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STEPHEN KIMOTHO KARANJA V LAND DISPUTE TRIBUNAL LIMURU DIVISION, KIAMBU WEST DISTRICT & 3 OTHERS[2013] E KLR

Case Number: Judicial Review 14 of 2011 Date Delivered: 16 Apr 2013

Judge: Weldon Kipyegon Korir

Court: High Court at Nairobi (Milimani Law Courts)

Parties: STEPHEN KIMOTHO KARANJA V LAND DISPUTE TRIBUNAL LIMURU DIVISION,KIAMBU WEST DISTRICT & 3 OTHERS

Citation: STEPHEN KIMOTHO KARANJA V LAND DISPUTE TRIBUNAL LIMURU DIVISION, KIAMBU WEST DISTRICT & 3 OTHERS[2013] E KLR

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REPUBLIC V SENIOR RESIDENT MAGISTRATE 1ST CLASS MAGISTRATES COURT, CITY HALL, NAIROBI7 ANOTHER ,EX-PARTE PETERSON GATENDE[2013]eKLR

Case Number: Judicial Review 171 of 2008 Date Delivered: 16 Apr 2013

Judge: Weldon Kipyegon Korir

Court: High Court at Nairobi (Milimani Law Courts)

Parties: REPUBLIC V SENIOR RESIDENT MAGISTRATE 1ST CLASS MAGISTRATES COURT,CITY HALL, NAIROBI7 ANOTHER ,EX-PARTE PETERSON GATENDE

Citation: REPUBLIC V SENIOR RESIDENT MAGISTRATE 1ST CLASS MAGISTRATES COURT, CITY HALL, NAIROBI7 ANOTHER ,EX-PARTE PETERSON GATENDE[2013] eKLR

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Republic V Evans Awiti Masai [2013] eKLR

Case Number: Criminal Case 80 of 2012 Date Delivered: 15 Apr 2013

Judge: Edward Muthoga Muriithi

Court: High Court at Kisii

Parties: Republic v Evans Awiti Masai

Citation: Republic V Evans Awiti Masai [2013] eKLR

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Nguruman Limited V Jan Bonde Nielsen & 2 Others [2013] eKLR

Case Number: Civil Appeal 77 of 2012 Date Delivered: 12 Apr 2013

Judge: Alnashir Ramazanali Magan Visram, Paul Kihara Kariuki, Kathurima M'inoti

Court: Court of Appeal at Nairobi

Parties: Nguruman Limited v Jan Bonde Nielsen & 2 others

Citation: Nguruman Limited V Jan Bonde Nielsen & 2 Others [2013] eKLR

Reported by Andrew Halonyere & Cynthia Liavule

A preliminary objection was raised at the onset of the appeal on the grounds that the appellant had obtained variation of orders from which he had appealed from. The court was to determine whether the variation affected the substratum of the appeal leading to the forfeiture of the appellant’s right to appeal

Issues

1. Whether the Court of Appeal had jurisdiction to hear and determine an appeal where an application for variation of an order had been presented by a party to the suit and the order was partly varied and an appeal was afterwards preferred from the same initial order.

 

2. Whether the variation order affected the substratum of the appeal leading to the forfeiture of the appellant’s right to appeal.

 

Civil Practice and Procedure – jurisdiction - Where an application for variation of an order had been presented by a party to the suit and the order was partly varied and an appeal was afterwards preferred from the same order - whether the court to which the appeal was preferred had jurisdiction to entertain the application for appeal –

 

Civil Practice and Procedure – appeal – right of appeal - whether an appeal could be sustained after a successful application for variation of the same order appealed from - Civil Procedure Act section 80 – Civil Procedure Rules order 40 (7) 45

Civil Procedure Rules

Order 40, rule 7

Provides that any order for an injunction may be discharged, or varied, set aside by the court on application made thereto by any party dissatisfied with such order. 

Order 45, rule

 (1) Any person considering himself aggrieved— 

(a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred; or 

(b) by a decree or order from which no appeal is hereby allowed, 

and who from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or the order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree or order, may apply for a review of judgment to the court which passed the decree or made the order without unreasonable delay. 

(2) A party who is not appealing from a decree or order may apply for a review of judgment notwithstanding the pendency of an appeal by some other party except where the ground of such appeal is common to the applicant and the appellant, or when, being respondent, he can present to the appellate court the case on which he applies for the review. 

Held

1. A plain reading of Order 45 of the Civil Procedure Rules left no doubt that an application for review and an appeal were intended to be alternative remedies. There was no similar limitation under order 40 (7), although it was plainly obvious that whether an appeal could be sustained after a successful application for variation had to depend on the extent of the variation of the order appealed from.

2. It would have been too restrictive an approach, to adopt the position that an appellant who resorted to order 40 (7) by that fact alone, forfeited his right of appeal.  First, the law had availed to an aggrieved party the remedy of appeal and that of an application for discharge, variation or setting aside of the order without any express edict that the remedies are available only as alternatives. Secondly, it is conceivable that an application under order 40 (7) may result in the discharge, variation or setting side of an order, or it may be allowed in part or entirely dismissed.  It cannot be the case that in all those eventualities an aggrieved party must forfeit the right of appeal. 

3. The true test of whether an application under order 40 (7) precludes an appeal is the extent to which the order appealed from has been varied or altered.

4. The effect of the later order from the High Court which varied an earlier order of the High Court was not to fundamentally change the earlier order appealed from. It sought to clarify the earlier order to indicate that the appellant had unrestricted access to possession, occupation and enjoyment of the suit property save what was prohibited by the earlier order. The earlier order still remained in force and that was what aggrieved the appellant according to the notice of appeal.

5. No variation of the order appealed from took place so as to cause the disappearance of the substratum of the appeal.

Preliminary objection dismissed.

Cases reffered to

1. Owners of the Motor Vessel “Lillian S” vs. Caltex Oil (Kenya) Ltd (1989) KLR, 1

2. Borowski vs. Attorney General of Canada (1989) 1 SCR 342

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Western Pumps Services Limited V Upper Hill Springs Restaurant & Another [2013] eKLR

Case Number: Civil Case 518 of 2006 Date Delivered: 12 Apr 2013

Judge: Alfred Mabeya

Court: High Court at Nairobi (Milimani Commercial Courts Commercial and Tax Division)

Parties: Western Pumps Services Limited v Upper Hill Springs Restaurant & Pyramid Auctioneers

Citation: Western Pumps Services Limited V Upper Hill Springs Restaurant & Another [2013] eKLR

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IN THE MATTER OF BABY J.W[2013]eKLR

Case Number: Adoption Cause 4 of 2013 Date Delivered: 12 Apr 2013

Judge: Mathew John Anyara Emukule

Court: High Court at Nakuru

Parties: IN THE MATTER OF BABY J.W

Citation: IN THE MATTER OF BABY J.W[2013] eKLR

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Rita Maria Hurlimann V Rodgers Mwabonje Kadoshi & Another [2014] eKLR

Case Number: Civil Case 644 of 2012 Date Delivered: 12 Apr 2013

Judge: Alfred Mabeya

Court: High Court at Nairobi (Milimani Commercial Courts Commercial and Tax Division)

Parties: Rita Maria Hurlimann v Rodgers Mwabonje Kadoshi & Ashsari Apartments Limited

Citation: Rita Maria Hurlimann V Rodgers Mwabonje Kadoshi & Another [2014] eKLR

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Daniel Kimani Njihia V Francis Mwangi Kimani & Another [2013] eKLR

Case Number: Civil Application 146 of 2010 Date Delivered: 12 Apr 2013

Judge: Alnashir Ramazanali Magan Visram, Milton Stephen Asike Makhandia, Sankale Ole Kantai

Court: Court of Appeal at Nairobi

Parties: Daniel Kimani Njihia v Francis Mwangi Kimani & another

Citation: Daniel Kimani Njihia V Francis Mwangi Kimani & Another [2013] eKLR

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James Juma Muchemi & Partners Limited V Barclays Bank Of Kenya Limited & Another [2013] eKLR

Case Number: Civil Application 224 of 2011 Date Delivered: 12 Apr 2013

Judge: Alnashir Ramazanali Magan Visram, Roselyn Naliaka Nambuye, Wanjiru Karanja

Court: Court of Appeal at Nairobi

Parties: James Juma Muchemi & Partners Limited v Barclays Bank of Kenya Limited & another

Citation: James Juma Muchemi & Partners Limited V Barclays Bank Of Kenya Limited & Another [2013] eKLR

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Winfred Wambui Kingori V Paramount Universal Bank Limited & 2 Others [2013] eKLR

Case Number: Civil Application 202 of 2009 Date Delivered: 12 Apr 2013

Judge: Alnashir Ramazanali Magan Visram, Roselyn Naliaka Nambuye, Wanjiru Karanja

Court: Court of Appeal at Nairobi

Parties: Winfred Wambui Kingori v Paramount Universal Bank Limited & 2 others

Citation: Winfred Wambui Kingori V Paramount Universal Bank Limited & 2 Others [2013] eKLR

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Mediplus Services Limited V Pan Africa Insurance Company Limited & Another [2013] eKLR

Case Number: Civil Suit 121 of 2003 Date Delivered: 11 Apr 2013

Judge: George Kanyi Kimondo

Court: High Court at Nairobi (Milimani Commercial Courts Commercial and Tax Division)

Parties: Mediplus Services Limited v Pan Africa Insurance Company Limited & Hannover Life Reassurance Africa Ltd

Citation: Mediplus Services Limited V Pan Africa Insurance Company Limited & Another [2013] eKLR

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Cut Tobacco (K) Ltd V Kenya Revenue Authority & Another[2013]eKLR

Case Number: Petition 152 of 2012 Date Delivered: 11 Apr 2013

Judge: Mumbi Ngugi

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Cut Tobacco (K) Ltd V Kenya Revenue Authority & Attorney General

Citation: Cut Tobacco (K) Ltd V Kenya Revenue Authority & Another[2013] eKLR

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Tom Kusienya & Others V Kenya Railways Corporation & Others[2013] eKLR

Case Number: Constitutional Petition 353 of 2012 Date Delivered: 11 Apr 2013

Judge: Mumbi Ngugi

Court: High Court at Nairobi (Milimani Commercial Courts Commercial and Tax Division)

Parties: Tom Kusienya & Others v Kenya Railways Corporation & others

Citation: Tom Kusienya & Others V Kenya Railways Corporation & Others[2013] eKLR

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Rukia Nasikanda Asman V Benedetta Nanjala Matere & Another [2013] eKLR

Case Number: Environmental & Land Case 79 of 2012 Date Delivered: 08 Apr 2013

Judge: Anne Omollo

Court: High Court at Bungoma

Parties: Rukia Nasikanda Asman v Benedetta Nanjala Matere & Mark Xavier Wamalwa

Citation: Rukia Nasikanda Asman V Benedetta Nanjala Matere & Another [2013] eKLR

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PETER .G.N. NG\'ANG\'A & Another V REGISTRAR OF TITLES & 4 Others [2013] eKLR

Case Number: Petition 27 of 2012 Date Delivered: 05 Apr 2013

Judge: Isaac Lenaola

Court: High Court at Nairobi (Milimani Law Courts)

Parties: PETER .G.N. NG\'ANG\'A & another v REGISTRAR OF TITLES & 4 others

Citation: PETER .G.N. NG\'ANG\'A & Another V REGISTRAR OF TITLES & 4 Others [2013] eKLR

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John Muturi Kariuki & 3 Others V Monica Nyokabi & 14 Others [2013] eKLR

Case Number: Civil Suit 983 of 1996 Date Delivered: 05 Apr 2013

Judge: Isaac Lenaola

Court: High Court at Nairobi (Milimani Law Courts)

Parties: John Muturi Kariuki, Mwangi Thuo, Julius Gitau Kariuki & Ivan Wainanina v Monica Nyokabi, Kabari Wangunyu, Mungai S/O Nganga, Ndungu Karari, Chief Land Registrar, Nairobi, John Chege , Lukas Kimani Mugwimi, Mary Njeri, Mungai Nganga, Joseph Irungu, Francis Maina, Stephen Kibugi, Wanjiru Warika, Mary Wanyaka & Gitau Njoroge

Citation: John Muturi Kariuki & 3 Others V Monica Nyokabi & 14 Others [2013] eKLR

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VENTAGLIO INTERNATIONAL S. A. LUXEMBURG & Another V REGISTRAR OF COMPANIES & Another [2013] eKLR

Case Number: Petition 410 of 2012 Date Delivered: 05 Apr 2013

Judge: Isaac Lenaola

Court: High Court at Nairobi (Milimani Law Courts)

Parties: VENTAGLIO INTERNATIONAL S. A. LUXEMBURG & another v REGISTRAR OFCOMPANIES & another

Citation: VENTAGLIO INTERNATIONAL S. A. LUXEMBURG & Another V REGISTRAR OF COMPANIES & Another [2013] eKLR

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UHURU MUIGAI KENYATTA V NAIROBI STAR PUBLICATIONS LIMITED [2013] eKLR

Case Number: Petition 187 of 2012 Date Delivered: 05 Apr 2013

Judge: Isaac Lenaola

Court: High Court at Nairobi (Milimani Law Courts)

Parties: UHURU MUIGAI KENYATTA v NAIROBI STAR PUBLICATIONS LIMITED

Citation: UHURU MUIGAI KENYATTA V NAIROBI STAR PUBLICATIONS LIMITED [2013] eKLR

Reported By Phoebe Ida Ayaya and Derrick Nzioka

ISSUES

i. What matters fit the test of being a preliminary objection

ii. Whether a Constitutional petition could be lodged between two private persons.

iii. Whether a claim of tort in defamation could bring rise to a Constitutional reference.

iv. Whether the petitioner's complaint, was a matter for determination by processes known to the National Cohesion and Integration Act No.12 of 2008.

Civil Practice And Procedure – preliminary objection – what matters constituted a preliminary objection.

Civil Practice And Procedure – injunction – suit for injunctive orders and compensatory damages against the respondent.

Tort – defamation – where the petitioner avers that the respondent published defamatory statements against him – where the petitioner claims that the defamatory statements amounted to hate speech – where the hate speech amounts to violation or infringement of fundamental rights and freedoms – articles 28 and 33 Constitution of Kenya 2010.

Criminal Law – hate speech – what amounts to hate speech – appropriate forum in which to file a petition for hate speech – section 13 National Cohesion and Integration Act No. 12 of 2008 – sections 4 and 26 Media Act (Cap 411B) – article 24 Constitution of Kenya, 2010.

Constitutional Law – constitutional petition – whether an individual can enforce fundamental rights and freedoms as against another individual – whether defamation can be remedied in a constitutional petition – Articles 21and 260 of the Constitution of Kenya, 2010 – rule 15, Constitution of Kenya (Supervisory Jurisdiction and Protection of Fundamental Rights and Freedoms of the individual) High Court practice and Procedure Rules, 2006.

Section 13 of the National Cohesion and Integration Act,  

(1) A person who …

(b) Publishes or distributes written material which is threatening, abusive or insulting or involves the use of threatening, abusive or insulting words or behaviour commits an offence if such person intends thereby to stir up ethnic hatred, or having regard to all the circumstances, ethnic hatred is likely to be stirred up is guilty of hate speech

(3) Ethnic hatred means hatred against a group of persons defined by reference to colour, race, nationality (including citizenship) or ethnic or national origins.

 

Section 4 of the Media Act,

            The functions of the Council are;

(a) mediate or arbitrate in disputes between the government and the media, between the public and the media and intramedia

Section 26 of the Act,

(1)        Any person aggrieved by;

(a) any publication, or any conduct of a journalist media enterprise or the Council; or

 

(b) anything done against a journalist or media enterprise that limits or interferes with the Constitutional freedom of expression of such journalist or media enterprise; may make a written complaint to the Council setting out the grounds for the complaint, nature of the injury or damage suffered and the remedy sought

HELD

1. A preliminary objection raised a pure point of law that was argued on the assumption that all the facts pleaded by the other side were correct. It could not be raised if any fact had to be ascertained or if what was sought was the exercise of judicial discretion.

2. The matters raised by the respondents and which were set out were clearly pure points of law that had to be considered by the court and as such amounted to preliminary objections.

3. Fundamental rights were contained in the Constitution and were principally against the state, because the constitution's function was to define what constituted government and regulate the relationship between the government and the governed.

4. On the other hand the rights of individual interests were taken care of in private law and were invariably addressed as such.

5.  Article 21 of the Constitution of Kenya, 2010, provided that it was the state and every state organ that was required to “observe, protect, promote and fulfill the rights and fundamental freedoms in the Bill of Rights.” No such obligation was imposed on an individual (including a company).

6. It was important to recognise that even if a case raised a constitutional matter, the assessment of whether the case should have had been heard by the court rested instead on the additional requirements that access to the court must have been in the interests of justice and not every matter raised a constitutional issue worthy of attention.

7. It was an established practice that where a matter could have been disposed of without recourse to the Constitution, the Constitution should not have been involved at all.

8. Courts would not normally consider a constitutional question unless the existence of a remedy depended on it.

9. Where there was a remedy in civil law, a party should have pursued that remedy as not every ill in society had to attract a constitutional sanction.

10.  Such sanctions ought to have been reserved for appropriate and really serious occasions and the complaint of defamation in this case was not so serious as to attract a Constitutional sanction.

11. The Constitution of Kenya, 2010, guaranteed the right to freedom of expression but the same had limitations and did not extend to propaganda for war, incitement to violence, hate speech or advocacy of hatred that constituted ethnic incitement, vilification of others or incitement to cause harm, or was based on any ground of discrimination specified or contemplated under Article 27 (4) of the Constitution.

12. The National Cohesion and Integration Act criminalized hate speech and provided for a penalty payable in the event one was found guilty of the offence.

13. Section 13 of the National Cohesion and Integration Act curtailed such freedom of a person who intended to stir up ethnic hatred or having regard to all circumstances, ethnic hatred was likely to be stirred.

14. It was thus not merely a question about the falsity, truth, popularity or otherwise of particular information or expression as the statute laid more emphasis on the likely effect of the objectionable information and intention of the person delivering it rather than on the content of the objectionable expression.

15. The facts as pleaded did not fit the definition of hate speech as defined by law.

16. It was the media council and/or the civil courts that should have had been seized of the issues in contest and not the National Cohesion and Integration Commission.

Petition struck off and petitioner granted leave to either pursue the claim under the tort of defamation in civil court or file a complaint before the media council of Kenya for an appropriate relief.

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JOHN MUTURI KARIUKI & 3 Others V MONICA NYOKABI & 14Others[2013]eKLR

Case Number: Civil Suit 983 of 1996 Date Delivered: 05 Apr 2013

Judge: Isaac Lenaola

Court: High Court at Nairobi (Milimani Law Courts)

Parties: JOHN MUTURI KARIUKI & 3 Others v MONICA NYOKABI & 14Others

Citation: JOHN MUTURI KARIUKI & 3 Others V MONICA NYOKABI & 14Others[2013] eKLR

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Kenya Hotel Properties Limited V Willisden Investments Limited & 6 Others [2013] eKLR

Case Number: Civil Application 24 of 2012 Date Delivered: 04 Apr 2013

Judge: Martha Karambu Koome, Roselyn Naliaka Nambuye, James Otieno Odek

Court: Court of Appeal at Nairobi

Parties: Kenya Hotel Properties Limited v Willisden Investments Limited & 6 others

Citation: Kenya Hotel Properties Limited V Willisden Investments Limited & 6 Others [2013] eKLR

Reported by Andrew Halonyere    

Willisden Hotel Properties Ltd (1st respondent) brought a suit before the High Court against Kenya Hotel Properties Ltd (applicant) claiming damages for trespass to an alleged public land. The High Court entered judgment in favour of the 1st respondent. The applicant was aggrieved by the decision and therefore appealed to the Court of Appeal which reduced the amount of damages for trespass that had been awarded by the High Court.

The Kenya Anti–Corruption Commission (3rd respondent) in a separate application against the 1st respondent sought declarations before the High Court that the 1st respondent’s title over the alleged public land was null and void and therefore should have been revoked on the ground that it had been unlawfully allocated and that it would have been against public policy and the Constitution for the 1st respondent to derive any benefit from the High Court’s decree, after the determination of the legality of title by the National Land Commission. However, the High Court struck out the suit. The 3rd respondent was aggrieved by the decision and brought an application before the Court of Appeal seeking orders of stay of proceedings, but it was unsuccessful as the application was also dismissed.  

Subsequently, the applicant moved to the High Court and filed a petition against the respondents seeking among other orders, an injunction to prevent the respondents from inter-alia, executing the initial decree of the High Court before the establishment of the National Land Commission, on the ground that the commission once established would determine the legality of the suit land. That application was however dismissed. It was against the said order of dismissal that the applicant brought an appeal pursuant to rule 5(2) (b) of the Court of Appeal Rules.

Issues

1. Whether the matters raised in the application were directly and substantially determined in previous suits and applications.

2. If the answer to the above is in the negative, whether the appeal was arguable and if the orders were not granted, whether the appeal would be rendered nugatory.

3. Whether if an applicant in an application for stay expresses doubts on the respondent's ability to refund the decretal sum, the burden shifts to the respondent to rebut that assertion.

Civil practice and procedure – res judicata – conditions of the doctrine of res judicata – whether the matters raised in the application were directly and substantially determined in previous suits and applications –– whether the application was res judicata.

Civil Procedure and Practice – stay of proceedings - application for stay of proceedings – circumstances when evidential burden of prove shifts to the respondents in an application for stay – matters which the court would consider before granting stay - whether the applicant had an arguable appeal – whether the appeal would be rendered nugatory – Court of Appeal Rules, rule 5(2)(b) – Civil Procedure Rules section 7.

Civil Procedure and Practice – security for costs – evidential burden of proof in an application for stay of execution of decree pending appeal – where doubt is raised on the respondent's ability to refund the decretal sum in the event the appeal succeeds – whether the evidential burden of proof shifts to the respondent to rebut that assertion.

Land law – National Land Commission - establishment of the National Lands Commission - exclusive jurisdiction to determine the legality or the illegalities of titles - Court of Appeal Rules, rule 5(2)(b) – Civil Procedure Act (Cap 21) section 7.

Held

1. The Court of Appeal when exercising its jurisdiction under rules 59(2)(b) of the Court of Appeal Rules, must be guided by the following principles:

i. That the intended appeal should not be frivolous, or the applicant must show that it has an arguable appeal.

ii. That an appeal if successful should not be rendered nugatory.

2. Res judicata, is a doctrine of law founded on public policy and aimed at ensuring two objectives, namely, there must be a finality to litigation and that parties who have gone through litigation should not be subjected to the same tests.

3. The National Land Commission was mandated to investigate the present and historical land injustices and had exclusive jurisdiction to determine the legality or the illegalities of titles. The suit property was a parking lot whose ownership had to be determined. All the allegations touching on the acquisition of the public land were never determined on merit by any court in all the suits. The issue of public interest and the fact that the public had been denied access of a public road were also never considered.

4. Whereas the suit property was the same, the causes of action in each case involved different parties and approaches.

5. The court was guided by Kenya National Examination Council - v- R exp. Kemunto Regina Ouru Nairobi Civil Appeal No. 127 of 2009 and Kenya Power & Lighting Co. — v - NMG Limited & 2 Others, Nairobi Civil Application No. 27 of 2010, and held that public interest overrides private individual's interest.

6. The Court identified the following issues which were arguable;

I. Whether a court of law could fail to investigate an allegation regarding fraud over public property.

II. Whether the suit land was in fact a public land in which the public had an interest.

III Whether interlocutory proceedings previously determined could be taken to have finally determined the root or legitimacy of the acquisition of the suit property.

IV. Whether the court could ignore the persistent allegations that the property was public land.

V. Whether the anticipated investigation by the Land Commission could be said to have been fore stalled by the previous interlocutory proceedings which recognized the title holding of the suit land as having been vested in the 1st respondent;

VI. Whether the provisions of the Constitution of Kenya, 2010 mandating the Land Commission to investigate present or historical land injustices had primacy over previous court pronouncements in Civil Appeal No. 149/2007 and Civil Application No. Nai 113 of 2001.

VII. Whether failure to re-open the matter on public interest to be litigated would have amounted to adhering to a technicality contrary to Article 159 (a) and 162 (b) of the Constitution of Kenya, 2010.

VIII. Whether pursuit of the issue of public interest in the suit property in the wake of all the circumstances displayed herein was an abuse of the due process of the law.

IX. Whether the 1st respondents’ title to the suit land sought to be faulted stood affected by the provisions of Article 40(6) of the Constitution 2010 which provided that right to property did not extend to any property found to have been unlawfully acquired.

X. Whether the 1st respondent was entitled to receive funds held pursuant to an order made in CA 149/2007 at the point in time, considering the existence of an intended challenge to the legality of the title on the basis of which the 1st respondents was intended to benefit from those funds.

7. When an applicant in an application for stay expresses doubts on the respondent's ability to refund the decretal sum, the burden shifts to the respondent to rebut that assertion.

8. The 1st respondent had not discharged the evidential burden shifted to it by the applicant’s allegations that it was not a rate payer or a trading entity in Kenya. It had failed to prove what assets it had that would have made it to be in a position to refund the decretal sum if the appeal or petition was successful.

9. Stay should be granted even where only one arguable point had been demonstrated to exist. There were numerous arguable points in the case capable of being raised on appeal. That coupled with the 1st respondent’s failure to demonstrate its ability to refund funds paid out to it, fortified the applicant’s entitlement to the relief sought on account of the applicant having established the existence of the ingredients of an arguable intended appeal.

Application for stay of proceedings allowed, respondents restrained from executing High Court’s order. 

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IN RE THE ESTATE OF NEMWEL NYASAGARE NYANARO (DECEASED)[2013]eKLR

Case Number: Succession Cause 2830 of 2007 Date Delivered: 03 Apr 2013

Judge: W MUSYOKA

Court: High Court at Nairobi (Milimani Law Courts)

Parties: IN RE THE ESTATE OF NEMWEL NYASAGARE NYANARO (DECEASED)

Citation: IN RE THE ESTATE OF NEMWEL NYASAGARE NYANARO (DECEASED)[2013] eKLR

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ANDREW KABAILA V CAROL BAHATI KAHINDI [2013] eKLR

Case Number: Civil Case 19 of 2009 Date Delivered: 03 Apr 2013

Judge: Christine Wanjiku Meoli

Court: High Court at Malindi

Parties: ANDREW KABAILA V CAROL BAHATI KAHINDI

Citation: ANDREW KABAILA V CAROL BAHATI KAHINDI [2013] eKLR

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J.G.M V Z.M.M [2013]eKLR

Case Number: Miscellaneous 126 of 2012 Date Delivered: 03 Apr 2013

Judge: William Musya Musyoka

Court: High Court at Nairobi (Milimani Law Courts)

Parties: J.G.M V Z.M.G

Citation: J.G.M V Z.M.M [2013] eKLR

Reported by Teddy Musiga

Issues

I. Whether Section 15 of the Civil Procedure Act applies to matrimonial causes.

II. Whether section 17 of the Civil Procedure Act could be invoked to transfer suits from one High Court station to another.

Family Law - marriagedissolution of marriage – transfer of a divorce cause from one High Court station to another – whether section 15 of the Civil Procedure Act applies to matrimonial causes.

Civil Practice and Procedure – suits – filing of suits – transfer of suits from one High Court to another – whether Section 17 of the civil Procedure Act could be invoked to transfer suits from one High Court station to another.

Section 15 of the Civil Procedure Rules states that

“Subject to the limitations aforesaid, every suit shall be instituted in a court within the local limits whose jurisdiction –

a) The defendant or each of the defendants (where there are more than one) at the time of the commencement of the suit actually and voluntarily resides or carries on business or works for gain or

b) Any of the defendants (where there are more than one) at the time of the commencement of the suit, actually and voluntarily resides or carries on business or personally works for gain, provided either the leave of the court is given, or the defendants do not reside or carry on business, or personally work for gain as aforesaid acquiesce in such institution: or

c) The cause of action wholly or in part arises.”

Section 17 of the Civil Procedure Act states that

“Where a suit may be instituted in any one of two or more subordinate courts, and is instituted in one of those courts, any defendant after notice to the other parties or the court of its own motion, may at the earliest opportunity, apply to the High Court to have the suit transferred to another court; and the High court after considering the objections if any at all shall determine in which of the several courts having jurisdiction the suit shall proceed.”

Held:

1. Proceedings in matrimonial causes are regulated by the Matrimonial Causes Act, Cap 152 of the Laws of Kenya and the Matrimonial Causes Rules, which is a subsidiary legislation made under Section 39 of the Matrimonial Causes Act. Therefore matrimonial causes are regulated by the legislation which is separate and distinct from the Civil Procedure Act.

2. Matrimonial causes are subject to a special jurisdiction by divorce courts which exercises special powers and follow a special procedure. The said special jurisdiction, powers and procedures are recognized in section 3 of the Civil Procedure Act, which saves the special jurisdiction and powers, including those set out in the Matrimonial Causes Act and Matrimonial Causes Rules.

3. It is the Matrimonial Causes Act and the Matrimonial Causes Rules which determine how a matrimonial suit is to be instituted and when and how a party is to be sued in those proceedings. Consequently, Section 15 of the Civil Procedure Act is of no application to a divorce cause as a divorce cause being a matrimonial cause, can only be instituted in the manner provided for in the Matrimonial Causes Act and the Matrimonial Causes Rules. Accordingly, Section 15 of the Civil Procedure Act does not apply at all to a matrimonial cause properly instituted under the Matrimonial Causes Act and the Matrimonial Causes Rules.

4. Per Shah v Shah (2002) KLR 607 Onyancha, J held that where any proceedings are governed by a special Act of Parliament, the provisions of such an Act must be construed strictly and applied and that the provisions of the Civil Procedure Act and Rules do not apply unless expressly provided for in such an Act and such an approach remains the same even if the special Act is silent about and does not include the Civil Procedure Act and Rules. Therefore, Civil Procedure Act and Rules do not apply to matters which are matrimonial except where the Matrimonial Causes Act itself so directs.

5. Section 17 of the Civil Procedure Act only applies to suits pending at a subordinate court. In respect to such suits, the High court has jurisdiction to determine which of the two or more subordinate courts may try the case. The High court upon making such determination may then transfer the case or suit from the subordinate court where it was filed to another.

6. Section 17 of the Civil Procedure Act does not apply to the High court. There is no power granted by section 17 of the Civil Procedure Act to withdraw a suit from one High Court to another. Indeed, there is not a single provision in the Civil Procedure Act and its rules which specifically empowers the High Court to order the transfer of cases from one High Court station to another.

7. Transfer of suits from one High court to another can only be ordered by the High court in exercise of inherent powers. However, such power should be exercised by the High court judge sitting at the station where the matter is pending. It is that court that should order that the matter be transferred from itself to another High court station and not vice versa.

Application dismissed.

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JGM V ZMM [2013] eKLR

Case Number: Miscellaneous 126 of 2012 Date Delivered: 03 Apr 2013

Judge: William Musya Musyoka

Court: High Court at Nairobi (Milimani Law Courts)

Parties: JGM v ZMM

Citation: JGM V ZMM [2013] eKLR

Reported by Teddy Musiga

Issues

I. Whether Section 15 of the Civil Procedure Act applies to matrimonial causes.

II. Whether section 17 of the Civil Procedure Act could be invoked to transfer suits from one High Court station to another.

Family Law - marriagedissolution of marriage – transfer of a divorce cause from one High Court station to another – whether section 15 of the Civil Procedure Act applies to matrimonial causes.

Civil Practice and Procedure – suits – filing of suits – transfer of suits from one High Court to another – whether Section 17 of the civil Procedure Act could be invoked to transfer suits from one High Court station to another.

Section 15 of the Civil Procedure Rules states that

 “Subject to the limitations aforesaid, every suit shall be instituted in a court within the local limits whose jurisdiction –

(a) The defendant or each of the defendants (where there are more than one) at the time of the commencement of the suit actually and voluntarily resides or carries on business or works for gain or

(b) Any of the defendants (where there are more than one) at the time of the commencement of the suit, actually and voluntarily resides or carries on business or personally works for gain, provided either the leave of the court is given, or the defendants do not reside or carry on business, or personally work for gain as aforesaid acquiesce in such institution: or

(c) The cause of action wholly or in part arises.”

Section 17 of the Civil Procedure Act states that

“Where a suit may be instituted in any one of two or more subordinate courts, and is instituted in one of those courts, any defendant after notice to the other parties or the court of its own motion, may at the earliest opportunity, apply to the High Court to have the suit transferred to another court; and the High court after considering the objections if any at all shall determine in which of the several courts having jurisdiction the suit shall proceed.”

Held:

1. Proceedings in matrimonial causes are regulated by the Matrimonial Causes Act, Cap 152 of the Laws of Kenya and the Matrimonial Causes Rules, which is a subsidiary legislation made under Section 39 of the Matrimonial Causes Act. Therefore matrimonial causes are regulated by the legislation which is separate and distinct from the Civil Procedure Act.

2. Matrimonial causes are subject to a special jurisdiction by divorce courts which exercises special powers and follow a special procedure. The said special jurisdiction, powers and procedures are recognized in section 3 of the Civil Procedure Act, which saves the special jurisdiction and powers, including those set out in the Matrimonial Causes Act and Matrimonial Causes Rules.

3. It is the Matrimonial Causes Act and the Matrimonial Causes Rules which determine how a matrimonial suit is to be instituted and when and how a party is to be sued in those proceedings. Consequently, Section 15 of the Civil Procedure Act is of no application to a divorce cause as a divorce cause being a matrimonial cause, can only be instituted in the manner provided for in the Matrimonial Causes Act and the Matrimonial Causes Rules. Accordingly, Section 15 of the Civil Procedure Act does not apply at all to a matrimonial cause properly instituted under the Matrimonial Causes Act and the Matrimonial Causes Rules.

4. Per Shah v Shah (2002) KLR 607 Onyancha, J held that where any proceedings are governed by a special Act of Parliament, the provisions of such an Act must be construed strictly and applied and that the provisions of the Civil Procedure Act and Rules do not apply unless expressly provided for in such an Act and such an approach remains the same even if the special Act is silent about and does not include the Civil Procedure Act and Rules. Therefore, Civil Procedure Act and Rules do not apply to matters which are matrimonial except where the Matrimonial Causes Act itself so directs.

5. Section 17 of the Civil Procedure Act only applies to suits pending at a subordinate court. In respect to such suits, the High court has jurisdiction to determine which of the two or more subordinate courts may try the case. The High court upon making such determination may then transfer the case or suit from the subordinate court where it was filed to another.

6. Section 17 of the Civil Procedure Act does not apply to the High court. There is no power granted by section 17 of the Civil Procedure Act to withdraw a suit from one High Court to another. Indeed, there is not a single provision in the Civil Procedure Act and its rules which specifically empowers the High Court to order the transfer of cases from one High Court station to another.

7. Transfer of suits from one High court to another can only be ordered by the High court in exercise of inherent powers. However, such power should be exercised by the High court judge sitting at the station where the matter is pending. It is that court that should order that the matter be transferred from itself to another High court station and not vice versa.

Application dismissed.

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Republic V City Council Of Nairobi Town Clerk & 3 Others Ex-parte Metrotrans Limited [2013] eKLR

Case Number: Miscellaneous Civil Case 13 of 2013 Date Delivered: 28 Mar 2013

Judge: George Vincent Odunga

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Republic v City Council of Nairobi Town Clerk, Director of City Inspectorate (Nairobi), Nairobi Area Traffic Commandant & Attorney General Ex-parte Metrotrans Limited

Citation: Republic V City Council Of Nairobi Town Clerk & 3 Others Ex-parte Metrotrans Limited [2013] eKLR

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Julius Kipkeny Kolil & Another V Kenya Commercial Bank & 2 Others [2013] eKLR

Case Number: Civil Case 407 of 2012 Date Delivered: 28 Mar 2013

Judge: Jonathan Bowen Havelock

Court: High Court at Nairobi (Milimani Commercial Courts Commercial and Tax Division)

Parties: Julius Kipkeny Kolil & Ruth Jemutai Kamar v Kenya Commercial Bank, Nancy Waithera Kiruri & Muganda Wasulwa T/A Keysian Auctioneers

Citation: Julius Kipkeny Kolil & Another V Kenya Commercial Bank & 2 Others [2013] eKLR

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R.M.M V J.R.K [2013]eKLR

Case Number: Civil Miscellaneous Application 7 of 2012 Date Delivered: 28 Mar 2013

Judge: Maureen Akinyi Odero

Court: High Court at Mombasa

Parties: R.M.M v J.R.K

Citation: R.M.M V J.R.K [2013] eKLR

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Suleiman Said Shahbal V Independent Electoral And Boundaries Commission Of Kenya & 3 Others [2013] eKLR

Case Number: Constitutional Petition 162 of 2013 Date Delivered: 27 Mar 2013

Judge: Mumbi Ngugi

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Suleiman Said Shahbal v Independent Electoral and Boundaries Commission of Kenya, Secretary, Independent Electoral & Boundaries Commission, Mwashigadi Mwadime (sued in capacity as a returning officer IEBC, Mombasa County) &Hon;. Hassan Ali Joho

Citation: Suleiman Said Shahbal V Independent Electoral And Boundaries Commission Of Kenya & 3 Others [2013] eKLR

Election law – election petition - petition seeking to stop swearing in of respondent as duly elected governor - where petition challenging the result was brought as a constitutional petition alleging violation of petitioners rights other than an election petition  – duty of a party seeking to file an election petition to comply with the rules and procedures set out in the Elections Act and the Elections Rules - whether the Constitutionally mandated procedure for resolution of election petitions can be circumvented by way of a petition alleging violation of constitutional rights – whether the petition had merit.

Civil practice and procedure – jurisdiction - geographical jurisdiction – where the petition was filed in Nairobi instead of Mombasa where the elections was conducted – whether such omission was fatal to the petition - Constitution of Kenya 2010 articles -  22, 23, 27, 38, 50, 73, 75, 81, 82(d), 83, 84, 86, 87, 180 (4) – Elections Act No 24 of 2010

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Joseph Tiampati Ole Musuni & 2 Others V Samuel Kuntai Tunai& 10 Others [2013] eKLR

Case Number: Election Petition 3 of 2013 Date Delivered: 26 Mar 2013

Judge: David Shikomera Majanja

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Joseph Tiampati Ole Musuni & 2 others V Samuel Kuntai Tunai& 10 others

Citation: Joseph Tiampati Ole Musuni & 2 Others V Samuel Kuntai Tunai& 10 Others [2013] eKLR

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Mugambi M’ituma V Republic [2013]eKLR

Case Number: Criminal Appeal 139 of 2002 Date Delivered: 26 Mar 2013

Judge: Jessie Wanjiku Lessit

Court: High Court at Meru

Parties: Mugambi M’ituma V Republic

Citation: Mugambi M’ituma V Republic [2013] eKLR

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Fahim Yasin Twaha V Silvano Buko Bonaya & 2 Others[2013]eKLR

Case Number: Election Petition 5 of 2013 Date Delivered: 26 Mar 2013

Judge: Christine Wanjiku Meoli

Court: High Court at Malindi

Parties: Fahim Yasin Twaha v Silvano Buko Bonaya & 2 others

Citation: Fahim Yasin Twaha V Silvano Buko Bonaya & 2 Others[2013] eKLR

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JOSEPH KABERIA V REPUBLIC[2013]eKLR

Case Number: Criminal Appeal 104 of 1998 Date Delivered: 26 Mar 2013

Judge: Jessie Wanjiku Lessit

Court: High Court at Meru

Parties: JOSEPH KABERIA V REPUBLIC

Citation: JOSEPH KABERIA V REPUBLIC[2013] eKLR

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Raila Odinga & 5 Others V Independent Electoral And Boundaries Commission & 3 Others [2013] eKLR

Case Number: Petition 5, 3 & 4 of 2013 Date Delivered: 26 Mar 2013

Judge: Philip Kiptoo Tunoi, Jackton Boma Ojwang, Mohammed Khadhar Ibrahim, Willy Munywoki Mutunga

Court: Supreme Court of Kenya

Parties: Raila Odinga, Moses Kiarie Kuria, Denis Njue Itumbi, Florence Jematiah Sergon, Gladwell Wathoni Otieno & Zahid Rajan v Independent Electoral and Boundaries Commission, Ahmed Issack Hassan, Uhuru Kenyatta & William Samoei Ruto

Citation: Raila Odinga & 5 Others V Independent Electoral And Boundaries Commission & 3 Others [2013] eKLR

SUBSTANCE AND TIME CONSTRAINTS IN FILING FURTHER EVIDENCE IN A PRESIDENTIAL ELECTION PETITION

Reported by Emma Kinya Mwobobia

The petitioner had filed a petition to which the respondents in the matter responded to by filing their respective replying affidavits. Subsequently, the petitioner filed what he referred to as the ‘petitioner’s affidavit in reply’ and served the respondents with the exception of a few who complained of lack of service. Several parties in the petition took issue with the filing of the subsequent affidavit and raised objections to it while others had no objections and even supported the reasons for filing of the further affidavit by the petitioner.

Issues

1.            Whether the affidavit in reply that the petitioner had filed was admissible in court in a presidential election petition which had strict time constraints

2.            Whether the nature, context and extent of the new evidence in the affidavit that was intended to be produced by the petitioner in the presidential election petition could have been prejudicial to the respondents and therefore amounted to a miscarriage of justice.

3.            Whether the electoral laws had provided for a procedure for filing further affidavits or additional evidence which could have been available to the petitioner.

 

Election Law - presidential election petition - procedure for filing of documents in a presidential election petition - affidavit - affidavit evidence – time prescribed for determination of a presidential election petition – where the petitioner had filed a further affidavit after the respondents had filed their replying affidavits - limitation of time due to the strict time lines in determination of presidential election petitions – admissibility of a further affidavit or additional evidence in a presidential election petition filed without leave of court – context, nature and extent of the affidavit - where the affidavit was lengthy and introduced new issues - whether such an affidavit would be admissible in the circumstances – whether the further affidavit in an presidential election petition would have been prejudicial to the respondents and therefore have occasioned a miscarriage of justice - Supreme Court Act section 31 (d), Supreme Court (Presidential Election Petition) Rules, 2013 Rule 9

Held:

1.            The petitioner had used an unusual way of availing affidavits as annexures or evidence as there were various further affidavits filed through the affidavit in reply which were not independent affidavits filed to stand on their own as evidence in the particular proceedings. Such affidavits evaded payment of the filing fees and their probative value was questionable.

 

2.            The operative term in Section 31 (d) of the Supreme Court Act was the word “shall” which meant that it would be mandatory to comply with any requirement within the prescribed time. The Supreme Court Act had provided for the manner in which the petition challenging the election of the President-Elect would be filed and prosecuted.

 

3.            The Supreme Court Act had no provision relating to any further response. The principal pleadings in a Presidential Election under the Act were the petition and the response (just like a Plaint and Defence were the main pleadings in civil litigation or action). The next stage after pleadings had closed in a presidential election petition was the Pre–trial Conference which under Rule 9 (1) of the Supreme Court (Presidential Election Petition) Rules, 2013 would be held 9 days after the filing of the Petition.

 

4.            Court found that It was not mandatory for the petitioner to annex an affidavit to the Petition. However, a respondent was required to annex a replying affidavit to the response.

 

5.            At the Pre–trial Conference, the Supreme Court, under the provisions of Rule 10 (f) of the Supreme Court (Presidential Election Petition) Rules, could give directions in regard to the filing and service of any further affidavits or the giving of additional evidence.

 

6.            The Supreme Court could only have exercised its powers or discretion to allow further affidavits or additional evidence if it was specifically applied for, and may have allowed or declined such an application. It was therefore not a matter of right and there was no provision for further affidavits in the Supreme Court Act.

 

7.            The Supreme Court considered each case within the context of its peculiar circumstances and therefore, the exercise of the discretion of the court to apply the principle of substantial justice, rather than technicalities particularly in a petition relating to presidential election which was a matter of great national and public interest ought to have been made sparingly. The law and rules relating to the Constitution and implemented by the Supreme Court must be taken with seriousness and the appropriate solemnity. The rules and time – lines established were made with special and unique considerations.

 

8.            The period for the filing, prosecution and determination of a Presidential Election was only 14 days from the time of filing the petition which was a very tight, short and limited period. The background to the setting of the strict time lines ought to be known to most Kenyans as there was a purpose for it and the intention of the People of Kenya and of Parliament ought to be respected.

 

9.            The parties in the petition had a duty to ensure that they complied with their respective time lines, and the court ought to adhere to its own. There must have been a fair and level playing field so that no party or the court lost the time that they were entitled to and no extra burden should have been imposed on any party or the court as a result of omissions, or inadvertences which were foreseeable or could have been avoided.

 

10.          If the further affidavit was small or limited so that the other party was able to respond to it, then the court could have been considerate, taking into account all aspects of the matter. However, where the new material introduced was so substantial involving not only a further affidavit but massive additional evidence so as to make it difficult or impossible for the other party to respond effectively, the court would exercise caution and care in the exercise of its discretion to grant leave for the filing of the further affidavit and admission of additional evidence.

 

11.          The affidavit contained 839 pages all inclusive and the further statements, in particular the intended additional evidence (exhibits), were so detailed that the remaining time before the trial was not reasonably adequate for the respondents to file any reasonable answer.

 

12.          The additional facts and evidence tend to introduce new matters that would change the character and nature of the petition which may have led to amendment of the petition and possibly given rise to significant new facts and allegations leading to a serious departure from the original case.

 

13.          If the court had allowed the affidavits to remain on record, it would have been prejudicial to the respondents and would have amounted to a miscarriage of justice.

 

14.          Rule 31 (h) Supreme Court (Presidential Election Petition) Rules permitted the petitioner to apply for leave to be allowed to file further affidavits and additional evidence at the Pre-trial Conference. It would therefore have been prudent to file such an application before the date of the Pre–trial Conference so that it was before court, in time. However, in this case, the petitioner proceeded to file an affidavit in reply which had six additional and substantial affidavits, without any application for leave to do so.

 

15.          The court noted that the request for leave had been made at the end of the petitioner’s submissions in response to the objection and appeared to be almost reluctantly made. It was probably due to the pressure emanating from the kind of petition that was before the court and the time constraints. However, the court could not shoulder the burden of the consequences of such omissions and inadvertencies.

Affidavit in reply by the petitioner, annexures and all other accompanying affidavits expunged from the court records

 

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Abdinoor Adan Abdikarim V Independent Electrol And Boundaries Commission & Another [2013] eKLR

Case Number: Petition 3 of 2013 Date Delivered: 25 Mar 2013

Judge: B J Ndeda

Court: Election Petition in Magistrate Courts

Parties: Abdinoor Adan Abdikarim v Independent Electrol and Boundaries Commission & Mohamed Mohamud Osman

Citation: Abdinoor Adan Abdikarim V Independent Electrol And Boundaries Commission & Another [2013] eKLR

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Bonventure Odeyo Obuyu V Bernard Mulembo Namwamba [2013]eKLR

Case Number: Civil Suit 20 of 2012 Date Delivered: 24 Mar 2013

Judge: Luka Kiprotich Kimaru, Francis Tuiyott

Court: High Court at Busia

Parties: Bonventure Odeyo Obuyu(Suing As The Administrator Of The Estate Of Elias Malomba Obuyu Alias Malomba Otiero –Deceased) v Bernard Mulembo Namwamba

Citation: Bonventure Odeyo Obuyu V Bernard Mulembo Namwamba [2013] eKLR

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J P S V Aga Khan Health Service Kenya T/a The Aga Khan Hospital & 2 Others [2013] eKLR

Case Number: Civil Appeal (Application) 28 of 2012 Date Delivered: 22 Mar 2013

Judge: David Kenani Maraga, Erastus Mwaniki Githinji, Martha Karambu Koome

Court: Court of Appeal at Nairobi

Parties: J P S v Aga Khan Health Service Kenya t/a the Aga Khan Hospital, Osur Oduor & J W S

Citation: J P S V Aga Khan Health Service Kenya T/a The Aga Khan Hospital & 2 Others [2013] eKLR

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Mungai Njoroge V Maina Munene & 4 Others [2013] eKLR

Case Number: Civil Suit 3016 of 1978 Date Delivered: 21 Mar 2013

Judge: Pauline Nyamweya

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Mungai Njoroge v Maina Munene, Bernard Chiori Murage, Land Registrar Kirinyaga & Attorney General Interested Party Joseph Nicholas Murage

Citation: Mungai Njoroge V Maina Munene & 4 Others [2013] eKLR

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Ferdinard Ndung’u Waititu V Independent Electoral And Boundaries Commsison (IEBC) & 8 Others[2013] eKLR

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

Judge: Mumbi Ngugi

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Ferdinard Ndung’u Waititu v Independent Electoral and Boundaries Commsison (IEBC), Isaac Hassan (Returning Officer of the National Tallying Centre),Nairobi County Returning Officer ,Evans Odhiambo Kidero , Jonathan Mweke ,Honourable Attorney Genaral , Divisional Commanding Officer (DCIO) Gigiri Police Division, Nairobi, Divisional Commanding Officer (DCIO) Kayole Police Division, Nairobi & Inspector General of the National Police Service

Citation: Ferdinard Ndung’u Waititu V Independent Electoral And Boundaries Commsison (IEBC) & 8 Others[2013] eKLR

Reported by Emma Kinya Mwobobia

Constitutional Law – election petition – jurisdiction – jurisdiction of the High Court – jurisdiction to hear and determine election petitions - special jurisdiction conferred by the Constitution to hear and determine election petitions – contention by the respondent that the High Court did not have jurisdiction in the matter since it had not been gazetted as an Elections Court as required by the law - whether the High Court had jurisdiction to hear and determine the matter – Elections (Parliamentary and County Elections) Rules 2013

Election Law – election petition – procedure of filing an election petition – need for the election results to be officially declared through gazettement - requirement to file the petition within twenty eight days from the date of publication of the election results in the Kenya Gazette – where the petitioner had filed the petition on the same day it was gazette – whether the petition had been filed in accordance with the prescribed procedure under the electoral laws – Constitution of Kenya, 2010 Article 87(2), Election Act section 76 (1)

Words and Phrases – definition – definition of declaration – definition according to the Black’s Law Dictionary – inference from the electoral laws - what amounted to declaration of election results – whether declaration required publication of the election results in the Kenya Gazette

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Mbaraka Kipkoech Salah V Abdul Kibet Rotich [2013] eKLR

Case Number: Civil Case 74 of 2012 Date Delivered: 21 Mar 2013

Judge: Abigail Mshila

Court: High Court at Eldoret

Parties: Mbaraka Kipkoech Salah v Abdul Kibet Rotich

Citation: Mbaraka Kipkoech Salah V Abdul Kibet Rotich [2013] eKLR

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Delight Security Services Limited V Charles Ouma Oyugi [2013] eKLR

Case Number: Civil Application 232 of 2012 Date Delivered: 20 Mar 2013

Judge: Alnashir Ramazanali Magan Visram

Court: Court of Appeal at Nairobi

Parties: Delight Security Services Limited v Charles Ouma Oyugi

Citation: Delight Security Services Limited V Charles Ouma Oyugi [2013] eKLR

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Joseph Mburu Gitau & Another V Principle Magistrate's Court At Nairobi & Another [2013] eKLR

Case Number: Civil Application 142 of 2012 Date Delivered: 20 Mar 2013

Judge: Erastus Mwaniki Githinji, Fatuma sichale, Patrick Omwenga Kiage

Court: Court of Appeal at Nairobi

Parties: Joseph Mburu Gitau & another v Principle Magistrate's Court at Nairobi & another

Citation: Joseph Mburu Gitau & Another V Principle Magistrate's Court At Nairobi & Another [2013] eKLR

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EDWARD WAFULA YANDA V BOAZ MUSUKHA WAKHWAKU & 2 Others [2013] eKLR

Case Number: Civil Case 72 of 2008 Date Delivered: 19 Mar 2013

Judge: Anne Omollo

Court: High Court at Bungoma

Parties: EDWARD WAFULA YANDA v BOAZ MUSUKHA WAKHWAKU & 2 others

Citation: EDWARD WAFULA YANDA V BOAZ MUSUKHA WAKHWAKU & 2 Others [2013] eKLR

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Robert Chesang & 2 Others V Gaetano Ruffo & 8 Others [2013] eKLR

Case Number: Petition 272 of 2012 Date Delivered: 18 Mar 2013

Judge: Isaac Lenaola

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Robert Chesang, Maxwell Otieno Odongo & Zephania Juma Ajowi v Gaetano Ruffo, Kenya Shell Limited, Kangeri Wanjohi T/A Kindest Auctioneer,Edward Muriu Kamau t/a Muriu, Mungai & Co. Advocates, Standard Chartered Bank, Attorney General, Commissioner of Lands,Registrar of Titles & Director of Public Prosecutions

Citation: Robert Chesang & 2 Others V Gaetano Ruffo & 8 Others [2013] eKLR

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Jamii Bora Scandinavia AB V Richard G. Njoba & Another [2013] eKLR

Case Number: Civil Case 731 of 2012 Date Delivered: 18 Mar 2013

Judge: Eric Kennedy Okumu Ogola

Court: High Court at Nairobi (Milimani Commercial Courts Commercial and Tax Division)

Parties: Jamii Bora Scandinavia AB v Richard G. Njoba & Themis Investmetns Ltd

Citation: Jamii Bora Scandinavia AB V Richard G. Njoba & Another [2013] eKLR

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Republic V Jared Wakhule Tubei & Another [2013] eKLR

Case Number: Revision Case 26 of 2012 Date Delivered: 18 Mar 2013

Judge: Francis Gikonyo

Court: High Court at Bungoma

Parties: Republic v Jared Wakhule Tubei & Maryflorence Wander

Citation: Republic V Jared Wakhule Tubei & Another [2013] eKLR

Issues:
i. Whether High Court had supervisory jurisdiction to review the correctness, legality, impropriety and irregularity of a decision of the High Court
ii. Whether discontinuance could have been granted where the prosecution had filed charges contrary to the procedure under the Anti – Corruption and Economic Crimes Act in prosecution of corruption offences.
iii. Whether a discontinuance granted by the Court amounted to an acquittal or conditional discharge of the case in the circumstances
iv. What factors should the trial court have considered in the termination of criminal proceedings as underpinned under the Constitution of Kenya, 2010?
Constitution of Kenya, 2010 article 157(11) provided;
In exercising the powers conferred by this article, the Director of Public Prosecution shall have regard to the public interest, the interest lf the administration of justice and the need to prevent and avoid abuse of the legal process
Jurisdiction – jurisdiction of the High Court - scope of supervisory powers of the High Court
– application for the revision of the trial court orders in an application for termination of criminal proceedings – circumstances where the revisionary powers of the High Court can be invoked - Whether the High Court had supervisory jurisdiction to grant the revision orders in the circumstances – Criminal Procedure Code (cap 75) sections 362-364
Criminal Practice and Procedure -termination of a criminal proceeding - provision under the
Criminal Practice and Procedure Code - principles that guide a trial court in an application for discontinuance of criminal proceedings - factors that determine when a termination of a criminal proceeding results in an acquittal or conditional discharge – whether the termination of the criminal proceedings would have availed in the circumstances – whether the termination would have resulted in an acquittal or a conditional discharge - Constitution of Kenya, 2010 article 165(6) & (7), 50, 157(6)(c), (7), (8) and (11), 80, and 79 of the Constitution
Corruption and Economic Crimes - procedure – procedure prescribed in prosecuting criminal proceedings on corruption and economic crimes- where the prosecution had filed criminal proceedings contrary to the provisions of the Anti-Corruption and Economic Crimes Act - requirement for a report to be availed by the Ethics and Anti-Corruption Commission to the Director of Public Prosecution and a recommendation to prosecute - fight against corruption
as a public interest issue – whether the procedure adopted by the prosecution was a bar to the criminal proceedings in the circumstances - section 35 & 23 of Anti-corruption and Economic Crimes Act (ACECA) Act No 3 of 2003.
Held:
1. The High Court inherently exercised its supervisory powers under article 165(6) and (7) of the
Constitution of Kenya, 2010 where a decision of a trial court had been questioned and could call for, and examine the record, finding or order of a proceeding in a subordinate court in order to be satisfied of its correctness, legality, propriety or regularity.
2. The supervisory jurisdiction of the High Court by its nature was aimed at ensuring that the subordinate courts operated within the law when discharging their judicial functions. There was therefore no constitutional or legal necessity that an appeal should have been filed on such matters, or before the Court could exercise its supervisory authority. The review application before the Court was therefore competent.
3. The exercise of supervisory power of the High Court, under article 165(6) & (7) of the Constitution and sections 362-364 of the Criminal Procedure Code (CPC) was not limited to situations where there was an error on the face of the record or new issues had emerged. It covered incorrect, illegal, improper or irregular proceedings, order or finding of the trial court.
4. Under article 157(6) of the Constitution, the prosecution could have discontinued criminal proceedings at any stage before judgment was delivered. The discontinuance however had to be with the permission of the Court, which was quite a departure from the notorious arbitrary practice of nolle proseque.
5. The constitutional requirement was that in making the application for discontinuance, the prosecution had to be guided by article 157(11) of the Constitution, the accused must have participated and the Court could grant or not grant its permission for discontinuance of a proceeding depending on the circumstances of the case and the reasons given for the discontinuance.
6. Section 35 of the Anti-corruption and Economic Crimes Act (ACECA) required the Ethics and Anti-Corruption Commission to make a report to the Director of Public Prosecution (DPP) of the results of the investigation with recommendations to prosecute the suspects or otherwise and the DPP should have accepted the recommendations before proceedings were commenced in court.
7. The order of the trial court that the prosecution should have proceeded with the hearing of the criminal trial was erroneous and was not supported by law. The trial court should therefore have given its permission for discontinuance and ordered the termination of the proceedings.
8. Charges mounted contrary to the provisions of the ACECA, were a nullity and such charges should have been terminated except, subject to the Constitution, the termination should not have abated the prospects of re-instituting similar charges as long as the necessary procedures set out in the law had been followed.
9. A consideration of sound constitutional principles would have guided the judicious exercise of discretion of the trial court in the matter to wit;
a) the principle of nullity
b) balancing of the rights of the accused, the public interest, the interest of the administration
of justice and the need to prevent and avoid abuse of the legal process.
10. Constitutionally, in deciding whether the discontinuance will be an acquittal or not, the trial court should have considered the stage at which the proceedings had been discontinued. If discontinuance was sought after the prosecution had closed its case, the accused should have been acquitted under article 157(7) and article 50(o) of the Constitution would have applied to shield the accused on the principle of double jeopardy from being charged again on similar charges.
11. In other situations which did not fall under article 157(7) of the Constitution, there was a rebuttable presumption that the discontinuance was not a bar from future prosecution. It was recognition of the role of the Court to determine whether in the circumstances of each case, an acquittal should or should not be ordered. According to the Constitution in an application for discontinuance, the trial court should have regard to the public interest involved, the interest of the administration of justice and the need to present and avoid abuse of the legal process.
12. The fight against corruption was a public interest issue, and prosecution of those investigated for corruption and economic crimes was a matter of the administration of justice. In this case, there was no evidence of any abuse of, or intention on the prosecution to abuse the process of the Court.

Proceedings before the Magistrate’s Court terminated.
Cases:
East Africa;

1. Kangangi, Nicholas Muriuki v Attorney General Civil Appeal No 331 of 2010 – (Followed)
Statutes:
East Africa;

1. Anti-Corruption and economic crimes Act (cap 65) sections 23, 35, 36 - (Interpreted)
2. Constitution of Kenya, 2010 articles 50, 157(6)(c)(7)(8)(11); 165(6)(7) - (Interpreted)
3. Criminal Procedure Code (cap 75) sections 87(a); 362-364 - (Interpreted)
Advocates:
1. Mr Ombito for 1st Respondent
2. Mr Murunga for 2nd Defendant
3. Mr Kibelion for the State

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Youth Agenda V Rita Kijala Shako [2014] eKLR

Case Number: Civil Application Nai 107 of 2012 Date Delivered: 15 Mar 2013

Judge: Wanjiru Karanja, Milton Stephen Asike Makhandia, Kathurima M'inoti

Court: Court of Appeal at Nairobi

Parties: Youth Agenda v Rita Kijala Shako

Citation: Youth Agenda V Rita Kijala Shako [2014] eKLR

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Attorney General V Law Society Of Kenya & Another [2013] eKLR

Case Number: Civil Appeal (Application) 133 of 2011 Date Delivered: 15 Mar 2013

Judge: Daniel Kiio Musinga

Court: Court of Appeal at Nairobi

Parties: Attorney General v Law Society of Kenya & Central Organization of Trade Unions (K) [2013] eKLR

Citation: Attorney General V Law Society Of Kenya & Another [2013] eKLR

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Erad Suppliers 7 General Contracts Limited V National Cereals 7 Produce Board & Another [2013] eKLR

Case Number: Misc Case 639 of 2009 Date Delivered: 15 Mar 2013

Judge: Alfred Mabeya

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Erad Suppliers 7 General Contracts Limited v National Cereals 7 Produce Board & Kenya Commercial Bank

Citation: Erad Suppliers 7 General Contracts Limited V National Cereals 7 Produce Board & Another [2013] eKLR

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Nairobi Club Registered Trustees V Industrial Court & 2 Others [2013] eKLR

Case Number: Civil Application 287 of 2011 Date Delivered: 15 Mar 2013

Judge: Roselyn Naliaka Nambuye, George Benedict Maina Kariuki, James Otieno Odek

Court: Court of Appeal at Nairobi

Parties: Nairobi Club Registered Trustees v Industrial Court, Kenya Union of Domestic Hotels, Educational Institutions, Hospitals and Allied Workers (Kudheiha) & Servanthood & Light Development Foundation

Citation: Nairobi Club Registered Trustees V Industrial Court & 2 Others [2013] eKLR

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Republic V Kenya Revenue Authority Commissioner Of Custom Services Ex-parte Romageco Kenya Limited [2013] eKLR

Case Number: J r Misc Application 58 of 2013 Date Delivered: 15 Mar 2013

Judge: George Vincent Odunga

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Republic v Kenya Revenue Authority Commissioner of Custom Services Ex-parte Romageco Kenya Limited

Citation: Republic V Kenya Revenue Authority Commissioner Of Custom Services Ex-parte Romageco Kenya Limited [2013] eKLR

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