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Cecilia Wanjiru Kimwere V Attorney-General & Another [2014] eKLR

Case Number: Civil Appeal 622 of 2007 Date Delivered: 21 Feb 2014

Judge: Hatari Peter George Waweru

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Cecilia Wanjiru Kimwere v Attorney-General & John Gathara Wachuka

Citation: Cecilia Wanjiru Kimwere V Attorney-General & Another [2014] eKLR

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Republic V Benson Maina Kamanja [2014] eKLR

Case Number: Criminal Case 47 of 2009 Date Delivered: 21 Feb 2014

Judge: Joseph Kiplagat Sergon

Court: High Court at Nyeri

Parties: Republic v Benson Maina Kamanja

Citation: Republic V Benson Maina Kamanja [2014] eKLR

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Muktar Mohamud Mohamed V 1. Director Of Public Prosecutions & 2 Others [2014] eKLR

Case Number: Miscellaneous Petition 9 of 2014 Date Delivered: 21 Feb 2014

Judge: Martin Muya

Court: High Court at Mombasa

Parties: Muktar Mohamud Mohamed v Director Of Public Prosecutions,Provincial Criminal Investigations Officer Mombasa County & Mombasa County Criminal Investigations Department

Citation: Muktar Mohamud Mohamed V 1. Director Of Public Prosecutions & 2 Others [2014] eKLR

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Esther Wanjiru V Jackline Arege [2014] eKLR

Case Number: Civil Appeal 169 of 2013 Date Delivered: 21 Feb 2014

Judge: Hellen Amolo Omondi

Court: High Court at Nakuru

Parties: Esther Wanjiru v Jackline Arege

Citation: Esther Wanjiru V Jackline Arege [2014] eKLR

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Transport & Allied Workers Union (K) V Societe Internationale De Tele Communication Aeronautiques (SITA) [2014] eKLR

Case Number: Cause 1947 of 2012 Date Delivered: 21 Feb 2014

Judge: Linnet Ndolo

Court: Employment and Labour Relations Court at Nairobi

Parties: Transport & Allied Workers Union (K) v Societe Internationale De Tele Communication Aeronautiques (SITA)

Citation: Transport & Allied Workers Union (K) V Societe Internationale De Tele Communication Aeronautiques (SITA) [2014] eKLR

 

 

The right to privacy may not be relied upon to refuse to admit documents in evidence where such admission is necessary for a fair determination of the case.

Transport And Allied Workers Union (K) v Societe Internationale De Tele

Communication Aeronautiques (SITA)

Cause no 1947 of 2012

Industrial Court of Kenya at Nairobi

L. Ndolo, J

February 21, 2014

Reported by Marietta Gachegu

 Brief Facts:

The Claimant's claim was founded on the alleged unlawful redundancy of three aggrieved workers. During filing of pleadings, the Respondent took issue with the production of evidence in relation to previous employees of the Respondent who were not parties to the claim and asked that the evidence be expunged for contravening article 31(c) & (d) of the Constitution of Kenya, 2010. The Claimant filed a notice to produce under section 69 of the Evidence Act, requiring the Respondent to produce the original agreements of settlement in respect of six former employees of the Respondent. The Respondent filed a notice of non-admission on the ground that the notice to produce was bad in law and the documents requested for were confidential and protected.

The Claimant insisted that in order to enforce the rights of the aggrieved persons under their employment contracts with the Respondent, the production of the documents in issue was necessary. The Respondent maintained that the production of the documents would occasion an infringement of its rights under Article 31 of the Constitution.

Issue

  1. Whether the documents the Claimant sought to produce were protected and therefore inadmissible without the Respondent’s consent.

 

 

Constitutional Law – fundamental rights and freedoms- bill of rights-right to access information- right to produce documents in evidence - whether the Claimant had the right to produce documents as evidence deemed to be private and confidential by the Respondent Constitution of Kenya, 2010, Article 35(1) (a) & (b)- Evidence Act, section 69

Constitutional Law- fundamental rights and freedoms- bill of rights- right to privacy- right to refuse to produce original documents as evidence- whether the claimant had the right to refuse to produce documents as evidence deemed to be admissible by the Claimant pursuant to the right to access information Constitution of Kenya 2010, Article 31 (c) & (d)

The Constitution of Kenya 2010 Article 31 (c) & (d) provides:-

 Every person has the right to privacy, which includes the right not to have-

 (c) information relating to their family or private affairs unnecessarily required  or  revealed; or

(d) the privacy of their communications infringed.

The Constitution of Kenya 2010 Article 35 (1) (a) & (b) provides:-

 (1) Every citizen has the right of access to

(a) information held by the State; and

(b)information held by another person and required for the exercise or protection of any right or fundamental freedom.

 

Held:

  1. Neither the Claimant's right under article 35 nor the Respondent's right under article 31 was absolute rights as defined in article 25. The rights of both parties were subject to limitation under article 24.
  2. The Claimant sought to advance its right to information and the Respondent sought to protect its right to privacy. Rejection of the Claimant’s plea would insulate the information contained in the documents from the eyes of the Court. Rejection of the Respondent's plea would bring to the attention of the Court some information which the Respondent had categorized as private and confidential for purposes of determining the case.
  3. In balancing the competing rights of the parties, the admission of the documents in issue was necessary for a fair determination of the case.

Objection by the Respondent overruled.

Cases

None referred to

Statutes

East Africa

1.Constitution of Kenya, 2010 articles 24, 25, 31(c)(d); 35(1); 50–(Interpreted)

2.Evidence Act (cap 80) In general –(Interpreted)

Advocates

1.Mr Mungla for the Claimant

2.Mrs Opiyo for the Respondent

 

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Charles Maina Munyua V Victory Construction Limited [2014] eKLR

Case Number: Cause 753 of 2012 Date Delivered: 21 Feb 2014

Judge: Mathews Nderi Nduma

Court: Employment and Labour Relations Court at Nairobi

Parties: Charles Maina Munyua v Victory Construction Limited

Citation: Charles Maina Munyua V Victory Construction Limited [2014] eKLR

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David Kimani Karogo V Thika Land Disputes Tribunal & 2 Others [2014] eKLR

Case Number: Jr Elc Case 78 of 2011 Date Delivered: 21 Feb 2014

Judge: Weldon Kipyegon Korir

Court: High Court at Nairobi (Milimani Law Courts)

Parties: David Kimani Karogo v Thika Land Disputes Tribunal, Florence Gathoni Nduati & Resident Magistrate’s Court Thika

Citation: David Kimani Karogo V Thika Land Disputes Tribunal & 2 Others [2014] eKLR

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Abubakar Ali Shee V Tourism Promotion Services (K) Ltd [2014] eKLR

Case Number: Cause 70 of 2013 Date Delivered: 21 Feb 2014

Judge: Mathews Nderi Nduma

Court: Employment and Labour Relations Court at Nairobi

Parties: Abubakar Ali Shee v Tourism Promotion Services (K) Ltd

Citation: Abubakar Ali Shee V Tourism Promotion Services (K) Ltd [2014] eKLR

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In Re The Estate Of Gilbert Ghonar Ngamba (Deceased) [2014] eKLR

Case Number: Succession Cause 116 of 2012 Date Delivered: 21 Feb 2014

Judge: Maureen Akinyi Odero

Court: High Court at Mombasa

Parties: In Re the estate of Gilbert Ghonar Ngamba

Citation: In Re The Estate Of Gilbert Ghonar Ngamba (Deceased) [2014] eKLR

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Mutithi Farmers Co-Operative Society Ltd V Commissioner Of Co-Operatives, Muranga Sub County & Another [2014] eKLR

Case Number: Civil Case 524 of 2013 Date Delivered: 21 Feb 2014

Judge: Hatari Peter George Waweru

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Mutithi Farmers Co-Operative Society Ltd v Commissioner Of Co-Operatives, Muranga Sub County & Commissioner Of Co-Operatives, Thika Sub County

Citation: Mutithi Farmers Co-Operative Society Ltd V Commissioner Of Co-Operatives, Muranga Sub County & Another [2014] eKLR

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Senior Resident Magistrate At Mombasa (Ms. T. Mwangi) V Sanjay Ambalal Patel & Another [2014] eKLR

Case Number: Judicial Review 4 of 2010 Date Delivered: 21 Feb 2014

Judge: Maureen Akinyi Odero

Court: High Court at Mombasa

Parties: Senior Resident Magistrate At Mombasa (Ms. T. Mwangi) v Sanjay Ambalal Patel & Japhet Mwakinyandi

Citation: Senior Resident Magistrate At Mombasa (Ms. T. Mwangi) V Sanjay Ambalal Patel & Another [2014] eKLR

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Republic V DCIO Narok & Another [2014] eKLR

Case Number: Judicial Review 4 of 2012 Date Delivered: 21 Feb 2014

Judge: Hellen Amolo Omondi

Court: High Court at Nakuru

Parties: Republic v DCIO Narok &Sarah; Njoki Munge

Citation: Republic V DCIO Narok & Another [2014] eKLR

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Kariobangi Sewerage Self Help Group V Nairobi City Council & 3 Others [2014] eKLR

Case Number: Elc Civil Suit 1680 of 1999 Date Delivered: 21 Feb 2014

Judge: John Mutungi

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Kariobangi Sewerage Self Help Group v Nairobi City Council, Merab Anyango Poche, Kariobangi North Light Industries & Jua Kali Association

Citation: Kariobangi Sewerage Self Help Group V Nairobi City Council & 3 Others [2014] eKLR

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Mustafa Mohamed Issa Ltd V Gateway Marine Services Ltd [2014] eKLR

Case Number: Civil Suit 155 of 2011 Date Delivered: 21 Feb 2014

Judge: Martin Muya

Court: High Court at Mombasa

Parties: Mustafa Mohamed Issa Ltd v Gateway Marine Services Ltd

Citation: Mustafa Mohamed Issa Ltd V Gateway Marine Services Ltd [2014] eKLR

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Andrew Githinji Mwihuri V Silas Munuhe Mwaniki & 9 Others [2014] eKLR

Case Number: Elc 224 of 2013 Date Delivered: 21 Feb 2014

Judge: Antony Ombwayo

Court: Environment and Land Court at Nyeri

Parties: Andrew Githinji Mwihuri v Silas Munuhe Mwaniki & 9 others

Citation: Andrew Githinji Mwihuri V Silas Munuhe Mwaniki & 9 Others [2014] eKLR

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Masoud Salim Hemed & Another V Director Of Public Prosecution & 3 Others [2014] eKLR

Case Number: Petition 7 & 8 of 2014(consolidated) Date Delivered: 21 Feb 2014

Judge: Edward Muthoga Muriithi

Court: High Court at Mombasa

Parties: Masoud Salim Hemed ,Okiya Omtatah Okoiti v Director Of Public Prosecution, Inspector General,Kenya Police Service & ATTORNEY GENERAL & OTHERS

Citation: Masoud Salim Hemed & Another V Director Of Public Prosecution & 3 Others [2014] eKLR

Duty of the Police in habeas corpus proceedings.

Masoud Salim Hemed & another v Director of Public Prosecution & 3 others

Petition No 7 of 2014

High Court of Kenya at Mombasa

 E M Muriithi, J

February21, 2014

Reported by Teddy Musiga

Brief facts

The matter related to habeas corpus proceedings filed on behalf of Mr.Hemed S Hemed (the person subject of the proceedings). Two petitions were filed for habeas corpus proceedings for the production of Hemed Salim Hemed; one by his brother and another by a public spirited citizen. They were both consolidated into the current petition for purposes of hearing and disposal.

The undisputed facts were that Hemed Salim Hemed was arrested by police together with 128 others who were allegedly attending a jihad convention of the Al shabaab terrorist group at the Masjid Mosque in Majengo, Mombasa. The arrest was documented in photographs by the media showing the said Hemed upon arrest, under escort and hand cuffed and finally lying on his back at the back of a police vehicle with three armed police officers on guard. However, the said Hemed was neither among those released without charge nor charged before court hence the proceedings.

Issue:

What was the duty of the police in habeas corpus proceedings?

 

Criminal practice and procedure –  writs – habeas corpus – application for writ of habeas corpus – nature and scope of writ of habeas corpus - duty of the police in habeas corpus proceedings –  claim where the subject of proceedings was arrested and neither in police records nor custody - Criminal procedure code, section 386(1)

 

Held:

  1. In habeas corpus proceedings, the burden of proving the legality of detention rests with the state. In the case of a claim that the subject was not in the custody of the state, the burden would lie with the state against whom the orders habeas corpus was made or sought.
  2. The state failed to discharge the burden imposed by law to demonstrate that it had either legally detained the subject of habeas corpus or that he was not in their physical custody. Therefore, the matter did not mature into an enquiry as to whether an inquiry were to be conducted by the police under section 386 of the Criminal Procedure Code with or without independent oversight by relevant state organs and or others.
  3. Indeed, the antecedent of section 386 in the circumstances of the case that there be information that a person was “missing and believed dead” had not been met and the section could not properly be invoked. Furthermore in the absence of a decision as to whether the subject of the proceedings (Hemed S Hemed) was in the custody of the police, the consideration as to what directions, orders or other reliefs could be made was premature.
  4. The writ of habeas corpus could attract contempt proceedings for enforcement and it had to be determined whether or not the respondents had the subject in custody or not. (Grace Stuart Ibingira& another v Uganda (1966) EA 445.
  5. Rule 20 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 made provision for calling of oral evidence in constitutional applications for enforcement of fundamental human rights and freedoms and for cross examination of such witnesses by the parties before a decision was reached in a petition.
  6. Therefore, the deponent of the replying affidavit for the respondents and the author of the hand written unsworn statement relied on by the deponent were likely to assist the court in arriving at a conclusive decision whether the said subject of the proceedings (Hemed S Hemed) was in the physical custody of the state or not.

 

Police directed and summoned to attend court for examination and cross examination by the parties.

In view of the direction of the court, no findings were made on the issues before court and ruling thereon was deferred until the court had heard the said witnesses in examination and cross examination.

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Msambweni Land Disputes Tribunal & Another V Bakari Ali Mwakumanya Ex-Parte Diana Muthoni Muturi [2014] eKLR

Case Number: Misc. Civil Application 56 of 2012 Date Delivered: 21 Feb 2014

Judge: Samwel Ndungu Mukunya

Court: High Court at Mombasa

Parties: Msambweni Land Disputes Tribunal & Senior Resident Magistrate Kwale v Bakari Ali Mwakumanya Ex-Parte Diana Muthoni Mutur

Citation: Msambweni Land Disputes Tribunal & Another V Bakari Ali Mwakumanya Ex-Parte Diana Muthoni Muturi [2014] eKLR

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Francis Kimani V John Gaiti Kinyanjui & 2 Others [2014] eKLR

Case Number: Elc. 909 of 2013 Date Delivered: 21 Feb 2014

Judge: Mary Muthoni Gitumbi

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Francis Kimani v John Gaiti Kinyanjui, Peter Njoroge Kamau & Geoffrey Thangwa

Citation: Francis Kimani V John Gaiti Kinyanjui & 2 Others [2014] eKLR

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Samuel Mwangi Gatoto V Attorney General [2014] eKLR

Case Number: Civil Case 82 of 2009 Date Delivered: 21 Feb 2014

Judge: Samwel Ndungu Mukunya

Court: High Court at Mombasa

Parties: Samuel Mwangi Gatoto T/A Diani Farmers Day & Night Club & also T/A Gamboto Guest House v Attorney General

Citation: Samuel Mwangi Gatoto V Attorney General [2014] eKLR

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Korean United Church Of Kenya & 3 Others V Seung Ho Song [2014] eKLR

Case Number: ELC. 900 of 2012 Date Delivered: 21 Feb 2014

Judge: Mary Muthoni Gitumbi

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Korean United Church of Kenya,Jonathan Kang,San Ho Kim & Gee Yeon Kim v Seung Ho Song

Citation: Korean United Church Of Kenya & 3 Others V Seung Ho Song [2014] eKLR

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Raphael Kiragu Kamau V Sera Nyambura Kamau [2014] eKLR

Case Number: Environment and Land Civil Suit No. 683 of 2013 Date Delivered: 21 Feb 2014

Judge: John Mutungi

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Raphael Kiragu Kamau v Sera Nyambura Kamau

Citation: Raphael Kiragu Kamau V Sera Nyambura Kamau [2014] eKLR

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James Waithaka Chege V 410 Bridge International [2014] eKLR

Case Number: Elc. 1541 of 2013 Date Delivered: 21 Feb 2014

Judge: Mary Muthoni Gitumbi

Court: Environment and Land Court at Nairobi

Parties: James Waithaka Chege v 410 Bridge International

Citation: James Waithaka Chege V 410 Bridge International [2014] eKLR

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Robert Muli Matolo V Director Of Land Adjudication & 2 Others [2014] eKLR

Case Number: Elc Civil Suit 599 of 2013 Date Delivered: 21 Feb 2014

Judge: John Mutungi

Court: Environment and Land Court at Nairobi

Parties: Robert Muli Matolo v Director of Land Adjudication, Robert Muthiani Vuli & Peter Nzesya Maithya

Citation: Robert Muli Matolo V Director Of Land Adjudication & 2 Others [2014] eKLR

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Republic V Principal Magistrate’s Court & 2 Others Ex-parte Jack & Jill Supermarket Limited [2014] eKLR

Case Number: JR Case 185 of 2009 Date Delivered: 21 Feb 2014

Judge: Weldon Kipyegon Korir

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Republic v Principal Magistrate’s Court & 2 others Ex-parte Jack & Jill Supermarket Limited

Citation: Republic V Principal Magistrate’s Court & 2 Others Ex-parte Jack & Jill Supermarket Limited [2014] eKLR

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Jane Njoki Kihara V Joseph Kihara Gichui [2014] eKLR

Case Number: Elc 753 of 2012 Date Delivered: 21 Feb 2014

Judge: Mary Muthoni Gitumbi

Court: Environment and Land Court at Nairobi

Parties: Jane Njoki Kihara v Joseph Kihara Gichui

Citation: Jane Njoki Kihara V Joseph Kihara Gichui [2014] eKLR

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Saifudeen Abdulla Bhai & Hussein Abdulla Bhai V Zainabu Mwinyi [2014] eKLR

Case Number: Civil Case 424 of 1996 Date Delivered: 21 Feb 2014

Judge: Samwel Ndungu Mukunya

Court: High Court at Mombasa

Parties: Saifudeen Abdulla Bhai & Hussein Abdulla Bhai v Zainabu Mwinyi

Citation: Saifudeen Abdulla Bhai & Hussein Abdulla Bhai V Zainabu Mwinyi [2014] eKLR

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Elizabeth Wambui Kiragu V Tirus Kamau Mutoru [2014] eKLR

Case Number: Elc Case 298 of 2013 Date Delivered: 21 Feb 2014

Judge: Mary Muthoni Gitumbi

Court: Environment and Land Court at Nairobi

Parties: Elizabeth Wambui Kiragu v Tirus Kamau Mutoru

Citation: Elizabeth Wambui Kiragu V Tirus Kamau Mutoru [2014] eKLR

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Kenya Union Of Domestic, Hotels, Educational Institutions, Hospitals And Allied Workers V Leshau Boys' High School [2014] eKLR

Case Number: Cause 31 of 2013 Date Delivered: 21 Feb 2014

Judge: Byram Ongaya

Court: Employment and Labour Relations Court at Nakuru

Parties: Kenya Union of Domestic, Hotels, Educational Institutions, Hospitals and Allied Workers v Leshau Boys' High School

Citation: Kenya Union Of Domestic, Hotels, Educational Institutions, Hospitals And Allied Workers V Leshau Boys' High School [2014] eKLR

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Feisal Awadh Idah V William Kamiti Gathinji [2014] eKLR

Case Number: Civil Case 422 of 2010 Date Delivered: 21 Feb 2014

Judge: Samwel Ndungu Mukunya

Court: High Court at Mombasa

Parties: Feisal Awadh Idah v William Kamiti Gathinji

Citation: Feisal Awadh Idah V William Kamiti Gathinji [2014] eKLR

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Ocean View Beach Hotel Limited V Salim Sultan Moloo & 5 Others [2014] eKLR

Case Number: Civil Case 533 of 2011 Date Delivered: 21 Feb 2014

Judge: Samwel Ndungu Mukunya

Court: High Court at Mombasa

Parties: Ocean View Beach Hotel Limited v Salim Sultan Moloo, Ali Sai (Kenya) Limited , Fidelity Commercial Bank Limited, Sai Holding Limited & The Commissioner Of Lands & The Registrar Of Titles, Mombasa

Citation: Ocean View Beach Hotel Limited V Salim Sultan Moloo & 5 Others [2014] eKLR

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Peterson Murage Kinyua V Jane Wangithi Murage [2014] eKLR

Case Number: Civil Case 10 of 2005 Date Delivered: 21 Feb 2014

Judge: Joseph Kiplagat Sergon

Court: High Court at Nyeri

Parties: Peterson Murage Kinyua v Jane Wangithi Murage

Citation: Peterson Murage Kinyua V Jane Wangithi Murage [2014] eKLR

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E A O V S O N [2014] eKLR

Case Number: Civil Application 170 of 2013 (UR 118/2013) Date Delivered: 21 Feb 2014

Judge: Wanjiru Karanja, George Benedict Maina Kariuki, Agnes Kalekye Murgor

Court: Court of Appeal at Nairobi

Parties: E A O v S O N

Citation: E A O V S O N [2014] eKLR

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Yumna M. Ali & 3 Others V Muhidini Ali & Another [2014]eKLR

Case Number: Civil Application 2 of 2013 Date Delivered: 21 Feb 2014

Judge: Milton Stephen Asike Makhandia

Court: Court of Appeal at Malindi

Parties: Yumna M. Ali, Gaddafi M. Ali, Habiba Ali & Mariam M. Ali(Suing Thro' Mother and Next Friend Khadhirau Isaa Omar) v Muhidini Ali & Saud Vavo

Citation: Yumna M. Ali & 3 Others V Muhidini Ali & Another [2014] eKLR

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Patrick Ngeta Kimanzi V Marcus Mutual Muluvi & 2 Others [2014] eKLR

Case Number: Civil Appeal 191 of 2013 Date Delivered: 21 Feb 2014

Judge: George Benedict Maina Kariuki, Patrick Omwenga Kiage, Kathurima M'inoti

Court: Court of Appeal at Nairobi

Parties: Patrick Ngeta Kimanzi v Marcus Mutual Muluvi, Alice Kimani (Returning Officer) & Independent Electoral and Boundaries Commission

Citation: Patrick Ngeta Kimanzi V Marcus Mutual Muluvi & 2 Others [2014] eKLR

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Francis Githae Nderi V Simon Wanjohi Wachira & Another [2014] eKLR

Case Number: Civil Case 11 of 2008 (O.S) Date Delivered: 21 Feb 2014

Judge: Joseph Kiplagat Sergon

Court: High Court at Nyeri

Parties: Francis Githae Nderi v Simon Wanjohi Wachira & Agnes Wanjiku Wachira

Citation: Francis Githae Nderi V Simon Wanjohi Wachira & Another [2014] eKLR

Execution of orders from the District Land Registrar with respect to amendment of the Registry Index Map (R. I. M)                   

Francis Githae Nderi v Simon Wanjohi Wachira & Agnes Wanjiku Wachira

Civil Case No. 11 of 2008

High Court of Kenya at Nyeri

February 21, 2014

J K Sergon, J

Reported by Teddy Musiga & Stanley Mumo

Brief Facts

The applicant made an application to court seeking for an order authorizing the District Land Registrar, Nyeri to amend or cause to be amended the Registry Index Map (R.I.M) over disputed parcels of land thus giving effect the District Registrar's decision dated March 25th, 2006. The District Land Registrar, Nyeri, had adjudicated a boundary dispute between the applicant and respondents with respect to the disputed parcels of land and came to the conclusion that the portion in dispute belonged to the applicant herein, hence the map had to be amended to reflect the actual position on the ground.  The District Land Registrar then directed the Applicant to seek for orders from a court of law to have the map amended to reflect the ground he had been using since the time of demarcation without any dispute.

Issues

  1. Whether the District Land Registrar acted ultra-vires his jurisdiction of determining boundary disputes by awarding the applicant land.
  2. What was the procedure for executing the decisions of the Land Registrar?
  3. Whether the jurisdiction of the court was properly invoked with respect to executing the decision of the District Land Registrar.

Land Law- Land Registrar’s powers- Land Registrar’s powers in the adjudication over boundary disputes- whether the Land Registrar can direct a party to seek for orders from a court of law to have the Registry Index Map (R.I.M) amended- Registered Land Act (Repealed) section 19(1)

Land Law- jurisdiction- High court’s jurisdiction in determining matters adjudicated over by the Land Registrar - whether a court of law could be properly invoked to adjudicate over a boundary dispute already brought before the Land Registrar- Registered Land Act (Repealed) section 19 and 22

 

Section 19(1) of Registered Land Act (Repealed):

Where the Registrar is maintaining the registry map he may, or in any case he may require the Director of Surveys to, correct the line or position of any boundary shown on the registry map with the agreement of every person shown by the register to be affected by the correction, but no such correction shall be effected except on the instructions of the Registrar in writing in the prescribed form, to be known as a mutation form, and the mutation form shall be filed.

 

Held:

  1. Section 19(1) of the Registered Land Act provided that the Land Registrar could require or direct the Director of Surveys to correct the line or position of any boundary shown on the registry map thus in essence correcting the Registry Index Map (R.I.M).
  2. That decision of the Land Registrar had the effect of awarding the applicant about an acre of land. The Land Registrar, no doubt, had jurisdiction to entertain and determine a dispute over boundaries but he had no jurisdiction to increase or decrease the size of any land.
  3. The Land Registrar in the resolution of land disputes exercised quasi-judicial authority and their decision was final. Any dissatisfied person could take out judicial review proceedings to quash the Land Registrar’s decision. Therefore, the applicant improperly invoked the jurisdiction of the court hence the instant suit was misconceived.

Originating Summons struck out and dismissed with costs to the Respondents.

 

 

 

 

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Murimi Kimotho Kimirio & Another V Lincoln Miano Kimotho [2014] eKLR

Case Number: Civil Suit 50 of 1994 Date Delivered: 21 Feb 2014

Judge: Joseph Kiplagat Sergon

Court: High Court at Nyeri

Parties: Murimi Kimotho Kimirio & Batholomew Gathogo Kimotho v Lincoln Miano Kimotho

Citation: Murimi Kimotho Kimirio & Another V Lincoln Miano Kimotho [2014] eKLR

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Kibuchi Ngirinu V Charles Muriuki Gakotho [2014] eKLR

Case Number: Environment & Lands' Case 415 of 2013 Date Delivered: 21 Feb 2014

Judge: Joseph Kiplagat Sergon

Court: Environment and Land Court at Nyeri

Parties: Kibuchi Ngirinu v Charles Muriuki Gakotho

Citation: Kibuchi Ngirinu V Charles Muriuki Gakotho [2014] eKLR

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Justus Kiniu Muindi & 4 Others V Senior Resident Magistrate, Kitui & 2 Others [2014] eKLR

Case Number: Civil Application 316 of 2012 Date Delivered: 21 Feb 2014

Judge: Philip Nyamu Waki

Court: Court of Appeal at Nairobi

Parties: Justus Kiniu Muindi & 4 others v Senior Resident Magistrate, Kitui & 2 others

Citation: Justus Kiniu Muindi & 4 Others V Senior Resident Magistrate, Kitui & 2 Others [2014] eKLR

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Nyeri Quarry Transporters Self Help Group V Municipal Council Of Nyeri & Town Clerk Municipal Council Of Nyeri [2014] eKLR

Case Number: Judical Review 7 of 2012 Date Delivered: 21 Feb 2014

Judge: Joseph Kiplagat Sergon

Court: High Court at Nyeri

Parties: Nyeri Quarry Transporters Self Help Group v Municipal Council of Nyeri & Town Clerk Municipal Council of Nyeri

Citation: Nyeri Quarry Transporters Self Help Group V Municipal Council Of Nyeri & Town Clerk Municipal Council Of Nyeri [2014] eKLR

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Timothy Maina Thiongo V George M. Kingori [2014] eKLR

Case Number: Misc.Case 207 of 2011 Date Delivered: 21 Feb 2014

Judge: Joseph Kiplagat Sergon

Court: High Court at Nyeri

Parties: Timothy Maina Thiongo v George M. Kingori

Citation: Timothy Maina Thiongo V George M. Kingori [2014] eKLR

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Basil Criticos V Independent Electoral And Boundaries Commission & 2 Others [2014] eKLR

Case Number: Civil Application 33 of 2013 Date Delivered: 21 Feb 2014

Judge: Hannah Magondi Okwengu

Court: Court of Appeal at Mombasa

Parties: Basil Criticos v The Independent Electoral And Boundaries Commission , Isaiah Saha Madzungu & Naomi Namsi Shaban

Citation: Basil Criticos V Independent Electoral And Boundaries Commission & 2 Others [2014] eKLR

The Law does not provide for extension of time for filing an appeal in election disputes

 

Basil Criticos V Independent Electoral and Boundaries Commission &Others

Civil Application No. Msa 33 of 2013

Court of Appeal at Mombasa

H.M Okwengu J.

February 21, 2014

 

Reported by Phoebe Ida Ayaya and MaryConcepter Nzakuva

 

 

Brief Facts

 

The Applicant, one of the unsuccessful contestants for the position of a Member of the National Assembly for Taveta Constituency during the 2013 national elections, brought an application before the Court of Appeal seeking for orders for extension of time for filing of an appeal against the judgment of the Election Petition court delivered on 27th September 2013.

 

The Applicant submitted that the delay in filing the appeal had been occasioned by the Court’s failure to avail to him in time copies of the proceedings in the High Court despite reminders from the applicant’s counsel. The Applicant’s counsel further submitted that the constitution does not impose any time limit on the Court of Appeal for determination of an appeal arising out of an Election Petition. He further argued that the Court of Appeal governs matters concerning appeals from the High Court and that the court has unfettered discretion in considering applications for extension of time.

 

The Applicant also asserted that the right of access to court granted by the constitution and the jurisdiction of Court of Appeal to hear parties couldn’t be taken away by time limit ouster clauses. He also said that the constitution does not limit the time for the Court of Appeal to determine matters arising out of Election Petitions and that Section 85 (A) of the Elections Act, 2011 which limits the time for filing appeals was ultra vires Article 59 and 164 of the Constitution of Kenya, 2010.

 

The 3rd Respondent sought to have the Notice of Appeal by the Applicant to be deemed to have been withdrawn because the Applicant failed to file an appeal within the stipulated time. He further objected the application by stressing that the court proceedings were available to the Applicant within reasonable time to enable filing of an appeal and that the law does not allow for extension of time for lodging an appeal in Election Petitions.

 

The 1st and 2nd Respondents argued that section 85 A of the Election Act,2011  provides for appeals to be filed within 30 days of the judgment and that there is no provision for extension of the time and that the Applicant had not met the conditions for extra time.

 

Issues:

 

1. Whether the Court of Appeal has jurisdiction to hear appeals arising from Election Petitions?

 

2. Whether Section 85 (A) of the Elections Act, 2011 which provides for right of appeal is ultra vires Articles 159 and 164 of the Constitution of Kenya   , 2010?

 

3. What happens when Rules are inconsistent with provisions of the Substantive Legislation?

 

4. Whether the law allows for extension of time in filing an appeal arising from a judgment on an Election Petition?

 

 

Jurisdiction- Appellate Jurisdiction to hear appeals from Election Petitions- Duty of the court to facilitate just and expedient determination of appeals-Whether the Court of Appeal has powers to hear appeals on election disputes- section 85 (A) of the Elections Act, 2011; Articles 87, 59 and 164 of the Constitution of Kenya, 2010

 

Constitutional Law-Judicial authority-Principles guiding courts in exercise of judicial authority-timely settlement of election disputes-Article 87 of the Constitution of Kenya, 2010-Whether is ultra vires section 85 (A) of the Elections Act, 2011- Articles 87, 59 and 164 of the Constitution of Kenya, 2010; section 85 (A) of the Elections Act, 2011

 

Elections Act, 2011- Section 85(A)-

Elections shall be determined and heard within the period specified-Election Petitions shall be filed within 30 days of determination by the High Court and heard and determined within 6 months of filing the appeal-Whether the Court of Appeal has the powers to extend time for filing an appeal in election disputes.

 

 

Held:

 

  1. The Court of Appeal has jurisdiction to hear election petitions by virtue of Section 85 of the Elections Act, 2011.
  2. Section 85 (A) of the Elections Act,2011 is not ultra vires Constitution of Kenya but plays a complimentary role in providing for right of appeal in election disputes. It does not take away the authority of the court to hear appeals under Article 164 of the Constitution of Kenya, 2010.
  3. The right to hear appeals from election petitions is tied to the timeline provided in the Elections Act, 2011.
  4. The right to hear appeals was balanced with the public interest of expeditious disposal of electoral disputes because it affects the public’s right of representation.
  5. The 30 days period for filing appeals in election disputes provided in the Elections Act prevails over the period of 60 days provides in the Court of Appeal rules, 2010.
  6. There was no provision for extension of time for filing an appeal in regard to time limited by the Elections Act, 2011.
  7. The court could not exercise its inherent jurisdiction or apply the oxygen principle to provide for extension of time for filing an appeal arising out of an election petition and it had a duty to ensure timely settlement of disputes
  8. Delay in filing the appeal was unreasonable and ought to have been explained.

 

Motion rejected

 

Cases

East Africa

  1. Daima Bank Limited (in liquidation) v David Ndetei Civil Appeal No 171 of 2010 – (Mentioned)
  2. Koros, Josiah Tariya Kipelian Ole  v David Ole Nkediye  & 3 others Petition No 6 of 2013 – (Mentioned)
  3. Mwangi v Kenya Airways Limited [2003] KLR 486 – (Mentioned)
  4. Nyeri Wholesalers Limited v Katsuri Limited Civil Appeal No 261 of 2010 – (Mentioned)
  5. Republic v Public Procurement Administrative Review Board & another Ex parte Selex Sistemi Integrati Miscellaneous Civil Application No 1260 of 2007 – (Mentioned)
  6. Timamy Issa Abdalla v Swaleh Imu & 3 others Civil Appeal No 26 of 2013 – (Followed)

Statutes

East Africa

  1. Appellate Jurisdiction Act (cap 9) sections 3(A); 3(B) – (Interpreted)
  2. Constitution of Kenya, 2010 articles 83,87,105(1); 159; 164 – (Interpreted)
  3. Court of Appeal Rules (cap 9 Sub Leg) rules 4,47,53(1); 82 – (Interpreted)
  4. Elections (Parliamentary and County Elections) Petition Rules 2013 (Act No 24 of 2011 Sub Leg) rule 35 – (Interpreted)
  5. Elections Act, 2011(Act No 24 of 2011) sections 85(A)(a)(b) – (Interpreted)

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