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Geoffrey Yittii V Republic [2014] eKLR

Case Number: Criminal Appeal 54 of 2013 Date Delivered: 18 Mar 2014

Judge: Joseph Raphael Karanja

Court: High Court at Kitale

Parties: Geoffrey Yittii v Republic

Citation: Geoffrey Yittii V Republic [2014] eKLR

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F W M V M K [2014] eKLR

Case Number: Elc Case 14 of 2012 (os) Date Delivered: 18 Mar 2014

Judge: Boaz Nathan Olao

Court: High Court at Kerugoya

Parties: F W M v M K

Citation: F W M V M K [2014] eKLR

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Maurice Eseme Soita V Republic [2014] eKLR

Case Number: Criminal Appeal 162 of 2005. Date Delivered: 18 Mar 2014

Judge: Joseph Raphael Karanja

Court: High Court at Kitale

Parties: Maurice Eseme Soita v Republic

Citation: Maurice Eseme Soita V Republic [2014] eKLR

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K K D V L T [2014] eKLR

Case Number: Divorce Cause 136 of 2012 Date Delivered: 17 Mar 2014

Judge: Luka Kiprotich Kimaru

Court: High Court at Nairobi (Milimani Law Courts)

Parties: K K D v L T

Citation: K K D V L T [2014] eKLR

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E W K V G M [2014] eKLR

Case Number: Divorce Cause 92 of 2013 Date Delivered: 17 Mar 2014

Judge: Luka Kiprotich Kimaru

Court: High Court at Nairobi (Milimani Law Courts)

Parties: E W K v G M

Citation: E W K V G M [2014] eKLR

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Paul Mureithi Joram & 9 Others Evans Orenge Onderi [2014] eKLR

Case Number: Civil Case 79 of 2011 Date Delivered: 17 Mar 2014

Judge: Elija Ogoti Obaga

Court: High Court at Kitale

Parties: Paul Mureithi Joram & 9 others Evans Orenge Onderi

Citation: Paul Mureithi Joram & 9 Others Evans Orenge Onderi [2014] eKLR

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Republic V Ugas Bishar Ismaiel & 3 Others [2014] eKLR

Case Number: Criminal Case 25 of 2012 Date Delivered: 17 Mar 2014

Judge: Stella Ngali Mutuku

Court: High Court at Garissa

Parties: Republic v Ugas Bishar Ismaiel, Sadik Ahmed Hassan, Weli Adan Mursal & Ibrahim Haret Abdille

Citation: Republic V Ugas Bishar Ismaiel & 3 Others [2014] eKLR

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S A O V G S [2014] eKLR

Case Number: Divorce Cause 96 of 2012 Date Delivered: 17 Mar 2014

Judge: Luka Kiprotich Kimaru

Court: High Court at Nairobi (Milimani Law Courts)

Parties: S A O v G S

Citation: S A O V G S [2014] eKLR

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Republic V Attorney General & Another Ex-Parte Rachael Mumbe Muna [2014] eKLR

Case Number: Miscellaneous Application 11 of 2013 Date Delivered: 17 Mar 2014

Judge: Stella Ngali Mutuku

Court: High Court at Garissa

Parties: Republic v Attorney General & Permanent Secretary Ministry of Agriculture, Livestock & Fisheries Ex-Parte Rachael Mumbe Muna

Citation: Republic V Attorney General & Another Ex-Parte Rachael Mumbe Muna [2014] eKLR

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Republic V County Government Of Kiambu & 2 Others Ex-parte Kimani Gachungi [2014] eKLR

Case Number: Miscellaneous Civil Cause 171 of 2013 Date Delivered: 17 Mar 2014

Judge: George Vincent Odunga

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Republic v County Government of Kiambu, Transition Authority & Municipal Council of Kiambu Ex-parte Kimani Gachungi

Citation: Republic V County Government Of Kiambu & 2 Others Ex-parte Kimani Gachungi [2014] eKLR

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In Re P (Baby) [2014] eKLR

Case Number: Adoption Cause 128 of 2012 Date Delivered: 17 Mar 2014

Judge: Luka Kiprotich Kimaru

Court: High Court at Nairobi (Milimani Law Courts)

Parties: In Re P (Baby)

Citation: In Re P (Baby) [2014] eKLR

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Alfan Rashid Mutswe V Republic [2014] eKLR

Case Number: Criminal Appeal 446 of 2008 Date Delivered: 17 Mar 2014

Judge: Amraphael Mbogholi-Msagha, Lydia Awino Achode

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Alfan Rashid Mutswe v Republic

Citation: Alfan Rashid Mutswe V Republic [2014] eKLR

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Benard Gitau Kahiga V Republic [2014] eKLR

Case Number: Criminal Appeal 150 of 2013 Date Delivered: 17 Mar 2014

Judge: Jairus Ngaah

Court: High Court at Murang'a

Parties: Benard Gitau Kahiga v Republic

Citation: Benard Gitau Kahiga V Republic [2014] eKLR

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Twaher Abdulkarim Mohamed V Independent Electoral & Boundaries Commission (IEBC) & 2 Others [2014] eKLR

Case Number: Civil Appeal 154 of 2013 Date Delivered: 17 Mar 2014

Judge: Edward Muthoga Muriithi

Court: High Court at Mombasa

Parties: Twaher Abdulkarim Mohamed v Independent Electoral & Boundaries Commission (IEBC), Hamisi Halfan Tsumo & Mwathethe Adamson Kadenge

Citation: Twaher Abdulkarim Mohamed V Independent Electoral & Boundaries Commission (IEBC) & 2 Others [2014] eKLR

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S A O V G S [2014] eKLR

Case Number: Divorce Cause 96 of 2012 Date Delivered: 17 Mar 2014

Judge: Luka Kiprotich Kimaru

Court: High Court at Nairobi (Milimani Law Courts)

Parties: S A O v G S

Citation: S A O V G S [2014] eKLR

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Association Of Gaming Operators-Kenya & 41 Others V Attorney General & 4 Others [2014] eKLR

Case Number: Petition 56 of 2014 Date Delivered: 17 Mar 2014

Judge: David Shikomera Majanja

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Association of Gaming Operators-Kenya, African Rafiki Limited, Apollo Landings Ltd, Blooming Stars Ltd, Chablis Ltd, Cotes Du Rhone Limited, Family Town Limited, Fastrack Leisure Entertainment, Finix Casino Ltd, Gamax (K) Ltd, Goldenkey Ltd, Hardwick Ltd, Jarvis Ltd, Ken Bookmakers (2002)Ltd, Kenya Charity Sweepstake Limited, Kenya Sports Bet Ltd, Kilua Ltd, Leisure Casinos Ltd, Magic Slots Ltd, Malindi Management Strategy Ltd, Manga Pwani Ltd, Moorgate Ltd, Nakuru Lucky Ltd, Paradise Invetsment and Development Kenya Ltd, Plyboy Casino Ltd, Resort Kenya Limited, Slot Game (K) Ltd, Southcape Investment Ltd, Waderful Jackpot Ltd, Wonderland Casino Ltd, Pevans East Africa, Eastleigh Casino Ltd, Seborga Leisure Limited, Aces Palace Limited, Belcoy Leisure Limited, Jumbo Jackpot Kenya Limited, Agen Gaming Logistics Ltd, Gaming Logistics Ltd, Lucky to you Ltd, Game on Solutions Ltd, Lake Victoria Safaris Ltd & Regency Slots Ltd v Attorney General, Principal Secretary Ministry of Finance & Kenya Revenue Authority Interested Parties Commission on Revenue Allocation & Betting, Control and Licensing Board

Citation: Association Of Gaming Operators-Kenya & 41 Others V Attorney General & 4 Others [2014] eKLR

Court Upholds Constitutionality of the 20% Withholding Tax Subjected To Winnings from Betting And Gaming

 

Reported by Nelson Tunoi & Riziki Emukule

 

Summary of facts:

The 1st petitioner (Association of Gaming Operators-Kenya) is a registered society and the umbrella body for companies involved in the gaming industry in Kenya. They filed a petition challenging the manner in which winnings from gaming and betting were to be taxed especially with the introduction of some clauses in the Finance Act (Act No.38 of 2013). The petitioners were opposed to the introduction of a withholding tax of 20% on all winnings from betting and gaming, and they were apprehensive that imposition of the 20% withholding tax would have adverse effects on their business since it would serve to lure away their customers. The petitioners further contended that the Finance Act was unconstitutional since it was passed without public participation contrary to articles 10, 118 and 201 of the Constitution of Kenya, 2010.

Issues:

         i.            Whether the Finance Act, 2013 was unconstitutional for lack of public participation.

       ii.            Whether the Finance Act, 2013 was unconstitutional for want of compliance with article 205 of the Constitution of Kenya, 2010.

      iii.             Whether the implementation of the Finance Act, 2013 in so far at it concerned the petitioners gaming business was impractical and if so, what was the effect thereof.

 

Constitutional law-petition-petitioners challenging the constitutionality of the provisions of the Finance Act subjecting winnings from betting and gaming to 20% withholding tax-whether the Finance Act, 2013 was unconstitutional for lack of public participation and want of compliance with article 205 of the Constitution-whether the High Court had jurisdiction to interfere with the implementation of the Finance Act, 2013 with regards to the gaming business-whether the petition had merit-Constitution of Kenya, 2010 articles 10, 118, 201, 205, 209, 210; Finance Act, 2013, sections 9, 11, 14, 15 & 23.

 

Held:

1. Public participation as a national value was an expression of the sovereignty of the people articulated in article 1 of the Constitution of Kenya, 2010. The golden thread running through the Constitution was one of sovereignty of the people of Kenya and article 10 that made public participation a national value was a form of expression of that sovereignty. Article 94 of the Constitution of Kenya 2010 vested legislative authority of the people of Kenya in Parliament.

2. Although the 1st petitioner complained that they were not accorded an opportunity to make oral submissions after forwarding a memorandum to the Parliamentary Committee when the Finance Bill, 2013 was published, an oral hearing was not necessary in every situation and the legislature had wide latitude to determine how to receive submissions.

3. The opportunity availed to the petitioners to forward their memorandum was ample demonstration that there was public participation. The fact that the outcome did not result in what the petitioners wanted did not necessarily negate public participation.

4. Although public participation in the law making process was required, essentially all that was required of the legislature was to provide opportunity for some form of public participation, for instance allowing the public to make either written or oral submission at some point in the legislative process. Thus the petitioners failed to establish that the Finance Act, 2013 was passed in violation of the principles of public participation espoused under articles 10, 118 and 210 of the Constitution of Kenya, 2010.

5. Article 205 of the Constitution of Kenya provided that it was the Commission on Revenue Allocation which ought to consider financial bills affecting Counties once it was published and make its recommendation. However, in the instant case, there was no indication that the Commission on Revenue Allocation considered the Finance Bill, 2013 and made recommendations. In the absence of such recommendation by the Commission on Revenue Allocation, article 205(2) of the Constitution of Kenya, 2010 was not applicable.

6. The absence of recommendation by the Commission on Revenue Allocation could not result in the legislation being declared unconstitutional by reason that the Commission on Revenue Allocation failed to discharge its duty to make recommendations on the Finance Bill, 2013. Therefore, the Finance Act, 2013 could not be impugned on the basis of want of compliance with article 205.

7. Article 209 of the Constitution of Kenya, 2010 empowered the national government to impose taxes and charges. Such taxes included income tax, value-added tax, customs duties and other duties on import and export goods and excise tax. The manner in which the tax was defined, administered and collected was a matter for Parliament to define and it was not for the court to interfere merely because the legislature would have adopted a better or different definition of the tax or provided an alternative method of administration or collection. Under article 209 of the Constitution, the legislature retained wide authority to define the scope of the tax. [See Bidco Oil Refineries v Attorney General and Others Petition No. 177 of 2012, paras. 53 – 56.]

8. The impracticability or problems of implementation of the law were outside the court’s jurisdiction to resolve unless there was an allegation that there was a violation of the petitioners’ fundamental rights and freedoms or of the Constitution. In the instant case, there was no allegation in the petition that the implementation of the Finance Act, 2013 violated the Constitution.

9. If there were indeed any difficulties of implementation, the 2nd interested party (Betting, Control and Licensing Board) had indicated that the same could be resolved through a tripartite process which it had initiated. The court could not therefore enter into an inquiry which would involve an interpretation of “winnings” as provided in the Finance Act, 2013. Acceding to such a request would amount to proffering what was in effect an advisory opinion as there was no real dispute between any of the petitioners and the 3rd respondent (Kenya Revenue Authority). If such a dispute arose in the collection of taxes there existed sufficient mechanisms under the Income Tax Act to resolve and interpret the law in light of the facts at hand.

 

Petition dismissed with no order as to costs.

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U S I V R M K [2014] eKLR

Case Number: Divorce Cause 170’b’ of 2011 Date Delivered: 17 Mar 2014

Judge: Luka Kiprotich Kimaru

Court: High Court at Nairobi (Milimani Law Courts)

Parties: U S I v R M K

Citation: U S I V R M K [2014] eKLR

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Shalein Masood Mughal V Attorney General & 5 Others [2014] eKLR

Case Number: Petition 186 of 2013 Date Delivered: 17 Mar 2014

Judge: David Shikomera Majanja

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Shalein Masood Mughal v Attorney General,Minister for Roads,Kenya National Highways Authority,China Road and Bridge Corporation,Chief Engineer Ministry of Roads & Commissioner of Lands

Citation: Shalein Masood Mughal V Attorney General & 5 Others [2014] eKLR

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Republic V Kenya Bureau Of Standards & 2 Others Ex-parte Peter Mbwiri Ikamati [2014] eKLR

Case Number: Misc. Appl. 369 of 2013 Date Delivered: 17 Mar 2014

Judge: David Shikomera Majanja

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Republic v Kenya Bureau of Standards, Kenya Revenue Authority & Attorney General Ex-parte Peter Mbwiri Ikamati

Citation: Republic V Kenya Bureau Of Standards & 2 Others Ex-parte Peter Mbwiri Ikamati [2014] eKLR

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Joseph Letuya & 21 Others V Attorney General & 5 Others [2014] eKLR

Case Number: Elc Civil Suit 821 of 2012 (Os) Date Delivered: 17 Mar 2014

Judge: Pauline Nyamweya

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Joseph Letuya , Patrick Kibet Kiresoy, James Rana, Nahashon K. Kipto, Elasco Rono , Stephen Pandumunye,William Kiplangat Kalegu, Joseph K. Sang,Parsoloi Saitoti, Kiprono Sigilai,Zakayo Lesingo, Julias Sitonik, Isaiah Sanet,Johnson Namunge, Samson Kipkurui Mureno, Charles K. Ndaraya, Daniel Kibet Chesot, William Seronei Tiwas, Joseph Kimaiyo Towett, Staron Maitubuny,Sembui Oris & Simon Rana v The Attorney General,The Provincial Commissioner Rift Valley Province, Rift Valley Province Forest Officer,District Commissioner Nakuru,Wilson Chepkwony, The Director Of Forestry

Citation: Joseph Letuya & 21 Others V Attorney General & 5 Others [2014] eKLR

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Francis Musyoka V Republic [2014] eKLR

Case Number: Criminal Appeal 75 of 2013 Date Delivered: 17 Mar 2014

Judge: Stella Ngali Mutuku

Court: High Court at Garissa

Parties: Francis Musyoka v Republic

Citation: Francis Musyoka V Republic [2014] eKLR

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Ernest Kirui Rono V Republic [2014] eKLR

Case Number: Criminal Appeal 37 of 2013 Date Delivered: 14 Mar 2014

Judge: Roseline Pauline Vunoro Wendoh

Court: High Court at Nakuru

Parties: Ernest Kirui Rono v Republic

Citation: Ernest Kirui Rono V Republic [2014] eKLR

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Tom Okello & Patrick Billy Olang V Republic [2014] eKLR

Case Number: Criminal Appeal 272 & 268 of 2010 Date Delivered: 14 Mar 2014

Judge: Roseline Pauline Vunoro Wendoh

Court: High Court at Nakuru

Parties: Tom Okello & Patrick Billy Olang v Republic

Citation: Tom Okello & Patrick Billy Olang V Republic [2014] eKLR

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Ngunjiri Macharia & Another V Joseph Mwaniki Macharia [2014] eKLR

Case Number: E.L.C. 10 of 2012 Date Delivered: 14 Mar 2014

Judge: Anthony Ombwayo

Court: High Court at Nyeri

Parties: Ngunjiri Macharia & Francis Mwangi Macharia v Joseph Mwaniki Macharia

Citation: Ngunjiri Macharia & Another V Joseph Mwaniki Macharia [2014] eKLR

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Joseph Ngatia Macharia V James Githaiga Karani [2014] eKLR

Case Number: Civil Case 91 of 2010 Date Delivered: 14 Mar 2014

Judge: Anthony Ombwayo

Court: High Court at Nyeri

Parties: Joseph Ngatia Macharia v James Githaiga Karani

Citation: Joseph Ngatia Macharia V James Githaiga Karani [2014] eKLR

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Gladys Nyambura Gatere V Margaret Wambui Mugo [2014] eKLR

Case Number: Civil Case 39 of 2010 Date Delivered: 14 Mar 2014

Judge: Anthony Ombwayo

Court: Environment and Land Court at Nyeri

Parties: Gladys Nyambura Gatere v Margaret Wambui Mugo

Citation: Gladys Nyambura Gatere V Margaret Wambui Mugo [2014] eKLR

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Republic V Dennis Mgute Kafani & Another [2014] eKLR

Case Number: Criminal Case 7 of 2012 Date Delivered: 14 Mar 2014

Judge: Martin Muya

Court: High Court at Mombasa

Parties: Republic v Dennis Mgute Kafani & another

Citation: Republic V Dennis Mgute Kafani & Another [2014] eKLR

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Purity Wahito & 2 Others V Munene Kariuki [2014] eKLR

Case Number: Civil Appeal 19 of 2010 Date Delivered: 14 Mar 2014

Judge: Anthony Ombwayo

Court: Environment and Land Court at Nyeri

Parties: Purity Wahito, Karuri Kabu & Ndegwa Wahito v Munene Kariuki

Citation: Purity Wahito & 2 Others V Munene Kariuki [2014] eKLR

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George Waweru Gathiga V Joseph Maina Kamau [2014] eKLR

Case Number: E.L.C. 25 of 2013 Date Delivered: 14 Mar 2014

Judge: Anthony Ombwayo

Court: Environment and Land Court at Nyeri

Parties: George Waweru Gathiga v Joseph Maina Kamau

Citation: George Waweru Gathiga V Joseph Maina Kamau [2014] eKLR

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Joseph Gikaru Kigondu V Stem Hotel Limited [2014] eKLR

Case Number: Cause 71 of 2013 Date Delivered: 14 Mar 2014

Judge: Byram Ongaya

Court: Industrial Court at Nakuru

Parties: Joseph Gikaru Kigondu v Stem Hotel Limited

Citation: Joseph Gikaru Kigondu V Stem Hotel Limited [2014] eKLR

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Kennedy Odoyo Okello V District Land Registrar, Migori & 2 Others [2014] eKLR

Case Number: Environment And Land Court Petition 37 of 2012 Date Delivered: 14 Mar 2014

Judge: Samson Odhiambo Okong'o

Court: High Court at Kisii

Parties: Kennedy Odoyo Okello v District Land Registrar, Migori, National Bank Of Kenya Limited & Bhavin Ashwin

Citation: Kennedy Odoyo Okello V District Land Registrar, Migori & 2 Others [2014] eKLR

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Stephen Miheso V Kaimosi Tea Estate Limited [2014] eKLR

Case Number: Cause 346 of 2013 Date Delivered: 14 Mar 2014

Judge: Byram Ongaya

Court: Industrial Court at Nakuru

Parties: Stephen Miheso v Kaimosi Tea Estate Limited

Citation: Stephen Miheso V Kaimosi Tea Estate Limited [2014] eKLR

Whether illiteracy amounts to disability in employment

Stephen Miheso v Kaimosi tea estate

In the Industrial Court of Kenya at Nakuru

Cause no 346 of 2013

B Ongaya, J

March 14, 2014

Reported by Teddy Musiga and Getrude Serem

 

Brief facts:

The claimant was employed as a tea picker at the respondents company. He was illiterate as he could not read or write hence he authenticated his documents by a thumb print. In October 2012 the claimant, while at work in the farm, was given a letter dated 23.10.2012 by the supervisor.it was only after he thumb printed the said letter that his colleagues told him that he has signed his resignation letter. He did not know or understand the meaning of the letter. Subsequently on the 29.10.2012 he received a letter titled notice of resignation, it was from the field manager accepting his resignation.

Issues

  1. Whether the termination of employment was unfair
  2. Whether the claimant was to be treated as disabled because he was illiterate under sec 2 of the employment act 2007
  3. Whether the claimant was entitled to a claim of gratuity

 

Employment law-unfair termination of employment-whether illiteracy amounts to a disability sec 2 of the Employment act,2007 -whether an illiterate employee was allowed freedom from harassment due to his disability as an illiterate sec 5(3) of the Employment act, 2007.

Section 5(3) a of the Employment act, 2007

(3) No employer shall discriminate directly or indirectly, against an employee nor prospective employee or harass an employee or prospective employee—

(a) on grounds of race, colour, sex, language, religion, political or other opinion, nationality, ethnic or social origin, disability, pregnancy, mental status or HIV status;

 

Held:

  1. There was no doubt that the claimant’s termination was triggered by the alleged letter of resignation purportedly authored by the claimant and expressing the claimant’s alleged request to resign
  2. Section 2 of the Employment Act, 2007 defined “disability” to mean a physical, sensory, mental or other impairment, including any visual, hearing, learning, or physical incapability, which impacts adversely on a person’s social and economic participation. The court held that a person with illiteracy like the claimant was a person with disability and was entitled the rights of persons with disabilities as protected in the constitution and the relevant statutes.
  3. It further held that under section 5 (3) (a) of the Employment Act, 2007, the claimant was entitled to freedom from harassment by the respondent on account of the disability of illiteracy and in particular, under the section the claimant was entitled to freedom from harassment in respect of termination of employment or other matters arising out of the employment relationship.
  4. The claimant being a person with illiteracy, he was entitled to other appropriate means of communication (other than writing and reading) as provided for in Article 54(1) (d) of the Constitution. In particular, the claimant was entitled to verbal explanations of applicable terms and conditions of service in a language that the claimant understood in view of the employment relationship. This is under the employment act in section 9(3) and (4).
  5. The court arrived at that finding because the respondent had initiated the idea of resignation and it ought to have been an offer under which the claimant ought to have been invited to accept or reject. The opinion of the court was that it was fraudulent for the respondent to hatch a request to resign on the part of the claimant without the claimant harboring any such intention and in which case, the court’s view is that the respondent ought to have made an offer for resignation and in good faith invited the claimant to accept or reject it but which never happened in the case.
  6. Thus, the court found that there was no valid agreement to end the employment relationship by resignation as was submitted and suggested for the respondent. Further, the respondent was required to cause the contents of the alleged letter to be explained to the claimant in a language that the claimant understood. In the circumstances, the court found that the respondent failed to discharge the crucial statutory obligations imposed upon the respondent as an employer and in protection of the claimant as provided for in the quoted section.
  7. The court found that acceptance of the alleged claimant’s letter requesting to resign was not a valid reason for the termination because at the time of termination the respondent’s field manager and the General Manager failed to confirm that the claimant had authored the alleged request to resign and the respondent was reckless in failing to address the claimant’s ensuing grievance.
  8.  The court further found that the claimant is entitled to the declaration that the termination was unlawful and unfair.
  9. The court found that there was no dispute between the parties that the claimant was entitled to gratuity as provided for under the CBA.
  10. The court considered the evidence and found that the claimant opted to stay at his home throughout the employment despite the respondent’s provision of reasonable housing at the farm. The claimant confirmed in his testimony that the respondent’s General Manager had issued an internal memo and at a meeting with the workers explained the availability of reasonable housing at the farm. Thus, the court found that the prayer shall fail.
  11. the court was not setting a principle that an employer could not pay reasonable house allowance where the employer has imposed reasonable available housing accommodation for the employee but nevertheless, the employee has opted to stay in own better or equally reasonable housing.in the circumstance the provisions of section 31 of the employment act ,2007 should be adhered to.

In the circumstances, the court awarded the claimant the maximum compensation of 12 months last gross monthly salary under section 49(1) (c) of the Employment Act, 2007 at the rate of Kshs.10,362.00 making Kshs.124, 344.00.

 

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Kenya Anti-Corruption Commission V Deepak Chamanlal Kamani & 4 Others [2014] eKLR

Case Number: Civil Appeal 152 of 2009 Date Delivered: 14 Mar 2014

Judge: David Kenani Maraga, William Ouko, Jamila Mohammed

Court: Court of Appeal at Nairobi

Parties: Kenya Anti-Corruption Commission v Deepak Chamanlal Kamani, Rashmi Chamanlal Kamani, Principal Immigration Officer, Chief Magistrate’s Court, Kibera, Nrb & Chief Magistrate’s Court, Nairobi

Citation: Kenya Anti-Corruption Commission V Deepak Chamanlal Kamani & 4 Others [2014] eKLR

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Nelson Onyango Otho & 5 Others V Rashid Jumaa Nyale & Another [2014] eKLR

Case Number: Cause 30 of 2012 (Originally Nairobi Cause 1444 of 2010) Date Delivered: 14 Mar 2014

Judge: Stephen Radido Okiyo

Court: Industrial Court at Mombasa

Parties: Nelson Onyango Otho, Michael Owino, Evans L. Liani, Benard M. Ongati, Jacquline O. Okondo &Jane; N. Mbuvi v Rashid Jumaa Nyale & Robert Odwori Abwoga

Citation: Nelson Onyango Otho & 5 Others V Rashid Jumaa Nyale & Another [2014] eKLR

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In The Matter Of David Kimathi M’maitima [2014] eKLR

Case Number: Bankruptcy Cause 94 of 2006 Date Delivered: 14 Mar 2014

Judge: Jacqueline Kamau

Court: High Court at Nairobi (Milimani Law Courts)

Parties: In the matter of David Kimathi M’maitima

Citation: In The Matter Of David Kimathi M’maitima [2014] eKLR

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Lydia Wambui Gitau & Another V Fatuma Gathiaka & 2 Others [2014] eKLR

Case Number: Environment and Land Case 221 of 2012 Date Delivered: 14 Mar 2014

Judge: Samwel Ndungu Mukunya

Court: High Court at Mombasa

Parties: Lydia Wambui Gitau & Regina Wambui Gitau v Fatuma Gathiaka, Registrar of Titles, Kwale & Attorney General

Citation: Lydia Wambui Gitau & Another V Fatuma Gathiaka & 2 Others [2014] eKLR

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Francis Pinya V Republic [2014] eKLR

Case Number: Criminal Appeal 542 of 2010 Date Delivered: 14 Mar 2014

Judge: Paul Kihara Kariuki, Agnes Kalekye Murgor, Kathurima M'inoti

Court: Court of Appeal at Nairobi

Parties: Francis Pinya v Republic

Citation: Francis Pinya V Republic [2014] eKLR

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Daniel Otieno Mbola V Robinson Investments Limited [2014] eKLR

Case Number: Cause 83 of 2013 Date Delivered: 14 Mar 2014

Judge: Byram Ongaya

Court: Industrial Court at Nakuru

Parties: Daniel Otieno Mbola v Robinson Investments Limited

Citation: Daniel Otieno Mbola V Robinson Investments Limited [2014] eKLR

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Board Of Trustees, Nairobi Pentecostal Church V Joseph Alwanda & 2 Others [2014] eKLR

Case Number: Civil Appeal 21 of 2012 Date Delivered: 14 Mar 2014

Judge: Joseph Kiplagat Sergon

Court: High Court at Kericho

Parties: Board Of Trustees, Nairobi Pentecostal Church v Joseph Alwanda, Sammy Mugadi & Stephen Lwangu Avistinu

Citation: Board Of Trustees, Nairobi Pentecostal Church V Joseph Alwanda & 2 Others [2014] eKLR

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James Kamau Waweru V Republic [2014] eKLR

Case Number: Criminal Appeal 102 of 2013 (R) Date Delivered: 14 Mar 2014

Judge: Daniel Kiio Musinga, Jamila Mohammed, Stephen Gatembu Kairu

Court: Court of Appeal at Nairobi

Parties: James Kamau Waweru v Republic

Citation: James Kamau Waweru V Republic [2014] eKLR

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Penina Wanjiru Njane V John Waweru Mworia [2014] eKLR

Case Number: ELC 93 of 2012 Date Delivered: 14 Mar 2014

Judge: Mary Muthoni Gitumbi

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Penina Wanjiru Njane v John Waweru Mworia

Citation: Penina Wanjiru Njane V John Waweru Mworia [2014] eKLR

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Victor Mwendwa Mulinge V Republic [2014] eKLR

Case Number: Criminal Appeal 357 of 2012 Date Delivered: 14 Mar 2014

Judge: Daniel Kiio Musinga, Paul Kihara Kariuki

Court: Court of Appeal at Nairobi

Parties: Victor Mwendwa Mulinge v Republic

Citation: Victor Mwendwa Mulinge V Republic [2014] eKLR

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Peter Otieno Ndhere & Another V Secretary, Bog Joyland Special Sec. School [2014] eKLR

Case Number: Cause 116 of 2013 Date Delivered: 14 Mar 2014

Judge: Hellen Wasilwa Seruya

Court: Industrial Court at Kisumu

Parties: Peter Otieno Ndhere & Wellington Oluoch v Secretary, Bog Joyland Special Sec. School

Citation: Peter Otieno Ndhere & Another V Secretary, Bog Joyland Special Sec. School [2014] eKLR

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Simon S. Mungu V Chairman BOG, Friends Lugulu Mission Hospital [2014] eKLR

Case Number: Cause 152 of 2013 Date Delivered: 14 Mar 2014

Judge: Hellen Wasilwa Seruya

Court: Industrial Court at Kisumu

Parties: Simon S. Mungu v Chairman BOG, Friends Lugulu Mission Hospital

Citation: Simon S. Mungu V Chairman BOG, Friends Lugulu Mission Hospital [2014] eKLR

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Kenya Country Bus Owners’ Association (Through Paul G. Muthumbi – Chairman, Samuel Njuguna – Secretary, Joseph Kimiri – Treasurer) & 8 Others V Cabinet Secretary For Transport & Infrastructure & 5 Others [2014] eKLR

Case Number: Judicial Review Case No. 2 of 2014 Date Delivered: 14 Mar 2014

Judge: George Vincent Odunga

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Kenya Country Bus Owners’ Association (Through Paul G. Muthumbi – Chairman, Samuel Njuguna – Secretary, Joseph Kimiri – Treasurer), Mbukinya Bus Service (Kenya) Ltd, Crown Bus Service Ltd, Kampala Coachs Ltd, Ugwe Bus Services Ltd, Traticom Enterprises Ltd, Trisha Collections Ltd, Panther Travels Ltd & Neno Courier Services Ltd V Cabinet Secretary For Transport & Infrastructure, Principal Secretary - State Department of Transport, Attorney General, Inspector General of the Police , Traffic Commandant & National Transport & Safety Authority

Citation: Kenya Country Bus Owners’ Association (Through Paul G. Muthumbi – Chairman, Samuel Njuguna – Secretary, Joseph Kimiri – Treasurer) & 8 Others V Cabinet Secretary For Transport & Infrastructure & 5 Others [2014] eKLR

Passengers’ safety must be considered before imposition of ‘night travel ban’ regulations on public service transportation

Kenya Country Bus Owners Association & 8 others V Cabinet Secretary for Transport & Infrastructure & 5 others (2014 KLR)

Judicial Review Case No. 2 of 2014

High Court at Nairobi

G.V Odunga J

March 14, 2010

Reported by Phoebe Ida Ayaya and MaryConcepter Nzakuva

 

Brief Facts

The Applicants (a bus owners’ association and individual corporate bus owners) applied to the High Court seeking for an order of certiorari to quash the Respondents’ (The Cabinet Secretary in charge of Transport and others) decision via legal notice No. 219 of 2013 which banned them from undertaking night travels and an order of prohibition to stop the Respondents from arbitrary arresting the servants/agents of the Applicants on the premises of violation of the said ‘night travel ban’ regulations.

The Applicants submitted that the Transport Licensing Board for their vehicles for a period of one year to operate without conditions had issued them with valid licenses. Their contention was that the said Legal Notice No. 219 of 2013 had in essence revoked the Applicants’ licenses for 12 hours daily without them being given a notice or hearing or ample time to comply and that this was against rules of Natural Justice.

The Applicants further submitted that the Respondents’ acts were discriminatory in that the regulations were based on an assumption that accidents were caused by Passenger Service Vehicles while trucks and trailers caused accidents and yet they were still being allowed to operate past 6.00 p.m.

The Applicants stated that the said legal notice ought to be quashed for not having been laid before parliament for approval as such subsidiary –legislation requires and that the legal notice violated the definition of ‘Public Service Vehicle’ set out in the Traffic Act, 1989.

It was the Applicants’ argument that, their right to be treated with dignity under Article 28 of the Constitution of Kenya, 2010 was violated and that the enforcement of the night travel ban against the Applicants’ vehicles violated Article 47 of the Constitution of Kenya, 2010 on fair administration.

 The Applicants added that, the omissions by the National and County governments to provide safe passage on roads were the main causes of accidents and not night travels and that the Respondents had not provided for resting sites  to accommodate the passengers whenever their travel was cut short by nightfall hence a violation of the passengers’ fundamental rights and freedoms.

It was also the Applicants’ argument that the legal notice effect was an illegal retroactivity demanding PSVs operators wishing to be licensed for the period commencing 1st January 2014 to have complied with contents of a legal notice which did not exist then.

It was the Applicants’ final assertion that  their proprietary rights enshrined the Constitution of Kenya, 2010 for individuals to own property as individuals and be licensed as individuals fleet without being a member of a corporate entity or Sacco were being under threat of violation by the Respondents.

The Respondents submitted that the laying of the traffic regulations before parliament was an issue of fact of which the burden of proof was on the Applicants and that by the time the regulations were gazetted, parliament was on recess hence there were no sittings during the said period.

The Respondents further submitted that since the public transport had already been organized as corporate entities through Saccos, the regulations were not draconian in requiring ownership of PSVs to be under such.

The Respondents stated that the Cabinet Secretary for Transport had the power to make regulations and that the rules had been necessitated by the increase in road accidents in the country.

The Respondents stated that they invited the public and stakeholders who participated in the formulation of the regulations and clarified that there was no blanket ban on night travel and only vehicles that met the set conditions were allowed to operate at night.

It was the Respondents’ final submission that the application was meant to allow more accidents to occur and that the regulations did not contravene the law. It was also their assertion that, the court could not prohibit what had already been implemented.

 

 

Issues:

1. Were the provisions of the Statutory Instruments Act, 2010 regarding tabling of regulations before parliament complied with and what would be the effect of failing on the regulations?

2. Whether there was conflict between the regulations and provisions of the Traffic Act, 1989.

3. Were the Applicants’ licenses valid?

4. Did the Cabinet Secretary for Transport act ultra vires his powers in prescribing the brands of governors to be installed in the Applicants’ vehicles?

5. Whether the Applicants were consulted by the Respondents during the formulation of the traffic regulations.

6. Whether the regulations were illegal, irrational and unconstitutional.

7. Whether the regulations were retroactive in their application.

8. Whether or not there had been a night travel ban imposed by the Respondents on passenger service transportation.

 

Judicial Review-Orders of Certiorari and Prohibition-Rules of Natural Justice-Right to fair hearing-Whether the  Applicants were  given the opportunity to present their views before the night travel ban conditions were imposed on them.

Judicial Review-Orders of Certiorari and prohibition-Doctrine of Ultra Vires –Powers of the Cabinet Secretary for Transport to ban night travel of PSVs-Whether the Cabinet Secretary acted ultra vires his powers –Whether the regulations were null and void

Constitutional Law-Fair Administration-Right to human dignity-Freedom of movement-Equality and freedom from discrimination-Whether the Respondents’ act infringed on the Applicants’ right to dignity-Whether the regulations violated the Applicants’ freedom of movement –Whether the regulations discriminated against the Applicants’ vehicles in the imposition of the night travel ban

 

Held:

1. Regulations 16 of the National Transport and Safety Authority, 2013 were ultra vires provisions of the Statutory Instruments Act, 2013 because they were not tabled before parliament 7 days after resuming of its sittings that was a mandatory requirement and consequently were void and had no effect.

2. The said Regulations had the effect of cancelling the Applicants’ subsisting licenses issued by the Transport Licensing Board and hence they were invalid.

3. The Cabinet Secretary for Transport acted ultra vires his power in prescribing the brands of speed governors to be purchased by the Applicants rather than the standards they should meet

4. The Applicants were consulted by the Respondents on the draft regulations although the end product may not have reflected the Applicants’ views.

5. The provisions of the Regulations in regard to creation of another type of long distance passenger vehicle were not inconsistent with those of the Traffic Act since the provisions could stand together.

5. Regulation 5(1)(f)of the traffic regulations,2013 were unreasonable, retroactive and ultra vires in expecting the Applicants to comply with the said regulations in the preceding year.

6. The regulations did not expressly ban night travel by public service vehicles in the country.

7. A ban on night travel would amount to limitation of rights under Article 39(1) of the Constitution of Kenya, 2010 provided that everyone had the right to freedom of movement.

8. To declare a ban on night travel as a result of compliance with regulations without taking into account the safety of passengers whose journeys would be brought to sudden halt in the wilderness would be an abrogation of the right to human dignity.

9. The remedy of structural interdict was available in the Constitution of Kenya, 2010 which required the violator to rectify the breach of Fundamental rights under the court’s supervision especially where declaration of invalidity of such regulations would disrupt law enforcement process and deny the society benefits of some useful provision contained in the regulations.

 

Regulations declared ultra vires but the declaration suspended and the Respondents directed to initiate process to remedy the defects in the regulations and to file a report within 60 days of the ruling on the measures taken for consideration of the court and for further orders.

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