R W V Republic [2014] eKLR

Case Number: Criminal Appeal 125 of 2010 Date Delivered: 07 Feb 2014

Judge: John Wycliffe Mwera, Jamila Mohammed, Stephen Gatembu Kairu

Court: Court of Appeal at Nairobi

Parties: J R W v Republic

Citation: J R W V Republic [2014] eKLR

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Mohamed Ali Mursal V Saadia Mohamed & 2 Others [2014] eKLR

Case Number: Civil Appeal 229 of 2013 Date Delivered: 07 Feb 2014

Judge: Wanjiru Karanja, John Wycliffe Mwera, Daniel Kiio Musinga

Court: Court of Appeal at Nairobi

Parties: Mohamed Ali Mursal v Saadia Mohamed, Independent Electoral & Boundaries Commission & Ahmed Abdullahi Mohamad

Citation: Mohamed Ali Mursal V Saadia Mohamed & 2 Others [2014] eKLR

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Rangeways Limited V Cristobal Investments Co. Ltd [2014] eKLR

Case Number: Civil Appeal 226 of 2004 Date Delivered: 07 Feb 2014

Judge: David Kenani Maraga, Daniel Kiio Musinga, William Ouko

Court: Court of Appeal at Nairobi

Parties: Rangeways Limited v Cristobal Investments Co Ltd

Citation: Rangeways Limited V Cristobal Investments Co. Ltd [2014] eKLR

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In Re Adoption Of A M (Minor) [2014] eKLR

Case Number: Adoption Cause 102 of 2013 Date Delivered: 07 Feb 2014

Judge: Luka Kiprotich Kimaru

Court: High Court at Nairobi (Milimani Law Courts)

Parties: In Re adoption of A M (Minor)

Citation: In Re Adoption Of A M (Minor) [2014] eKLR

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D.N.F V B.K.M [2014] eKLR

Case Number: Divorce Cause 65 of 2012 Date Delivered: 07 Feb 2014

Judge: Luka Kiprotich Kimaru

Court: High Court at Nairobi (Milimani Law Courts)

Parties: D.N.F v B.K.M

Citation: D.N.F V B.K.M [2014] eKLR

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Florence Moraa Nyamari V Henry Nyanchio Ondara [2014] eKLR

Case Number: Environment & Land Case 219 of 2012 Date Delivered: 07 Feb 2014

Judge: Samson Odhiambo Okong'o

Court: High Court at Kisii

Parties: Florence Moraa Nyamari v Henry Nyanchio Ondara

Citation: Florence Moraa Nyamari V Henry Nyanchio Ondara [2014] eKLR

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Wilson Dinda Olilo V Dalmas Akech Ngiela [2014] eKLR

Case Number: E & L Civil Appeal 71 of 2008 Date Delivered: 07 Feb 2014

Judge: Samson Odhiambo Okong'o

Court: High Court at Kisii

Parties: Wilson Dinda Olilo v Dalmas Akech Ngiela

Citation: Wilson Dinda Olilo V Dalmas Akech Ngiela [2014] eKLR

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In Re Adoption Of E W (Baby) [2014] eKLR

Case Number: Adoption Cause No.119 of 2013 Date Delivered: 07 Feb 2014

Judge: Luka Kiprotich Kimaru

Court: High Court at Nairobi (Milimani Law Courts)

Parties: In Re Adoption of E W (Baby)

Citation: In Re Adoption Of E W (Baby) [2014] eKLR

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James Nyakundi Nyatuka V John Onsoti Marubi [2014] eKLR

Case Number: Environment And Land Case 436 of 1992 Date Delivered: 07 Feb 2014

Judge: Samson Odhiambo Okong'o

Court: Environment and Land Court at Kisii

Parties: James Nyakundi Nyatuka v John Onsoti Marubi

Citation: James Nyakundi Nyatuka V John Onsoti Marubi [2014] eKLR

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Linnet Ndolo V Registered Trustees Of The National Council Of Churches Of Kenya [2014] eKLR

Case Number: Cause 203 of 2012 Date Delivered: 07 Feb 2014

Judge: Maureen Onyango Atieno

Court: Industrial Court at Nairobi

Parties: Linnet Ndolo v Registered Trustees of the National Council of Churches of Kenya

Citation: Linnet Ndolo V Registered Trustees Of The National Council Of Churches Of Kenya [2014] eKLR

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George Joshua Okungu & Another V Chief Magistrate’s Court Anti-Corruption Court At Nairobi & Another [2014] eKLR

Case Number: Petition 227 & 230 of 2009 Date Delivered: 07 Feb 2014

Judge: George Vincent Odunga, Weldon Kipyegon Korir

Court: High Court at Nairobi (Milimani Law Courts)

Parties: George Joshua Okungu & Mary Kiptui v Chief Magistrate’s Court Anti-Corruption Court At Nairobi & Attorney General

Citation: George Joshua Okungu & Another V Chief Magistrate’s Court Anti-Corruption Court At Nairobi & Another [2014] eKLR

Circumstances in which the Court may Interfere with the Power of the Director of  Public Prosecution to Prosecute

George Joshua Okungu & another v Chief Magistrate’s Court Anti-Corruption Court at Nairobi &another

Petition Nos 227 & 230 of 2009 (Consolidated)

High Court at Nairobi

W Korir& G V Odunga, JJ

February 7, 2014

Reported by Phoebe Ida Ayaya

Brief facts:

The petitioners were the Managing Director and Company Secretary respectively of Kenya Pipeline Company. In its budget in 2006/2007, the company provided for sale of its non-core assets in compliance with the provisions of the Cabinet Secretary to the Treasury (Incorporation) Act (Cap 101 Laws of Kenya).The company proceeded to dispose of houses to staff members which was done after due process was followed i.e. seeking approvals from the relevant ministries, the board of governors and having received valuations on the same. Despite this, the KACC began investigations into the sale, and proceeded in spite of a letter from the PS Ministry of Energy (who was himself a board member) affirming that due process had been adhered to.

The said Permanent Secretary in the Ministry of Energy under whose docket the company falls, being the accounting officer, and who was should have legally and factually been the complainant in the criminal case the subject of the petition (yet he himself or by proxy participated in all decisions made by the board) was lined up as a prosecution witness. Similarly, the then Chairman of the Board, was lined up as prosecution witness, yet he executed a transfer of lease on behalf of the company. Other board members as well were lined up as witnesses. On the basis of interalia, these averments, the petitioners instituted the petition seeking striking out of the case.

The respondents in opposition to the petitions filed a notice of preliminary objection in which it was contended that the petitions were incompetent for failing to comply with the mandatory provisions as set out in LN No 6 of 2006, High Court Practice and Procedures Rules, 2006.

Issues:

  1. Whether the court could interfere with the decision of the office of the Director of Public Prosecutions on who to prosecute and if so under what circumstances
  2. Whether the petition raised grounds for dismissal with regard to the decision of the office of the Director of Public Prosecution to prosecute the petitioners

Criminal Practice and Procedure –prosecution – discretion of the Director of Public Prosecutions (DPP) to determine who to prosecute – claim that the DPP abused the discretion to prosecute – where the petitioner averred that the prosecution was discriminatory and selectively done – whether the court could interfere with the decision of the office of the Director of Public Prosecutions on who to prosecute and if so under what circumstances – whether the petition raised grounds for dismissal with regard to the decision of the office of the Director of Public Prosecution to prosecute the petitioners – Office of Public Prosecutions Act, section 4; Constitution of Kenya, 2010 article 157(11).

Constitution of Kenya, 2010

Article 157(11)“In exercising the powers conferred by this Article, the Director of Public Prosecutions shall have regard to the public interest, the interests of the administration of justice and the need to prevent and avoid abuse of the legal process.”

Office of Public Prosecutions Act

Section 4 “In fulfilling its mandate, the Office shall be guided by the Constitution and the following fundamental principles—

  1. the diversity of the people of Kenya;
  2. impartiality and gender equity;
  3. the rules of natural justice;
  4. promotion of public confidence in the integrity of the Office;
  5. the need to discharge the functions of the Office on behalf of the people of Kenya;
  6. the need to serve the cause of justice, prevent abuse of the legal process and public interest;
  7. protection of the sovereignty of the people;
  8. secure the observance of democratic values and principles; and
  9. promotion of constitutionalism.”

Held:

  1. Whereas the discretion to prosecute criminal offences was not to be lightly interfered with, that discretion had to be properly exercised and where the court found that the discretion was being abused or was being used to achieve some collateral purposes which were not geared towards the vindication of the commission of a criminal offence, the court would not hesitate to bring such proceedings to a halt. The court was not concerned about the innocence or otherwise of the petitioner, its duty was only to ensure that his rights and freedoms as enshrined in the Constitution were protected and upheld.
  2. Whereas it was true that to arraign a person in court for an offence that was unknown to law was unconstitutional, what the Constitution expressly barred was the conviction of a person for an act or omission which was not an offence. Unless it was outright that the offence with which the petitioner was charged did not exist, the trial court was in a better position to decide whether or not the evidence and the facts adduced constituted an existing offence.
  3. The court was not expected to investigate and determine the merits of the criminal case and the mere fact that the intended or ongoing criminal proceedings were in all likelihood bound to fail, or that the petitioner had a good defence in the criminal process were matters that ordinarily ought to be dealt with by the trial court and could not be canvassed in the current proceedings.
  4. The discretion on whom to prefer charges against was on the prosecuting authority who was in the beginning the Attorney General and subsequently the Director of Public Prosecution (DPP). It was within the discretion and perfectly in order for the authority to call some of the accomplices in a criminal trial as prosecution witnesses. The weight of their evidence was subject to the law relating to accomplice evidence. However, the terrain under the current prosecutorial regime has changed and the discretion given to the DPP was not absolute. It had be exercised within certain laid down standards provided under the Constitution and the Office of the Director of Public Prosecutions Act. Where it was alleged that those standards had not been adhered to, it behoved the court to investigate the said allegations and make a determination thereon. To hold that the discretion given to the DPP to prefer charges ought not to be questioned by this Court would be an abhorrent affront to judicial conscience and above all, the Constitution itself.
  5. Where it was clear that the discretion was being exercised with a view to achieving certain extraneous goals other than those legally recognized under the Constitution and the Office of the Director of Public Prosecutions Act, that would constitute an abuse of the legal process and would entitle the court to intervene and bring to an end such wrongful exercise of discretion. To selectively prefer criminal charges against the petitioners while saintly treating the author of documents relied on by the petitioners as a prosecution witness was not only selective but discriminatory as well and contravening of the principles of promotion of constitutionalism which bound the DPP in making a decision on whether and who to prosecute.
  6. Whereas the decision whether or not to prosecute the petitioners was an exercise of discretion the court was empowered to interfere with the exercise of discretion in the following situations:
    1. where there was an abuse of discretion
    2. where the decision-maker exercised discretion for an improper purpose
    3. where the decision-maker was in breach of the duty to act fairly
    4. where the decision-maker had failed to exercise statutory discretion reasonably
    5. where the decision-maker acted in a manner to frustrate the purpose of the Act donating the power
    6. where the decision-maker fettered the discretion given
    7. where the decision-maker failed to exercise discretion
    8. where the decision-maker was irrational and unreasonable
  7. It was imperative that criminal investigations be conducted expeditiously and a decision made as soon as possible. Where prosecution was undertaken long after investigations were concluded, the fairness of the process would possibly be brought into question where the petitioner proved that as a result of the long delay of commencing the prosecution, he would not be able to adequately defend himself. Presently, there was no allegation made by the petitioners to the effect that the delay has adversely affected their ability to defend themselves.

Preliminary objection dismissed, the prosecution of the petitioners in Anti-Corruption Criminal case no 7 of 2009 declared discriminatory and unjustifiably selective and the respondents prohibited from proceeding with the charges laid in Anti-Corruption case no. 7 of 2009.

 

Cases

East Africa

1.Baseline Architects Limited v National Hospital Insurance Fund [2008] KLR 703 –(Explained)

2.Githunguri v Republic [1986] KLR 1 –(Explained)

3.Joram Mwenda Guantai v Chief Magistrate [2007] 2 EA 170 –(Explained)

4.Kuria & 3 others v Attorney General [2002] 2 KLR 69 –(Explained)

5.Koinange v Attorney General and Others [2007] 2 EA 256 –(Explained)

6.Meixner & another v Attorney General [2005] 2 KLR 189 –(Explained)

7.Nakusa v Tororei & 2 others (No 2) [2008] 2 KLR (EP) 565 –(Explained)

8.Re Bivac International SA (Bureau Veritas) [2005] 2 EA 43 –(Mentioned)

9.Republic v Attorney General ex parte Kipngeno Arap Ngeny Civil Application No 406 of 2001 –(Followed)

10.Republic v Chief Magistrate’s Court at Mombasa ex parte Ganijee & another [2002] 2 KLR 703 –(Explained)

11.Republic v Commissioner of Police and another ex parte Michael Monari & another Judicial Review No 68 of 2011–(Explained)

12.Republic v Minister for Home Affairs and Others ex parte Sitamze [2008] 2 EA 323 –(Mentioned)

13.Takwenyi, Stephen Somek & another v David Mbuthia Githare & 2 others Civil Case No 363 of 2009 –(Explained)

United Kingdom

1.R v Monopolies and Mergers Commission Ex Parte Argyll Group Plc [1986] 1 WLR 763; [1986] 2 All ER 257  –(Mentioned)

Statutes

East Africa

1.Anti-Corruption and Economic Crimes Act, 2003 (Act No 3 of 2003) sections 3, 23, 35, 36(1); 45(2)(b) –(Interpreted)

2.Cabinet Secretary to the Treasury (Incorporation) Act (cap 101) sections 11(1); 13(1) –(Interpreted)

3.Constitution of Kenya, 2010 articles 27, 50, 50(2)(m); 157(11) –(Interpreted)

4.Constitution of Kenya, 2010 sixth Schedule sections 26(4); 65; 70; 74; 77(1)(2)(a)(6)(7)(8); 82(2)–(Interpreted)

5.Criminal Procedure Code (cap 75) –(Interpreted

6.Evidence Act (cap 80) –(Interpreted)

7. Exchequer and Audit Act (cap 412) section 4–(Interpreted)

8.Exchequer and Audit (Public Procurement) Regulations, 2001 (cap 412 Sub Leg) –(Interpreted)

9.Public Procurement and Disposal Act, 2005 (Act No 3 of 2005) –(Interpreted)

10.Public Procurement Regulations, 2001 (Act No 3 of 2005 Sub Leg) –(Interpreted)

11.Office of Public Prosecutions Act, 2013 (Act No 2 of 2013) section 4–(Interpreted)

12.State Corporations Act (cap 446) –(Interpreted)

Advocates

1.Ms Bonyo H/B for Mr Obura for the 1st Petitioner

2.Ms Kamau H/B for  Mr Enonda for the 2nd Petitioner

3.Mr Chigiti H/B for Mr Okelo for the 1st and 2nd Respondents

4.Mr Ongondi for the 3rd Respondent

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J A L S V J M A A [2014] eKLR

Case Number: Adoption Cause No. 88 of 2013 Date Delivered: 07 Feb 2014

Judge: Luka Kiprotich Kimaru

Court: High Court at Nairobi (Milimani Law Courts)

Parties: J A L S v J M A A

Citation: J A L S V J M A A [2014] eKLR

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Jackton Liech Mbwayo V Charles Rabel Liech [2014]eKLR

Case Number: Environment and Land Case 99 of 2012 Date Delivered: 07 Feb 2014

Judge: Samson Odhiambo Okong'o

Court: High Court at Kisii

Parties: Jackton Liech Mbwayo v Charles Rabel Liech

Citation: Jackton Liech Mbwayo V Charles Rabel Liech [2014] eKLR

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Kirinjit Singh Magon V Bonanza Rice Millers Ltd [2014] eKLR

Case Number: Civil Case 373 of 2008 Date Delivered: 07 Feb 2014

Judge: Hatari Peter George Waweru

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Kirinjit Singh Magon v Bonanza Rice Millers Ltd

Citation: Kirinjit Singh Magon V Bonanza Rice Millers Ltd [2014] eKLR

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Republic V Principal Registrar Of Government Lands & Another & Other [2014]eKLR

Case Number: Misc. Application10 of 2013 Date Delivered: 07 Feb 2014

Judge: George Vincent Odunga

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Republic v Principal Registrar of Government Lands & Attorney General Ex Parte John Ngugi Gathumbi

Citation: Republic V Principal Registrar Of Government Lands & Another & Other [2014] eKLR

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Medline Wanjeri Njuguna V Fredrick Njuguna Ndoro & 2 Others [2014] eKLR

Case Number: Civil Appeal 227 of 2007 Date Delivered: 07 Feb 2014

Judge: Roselyn Naliaka Nambuye, William Ouko, Jamila Mohammed

Court: Court of Appeal at Nairobi

Parties: Medline Wanjeri Njuguna v Fredrick Njuguna Ndoro,Henry G. Mbote & Bahati P.C.E.A. Secondary School

Citation: Medline Wanjeri Njuguna V Fredrick Njuguna Ndoro & 2 Others [2014] eKLR

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Joseph Kibe Wangari V Republic [2014] eKLR

Case Number: Criminal Appeal No. 267 of 2010 Date Delivered: 07 Feb 2014

Judge: Philip Nyamu Waki, Erastus Mwaniki Githinji, Agnes Kalekye Murgor

Court: Court of Appeal at Nairobi

Parties: Joseph Kibe Wangari v Republic

Citation: Joseph Kibe Wangari V Republic [2014] eKLR

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Republic V Commissioner For Investigations & Enforcement Ex-parte Wananchi Group Kenya Limited [2014] eKLR

Case Number: Miscellaneous Civil Application 51 of 2013 Date Delivered: 07 Feb 2014

Judge: George Vincent Odunga

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Republic v Commissioner For Investigations & Enforcement Ex-parte Wananchi Group Kenya Limited

Citation: Republic V Commissioner For Investigations & Enforcement Ex-parte Wananchi Group Kenya Limited [2014] eKLR

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In Re Mukhonye Community Based Organisation [2014] eKLR

Case Number: Civil Appeal 22 of 2013 Date Delivered: 07 Feb 2014

Judge: John walter Onyango Otieno, Festus Azangalala, Sankale Ole Kantai

Court: Court of Appeal at Kisumu

Parties: In Re Mukhonye Community Based Organisation

Citation: In Re Mukhonye Community Based Organisation [2014] eKLR

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Geoffrey Ndung’u Njunge V Republic [2014] eKLR

Case Number: Criminal Appeal No. 234 of 2007 Date Delivered: 07 Feb 2014

Judge: John Wycliffe Mwera, Patrick Omwenga Kiage, Stephen Gatembu Kairu

Court: Court of Appeal at Nairobi

Parties: Geoffrey Ndung’u Njunge v Republic

Citation: Geoffrey Ndung’u Njunge V Republic [2014] eKLR

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Mae Properties Limited V William Olotch [2014] eKLR

Case Number: Civil Appeal No. 137 of 2004 Date Delivered: 07 Feb 2014

Judge: David Kenani Maraga, Erastus Mwaniki Githinji, Agnes Kalekye Murgor

Court: Court of Appeal at Nairobi

Parties: Mae Properties Limited v William Olotch

Citation: Mae Properties Limited V William Olotch [2014] eKLR

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Patricia Cherotich Sawe V Independent Electoral & Boundaries Commission & Another [2014] eKLR

Case Number: Civil Appeal 178 of 2013 Date Delivered: 07 Feb 2014

Judge: Wanjiru Karanja, Patrick Omwenga Kiage, Stephen Gatembu Kairu

Court: Court of Appeal at Nairobi

Parties: Patricia Cherotich Sawe v Independent Electoral & Boundaries Commission & United Republican Party (URP)

Citation: Patricia Cherotich Sawe V Independent Electoral & Boundaries Commission & Another [2014] eKLR

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Attorney General & Another V African Commuter Services Ltd [2014] eKLR

Case Number: Civil Appeal 311 of 2009 Date Delivered: 07 Feb 2014

Judge: Wanjiru Karanja, Daniel Kiio Musinga, Kathurima M'inoti

Court: Court of Appeal at Nairobi

Parties: Attorney General & Kenya Civil Aviation Authority v African Commuter Services Ltd

Citation: Attorney General & Another V African Commuter Services Ltd [2014] eKLR

Procedure for revocation of aircraft operation certificates

The Attorney General and another v African Commuter Services

In the Court of Appeal at Nairobi

Civil Appeal No. 311 of 2009

W Karanja, D K Musinga, & K M’inoti, JJA.

February 7, 2014

Reported by Teddy Musiga and Getrude Serem

Brief facts:

Following an air crash accident, the then Minister for Transport cancelled the operating license for the respondent’s company (African Commuter Services Ltd) without giving them any notice for the said suspension of the license. The said cancellation affected the operations of 7 other aircrafts owned by the respondent as they all operated using the same licence. The respondents (then plaintiffs) alleged that the action of the government in cancelling their licenses was drastic, unwarranted and discriminatory because since their inception they had never had any problems with the regulatory body, Kenya Civil Aviation Authority (KCCA). As a result of the said cancellation, the respondent incurred severe loss and revenue it was generating from all the aircrafts it was operating. They sued at the High court which found the appellants culpable hence the appeal.

Issues:

  1. Whether the suspension of the respondent’s license under Regulation 57(1) of the Kenya Air Navigation Regulations was valid and legal
  2. Whether the State could suspend operating licenses of aircraft companies in “the public interest” and what amounted to “public interest”?
  3. Whether in determining the dispute, the trial court erred in applying public law principles in the private law arena
  4. Whether a statutory body or an officer of such a body could be held culpable for loss or damage occasioned to a private citizen as a result of such body/officer performing a statutory duty. 
  5. Whether a mandatory injunction could be issued against the Government
  6. Whether there was contributory negligence by the respondent

Aviation law - suspension of air operation certificate – procedure for suspension of aircraft operating certificate – whether aircraft operating certificates can be suspended in the public interest – claim where the suspension of the aircraft operating certificate was unlawful - - Section 5B (1) of the Civil Aviation Act; Regulation 57(1) of the Kenya Air Navigation Regulations.

Section 5B (1) of the Civil Aviation Act

The Director General may from time to time, in writing, either generally or particularly delegate to any person  all or any of the powers exercisable  by him under any  written law, but not  including this power of delegations.”

Regulation 57(1) of the Kenya Air Navigation Regulations.

57(1)  “The Director may, where he considers it to be in public interest suspend provisionally (pending further investigations) any certificate, licence, approval, permission, exemption or other document issued or granted under these  Regulation.”

 (2)    “the Director may, upon the completion of an investigation which has shown  sufficient  ground to his satisfaction it to be in the public interest, revoke, suspend or  vary any certificate, licence, approval, permission, exemption or other document issued or granted under these Regulations.”

 

 

Held:

  1. Section 3 of the Civil Aviation Act created the Kenya Civil Aviation Authority (2nd Appellant) and charged with the responsibility of among other things, planning, managing, developing, regulating and otherwise ensuring safe economical and efficient operation of the Civil Aviation Industry in Kenya. It was in that context that the 2nd appellant invoked provisions of regulation 57(1) of the Air Navigation Regulations when suspending the Respondent’s license.
  2. Section 5B(1) of the Civil Aviation Act provided that the Director General of the Kenya Civil Aviation Authority could in writing delegate all or any of the powers exercisable by him. The letter purporting to revoke the license of the respondent was not done by the Director General himself and therefore the cancellation the respondent’s Air Operation Certificate was unprocedural for lack of proper delegation of power by the Director General to the officer who signed the letter.  Therefore, that said letter was invalid, unlawful and ultra vires.
  3. Regulation 57 of the Kenya Air Navigation Rules could only be invoked where public interest was involved. It was common ground that the Director General could only provisionally suspend a certificate under that Regulation pending further investigations.  The word “further” in Regulation 57(1) denoted that there had to be initial or preliminary investigations carried out before the suspension was done which investigations was to form the basis of the further investigations. Consequently, the Director General did not exercise his discretion prudently as he was enjoined by law to do.
  4. Public Interest is about the well-being of the general public. It must be something that is beneficial to a large section of society. It must therefore, transcend the parochial interests of a particular social class. there was no issue of public interest involved to cause the total grounding of the respondents entire aviation business and the livelihood of all those who were dependent on the same.
  5. There being no issue of public interest involved in the instant matter, the discretion of the Director General as envisaged in Regulation 57(1) of the Air Navigation Regulations to suspend the respondent’s certificate ought not to be invoked
  6. Regulation 57(1), whose application was provisional in nature, had no room for observance of rules of natural justice.  That was so because the regulation anticipated provisional suspension pending further investigations.  It was in the course of the further investigation which would have formed the basis of the Director General’s decision to revoke or suspend, that an affected party could be heard. In the instant case, the second step was overlooked and Regulations 57(2) was never complied with. Even as at the time of filing the suit at the trial court, the certificate had still not been revoked as envisaged under Regulation 57(2) and it was still in suspension. The right to be heard had not therefore crystalized and was inchoate.
  7. For revocation of a certificate to be lawful under the entire Air Navigation Regulations, then there had to be total compliance with Regulations 57(1) and 57(2) and also Regulation 79 which gave the offending party an opportunity to be heard. In the instant case, there was total non-compliance with both Regulations 57(2) and 79 which rendered the entire process unlawful. Alternatively, the Director General (2nd Appellant) could have opted to use Regulation 12 of the Civil Aviation (Lincensing of Air Services) if he so wished. That would have entailed a different procedure all together and different penalties.
  8. A statutory discretion could not be properly exercised in an unreasonable manner, i.e in a way no sensible authority with proper appreciation of its responsibilities would act. A duty of care even where not expressly imposed by statute could be implied depending on the circumstances of the case and the nature of the duty the public body was supposed to perform. If the act to be performed was likely to cause harm to some other persons and such harm or damage was foreseeable, then the public body was enjoined to carry out that task in a manner that was reasonable and which would not cause unnecessary harm or damage to the others. In other words, such a public body owed a duty of care to those who were likely to be affected by its actions.
  9. A public body which failed to exercise its statutory power/discretion in a reasonable manner or whose officers acted negligently in performance of their statutory duties  could also be liable in damages.
  10. In legal systems such as Kenya’s, where judicial review does not provide for an award of damages, there was nothing wrong with an aggrieved party claiming for damages where the cause of action is pegged on a public body’s breach of a statutory duty.  Therefore , the trial court did not misdirect itself in applying public law as opposed to private law in awarding damages.
  11. Mandatory injunction could be issued against the 2nd appellant (Kenya Civil Aviation Authority) because it was a body corporate capable of suing and being sued as provided by section 3(2) of the Civil Aviation Act. On the other hand, such orders could not be issued against the 1st appellant in its capacity as Attorney General of the Republic of Kenya.  The trial court erred in awarding judgment against the appellants jointly and severally even after making no adverse findings against the Minister for Transport on whose behalf the Attorney General (1st appellant) had been sued. That notwithstanding, the suspension of the aircraft operating certificate was unlawful, capricious, malicious and indeed void. Therefore the 2nd appellant (Kenya Civil Aviation Authority) could not escape culpability.
  12. The  respondent (African Commuter Services Ltd) could not in any way have been condemned to shoulder part of the blame in respect of the manner in which its certificate was cancelled. The scenario would have been different had the 2nd appellant complied with the legal requirements stipulated under the Civil Aviation Act and Regulations.
  13. Undisputedly, the respondent suffered immense economic loss following the cancellation of its Air operating certificate by the 2nd appellant. And since the suspension which ended up in being permanent instead of provisional as provided for under Regulations 57(1) and (2) was unlawful, the 2nd appellant was therefore culpable and liable to compensate the respondent by way of damages for the loss suffered.

 

The appeal by the Honorable Attorney General – (1st appellant) succeeded and was allowed with costs in the court of appeal and the High court.

The appeal by the 2nd appellant partially succeeded on the following terms:

  1. Revenue Loss as awarded by the High court was undisturbed.
  2. Capital losses – Kshs 21,980 (aircraft purchase installments unpaid, Kshs. 9,847,668
  3. Consequential Loss was adjusted to Kshs. 50,000,000 Aggravated damages Ksh10, 000,000.
  4. The respondent was awarded 50% Costs of the suit in the High Court and in the Court of appeal as against the 2nd appellant.
  5. Interest at court rates on (a) and (b) from date of filing. In (c) and (d) from the date of judgment till payment in full.

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Oduor Hawi Ambala & Another V Marvin Opiyo Ambala & 4 Others [2014] eKLR

Case Number: Civil Appeal 111 of 2012 Date Delivered: 07 Feb 2014

Judge: David Kenani Maraga, Daniel Kiio Musinga, Philomena Mbete Mwilu

Court: Court of Appeal at Kisumu

Parties: Oduor Hawi Ambala & Ogola Kodhek Ambala v Marvin Opiyo Ambala , Chizi Adhiambo Ambala, Perez Auma Ambala, Adongo Ambala & Odhiambo Ambala

Citation: Oduor Hawi Ambala & Another V Marvin Opiyo Ambala & 4 Others [2014] eKLR

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