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Case Action: Judgment


Republic V Commissioner Of Insurance & 3 Others Ex-parte Martin K Ngari [2014] eKLR

Case Number: Misc Application 1434 of 2004 Date Delivered: 21 Mar 2014

Judge: David Shikomera Majanja

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Republic v Commissioner of Insurance, Chief Magistrate’s Court Milimani Nairobi, Fairlane Supermarket Ltd & United Insurance Company Limited Ex-parte Martin K Ngari

Citation: Republic V Commissioner Of Insurance & 3 Others Ex-parte Martin K Ngari [2014] eKLR

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Erick Kipkoech Byegon V Republic [2014] eKLR

Case Number: Criminal Appeal 219 of 2013 Date Delivered: 21 Mar 2014

Judge: Hellen Amolo Omondi

Court: High Court at Nakuru

Parties: Erick Kipkoech Byegon v Republic

Citation: Erick Kipkoech Byegon V Republic [2014] eKLR

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Mary Njoki Macharia V James Oyugi [2014] eKLR

Case Number: Civil Case 5 of 2013 Date Delivered: 21 Mar 2014

Judge: Jairus Ngaah

Court: High Court at Murang'a

Parties: Mary Njoki Macharia v James Oyugi alias James Nyaranga

Citation: Mary Njoki Macharia V James Oyugi [2014] eKLR

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J.M.J V Republic [2014] eKLR

Case Number: Criminal Appeal 170 of 2013 Date Delivered: 21 Mar 2014

Judge: Jairus Ngaah

Court: High Court at Murang'a

Parties: J.M.J v Republic

Citation: J.M.J V Republic [2014] eKLR

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Stanley Munga Githunguri V Kenya National Highways Authority & 2 Others [2014] eKLR

Case Number: Petition 402 of 2013 Date Delivered: 21 Mar 2014

Judge: David Shikomera Majanja

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Stanley Munga Githunguri v Kenya National Highways Authority,China Road and Bridge Construction Corporation & Attorney General

Citation: Stanley Munga Githunguri V Kenya National Highways Authority & 2 Others [2014] eKLR

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Samson Anthony Muhia V Kirinyaga Construction (K) Limited [2014] eKLR

Case Number: Cause No. 179 of 2013 Date Delivered: 21 Mar 2014

Judge: Byram Ongaya

Court: Industrial Court at Nakuru

Parties: Samson Anthony Muhia v Kirinyaga Construction (K) Limited

Citation: Samson Anthony Muhia V Kirinyaga Construction (K) Limited [2014] eKLR

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Peter Biri V Kerio Valley Development Authority [2014] eKLR

Case Number: Cause 372 of 2013 Date Delivered: 21 Mar 2014

Judge: Byram Ongaya

Court: Industrial Court at Nakuru

Parties: Peter Biri v Kerio Valley Development Authority

Citation: Peter Biri V Kerio Valley Development Authority [2014] eKLR

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Stephen Ouma Ambogo V Attorney General [2014] eKLR

Case Number: Petition 281 of 2008 Date Delivered: 21 Mar 2014

Judge: Isaac Lenaola

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Stephen Ouma Ambogo v Attorney General

Citation: Stephen Ouma Ambogo V Attorney General [2014] eKLR

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Justus Mwenda Kathenge V Director Of Public Prosecutions & 2 Others [2014] eKLR

Case Number: Petition 372 of 2013 Date Delivered: 21 Mar 2014

Judge: Isaac Lenaola

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Justus Mwenda Kathenge v Director Of Public Prosecutions, Attorney General & Chief Magistrate's Court, Nairobi

Citation: Justus Mwenda Kathenge V Director Of Public Prosecutions & 2 Others [2014] eKLR

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David Njoroge Muiru V Elsa Limited T/A Elsamere Conservation Centre [2014] eKLR

Case Number: Cause 203 of 2013 Date Delivered: 21 Mar 2014

Judge: Byram Ongaya

Court: Industrial Court at Nakuru

Parties: David Njoroge Muiru v Elsa Limited T/A Elsamere Conservation Centre

Citation: David Njoroge Muiru V Elsa Limited T/A Elsamere Conservation Centre [2014] eKLR

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Compar Investments Limited V Kenya Urban Roads Authority [2014] eKLR

Case Number: Petition 302 of 2013 Date Delivered: 21 Mar 2014

Judge: Isaac Lenaola

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Compar Investments Limited v Kenya Urban Roads Authority

Citation: Compar Investments Limited V Kenya Urban Roads Authority [2014] eKLR

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Nelson Ogeto Mogaka & 15 Others V Geothermal Development Company Limited [2014] eKLR

Case Number: Cause 178 & 280 of 2013 (consolidated) Date Delivered: 21 Mar 2014

Judge: Byram Ongaya

Court: Industrial Court at Nakuru

Parties: Nelson Ogeto Mogaka, Solomon Njangilo Mbugua, James Gichingiri Karanja,Alexander Sesa Ochi, Joel Kihara Boro, Peter Kamau Kahoro, Joel Shilibwa Abinayi, Eric Onyango Onege, Edward Mwangi Wangui,Simon Charagu Mwangi, Robert Kabati Njau, Robert Maina Guandaru, John Kamau Muriuki,David Kamathi, Stephen Ndichu Muriithi,Samwel Kamau Mukami v Geothermal Development Company Limited

Citation: Nelson Ogeto Mogaka & 15 Others V Geothermal Development Company Limited [2014] eKLR

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O O A V H O OK [2014] eKLR

Case Number: Divorce Cause 8 of 2008 Date Delivered: 21 Mar 2014

Judge: Luka Kiprotich Kimaru

Court: High Court at Nairobi (Milimani Law Courts)

Parties: O O A v H O OK

Citation: O O A V H O OK [2014] eKLR

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Republic V Kajiado North District Ngong Land Disputes Tribunal & Another Ex-Parte Caroline Wambui Ngunjiri & 2 Others [2014] eKLR

Case Number: Miscellaneous Application 214 of 2011 Date Delivered: 21 Mar 2014

Judge: George Vincent Odunga

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Republic v Kajiado North District Ngong Land Disputes Tribunal & Senior Resident Magistrate’s Court Ex-Parte Caroline Wambui Ngunjiri,Catherine Njeri Ngunjiri & Harit A. Sheth Suing as the Personal Representative of the Estate of Antony Nahashon Ngunjiri as the Applicants

Citation: Republic V Kajiado North District Ngong Land Disputes Tribunal & Another Ex-Parte Caroline Wambui Ngunjiri & 2 Others [2014] eKLR

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Benjamin Mwanzia Musyoka & 9 Others V Cosmos Limited [2014] eKLR

Case Number: Cause 2147 of 2012 Date Delivered: 21 Mar 2014

Judge: Mathews Nderi Nduma

Court: Industrial Court at Nairobi

Parties: Benjamin Mwanzia Musyoka, George Otieno Obodi, Charles Wambua Kimeu, Bernard Oduor Juma, Wilberforce Njomba Shungula, Julius Enonda, George Musyoka Kimeu, Edwin Liboyio Guleho, Samuel Nderi Mbuthia & Walter Ubuga v Cosmos Limited

Citation: Benjamin Mwanzia Musyoka & 9 Others V Cosmos Limited [2014] eKLR

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Republic V President & 7 Others Exparte Wilfrida Itolondo & 4 Others [2014] eKLR

Case Number: Judicial Review Application 232 of 2012 Date Delivered: 21 Mar 2014

Judge: George Vincent Odunga

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Republic v President, Attorney General, Council, Kenyatta University, Chancellor, Kenyatta University, Minister for Higher Education Science and Technology, Olive Mwihaki Mugenda, Ethics & Anti-Corruption Commission & National Cohesion & Integration Commission Exparte Applicants National Cohesion & Integration Commission, Mumah Solomon, Elena Korir, Martha Miyandazi & Fred Obare

Citation: Republic V President & 7 Others Exparte Wilfrida Itolondo & 4 Others [2014] eKLR

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Cornel Rasanga Amoth V William Odhiambo Oduol & 2 Others [2014] eKLR

Case Number: Civil Appeal 32 of 2013 Date Delivered: 21 Mar 2014

Judge: Sankale Ole Kantai, Patrick Omwenga Kiage, Agnes Kalekye Murgor

Court: Court of Appeal at Kisumu

Parties: Cornel Rasanga Amoth v William Odhiambo Oduol,Independent Electoral and Boundaries Commission & Benson Mugatsia

Citation: Cornel Rasanga Amoth V William Odhiambo Oduol & 2 Others [2014] eKLR

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Joseph Kamau Githu V Republic [2014] eKLR

Case Number: Criminal Appeal 34 of 2013 Date Delivered: 21 Mar 2014

Judge: Hellen Amolo Omondi

Court: High Court at Nakuru

Parties: Joseph Kamau Githu v Republic

Citation: Joseph Kamau Githu V Republic [2014] eKLR

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Vincent Otiemut V Stephen Thuku Mungara [2014] eKLR

Case Number: Cause 144 of 2013 Date Delivered: 21 Mar 2014

Judge: Byram Ongaya

Court: Industrial Court at Nakuru

Parties: Vincent Otiemut v Stephen Thuku Mungara

Citation: Vincent Otiemut V Stephen Thuku Mungara [2014] eKLR

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Muttisya & Co. Advocates V Lydia Njeri Kiai & Another [2014] eKLR

Case Number: Misc. Application 132 of 2011 Date Delivered: 21 Mar 2014

Judge: William Musya Musyoka

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Muttisya & Co. Advocates v Lydia Njeri Kiai & Another

Citation: Muttisya & Co. Advocates V Lydia Njeri Kiai & Another [2014] eKLR

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Jean Chebet Korir V Unilever Tea Kenya Limited [2014] eKLR

Case Number: Cause 77 of 2013 Date Delivered: 21 Mar 2014

Judge: Byram Ongaya

Court: Industrial Court at Nakuru

Parties: Jean Chebet Korir v Unilever Tea Kenya Limited

Citation: Jean Chebet Korir V Unilever Tea Kenya Limited [2014] eKLR

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Wilson Gachuru Maina V Republic [2014] eKLR

Case Number: Criminal Appeal 12 of 2013 Date Delivered: 21 Mar 2014

Judge: Jairus Ngaah

Court: High Court at Murang'a

Parties: Wilson Gachuru Maina v Republic

Citation: Wilson Gachuru Maina V Republic [2014] eKLR

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Kenya Union Of Printing, Publishing, Paper Manufacturers, Pulp & Packaging Industries V Raffia Bags (EA) Limited [2014] eKLR

Case Number: Cause 160 of 2013 Date Delivered: 21 Mar 2014

Judge: Stephen Radido Okiyo

Court: Industrial Court at Mombasa

Parties: Kenya Union Of Printing, Publishing, Paper Manufacturers, Pulp & Packaging Industries v Raffia Bags (EA) Limited

Citation: Kenya Union Of Printing, Publishing, Paper Manufacturers, Pulp & Packaging Industries V Raffia Bags (EA) Limited [2014] eKLR

Trade unions are not entitled to automatic recognition in law

Kenya Union of Printing, Publishing, Paper Manufacturers, Pulp & Packaging industries v Raffia Bags (EA) Limited

Cause No. 160 of 2013

Industrial Court of Kenya at Mombasa

March21, 2014

Radido Stephen J

Reported by Njeri Githang'a & Charles Mutua

Issues

  1. Whether conciliation is mandatory in recognition disputes before moving to court.

  2. Whether failure to renew a contract of employment amounts to termination of employment.

  3. Whether trade unions are entitled to automatic recognition in law

Employment Law- Termination of employment – Whether failure to renew a contract of employment amounts to termination of employment- Whether conciliation is mandatory in trade union recognition disputes before moving to court-Employment Act of 2007 Section10 (5),41(1)(2 )

Labour Law-Trade unions-recognition of trade unions-whether trade unions are entitled to automatic recognition in law-Labour Relations Act, 2007 section 54(6), 62 & 74

Held

  1. The Conciliation under section 54 and 62 of the Labour Relations Act was not a mandatory procedure, the law provided that a trade union might refer the dispute for conciliation. Sections 54(6) of the Labour Relations Act as read with Part VIII and the provision in section 74 on referral of recognition disputes to the Industrial Court had not made it mandatory for conciliation. But once the parties had taken the route of pre-industrial court conciliation, the process had to be exhausted before the parties moved to court. (Kenya Union of Printing, Publishing, Paper Manufacturers & Allied Workers Union v Color Creations Ltd Nairobi Cause No. 99 of 2010)

  2. Alternative dispute resolution had been given constitutional underpinning in article 159(2) (c) of the Constitution as well as statutory recognition in the Industrial Court Act. The Court was enjoined to promote conciliation as one method of alternative dispute resolution. Conciliation was quick and inexpensive and rested on sound judicial policy and the understanding that social partnership between labor and capital in Kenya had always conciliation between the partners as a cardinal method of resolving both individual rights and collective interests’ disputes.

  3. Conciliation was not mandatory in recognition disputes before moving to court, but it had to be encouraged and promoted. The Cause was therefore not prematurely filed and did not offend the cited statutory provisions.

  4. The Respondent had 192 unionisable staff. Therefore, if the Union had recruited 91 employees that translated to only 47% of the unionisable staff and had not attained a simple majority, the Union had not met the statutory threshold set out in section 54 of the Labour Relations Act to be entitled to grant of recognition.

  5. The employment contracts were to lapse automatically on 15 September 2012 as were signed by the applicants and the respondents. Therefore, Employment contracts lapsed after six months, they were not renewable and unionisable employees were on fixed term contracts of 6 months.

  6. Disputes emanating from collective agreements ran simultaneously with allegations of breach of the Employment Act which defined the fundamental rights of employees. The statutory provisions and legal principles applicable in determining recognition disputes and disputes on the conditions and terms of service emanated from collective agreements and the rights of employees defined in the Employment Act were different and should not be mixed together. Recognition disputes concerned union interests at the primary level whilst collective agreement and Employment Act disputes concerned employee rights.

  7. Employees could not commence litigation seeking an employer to recognize a union they had joined, mixing or combining litigation over disputes rooted on recognition agreement and collective agreements together was likely not only to cause prejudice to the Respondent, but also conflate the issues for determination by the Court, which was not proper and was a defect which could not be cured in the course of proceedings and had to be dealt with by the Court at the very onset of a Claim. (Transport Workers Union (K) vs. Ideal Logistics Ltd Nairobi Industrial Cause No. 1435 of 2012).

  8. The change of name, as was pleaded did not deny the employees’ earlier representation since it was only managerial ownership change and the recognition agreement with the previous entity (Raffia Bags Ltd) was still applicable to the Respondent.

  9. It is trite law that a registered company has its own juristic personality. For the union to succeed in its argument, it was required to do more than it did. It was not clear whether it intended to pierce the corporate veil of the 3 companies to demonstrate that it was in reality one entity.

  10. Parties must be discouraged from filing multiple suits in which the subject matter is the same. The Cause was not incompetent, fatally defective nor an abuse of the court process nor filed prematurely. The union failed to demonstrate that it had attained the statutory threshold for grant of recognition or that the 34 employees were unfairly terminated thus entitled to compensation.

Cause dismissed with no costs with the rider that the Union was at liberty to initiate fresh recruitment with a view to collective bargaining.

 

Cases

East Africa

1.Kenya Engineering Workers Union v Maisha Mabati-Ruiru Cause No 436 of 2010 –(Explained)

2.Kenya Union of Printing, Publishing, Paper Manufacturers & Allied Workers Union v Color Creations Ltd Cause No 99 of 2010 –(Explained)

3.Transport Workers Union (K) v Ideal Logistics Ltd Cause No 1435 of 2012 –(Applied)

Statutes

East Africa

1.Constitution of Kenya, 2010 article 159(2)(c)–(Interpreted)

2.Employment Act, 2007 (Act No 11 of 2007) sections 5, 35, 41, 43, 45, 46–(Interpreted)

3.Industrial Court Act, 2011 (Act No 20 of 2011) section 15–(Interpreted).

4.Industrial Court (Procedure) Rules, 2010 (Act No 20 of 2011) rule 6(3) –(Interpreted)

5.Labour Relations Act, 2007 (Act No 14 of 2007) sections 4, 5, 48, 54(6)(7); 57; 62; 74 –(Interpreted)

Advocates

1.Mr Kiyale for the Claimant

2.Mr Molenje, Senior State Counsel, for the Respondent

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Mary Rhobi V Annan Bhamania [2014] eKLR

Case Number: Cause 285 of 2013 (Originally Nairobi Cause 1459 of 2011 Date Delivered: 21 Mar 2014

Judge: Stephen Radido Okiyo

Court: Industrial Court at Mombasa

Parties: Mary Rhobi v Annan Bhamania

Citation: Mary Rhobi V Annan Bhamania [2014] eKLR

Employer fined for underpaying house servant

Mary Rhobi v Annan Bhamania

Cause No. 285 of 2013

Industrial Court of Kenya at Mombasa

S Radido, J

March 21, 2013

Reported by Teddy Musiga

Brief facts

The claimant was employed by the respondent as a house servant at a monthly salary of Ksh. 2650/=. She served for three years when her contract was terminated. She lodged her complaint in court raising many issues inter alia that her termination was unlawful; her employer never issued her with a contract of service upon termination of her contract; underpayment during the years served. The respondent neither filed a response nor attended hearing.

Issue

Whether the termination of the claimant was unlawful

Labour Law – Employment Law - Employment relationship – termination of employment - claim for unfair termination – sections 28, 35, 41, 51 Employment Act; Regulation of wages (General Amendment) Order, 2010 Legal Notice No. 98 of 18 June 2010.

Held:

  1. The termination of the claimant’s contract was verbal and contrary to section 35 of the Employment Act, in that no written notice was given; contrary to section 41 of the Act in that the claimant was not notified and heard prior to the termination; and by the respondent failing to file a response or attend the hearing, he had failed to establish that the reasons for the termination were valid based on fair reasons.
  2. The claimant was being paid wages below the set statutory minimum wages contrary to Regulation of wages (General Amendment) Order, 2010 Legal Notice No. 98 of 18 June 2010. Under that Order, the basic minimum monthly wage for a house servant in Mombasa was set as Ksh. 6,743/=. The claimant was therefore underpaid.
  3. Under section 28 of the Employment Act and Regulation 9 of the Regulation of Wages (General) Order the claimant was entitled to at least twenty one days annual leave with full pay every year.
  4. The claimant served the respondent for three years. She was therefore entitled by law to one rest day per week. There were 52 weeks in a year and therefore the claimant was entitled to roughly 52 days rest in a year, or at least 156 rest days for the three years.
  5. Section 35(5) of the Employment Act entitled an employee to service pay for every year worked at fixed terms provided the employee was not excluded under section 35(6) of the Act. The statute had not fixed any terms but the practice had been to pay the equivalent of 15 days for each year worked.
  6. Section 51 of the Act mandated employers to issue employees with contract of service as of right.

The termination was unfair and the claimant was paid below the set statutory minimum wages.

Claimant to be issued with certificate of service within 14 days.

One month pay in lieu of notice - Ksh 6,743/=

Accrued leave for three years – Ksh 18,068/=

156 rest day – Ksh 46,488/=

Service pay for 45 days – Ksh 13, 421/=

Underpayments – Ksh 106,944/=

TOTAL = 191,664/=

 

 

Cases

None referred to

Statutes

East Africa

1.Employment Act, 2007 (Act No 11 of 2007) sections 7, 9, 10, 35(5)(6); 41; 51–(Interpreted)

Advocates

None mentioned

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Kenya Union Of Domestic, Hotels, Educational Institutions & Hospital Workers V Florimon Ltd [2014] eKLR

Case Number: Cause 282 of 2013 Date Delivered: 21 Mar 2014

Judge: Stephen Radido Okiyo

Court: Industrial Court at Mombasa

Parties: Kenya Union of Domestic, Hotels, Educational Institutions & Hospital Workers v Florimon Ltd

Citation: Kenya Union Of Domestic, Hotels, Educational Institutions & Hospital Workers V Florimon Ltd [2014] eKLR

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In Re Matter Of Baby B ( Minor) [2014] eKLR

Case Number: Adoption Cause 264 of 2013 (OS) Date Delivered: 21 Mar 2014

Judge: William Musya Musyoka

Court: High Court at Nairobi (Milimani Law Courts)

Parties: In Re Matter of Baby B ( minor)

Citation: In Re Matter Of Baby B ( Minor) [2014] eKLR

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David Mutune Nzongo V Republic [2014] eKLR

Case Number: Criminal Appeal No. 536 of 2010 Date Delivered: 21 Mar 2014

Judge: Wanjiru Karanja, George Benedict Maina Kariuki, Patrick Omwenga Kiage

Court: Court of Appeal at Nairobi

Parties: David Mutune Nzongo v Republic

Citation: David Mutune Nzongo V Republic [2014] eKLR

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BlueCatPortServices V BensonNyagaNjue [2014] eKLR

Case Number: Appeal 2 of 2013 Date Delivered: 21 Mar 2014

Judge: Stephen Radido Okiyo

Court: Industrial Court at Mombasa

Parties: BlueCatPortServices v BensonNyagaNjue

Citation: BlueCatPortServices V BensonNyagaNjue [2014] eKLR

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Kenya Petroleum Oil Workers Union V Kenya Shell Limited [2014] eKLR

Case Number: Cause 51 of 2013 Date Delivered: 21 Mar 2014

Judge: Stephen Radido Okiyo

Court: Industrial Court at Mombasa

Parties: Kenya Petroleum Oil Workers Union v Kenya Shell Limited

Citation: Kenya Petroleum Oil Workers Union V Kenya Shell Limited [2014] eKLR

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Republic V Minister For Tourism & Another Ex-parte Abdulrahman Rizik & 4 Others [2014] eKLR

Case Number: Miscellaneous Civil Application 313 of 2012 Date Delivered: 21 Mar 2014

Judge: George Vincent Odunga

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Republic v Minister for Tourism & Bomas of Kenya Limited Ex-parte Abdulrahman Rizik, Moses J K Ndwiga, Waheed S Bawazir, Stanley Mungathia & Khamisi M Munyanya

Citation: Republic V Minister For Tourism & Another Ex-parte Abdulrahman Rizik & 4 Others [2014] eKLR

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Joseph Mindu Karari Mutitika V Parag Shah & Another [2014] eKLR

Case Number: Cause 444 of 2013 Date Delivered: 21 Mar 2014

Judge: Byram Ongaya

Court: Industrial Court at Nakuru

Parties: Joseph Mindu Karari Mutitika v Parag Shah & Elysian Life Sciences (Mauritius) Limited

Citation: Joseph Mindu Karari Mutitika V Parag Shah & Another [2014] eKLR

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P K M V Senior Principal Magistrate Children's Court At Nairobi & Another [2014] eKLR

Case Number: Petition 138 of 2012 Date Delivered: 21 Mar 2014

Judge: Isaac Lenaola

Court: High Court at Nairobi (Milimani Law Courts)

Parties: P K M v Senior Principal Magistrate Children's Court at Nairobi & J W

Citation: P K M V Senior Principal Magistrate Children's Court At Nairobi & Another [2014] eKLR

CONFLICT OF CONSTITUTIONAL RIGHTS BETWEEN AN ALLEGED FATHER AND A MINOR

 

P.K.M. vs. Senior Principle Magistrate Children’s Court at Nairobi & Another

Constitutional and Human Rights Division

Petition Number 138 of 2012

High Court of Kenya at Nairobi

I.Lenaola J.

Reported by Emma Kinya and Opiyo Lorraine

 

Issues

Whether the court can set aside the Respondent’s (Senior Principle Magistrate) orders directing the petitioner to undergo DNA testing contrary to his constitutional rights under Article 28.

 

Constitutional Law- Bill of Rights- Right of a person to have their dignity respected and protected-Whether the court can set aside an order directing the Petitioner to undergo a DNA test in order to determine the paternity of a child for whom he should pay maintenance- Constitution of Kenya 2010, Article 2.

Constitutional Law- Bill of Rights- Right of Children- Right of a child to know their parents and be entitled to parental care and protection- Whether the rights of a child who seeks to determine his DNA in order to get child support prevail over the right of a petitioner who seeks to have his privacy and dignity protected- Constitution of Kenya 2010, Articles 53 (1) (e), 53 (2).

 

Constitution of Kenya

Article 28

“Every person has inherent dignity and the right to have that dignity respected and protected”.

Article 53 (1) (e)

“Every child has the right-

 (e) to parental care and protection, which includes equal responsibility of the mother and father to provide for the child, whether they are married to each other or not,”

 

Held:

  1. A balance must be struck between the right to privacy of a person not to be submitted forcibly to medical examination and that of a child to know its parents, by considering the effect of such an order and the test of eminent need, that is whether the court can be able to make a decision without having to order for a DNA test as decided in the Supreme Court of India in Bhabani Prasad Jena vs Convener Sec Orissa, Civil Appeal Number 6222-62223 of 2010.
  2. Parental care can only be an obligation if paternity can be ascertained and this is done through a DNA test.
  3. The Petitioner’s unwillingness to undergo a DNA testing in the furtherance of his right to dignity is not sufficient enough to override the interests of the child in this case, its constitutional rights to parental care as set out in Article 53 (2) of the Constitution. Thus, the child’s rights must prevail over the Petitioner’s right and as such, a decision has to be made in the best interests of the child as decided in the case of C.M.S. vs I.A.K. Constitutional Application Number 526 of 2008.

 

Petition dismissed, DNA testing ordered, both parties to bear costs equally.

 

Cases

East Africa

1.CMS v IAK KC (Minor suing thro’ Mother and Next Friend CAO) Constitutional Application No 526 of 2008 –(Explained)

2.MV v KC Miscellaneous Application No 105 of 2004 –(Mentioned)

3.SWM v GMK Petition No 235 of 2011 –(Explained)

India

1.Bhabani Prasad Jena v Convener Sec Orissa Civil Appeal Nos 6222-6223 of 2010 –(Explained)

Statutes

East Africa

1.Constitution of Kenya, 2010 articles 28, 31, 53(1)(e) –(Interpreted)

Advocates

1.Mr Sekwe for the Respondent & Interested Party

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Issa Bisi V Anarwali & Brothers Ltd [2014] eKLR

Case Number: Cause 18 of 2012 Date Delivered: 21 Mar 2014

Judge: Stephen Radido Okiyo

Court: Industrial Court at Mombasa

Parties: Issa Bisi v Anarwali & Brothers Ltd

Citation: Issa Bisi V Anarwali & Brothers Ltd [2014] eKLR

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Kenya Union Of Domestic, Hotels, Educational Institutions & Hospitals Workers V Mombasa Sports Club [2014] eKLR

Case Number: Cause 440 of 2013 Date Delivered: 21 Mar 2014

Judge: Stephen Radido Okiyo

Court: Industrial Court at Mombasa

Parties: Kenya Union of Domestic, Hotels, Educational Institutions & Hospitals Workers v Mombasa Sports Club

Citation: Kenya Union Of Domestic, Hotels, Educational Institutions & Hospitals Workers V Mombasa Sports Club [2014] eKLR

The burden of proof in termination of employment by redundancies lies with the employer


 

Kenya Union of Domestic, Hotel, Educational Institutions & Hospital Workers v Mombasa Sports Club

Cause No. 440 of 2013

Industrial Court of Kenya at Mombasa

Radido Stephen J.

March 21, 2014.

Reported by charles mutua

Brief Facts

The applicants a registered trade union brought an application challenging the intended employee’s redundancies in the respondents company. They argued that the respondents did not adhere to both legal and procedural guidelines as provided in Employment law practice and procedure. This was so since the respondents failed to inform the affected employees personally about their decision to dismiss them and also failed to prove that the declaration of redundancy on the basis of financial constraints in relation to the kitchen unit were valid and fair reason(s) based on its operational requirements.

The respondent argued that they were only obligated to inform the union and not the individual employee of the intended redundancies leading to dismissal and despite that the kitchen was making losses, kitchen unit were represented in management meetings and the Respondent was not acting in bad faith. The Respondent was ready to pay all the terminal dues of the affected employees. Its in these grounds the Union claimed that the Respondent had failed to indicate the names of affected employees and date of redundancy and that the Respondent had other options apart from redundancy and that the redundancy was in bad faith.

Issues

  1. Whether the Respondent had justified the reasons for the redundancy as provided in law.

  2. Whether the intended redundancy was in compliance with the procedural safeguards of personally informing the affected employees.

Employment Law- termination of employment –termination by redundancy-whether the Respondent had justified the reasons for the redundancy as provided in law-whether the intended redundancy was in compliance with the procedural safeguards of personally informing the affected employees- Employment Act of 2007 Section40 (5),43(1)(2)and 45

Held

  1. There are four aspects to section 40(1)(a) of the Employment Act as well as clause 23(a) of the Collective Bargaining Agreement. These are notification to the union, setting out the reasons for the intended redundancy, setting out the extent of the intended redundancy and effective date of redundancy.

  2. There was no substantial compliance with the procedural fairness requirements as provided in both the Statute and the Collective Bargaining Agreement of the intended redundancy. The notice to the Union did not set out the names and other particulars of the affected employees such as designation and that coupled with the fact that the Respondent did not give out the individual notices referred to in clause 23(g) of the Collective Bargaining Agreement left no doubt that the Respondent was not in compliance with both legal and contractual requirements on procedural fairness. That failure could not be cured by the meeting held in the boardroom or meetings with the Union.

  3. It was clear from statutory provisions that an employer was required to prove that the reasons given for the redundancy were valid and fair, and based on the operational requirements of the employer. Respondent was expected to prove redundancy being valid and fair, the reasons they gave fell within its operational requirements.

  4. It cannot be disputed that termination through redundancy was stated to be based on operational requirements. The grounds covered under operational requirements are very broad and would include economic reasons and these must be subjected to the test required by sections 43 and 45(1) and (2) of the Employment Act like any other termination or dismissal. An employer is under an obligation to prove the economic reason(s), and that the reason(s) are valid and fair. And where a Court makes a finding of unfairness, it is open to it to make an award of compensation in addition to the dues stipulated in section 40 of the Employment Act.

  5. The Respondent had failed to prove that the declaration of redundancy on the basis of financial constraints in relation to the kitchen unit were valid and fair reason(s) based on its operational requirements or that it was in accord with justice and equity. The terminations were therefore unfair.

  6. The Respondent has failed to prove that the expenditure of the kitchen unit was continuously above the income generated and that financial constraints coupled with losses were valid and fair reason(s) to justify the declarations of redundancy and therefore the redundancies were unfair.

Parties to agree on the computations of terminal benefits payable to each Grievant and file such computations in Court within the next 7 (seven days) for adoption by the Court.

No order as to costs costs.


 

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William Kinyanyi Onyango V Independent Electoral And Boundaries Commission (IEBC) & 2 Others [2014] eKLR

Case Number: Election Petition 1 of 2013 Date Delivered: 21 Mar 2014

Judge: L. M. WACHIRA

Court: Election Petition in Magistrate Courts

Parties: William Kinyanyi Onyango v Independent Electoral and Boundaries Commission (IEBC),Returning Officer Kariobangi South Uhuru Ward & Robert Mbatia

Citation: William Kinyanyi Onyango V Independent Electoral And Boundaries Commission (IEBC) & 2 Others [2014] eKLR

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Said Mbwana Abdi V Muhambi Koja [2014] eKLR

Case Number: Civil Appeal 31 of 2010 Date Delivered: 21 Mar 2014

Judge: Christine Wanjiku Meoli

Court: High Court at Malindi

Parties: Said Mbwana Abdi v Muhambi Koja

Citation: Said Mbwana Abdi V Muhambi Koja [2014] eKLR

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J.K.N V J.T.K [2014] eKLR

Case Number: Civil Appeal 16 of 2012 Date Delivered: 21 Mar 2014

Judge: Luka Kiprotich Kimaru

Court: High Court at Nairobi (Milimani Law Courts)

Parties: J.K.N v J.T.K

Citation: J.K.N V J.T.K [2014] eKLR

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Ravindranath Dahybhai Bhagat V Hamisi Harod & 5 Others [2014] eKLR

Case Number: Land Case 124 of 2010 Date Delivered: 21 Mar 2014

Judge: Oscar Angote

Court: High Court at Malindi

Parties: Ravindranath Dahybhai Bhagat v Hamisi Harod & 5 others

Citation: Ravindranath Dahybhai Bhagat V Hamisi Harod & 5 Others [2014] eKLR

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Joseph Njoroge Kiama V Summer Ltd [2014] eKLR

Case Number: Cause 37 of 2012 Date Delivered: 21 Mar 2014

Judge: Nelson Jorum Abuodha

Court: Industrial Court at Nyeri

Parties: Joseph Njoroge Kiama v Summer Ltd

Citation: Joseph Njoroge Kiama V Summer Ltd [2014] eKLR

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Mbega Chipitu V Republic [2014] eKLR

Case Number: Criminal Appeal 186 of 2012 Date Delivered: 20 Mar 2014

Judge: Martin Muya

Court: High Court at Mombasa

Parties: Mbega Chipitu v Republic

Citation: Mbega Chipitu V Republic [2014] eKLR

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Genevieve Bertrand V Mohamed Athman Maawiya & Another [2014] eKLR

Case Number: Civil Application 24 of 2013 Date Delivered: 20 Mar 2014

Judge: Hannah Magondi Okwengu, Milton Stephen Asike Makhandia, William Ouko

Court: Court of Appeal at Malindi

Parties: Genevieve Bertrand v Mohamed Athman Maawiya & Mohamed Atiq

Citation: Genevieve Bertrand V Mohamed Athman Maawiya & Another [2014] eKLR

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Samuel Githinji Kimaru & Another V Republic [2014] eKLR

Case Number: Criminal Appeal 637 of 2010 Date Delivered: 20 Mar 2014

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

Court: Court of Appeal at Nakuru

Parties: Samuel Githinji Kimaru & Peter Mwangi Wanjiru v Republic

Citation: Samuel Githinji Kimaru & Another V Republic [2014] eKLR

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Fabian Kanyithia V District Land Adjudication Officer Tigania West/East District & 5 Others [2014] eKLR

Case Number: Misc Appl 29 of 2010 Date Delivered: 20 Mar 2014

Judge: Jessie Wanjiku Lessit

Court: High Court at Meru

Parties: Fabian Kanyithia v District Land Adjudication Officer Tigania West/East District, Mwitari Limbitu, Mugambi Ndimbo Mwitari, Amos Muthaura Baithumbi, Ngiri M’ Mwitari & Muriira Ngolua Baithumbi

Citation: Fabian Kanyithia V District Land Adjudication Officer Tigania West/East District & 5 Others [2014] eKLR

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Republic V Permanent Secretary Ministry Of Defence Ex-Parte Daniel Kungu Kimani [2014] eKLR

Case Number: Misc.Civil Appl.118 of 2007 Date Delivered: 20 Mar 2014

Judge: David Shikomera Majanja

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Republic v Permanent Secretary Ministry of Defence Ex-Parte Daniel Kungu Kimani

Citation: Republic V Permanent Secretary Ministry Of Defence Ex-Parte Daniel Kungu Kimani [2014] eKLR

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Republic V Principal Secretary Ministry Of Interior & Co-ordination Of National Government & Another Ex-Parte Mohamed Abdi [2014] eKLR

Case Number: Misc Civil Appl 23 of 2013 Date Delivered: 20 Mar 2014

Judge: Jessie Wanjiku Lessit

Court: High Court at Meru

Parties: Republic v Principal Secretary Ministry of Interior & Co-ordination of National Government & Attorney General Ex-Parte Mohamed Abd

Citation: Republic V Principal Secretary Ministry Of Interior & Co-ordination Of National Government & Another Ex-Parte Mohamed Abdi [2014] eKLR

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S J M V Republic [2014] eKLR

Case Number: Criminal Appeal 453 of 2010 Date Delivered: 20 Mar 2014

Judge: Maureen Akinyi Odero

Court: High Court at Mombasa

Parties: S J M v Republic

Citation: S J M V Republic [2014] eKLR

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Republic V Chairman, Co-operatives Tribunal & 8 Others Ex-Parte Management Committee Konza Ranching & Farming Co-operative Society Ltd [2014] eKLR

Case Number: Miscellaneous Civil Application 271 of 2013 Date Delivered: 20 Mar 2014

Judge: George Vincent Odunga

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Republic v Chairman, Co-operatives Tribunal, Commissioner for Co-operative Development, John Mulwa Kang’aatu, Paulmuthoka Mbole, Muli Kathuku, William Mwilu Kitinga, Stephen Kimuyu Muthembwa, John Mutuku Mbuvi & Mbai Kala Muluni Ex-Parte Management Committee Konza Ranching & Farming Co-operative Society Ltd

Citation: Republic V Chairman, Co-operatives Tribunal & 8 Others Ex-Parte Management Committee Konza Ranching & Farming Co-operative Society Ltd [2014] eKLR

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Pamela Akinyi Wananda V Bernard Kibe Ngunje

Case Number: Civil Case No. 25 of 2009 Date Delivered: 20 Mar 2014

Judge: Mary Muhanji Kasango

Court: High Court at Mombasa

Parties: Pamela Akinyi Wananda v Bernard Kibe Ngunje

Citation: Pamela Akinyi Wananda V Bernard Kibe Ngunje

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S W V Republic [2014] eKLR

Case Number: Criminal Appeal 72 of 2009. Date Delivered: 20 Mar 2014

Judge: Joseph Raphael Karanja

Court: High Court at Kitale

Parties: S W v Republic

Citation: S W V Republic [2014] eKLR

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S C C V M K C [2014] eKLR

Case Number: Divorce Cause 16 of 2012 Date Delivered: 20 Mar 2014

Judge: Grace Wangui Ngenye

Court: High Court at Eldoret

Parties: S C C v M K C

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

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