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Case Action: Ruling


Martin Nyaga Wambora V Attorney General & 2 Others [2015] eKLR

Case Number: Hccr Misc 3 of 2015 Date Delivered: 15 Jan 2015

Judge: Bwonwong'a Justus Momanyi

Court: High Court at Embu

Parties: Martin Nyaga Wambora v Attorney General, Inspector General Of Police & Director Of Public Prosecution

Citation: Martin Nyaga Wambora V Attorney General & 2 Others [2015] eKLR

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Republic V Daniel Muasa Kamande [2015] eKLR

Case Number: Criminal Case 79 of 2010 Date Delivered: 14 Jan 2015

Judge: Lilian Nabwire Mutende

Court: High Court at Machakos

Parties: Republic v Daniel Muasa Kamande

Citation: Republic V Daniel Muasa Kamande [2015] eKLR

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Trustees Of Kitale Club V Frank Wafula [2015] eKLR

Case Number: Land Case 165 of 2014 Date Delivered: 14 Jan 2015

Judge: Elija Ogoti Obaga

Court: High Court at Kitale

Parties: Trustees of Kitale Club v Frank Wafula

Citation: Trustees Of Kitale Club V Frank Wafula [2015] eKLR

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Ezekiel Katato & 2 Others V Wuapi Ole Sialala & 11 Others [2015] eKLR

Case Number: Civil Case 310 of 2011 Date Delivered: 14 Jan 2015

Judge: Lilian Nabwire Mutende

Court: High Court at Machakos

Parties: Ezekiel Katato, Simon Saisa & Taine Ladaro v Wuapi Ole Sialala, Nkalayi Ole Nchape, Kotikash Olosidai, Karrayia Kueka, Chichaai Matampash, Tarayia Ole Rosha,Tauta Ole Mungira, Pius Nyabuga, Josiah Kipelian Kores, Tarayia Ole Ntaru, Parkau Tompoi & William Singira

Citation: Ezekiel Katato & 2 Others V Wuapi Ole Sialala & 11 Others [2015] eKLR

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Peter Kimilu & Another V Kenya Petroleum Oil Workers Union [2015] eKLR

Case Number: Cause 69 of 2012 Date Delivered: 14 Jan 2015

Judge: Nelson Jorum Abuodha

Court: Employment and Labour Relations Court at Nairobi

Parties: Peter Kimilu & Kennedy Ogendi v Kenya Petroleum Oil Workers Union

Citation: Peter Kimilu & Another V Kenya Petroleum Oil Workers Union [2015] eKLR

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Roselyne Otago V Jonathan Nyangau [2015] eKLR

Case Number: Civil Case 180 of 2012 Date Delivered: 14 Jan 2015

Judge: Lilian Nabwire Mutende

Court: High Court at Machakos

Parties: Roselyne Otago v Jonathan Nyangau

Citation: Roselyne Otago V Jonathan Nyangau [2015] eKLR

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Francis Ntoruru & 8 Others V Francis Mithika & 6 Others [2015] eKLR

Case Number: ELC 12 of 2013 Date Delivered: 14 Jan 2015

Judge: Peter Muchoki Njoroge

Court: High Court at Meru

Parties: Francis Ntoruru & 8 others v Francis Mithika & 6 others

Citation: Francis Ntoruru & 8 Others V Francis Mithika & 6 Others [2015] eKLR

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Patrick Mithika V Joshua Mangati [2015] eKLR

Case Number: Environment and Land Case 104 of 2013 Date Delivered: 14 Jan 2015

Judge: Peter Muchoki Njoroge

Court: High Court at Meru

Parties: Patrick Mithika v Joshua Mangati

Citation: Patrick Mithika V Joshua Mangati [2015] eKLR

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Republic V District Land Registar Meru North District & Another N'nyaki Kimenyi Ex- Parte N'nyaki Kimenyi [2015 eKLR

Case Number: Misc. Application 70 of 2004 Date Delivered: 14 Jan 2015

Judge: Peter Muchoki Njoroge

Court: High Court at Meru

Parties: Republic v District Land Registar Meru North District & M'nkubitu Zachary Ex- Parte N'nyaki Kimenyi

Citation: Republic V District Land Registar Meru North District & Another N'nyaki Kimenyi Ex- Parte N'nyaki Kimenyi [2015 eKLR

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Moses Munene V Patrick Gikunda Kimathi [2015] eKLR

Case Number: HCC 140 of 2008 Date Delivered: 14 Jan 2015

Judge: Peter Muchoki Njoroge

Court: High Court at Meru

Parties: Moses Munene v Patrick Gikunda Kimathi

Citation: Moses Munene V Patrick Gikunda Kimathi [2015] eKLR

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Esther Nkatha Mukindia V Julius Kaai Munyua & 3 Others [2015] eKLR

Case Number: HCC 115 of 2012 Date Delivered: 14 Jan 2015

Judge: Peter Muchoki Njoroge

Court: High Court at Meru

Parties: Esther Nkatha Mukindia v Julius Kaai Munyua & 3 others

Citation: Esther Nkatha Mukindia V Julius Kaai Munyua & 3 Others [2015] eKLR

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Nthiori Mwithiga V M'ikiao Arachi [2015] eKLR

Case Number: Civil Suit 239 of 2012 Date Delivered: 14 Jan 2015

Judge: Peter Muchoki Njoroge

Court: High Court at Meru

Parties: Nthiori Mwithiga v M'ikiao Arach

Citation: Nthiori Mwithiga V M'ikiao Arachi [2015] eKLR

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Obadiah Kiiru Muchiri V Kiambu Club & Another [2015] eKLR

Case Number: Cause 1517 of 2010 Date Delivered: 13 Jan 2015

Judge: Nzioki wa Makau

Court: Employment and Labour Relations Court at Nairobi

Parties: Obadiah Kiiru Muchiri v Kiambu Club & Kiambu Club Registered Trustees

Citation: Obadiah Kiiru Muchiri V Kiambu Club & Another [2015] eKLR

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Cany Investments Limited V County Government Of Kiambu & Another [2015] eKLR

Case Number: ELC Miscelleneous Application 10 of 2014 Date Delivered: 13 Jan 2015

Judge: Boaz Nathan Olao

Court: Environment and Land Court at Kerugoya

Parties: Cany Investments Limited v County Government of Kiambu & another

Citation: Cany Investments Limited V County Government Of Kiambu & Another [2015] eKLR

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Girika Investments Limited V County Government Of Kiambu Thika Sub-County [2015] eKLR

Case Number: Miscelleneous Application 9 of 2014 Date Delivered: 13 Jan 2015

Judge: Boaz Nathan Olao

Court: High Court at Kerugoya

Parties: Girika Investments Limited v County Government of Kiambu Thika Sub-County

Citation: Girika Investments Limited V County Government Of Kiambu Thika Sub-County [2015] eKLR

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Attma Investments Limited V County Government Of Kiambu Thika Sub-County [2015] eKLR

Case Number: Elc Miscelleneous Application 7 of 2014 Date Delivered: 13 Jan 2015

Judge: Boaz Nathan Olao

Court: High Court at Kerugoya

Parties: Attma Investments Limited v County Government Of Kiambu Thika Sub-County

Citation: Attma Investments Limited V County Government Of Kiambu Thika Sub-County [2015] eKLR

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Abani Investments Limited V County Government Of Kiambu Thika Sub-County [2015] eKLR

Case Number: Miscelleneous Application 8 of 2014 Date Delivered: 13 Jan 2015

Judge: Boaz Nathan Olao

Court: High Court at Kerugoya

Parties: Abani Investments Limited v County Government of Kiambu Thika Sub-County

Citation: Abani Investments Limited V County Government Of Kiambu Thika Sub-County [2015] eKLR

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Transallied Limited V Sakai Trading Limited [2015] eKLR

Case Number: Civil Appeal 317 of 2011 Date Delivered: 12 Jan 2015

Judge: Alfred Mabeya

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Transallied Limited v Sakai Trading Limited

Citation: Transallied Limited V Sakai Trading Limited [2015] eKLR

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Deynes Muriithi & 3 Others (suing On Their Own Behalf And On Behalf Of [1047] Other Petitioners) V Law Society Of Kenya & Another [2015] eKLR

Case Number: Petition 507 of 2014 (Consolidated with Mombasa Petition 64 of 2014) Date Delivered: 09 Jan 2015

Judge: Mumbi Ngugi

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Deynes Muriithi, Alexander Muchemi, Anna Cherono Konuche & Paul Kariba Kibiku (suing on their own behalf and on behalf of 1047 other Petitioners) v Law Society of Kenya & Registrar of the High Court

Citation: Deynes Muriithi & 3 Others (suing On Their Own Behalf And On Behalf Of [1047] Other Petitioners) V Law Society Of Kenya & Another [2015] eKLR

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Hon Jimaldin Adan Ahmed & 10 Others V Hon Ali Ibrahim Roba & 2 Others [2015] eKLR

Case Number: Petition 629 of 2014 Date Delivered: 09 Jan 2015

Judge: Mumbi Ngugi

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Hon Jimaldin Adan Ahmed & 10 others v Hon Ali Ibrahim Roba & 2 others

Citation: Hon Jimaldin Adan Ahmed & 10 Others V Hon Ali Ibrahim Roba & 2 Others [2015] eKLR

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Daniel Ochengo Oendo V David Okerio Ogechi & 3 Others [2015] eKLR

Case Number: Petition 29 of 2013 Date Delivered: 09 Jan 2015

Judge: Ruth Nekoye Sitati

Court: High Court at Kisii

Parties: Daniel Ochengo Oendo v David Okerio Ogechi, Nyambane Nyanchongi, District Land Registrar Nyamira & Attorney General

Citation: Daniel Ochengo Oendo V David Okerio Ogechi & 3 Others [2015] eKLR

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George Ndege Okello V K-Rep Bank Limited & Another [2015] eKLR

Case Number: Civil Appeal 70 of 2010 Date Delivered: 09 Jan 2015

Judge: Ruth Nekoye Sitati

Court: High Court at Kisii

Parties: George Ndege Okello v K-Rep Bank Limited & Henry Owuor t/a Bomas Property Mangmnt Services

Citation: George Ndege Okello V K-Rep Bank Limited & Another [2015] eKLR

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Awadh Mohamed Awadh V Salim Mohamed Awadh & 3 Others [2015] eKLR

Case Number: Civil Appeal 35 of 2014 Date Delivered: 08 Jan 2015

Judge: Said Juma Chitembwe

Court: High Court at Malindi

Parties: Awadh Mohamed Awadh v Salim Mohamed Awadh & 3 others

Citation: Awadh Mohamed Awadh V Salim Mohamed Awadh & 3 Others [2015] eKLR

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Dominic Orendo Tinega V State [2015] eKLR

Case Number: Criminal Appeal 70 of 2014 Date Delivered: 06 Jan 2015

Judge: Nagillah Chrispin Beda

Court: High Court at Kisii

Parties: Dominic Orendo Tinega v State

Citation: Dominic Orendo Tinega V State [2015] eKLR

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Republic V Nasor Suleiman Mbaruk [2015] eKLR

Case Number: Criminal Case 29 of 2014 Date Delivered: 06 Jan 2015

Judge: Samwel Ndungu Mukunya

Court: High Court at Busia

Parties: Republic v Nasor Suleiman Mbaruk

Citation: Republic V Nasor Suleiman Mbaruk [2015] eKLR

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Communications Commission Of Kenya & 5 Others V Royal Media Services Limited & 5 Others [2015] eKLR

Case Number: Petition 14, 14A, 14B & 14C of 2014 Date Delivered: 05 Jan 2015

Judge: Mohammed Khadhar Ibrahim, Willy Munywoki Mutunga

Court: Supreme Court of Kenya

Parties: Communications Commission of Kenya, Attorney General, Ministry of Information Communications and Technology, Signet Kenya Limited, Pan African Network Group Kenya Limited & Startimes Media Limited v Royal Media Services Limited, Nation Media Services Limited, Standard Media Group Limited, Consumer Federation of Kenya (COFEK), Gotv Kenya Limited & West Media Limited

Citation: Communications Commission Of Kenya & 5 Others V Royal Media Services Limited & 5 Others [2015] eKLR

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Communications Commission Of Kenya & 5 Others V Royal Media Services Limited & 5 Others [2015] eKLR

Case Number: Petition 14 ,14A,14B & 14C of 2014 Date Delivered: 05 Jan 2015

Judge: Mohammed Khadhar Ibrahim, Willy Munywoki Mutunga

Court: Supreme Court of Kenya

Parties: Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others

Citation: Communications Commission Of Kenya & 5 Others V Royal Media Services Limited & 5 Others [2015] eKLR

Competency by a Two Judge To Hear an Application in a Matter where the Orders sought could Affect the Decisions of a Seven Judge Bench

Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others

Petitions 14, 14A, 14B & 14C of 2014 (Consolidated)

Supreme Court of Kenya at Nairobi

W. M. Mutunga, CJ; M. K. Ibrahim, SCJ

January 5, 2015

Reported by Phoebe Ida Ayaya

Brief Facts

A preliminary objection was raised to the hearing of a Notice of Motion, on the grounds that the application sought final substantive orders which would determine the proceedings and/or dispose of the issues before Court. This was argued as falling outside the purview of section 24(1) of the Supreme Court Act, 2011 and as such could not be heard and determined by a two judge bench.

Issues

  1. Whether a two judge bench was competent to hear an application in a matter where the orders sought could affect the decision of a seven judge bench.

Civil Practice and Procedure – preliminary objection – where the preliminary objection sought was filed subsequent to a notice of motion – where the matter was pending enforcement of judgment of a seven judge bench – where the preliminary objection was filed before a two judge bench – whether the two judge bench was competent to hear an application of a seven judge bench when the orders sought in the said objection could affect the orders of the seven judge bench – Supreme Court Act, 2011

Supreme Court Act, 2011

Section 24 Interlocutory orders and directions by the Court

(1) In any proceeding before the Supreme Court, any Judge of the Court may make any interlocutory orders and give any interlocutory directions as the judge thinks fit , other than an order or direction that determines the proceeding or disposes of a question or issue before the Court in the proceeding

Held

  1. The Court when constituted by two judges had to protect the integrity of the decision of a 7 Judge Bench.
  2. In the preliminary objection, the Court held that although the party had invoked section 24(1) of the Supreme Court Act, the provisions of the section usually contemplated interlocutory matters filed simultaneously with a petition or shortly after seeking interlocutory orders or directions at the onset of the proceedings. Presently, judgment had been rendered and all questions and issues conclusively disposed. The only remaining aspect was the enforcement and compliance of court orders.
  3. Through the orders previously given, and which were subject to the notice of motion and subsequent preliminary objection, the Court retained a residual jurisdiction to monitor and ensure compliance with the orders in the judgment through a mention to be heard by the full bench that initially heard the appeal.
  4. Any orders given by a two-judge bench of the Court, as constituted, could lead to inconsistency and even interference with the judgment. The right bench to hear the application would be the full bench of seven judges who heard the case in the first place.

Preliminary objection upheld

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Mbulwa Maingi V Veronica Nthamba [2015] eKLR

Case Number: Succession Cause 1127 of 2002 Date Delivered: 05 Jan 2015

Judge: Margaret Waringa Muigai

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Mbulwa Maingi v Veronica Nthamba

Citation: Mbulwa Maingi V Veronica Nthamba [2015] eKLR

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Coalition For Reform And Democracy (CORD) & Another V Republic Of Kenya & Another [2015] eKLR

Case Number: Petition Nos 628 & 630 of 2014 (Consolidated) Date Delivered: 02 Jan 2015

Judge: George Vincent Odunga

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Coalition for Reform and Democracy (CORD) & Kenya National Commission on Human Rights (KNCHR) v Republic of Kenya & Attorney General

Citation: Coalition For Reform And Democracy (CORD) & Another V Republic Of Kenya & Another [2015] eKLR

Court grants orders to suspend certain sections of the Securities Laws (Amendment) Act

 

Coalition for Reform and Democracy (CORD) & another v Republic of Kenya & 7 others

Petition No 628 & 630 of 2014

High Court of Kenya at Nairobi

Constitutional and Human Rights Division

G V Odunga, J

January 2, 2015

 

Reported by Beryl A Ikamari

 

Brief facts

The Securities Laws (Amendment) Act, No 19 of 2014, was enacted by the National Assembly and assented to by the President of the Republic of Kenya on December 19, 2014. In response, two Petitions (Petition 628 & 630 of 2014) were lodged in Court to challenge the constitutionality of the Act. The Petitions were consolidated.

With respect to the operationalization of the Act, while the Petition was still pending in Court, two applications were made. The 1st Petitioner (CORD) sought the suspension of a selection of provisions within the Act while the 2nd Petitioner (Kenya National Commission on Human Rights KNCHR) sought the suspension of the operationalization of the whole Act.

 

Issues

  1. Whether the Court had jurisdiction to grant conservatory orders against the operationalization of a statute alleged to be unconstitutional.
  2. Whether public officers, Senators, could be allowed to participate in legal proceedings as Legal Counsel.
  3. Whether a challenge allegedly brought at the Senate against a statute would bar a challenge in lodged in Court against the same statute.
  4. Circumstances in which conservatory orders would be granted.
  5. Circumstances in which the Court would order for the constitution of a bench of more than one High Court Judge.

Jurisdiction-jurisdiction of the High Court-jurisdiction to grant conservatory orders-grant of conservatory orders against the operationalization of a statute-whether the operationalization of a statute or certain sections of a statute alleged to be unconstitutional could be suspended-Constitution of Kenya 2010; articles 1 & 23.

Advocates-professional ethics and practice-legal practice-legality of Senators appearing before court as Legal Counsel

Judiciary-judges-constitution of a bench of an uneven number of judges-circumstances in which orders could be granted for the constitution of a bench of an uneven number of judges-Constitution of Kenya 2010, article 165(4)

 

Held

  1. The Court had power to declare a statute null and void and it therefore, also had the power to suspend the provisions of a statute, if it was necessary in preserving the substratum of the suit and the effectiveness of the Court’s final decision.
  2. Under Article 1 of the Constitution of Kenya 2010, sovereign power belonged to the people and was to be exercised in accordance with the Constitution. That sovereign power was donated to the National Executive and Executive structures in County Governments, the Legislature and the Judiciary. However, that power was to be exercised in accordance with the provisions of the Constitution.
  3. Article 23 of the Constitution of Kenya 2010 did not bar the Court from granting conservatory orders where the constitutionality of a statute was challenged. However, article 23 was applicable to a suit which concerned the enforcement of fundamental rights and freedoms.
  4. The power to suspend the operationalization of a statute was to be exercised very sparingly and only where the Court was satisfied that such power to suspend a statute ought to be exercised.
  5. The presumption of constitutionality of a statute was a rebuttable principle. The onus of rebutting the presumption would rest on those who challenged the legislation’s status. However, it was those who supported a restriction on a fundamental right, relying on a claw back or exclusion clause that had the onus to justify the restriction.
  6. It was necessary to provide evidence that the Senators’ participation in the proceedings as Legal Counsel was inherently incompatible or fundamentally in conflict with their role in the legislature. (John Okelo Nagafwa v Independent Electoral & Boundaries Commission & 2 others [2013] eKLR).
  7. The Petition was drawn by the firm of A T Oluoch & Co Advocates and therefore it could not be struck out even if the Senators’ participation in the proceedings had been inappropriate as alleged.
  8. There was no evidence that a challenge to the statute had been made at the Senate. While it was the Legislature’s role to enact a statute, it was the Judiciary’s role to consider the wording of the statute in light of the Constitution and fundamental rights and freedoms.
  9. The High Court, under article 165(3)(d)(ii) of the Constitution of Kenya 2010, had the jurisdiction to hear any question on the interpretation of the Constitution including a determination on whether anything said to be done under the authority of the Constitution or of any law, was inconsistent with or in contravention of the Constitution.
  10. For conservatory orders to be granted, the applicant would be required to demonstrate the existence of a prima facie case and also to show that unless the conservatory orders were granted there was real danger which could be prejudicial to the Applicant.
  11. In demonstrating the existence of a prima facie case, the Applicant had raised various issues including;
  • The unconstitutionality of the statute on grounds that it was not passed in accordance with the Standing Orders of the National Assembly. It was alleged that the question as to whether the statute concerned County Government was decided on after the 1st reading of the Bill while the law required that it would be decided on before the 1st reading. It was also alleged that the Speaker of the National Assembly did not involve the Senate in determining whether the Bill concerned County Governments.
  • The unconstitutionality of the statute on grounds that it was passed in a chaotic manner. It was alleged that there were strangers in the House who participated in the vote by yelling aye or nay and that the process itself turned into mayhem, chaos and disorderly and shameful conduct was exhibited.
  • The alleged lack of public participation in the passage of the Bill. It was alleged that the statute entailed a large number of amendments which could not adequately be considered by the public in the period in which public participation was to be done.
  • That the statute had the effect of eroding the Bill of Rights.  Particularly, it was alleged that the right to a fair trial would be compromised as witness statements would only be provided immediately before the hearing and it also affected the constitutional requirements on arraignment in court, charge and expeditious trial.
  • That the statute would breach international Conventions and Treaties by limiting the number of refugees in Kenya to a maximum of 150, 000 whilst the refugees already in Kenya were in excess of that number.
  1. For orders for the constitution of a bench of more than one judge to be made, the Court would not only need to be satisfied that the matter raised a claim of a denial, violation, infringement or threat to a fundamental right and freedom in the Bill of Rights, or raised an issue on the interpretation of the Constitution, the Court would also need to be satisfied that the matter raised a substantial question of law. Those considerations would be in line with the provisions of article 165(4) of the Constitution of Kenya 2010.
  2. Other factors that a Court would consider in deciding on whether to constitute a bench include: -
  • Whether the issue was moot, in the sense that it raised a novel point;
  • Whether the matter was complex;
  • Whether the matter, by its nature, required a substantial amount of time to be disposed of; and,
  • The effect of the prayers sought in the Petition and the level of public interest generated by the Petition.
  1. Generally, the fact that the parties to a Petition were in agreement that the Petition warranted the constitution of a bench of judges would not bind the Court to make orders for the constitution of such a bench.
  2. The Petition raised substantial questions of law which warranted the empanelling of a bench of an uneven number of judges, being not less than 3 judges.
  3. In accordance with the principle that a law was only void if it was inconsistent with the Constitution to the extent of its inconsistency, the Court would not suspend the whole statute but would only suspend the provisions that were offensive.
  4. The following provisions of the Securities Laws (Amendment) Act, No 19 of 2014 warranted the grant of conservatory orders suspending their operationalization;
  • Clause 12 which inserted section 66A to the Penal Code (Cap 63) and limited the freedom of the media, imposing a fine of Kshs. 5, 000, 000 or 3 years imprisonment.
  • Clause 16 which inserted section 42A to the Evidence Act (Cap 80) and limited the accused’s access to evidence until immediately before the hearing.
  • Clause 29 which inserted section 59A to the Evidence Act (Cap 80) and introduced a summary procedure to criminal proceedings in the form of proof by notice called an agreement.
  • Clause 48 which introduced section 16A to the Refugees Act, No 13 of 2006, limiting the maximum number of refugees to 150, 000.
  • Clause 56 which introduced special operations including covert operations meant to neutralize threats against national security.
  • Clause 58 which replaced the word ‘Parliament’ with the word ‘National Assembly’ effectively excluding the Senate from playing an oversight role in the National Intelligence Service.  Clause 58 amended Section 65 of the National Intelligence Service Act, No 28 of 2012.
  • Clause 64 which introduced the offence of publication of offending material, defined as a publication or a statement likely to be understood as directly or indirectly encouraging or inducing another person to commit or prepare to commit an act of terrorism. The Clause was suspended to the extent that introduced section 30A & 30F of the Prevention of Terrorism Act, No 30 of 2012.

Petition partly allowed. (Conservation orders were granted against the operationalization of certain sections of the Securities Laws (Amendment) Act, No 19 of 2014. Additionally orders for the constitution of a bench of an uneven number of judges were issued.)

Cases

East Africa

  1. Anarita Karimi NJeru v Republic (No 1) (1976-1980) 1 KLR 1272 – (Explained)

  2. Centre for Rights Education & Awareness (CREAW) & 8 others v Attorney General & another Petition 208 & 207 of 2012 -(Followed)

  3. Centre for Human Rights and Democracy & others v Judges & Magistrates Vetting Board & 2 others Petition No 11 of 2012 - ( Followed)

  4. Gakuru ,Robert N & another v Governor Kiambu County & 3 others Petition 532 of 2013 - (Followed)

  5. Habre International Co Ltd v Kassam and Others [1999] 1 EA 125 – (Followed)

  6. Judicial Service Commission v Speaker of the National Assembly & another Petition 518 of 2013 – (Followed)

  7. Julius Ishengoma Francis Ndyanabo v Attorney General [2001] 2 EA 485 - (Explained)

  8. Kaguru ,Susan Wambui & 7 others v Attorney General & another Petition 545 & 553 of 2012 - (Explained)

  9. Kamau ,Jesse & 25 others v Attorney General & another Miscellaneous Civil Application No 890 of 2004 – (Followed)

  10. Kega ,Kanini v Okoa Kenya Movement & 6 others Petition No 427 of 2014 – (Mentioned)

  11. Kiguru ,Joseph & 3 others v County Government of Laikipia Petition 37 of 2014 - (Followed)

  12. Kimani , Joseph & 2 others v Attorney General & 2 others Constitutional Petition 4 of 2010 – (Mentioned)

  13. Kimani ,Wanjiru v Evanson Kimani Njoroge Civil Appeal 79 of 1997 - (Explained)

  14. Kinyanjui ,Harrison v Attorney General & another Petition No 74 of 2011 – (Followed)

  15. Kinyanjui v Kinyanjui [1995-98] 1 EA 146 - (Followed)

  16. Kizito Mark Ngaywa v Minister of State for Internal Security and Provincial Administration & another Petition No 4 of 2011 – (Followed)

  17. Macharia v Murathe & Another Election Petition No 21 of 1998 [2008] 2 KLR (EP) 189 – (Followed)

  18. Matemu ,Mumo v Trusted Society of Human Rights Alliance & 5 others civil appeal No 290 of 2012 – (Explained)

  19. Munya , Gatirau Peter v Dickson Mwenda Kithinji & 2 others Petition No 2B of 2014(Followed)

  20. Mureithi & 2 others (For Mbari Ya Murathimi Clan) v Attorney General & 5 others [2006] 1 KLR 443 - (Mentioned)

  21. Muslims for Human Rights (MUHURI) & 2 others v Attorney General & 2 others Petition No 7 of 2011 - (Mentioned)

  22. Nabori & 9 others v Attorney General & 3 others [2007] 2 KLR 331 – (Followed)

  23. Nagafwa ,John Okelo v Independent Electorial & Bounderies Commission & 2 others Election Petition No 3 of 2013 - (Followed)

  24. Ndyanabo v Attorney General [2001] 2 EA 485 – (Followed)

  25. Njoya & 6 others v Attorney General & another No 82 of 2004 [2004] 1 KLR 232; [2008] 2 KLR (EP) 624 (HCK) – (Explained)

  26. Oloka-Onyango & 9 others v Attorney General, Petition No 08 OF 2014 [2014] UGCC 14 - (Followed)

  27. Owners of the Motor Vessel “Lilian S” v Caltex Oil (Kenya) Limited [1989] KLR 1 – (Followed)

  28. Republic v Judicial Commission of Inquiry Into The Goldenberg Affair, Honourable Mr Justice of Appeal Bosire & another ex parte Honourable Professor Saitoti [2007] 2 EA 392; [2006] 2 KLR 400 -(Mentioned)

  29. Republic v Public Procurement Administrative Review Board & Another Ex Parte Selex Sistemi Integrati Miscellaneous Civil Application No 1260 of 2007 [2008] KLR 728 – (Followed)

  30. Speaker of the Senate & Another v Hon Attorney-General & others Advisory Opinion No 2 of 2013 - (Explained)

  31. V/D Berg Roses Kenya Limited & another v Attorney General & 2 others Civil Case 9 of 2011- (Mentioned)

South Africa

  1. Doctors for Life International v Speaker of the National Assembly & others (CCT12/05) [2006] ZACC 11; 2006 (12) BCLR 1399 (CC); 2006(6) SA 416 (CC) (17 August 2006) – (Followed)

  2. Matatiele Municipality and Others v President of the Republic of South Africa and Others (2) (CCT73/05A) [2006] ZACC 12; 2007 (1) BCLR 47 (CC) – (Followed)

Trinidad and Tobago

  1. Attorney General v Sumair Bansraj (1985) 38 WIR 286 - (Followed)

  2. Steve Furgoson & Another v Attornry General & another Claim No CV 2008 – 00639 - (Followed)

India

  1. Chunilal V Mehta v Century Spinning and Manufacturing Co AIR 1962 SC 1314 - (Followed)

  2. Santosh Hazari v Purushottam Tiwari (2001) 3 SCC 179 - (Followed)

  3. Union for Civil Liberties & another v Union of India Writ Petition (civil) 389 of 2002 – (Explained)

Statutes

East Africa

  1. Constitution of Kenya,2010 articles 1(3); 2(5) (6) ; 10; 12; 19(1); 21(1); 22; 23 ; 24; 25; 28; 29(d); 49; 50(2) (1)(j); 60; 77(3); 93; 94; 95 ;109(3) (4) ; 110 (3) (4) ; 114(2) ; 115; 117(1) ; 118(1) ; 122(1) (2) ; 127(3) ; 131(2); 157 ; 165(3)(d)(ii),(4) ; 245; 249; 256 (1) (c) 2 ; 260 ;section 7 of Schedule 6 - (Interpreted)

  2. Criminal Procedure Code (cap 75) sections 42(2); 42A ; 344(a) - (Interpreted)

  3. Evidence Act (cap 80) sections 20A , 59(a) - (Interpreted)

  4. Firearms Act (cap 114) section 2 ,4 - (Interpreted)

  5. Penal Code (cap 63) section 66A (1) (2) -(Interpreted)

  6. Public Order Act (cap 56) sections 8, 9 - (Interpreted)

  7. Prevention of Terrorism Act,2012 (Act No 30 of 2012) section 30 , 30F (1) (2) - (Interpreted)

  8. Refugees Act, 2006 (Act No 13 of 2006) section 16A - (Interpreted)

  9. Registration of Persons Act (cap 107) section 18A - (Interpreted)

  10. National Intelligence Service Act,2012 (Act No 28 of 2012) sections 12, 42, 58, 65 -(Interpreted)

  11. Security Laws (Amendment) Act, 2014( Act No 19 of 2014) sections 4, 5, 12, 16, 25, 26, 29, 34, 36A , 48, 56, 58 , 64 , 86 - (Interpreted)

India

  1. Prevention of Terrorism Act, 2002 (POTA)

Texts & Journals

  1. Jain, T., (Ed) (2007) Presumption of Constitutionality

  2. Burrows, R., (Ed) (1945) Words and Phrases Judicially Defined London:Butterworth Vol 3: I-N p 13

International Instruments

  1. African (Banjul) Charter on Human and Peoples Rights (1986)

  2. Convention and Protocol Relating to Status of Refugees (( 1951)

  3. International Covenant on Civil and Political Rights (1966)

  4. United Nations Universal Declaration of Human Rights ( 1948)

Advocates

  1. Hon James Orengo, SC, H E Kalonzo Musyoka, Senator Amos Wako, SC, Senator Moses Wetangula, Senator Judy Sijeny, Mr Paul Mwangi and Mr Antony Oluoch for the 1st Petitioner.

  2. Ms Jerusha Shivutse and Mr Kiprono for the 2nd Petitioner.

  3. Mr Njoroge for the Respondent.

  4. Dr Maingi for the 1st interested party.

  5. Mr Gitau Singh and Mr Evans Monari for 2nd Interested Party.

  6. Dr Khaminwa for the 3rd Interested party.

  7. Mr Lempaa for the 4th Interested party.

  8. Dr Nzamba Kitonga for the 1st Amicus Curiae.

  9. Mr Paul Nyamodi for the 2nd Amicus Curiae.

 

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Hoggers Limited V Public Procurement Administrative Review Board & 2 Others [2015] eKLR

Case Number: J.R. Misc Appl. 477 of 2014 Date Delivered: 02 Jan 2015

Judge: George Vincent Odunga

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Hoggers Limited v Public Procurement Administrative Review Board, Suzan General Trading & Kenya Airports Authority

Citation: Hoggers Limited V Public Procurement Administrative Review Board & 2 Others [2015] eKLR

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Simon Mwaniki Miru (Suing As The Legal Representative Of The Estate Of Miru Kamwende - Deceased) V Esther Njoki Muriuki [2015] eKLR

Case Number: E.L.C.126 of 2014 Date Delivered: 02 Jan 2015

Judge: Bwonwong'a Justus Momanyi

Court: High Court at Embu

Parties: Simon Mwaniki Miru (Suing as the legal representative of the Estate of Miru Kamwende - Deceased) v Esther Njoki Muriuki

Citation: Simon Mwaniki Miru (Suing As The Legal Representative Of The Estate Of Miru Kamwende - Deceased) V Esther Njoki Muriuki [2015] eKLR

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Republic V Mary Atai Mung'au [2015] eKLR

Case Number: Criminal Case 94 of 2014 Date Delivered: 31 Dec 2014

Judge: Abigail Mshila

Court: High Court at Nakuru

Parties: Republic v Mary Atai Mung'au

Citation: Republic V Mary Atai Mung'au [2015] eKLR

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Jacinta Nyawira Ndirangu V Republic [2014] eKLR

Case Number: Criminal Appeal 287 of 2014 Date Delivered: 31 Dec 2014

Judge: Abigail Mshila

Court: High Court at Nakuru

Parties: Jacinta Nyawira Ndirangu v Republic

Citation: Jacinta Nyawira Ndirangu V Republic [2014] eKLR

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Justus Kariuki Mate & Another V Martin Nyaga Wambora & Another [2014] eKLR

Case Number: Civil Application 37 of 2014 Date Delivered: 29 Dec 2014

Judge: Philip Kiptoo Tunoi, Susanna Njoki Ndung'u

Court: Supreme Court of Kenya

Parties: Justus Kariuki Mate & Jim G. Kauma v Martin Nyaga Wambora & County Government of Embu

Citation: Justus Kariuki Mate & Another V Martin Nyaga Wambora & Another [2014] eKLR

Supreme Court stays execution of court orders

Justus Kariuki Mate & Another v Martin Nyaga Wambora & another

Supreme Court of Kenya

Civil Application No. 37 of 2014

P.K. Tunoi & N.S. Ndungu, SCJJ.

December 29, 2014

Reported by Emma Kinya Mwobobia

 

Issues:

  1. Whether the matter before Court of general public importance under article 163(4)(b) of the Constitution and thus merit a determination by the Supreme Court
  2. Whether the appeal raised sufficient grounds to warrant a stay of execution of the Court of Appeal’s decision

Jurisdiction – jurisdiction of the Supreme Court – interpretation and application of the Constitution – jurisdiction of the Supreme Court in interpretation or application of the Constitution in matters of general public importance – whether the issues raised were considered matters of general public importance – Constitution of Kenya, 2010 article 163(4)

Civil Practice and Procedure – stay – stay of execution – stay of execution of the Court of appeal decision – application for a stay of execution of the court judgment and orders pending hearing and determination of the appeal – whether the application was valid in the circumstances

 

Held:

  1. The determination of the question whether the High Court exceeded its jurisdiction by finding the applicants to be in contempt of a Court Order called for the interpretation and application of the Constitution which was the criterion of jurisdiction of the Supreme Court by the terms of article 163(4)(a) of the Constitution.
  2. The issues raised were not only cognizable but also weighty constitutional questions that were, prima facie, arguable. As significant as the issues in contest were, it was not possible to resolve them with finality in the context of the preliminary motion.
  3. If the Supreme Court was to decline to maintain the status quo, the High Court would proceed to take mitigation and then sentence the applicants. There was a likelihood, in that case, that the applicants would be incarcerated and the substratum of the appeal-cause would have been spent. In the event that the Supreme Court eventually found in favour of the applicants, it would be impossible to compensate them by way of costs. In the alternative, if the Court found in favour of the respondents, no harm would have been occasioned to them.
  4. The determination of the extent of application of the doctrine of separation of powers, which was a vital constitutional concept was a matter of public interest.
  5. The respondents’ case rested on fundamental constitutional questions not yet interpreted and which bore a close relation to the appellants’ case and hence the need for an interpretation of the Constitution ahead of the application of the standard law of contempt. 

Application allowed. Execution of the Court of Appeal orders to rest in abeyance and status quo to be maintained pending the determination of the appeal. Hearing date of the pending appeal to be issued by the Registrar on priority basis. The costs of this application shall abide the appeal.

Cases

East Africa

  1. Aramat, Lemanken v Harun Meitamei Lempaka & 2 others Civil Application No 8 of 2014 – (Mentioned)

  2. Commercial Bank of Africa v Ndirangu, (1990-1994) EA 64 – (Explained)

  3. Erad Suppliers & General Contractors limited v National Cereals and Produce Board Petition No 5 of 2012 - (Mentioned)

  4. Joho ,Hassan Ali & Another v Suleiman Said Shahbal & 2 others Petition No 10 of 2013 – (Explained)

  5. Kenya Section of the International Commission of Jurist v Attorney-General & 2 others Criminal Appeal No 1 of 2012 – (Mentioned)

  6. Kidero ,Evans Odhiambo & 5 others v Ferdinand Ndungu Waititu & 4 others Petition No 18 of 2014 – (Followed)

  7. Macharia,SK & Another v Kenya Commercial Bank & 2 others Application no 2 of 2011 - (Explained)

  8. Munene ,Mary Wambui v Peter Gichuki Kangara & 2 others Application No 12 of 2014 – (Explained)

  9. Munya ,Gatirau Peter v Dickson Mwenda Kithinji & 2 ohers Application No 5 of 2014 – (Followed)

  10. Mumo Matemu v Trusted Society of Human Rights Alliance, Civil Appeal No 290 of 2012 – (Explained)

  11. Mwangi ,Njenga & Another v Truth Justice and Reconciliation Commission & 4 others, Court Petition No 286 of 2013 – (Explained)

  12. Okoiti ,Okiya Omtatah & 3 others v Attorney-General & 5 others Petition 227 ,281 & 282 of 2013 (consolidated)(Explained)

  13. Speaker of Senate & Another v Attorney General & 3 others, Advisory Opinion No2 of 2013- (Explained)

  14. Wanjohi ,George v Steven Kariuki & 2 others Application No 6 of 2014.

South Africa

  1. Doctors for Life International v Speaker of the National Assembly & others (CCT 12/05), [2006] ZACC 11 - (Explained)

  2. National Coalition for Gay and Lesbian Equity & 13 others v Minister for Home Affairs and others, (CCT10/99), [1999] ZACC 17– Petition 227 ,281 & 282 of 2013 (consolidated) - (Explained)

United Kingdom

  1. Hadkinson v Hadkinson [1952] 2 All ER 567 - (Explained)

Statutes

East Africa

  1. Constitution of Kenya,2010 articles 6,10, 159 (2) (e); 163(4)(a) ;174; 175 ; 177(1) (d) ; 178; 179 ; 185 (1) (2) ;196 (3) - (Interpreted)

  2. Supreme Court Act, 2011 (Act No 7 of 2011) sections 15,16, 19, 24(1) - (Interpreted)

  3. Supreme Court Rules, 2012 (Sub Leg Act No 7 of 2011) rules 23 , 24, 26(1) - (Interpreted)

International Instruments

  1. Latimer House Guidelines for the Commonwealth on Parliamentary Supremacy and Judicial Independence (1998)

  2. Commonwealth Principles on the Accountability of and the Relationship between the three Arms of Government (2003)

Advocates

  1. Prof Tom Ojienda for the Applicant's

  2. Mr Muite for the Respondent's

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Kenafric Industries Limited V Bakery Confectionary Food Manufacturing And Allied Workers Union [2014] eKLR

Case Number: Cause 248 of 2014 Date Delivered: 24 Dec 2014

Judge: Nzioki wa Makau

Court: Employment and Labour Relations Court at Nairobi

Parties: Kenafric Industries Limited v Bakery Confectionary Food Manufacturing and Allied Workers Union

Citation: Kenafric Industries Limited V Bakery Confectionary Food Manufacturing And Allied Workers Union [2014] eKLR

Mandatory Requirement to Register Collective Bargaining Agreements

Kenafric Industries Limited  v Bakery Confectionary Food

Manufacturing and Allied Workers Union

Industrial Court of Kenya at Nairobi

CA No. 248 of 2014

Nzioki  wa Makau J.

December 24, 2014

Reported by Emma Kinya Mwobobia

Brief facts

The Collective Bargaining Agreement (CBA) between the employer and employees was objected to by the Employer/Applicant when the CBA came up for registration. The CBA related to the period 2015-2016. The employer had served a notice to negotiate the CBA and thus sought deferment of the CBA for 45 days. The Union opposed the request and submitted that the CBA was negotiated and duly signed. It was thereafter forwarded to the Ministry whereupon the employer sought to renegotiate. A report was done which pointed out that the Employer had an issue with 16 clauses and it seemed that the Employer wanted to negotiate the CBA afresh.

Issue:

Whether an unregistered Collective Bargaining Agreement was enforceable against an employer where the onus for registration was on the employer

Employment Law – Collective Bargaining Agreements – Agreements made between a trade and an employer – concerning terms and conditions of employment – requirement for registration of such an agreement by the employer for enforceability – where the employer had not registered the agreement – whether the inadequacies of the employer could be visited upon the employees – whether such an agreement was enforceable in the circumstances – Employment Act 2007 section 2; Labour Relations Act 2007 section 2; Industrial Court (Procedure) Rules 2010 rule 35

The Labour Relations Act 2007

Section 2 defines collective agreement as follows:-

collective agreementmeans a written agreement concerning any terms and conditions of employment made between a trade union and an employer, group of employers or organisation of employers;

 

 The Employment Act 2007

Section 2 defines it as follows:-

 “collective agreement” means a registered agreement concerning any terms and conditions of employment made in writing between a trade union and an employer, group of employers or employers’ organization”;

The Industrial Court (Procedure) Rules 2010 makes provision on collective agreements under Rule 35 as follows:-

 35. Collective Agreements.

 (1) An employer or an organization of employers that have entered into a collective agreement shall lodge a copy of the agreement with the Minister within fourteen days of its execution.

 (2) The Minister shall furnish the Court with a copy of each collective agreement that has been lodged with the Minister pursuant to this Rule, and the Minister may also furnish the Court with such information and comments as the Minister considers necessary.

 (3) Where the Minister objects to the registration of a collective agreement, a copy of the agreement furnished to the Court shall be accompanied by a statement of the objection giving reasons for objection.

 (4) The Court shall maintain a register of collective agreements that have been accepted by the Court for registration.

 (5) A collective agreement shall not take effect until it has been registered by the Court.

Held:

  1. The substantive law on Collective Bargaining Agreements was contained in Section 60 of the Labour Relations Act. Indeed that was the Section cited by the Minister as he presented the collective bargaining agreements to Court for registration and therefore, the Collective Bargaining Agreement attained its legal enforceability upon registration by the Industrial Court. Prior to that, it was an intention of parties that could be referred to, but could only attain the status of legally binding and enforceable upon registration by the Court.
  2. The parties to the agreement in dispute had entered into the agreement in 2012 yet the agreement was presented in 2014 contrary to statute and thus in breach of the law. In the premises the Court deferred the registration of the CBA for 45 days to allow parties to renegotiate and present it for registration in short shrift. The law had provided that there would be no vacuum and the existing CBA would hold for and ought to continue to have the full force of the law pending the resolution of the dispute within 45 days.
  3. The dispute had demonstrated that the best time to register the CBA was shortly after its conclusion as a party to the agreement may over time begin to entertain a different idea or encounter different circumstances. There was nothing to bar the Union or employer from presenting the agreement for registration in 2012 or 2013. As a result of the 2 year delay the employer had had a change of mind in regard to some of the issues initially agreed.

Each party to bear their own costs.

 

Cases

East Africa

  1. Said Ndege v Steel Makers Limited Cause No 158 of 2013 – (Followed)

Statutes

East Africa

  1. Labour Relations Act, 2007 (Act No 14 of 2007) sections 59(5); 60 – (Interpreted)
  2. Employment Act, 2007 (Act No 11 of 2007) In general – (Interpreted)
  3. Industrial Court (Procedure) Rules, 2010 (Act No 20 of 2011 Sub Leg) rule 35 – (Unconstitutional)

Advocates: None Mentioned

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F M K V S W M [2014] eKLR

Case Number: Civil Appeal 82 of 2012 Date Delivered: 23 Dec 2014

Judge: Rose Edwina Atieno Ougo

Court: High Court at Nairobi (Milimani Law Courts)

Parties: F M K v S W M

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

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Republic V Jeniffer Wanjiru Ng’ang’a [2014] eKLR

Case Number: Criminal Case 77 of 2011 Date Delivered: 23 Dec 2014

Judge: Jessie Wanjiku Lessit

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Republic v Jeniffer Wanjiru Ng’ang’a

Citation: Republic V Jeniffer Wanjiru Ng’ang’a [2014] eKLR

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Republic V Dedan Mburu Njoroge & Another [2014] eKLR

Case Number: Criminal Case 84 of 2014 Date Delivered: 23 Dec 2014

Judge: Jessie Wanjiku Lessit

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Republic v Dedan Mburu Njoroge & Dickson Lewangu Lenane

Citation: Republic V Dedan Mburu Njoroge & Another [2014] eKLR

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Republic V Charles Karanja Wanjiru [2014] eKLR

Case Number: Criminal Case 66 of 2014 Date Delivered: 23 Dec 2014

Judge: Jessie Wanjiku Lessit

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Republic v Charles Karanja Wanjiru

Citation: Republic V Charles Karanja Wanjiru [2014] eKLR

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Republic V Edward Emusinge Nandukule & Another [2014] eKLR

Case Number: Criminal Case 106 of 2014 Date Delivered: 23 Dec 2014

Judge: Jessie Wanjiku Lessit

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Republic v Edward Emusinge Nandukule & Joel Kimathi Kilaku

Citation: Republic V Edward Emusinge Nandukule & Another [2014] eKLR

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Muslims For Human Rights (MUHURI) & 4 Others V Inspector General Of Police & 2 Others [2014] eKLR

Case Number: Petition 62 of 2014 Date Delivered: 23 Dec 2014

Judge: Edward Muthoga Muriithi

Court: High Court at Mombasa

Parties: Muslims for Human Rights (MUHURI), Ali Bakari Mohamed, Ahmed Omar, Amina Shakir & Noodin A. Saney v Inspector General of Police, Attorney General & Cabinet Secretary Ministry of Interior & Co-ordination of National Affairs

Citation: Muslims For Human Rights (MUHURI) & 4 Others V Inspector General Of Police & 2 Others [2014] eKLR

Court orders parties to agree on how to balance security concerns and the rights of the residents following the Lamu Curfew

 

Muslims for Human Rights (Muhuri) and 4 Others V Inspector General of Police and 2 Others

Petition No. 62 Of 2014

High Court of Kenya at Mombasa

Edward M. Muriithi J.

December 23, 2014.

Reported by Njeri Githang’a

 

 

Brief facts

The case before the court was predicated upon alleged contravention of the Bill of Rights by the imposition of a curfew by the Inspector General of Police, in Lamu purportedly in exercise of powers conferred upon the former office of Police Commissioner under the Public Order Act cap 56. It was reasoned that the Constitution of Kenya, 2010 did not contemplate imposition of curfew and the Inspector General of Police was not empowered to declare a curfew and that, in any event, the extent of the curfew in terms of duration and area was unlawful.  It was also contended that the imposition of curfew specially affected and discriminated against the residents of Lamu on account of their religion, socio-economic activity and geographical climatic realities.

 

The petitioners hence sought for an order of injunction lifting the curfew imposed by the Inspector general of Police as an interim relief pending the hearing and determination of the main Petition.

 

 

Issues

         i.            What were the principles for the grant of injunction or conservatory orders under the constitutional litigation?

       ii.            Whether the fact that the Constitution did not set out the power to order a curfew as with the state of emergency, the Constitution had outlawed the curfew provisions set out in the prior Public Order Act. 

      iii.            Whether the powers conferred upon the Police Commissioner under section 8 of the Public Order Act could be exercised by the successor in office of Inspector General of Police.

    iv.            Whether the provisions of the Public Order Act which allowed the imposition of curfew were a limitation on the rights and fundamental freedoms

      v.            Whether imposing less restrictive means as opposed to a curfew would balance the two interests of public safety and security and the enjoyment of the Bill of Rights

 

 

 

Constitutional Law - conservatory orders - principles to be considered for the grant of conservatory orders under constitutional litigation– where the Inspector General of Police had imposed a curfew in Lamu- where It was also contended that the imposition of curfew specially affected and discriminated against the residents of Lamu on account of their religion, socio-economic activity and geographical climatic realities– whether a conservatory order could be issued under the circumstances.

 

Constitutional Law-fundamental rights and freedoms-right to public safety and security-curfew-authority to impose a curfew- whether the fact that the Constitution did not set out the power to order a curfew as with the state of emergency, the Constitution had outlawed the curfew provisions set out in the prior Public Order Act- Public Order Act cap 56, section 8

 

Constitutional law-fundamental rights and freedoms-limitation of rights-curfew- balancing competing constitutional rights-whether imposition of curfew would limit some fundamental rights and freedoms - whether imposing less restrictive means as opposed to a curfew would balance the two interests of public safety and security and the enjoyment of the Bill of Rights

 

Constitutional Law-interpretation of constitutional provisions-transitional and consequential provisions-whether the Inspector General of Police was the legal successor of the office of Police Commissioner and therefore had authority to exercise the powers of the Commissioner of Police in the Public Order Act in relation to imposition of curfew-Constitution of Kenya, 2010, Section 7 and 33 of the Sixth Schedule of the Constitution

 

Relevant provisions of the law

 

Public Order Act, cap 56 Laws of Kenya, empowers of the Commissioner of Police and Provincial Commissioner to declare curfew as follows:

 “8. (1) The Commissioner of Police or a Provincial Commissioner may, if he considers it necessary in the interests of public order so to do, by order (hereinafter referred to as a curfew order) direct that, within such area (being, in the case of a Provincial Commissioner, within his province) and during such hours as may be specified in the curfew order, every person, or, as the case may be, every member of any class of persons specified in the curfew order, shall, except under and in accordance with the terms and conditions of a written permit granted by an authority or person specified in the curfew order, remain indoors in the premises at which he normally resides, or at such other premises as may be authorized by or under the curfew order.”

 

Constitution of Kenya 2010

 

244. The National Police Service shall—

 (a) …

(b)…

 (c) comply with constitutional standards of human rights and fundamental freedoms;

 

Section 33 provides as follows:

33. An office or institution established under this Constitution is the legal successor of the corresponding office or institution, established under the former Constitution or by an Act of Parliament in force immediately before the effective date, whether known by the same or a new name.”

 

Section 7 of the Sixth Schedule of the Constitution provides that –

 

7. (1) All law in force immediately before the effective date continues in force and shall be construed with the alterations, adaptations, qualifications and exceptions necessary to bring it into conformity with this Constitution.

 

 

Held,

1.    The emerging principles for the grant of injunction or conservatory orders under the constitutional litigation, were

a.     the applicant had to demonstrate an arguable case - sometimes called prima facie arguable case - the reference to arguable case distinguishing it from the prima facie test of the Giella v. Casman Brown traditionally applied in regular civil cases;

b.     the applicant had to show that the petition would be rendered nugatory  or that the damage that would be suffered in the absence of the conservatory order would be irreversible; and,

c.     in constitutional cases, the public interest in the matter would be considered and generally upheld

2.      All the courts required for the grant of conservatory orders was a prima facie case or a prima facie arguable case; irretrievability or irreparability if conservatory order was not granted and the subject matter was irretrievably lost (akin to the irreparability by damages test) and a balancing of the interests of the applicant and the respondents. There was confusion as to whether the test of standard of the applicant’s case is on the prima facie or arguable case. Once accepted that the court could not determine the disputed merits of the case at the interlocutory stage, the correct standard had to be the standard of arguable case.

3.      The argument that the petitioners were not residents of Lamu did not hold much weight in view of the expanded standing given by articles 22 and 258 of the Constitution, and indeed the petition pleaded that apart from 1st petitioner organization, the human petitioners were residents of Lamu County.

4.      The object of the decision on pleading infringement of the Constitution with particularity with respect to the rights and manner of infringement was a requirement of good pleading so that the respondent was able to know with precision the case that he had to meet and so that the court understood the exact nature of intervention necessary.  It was the same requirement codified under rule 10 (1) and (2) of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013.

5.       Following the promulgation of the Constitution of Kenya 2010 the position in the Police force of a Police Commissioner was abolished and replaced with the office of the Inspector general of Police as the head of the Force.  The Constitution of Kenya 2010 at section 33 of the Transitional and Consequential Provisions which had been held by the Court of Appeal to be an integral part, with of equal force as other provisions, of the Constitution, appeared to allow the Inspector General to exercise the powers of the Commissioner of Police to declare a curfew. 

6.      In terms of section 33 of the Sixth Schedule of the Constitution of Kenya 2010 it would appear that the Inspector General of Police was the legal successor of the office of Police Commissioner and therefore had authority to exercise the powers of the Commissioner of Police in the Public Order Act in relation to imposition of curfew.

7.      In view of the section 33 of the Sixth Schedule of the Constitution and on the principle of interpretation that the Constitution was always speaking, the applicant did not have an arguable case with respect to the contention that the powers conferred upon the Police Commissioner under section 8 of the Public Order Act could not be exercised by the successor in office of Inspector General of Police.

8.      With regard to the unconstitutionality of the curfew, article 244 of the Constitution provided for the operations of Police Service to be consistent ‘with constitutional standards of human rights and fundamental freedoms’

9.      The Constitution provided under article 244 for the exercise of police function without laying out the tools that the police could use in their operations.  The Public Order Act, the National Police Service Act and other relevant Acts then made detailed provisions on the exercise of police function.  It could not be said that in not setting out the power to order a curfew as with the state of emergency, the Constitution had outlawed the curfew provisions set out in the prior Public Order Act.  The trial court would make determination thereon upon full submissions on the matter.  The provisions on curfew had a regime of accountability based on the requirements under article 244 for compliance with the standards of human rights contained in the Bill of Rights with exception only as permitted under article 24 of the Constitution.

10. There was no paradox in the constitutional provisions of article 244 establishing and giving police power to the National Police Service at the same time requiring that the operations of the National Police Service be consistent with the Bill of Rights.  It was the reality of modern interplay of the guarantees in the Bill of Rights against the interests of public security and safety through police function in an open democratic society based on respect for human rights and dignity of the person.  The correlation of police power to the Bill of Rights meant that the Constitution recognized the need to provide for the security of the citizens and at the same time ensure enjoyment by rights and fundamental freedoms of the Bill of Rights; that the exercise or imposition of police powers should not unreasonably restrict the enjoyment of the rights and freedoms.  The test for unreasonableness of police action was the criteria set out in article 24 of the Constitution.

11. The petitioners had an arguable case as to whether the imposition of the curfew, assuming the Inspector General had power to do so and the curfew was a lawful tool of police functionality, did unreasonably restrict the rights of the citizen’s resident in Lamu County contrary to article 24 limitation threshold.  The determination of that matter was province of the full trial, and the decisions on abuse of power and illegality would fall for in-depth consideration at the trial.

12. The Curfew was one of police devices for prevention and combat of crime, and the Police were in terms of article 244 of the Constitution entitled to utilize it subject to observation of the demands of human rights as prescribed under article 244 (c) and to the extent permitted by the provisions on limitation to rights under article 24 of the Bill of Rights.

13. The provisions of the Public Order Act which allowed the imposition of curfew were a limitation on the rights and fundamental freedoms such as, among others, movement, assembly, association and property in denying opportunity to earn living through night fishing and other socioeconomic enterprise as well as participate in local cultural and religious activities, and it could even amount to discrimination as alleged by the petitioners.

14. Without challenging the constitutionality of the Public Order Act or sections thereof and seeking declaration of invalidity in that behalf, in accordance with article 3 of the Constitution, the petitioners had to be bound by the provisions of the Act as an imperative of the doctrine of the Rule of Law.

15. The consideration of irreparability of the situation should the sought conservatory order be denied resolved itself in the negative when compared to the real irretrievability of any lives that could be lost due to the enabling environment that could be created by lifting of the curfew orders.  The people of Lamu could not remain in perennial curfew to curb insecurity hence the Respondents had to in the very due course of time implement remedial preventive security arrangements that made it difficult, if not impossible, for attacks on the lives of the residents of the county in the massacre proportions witnessed in Mpeketoni earlier in the year leading to the imposition of the curfew.

16. The interests of public safety and security and protection to the right to life pleaded in the grounds of opposition filed by the respondents had to, in the absence of a replying affidavit filed on behalf of the applicants be taken to be the justification offered for the limitation of the rights of the residents of Lamu through the curfew.  In seeking a balance of the rights of the petitioners as representing the residents of Lamu County and the public interest to the protection of the lives and property of others, it was clearly a case of upholding the Bill of Rights for all the parties involved, subject only to the limitations recognized by the Constitution itself.

17.  In upholding the premium thereby placed on the two interests of public safety and security and the enjoyment of the Bill of Rights, the Court had to consider that the enjoyment of the rights could therefore be limited only as provided by the Constitution.  While acknowledging that there was relation between the limitation by imposition of curfew and its purpose of preventing the mounting of possible terrorist attacks, there could have been less restrictive means to achieve the purpose.

18. Without dictating the less restrictive means, reducing the timelines for the curfew and saving of occasions or celebrations such as the Eidd ul Adh'a which prompted the Petition; making exceptions with regard to days, times and areas or regions of the imposition of the curfew, and increasing complementary police surveillance, escort or monitoring and community policing strategies could properly amount for less restrictive means in terms of reduction of the scope, period, nature and extent of the restriction and the geographical region of the curfew limits.  The object had to be to ensure the highest level of enjoyment of rights and freedoms for all while addressing the public safety and security concerns engendered by the situation in the area.

 

Orders

1.     The respondent directed in consultation with the petitioners, within 14 days from the date of the ruling, to meet and develop, and report to the court, a revised scheme of such measures as would, consistently with the Bill of Rights, meet the public safety and security needs for the affected region.

2.     Should the respondents fail, within the fourteen (14) days allowed, to devise in consultation with the applicants and with approval of the court, a scheme of curfew administration that allowed for reasonable protection and enjoyment of the Bill of Rights as commanded by article 244 of the Constitution, the curfew order made by the Inspector General of Police on June 20, 2014 and extended from time to time would be extinguished and be of no effect thenceforth.  For purposes of compliance, the matter would be mentioned on January 6, 2015.

3.     Costs to be in the cause.

 

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Moses Kiprotich Rutto & Others V Telkom Kenya Limited [2014] eKLR

Case Number: Cause 139 (N) of 2009 Date Delivered: 22 Dec 2014

Judge: Nzioki wa Makau

Court: Employment and Labour Relations Court at Nairobi

Parties: Moses Kiprotich Rutto & Others v Telkom Kenya Limited

Citation: Moses Kiprotich Rutto & Others V Telkom Kenya Limited [2014] eKLR

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Registered Trustees Of Baptist Convention Of Kenya T/A Kiembeni Baptist Church Primary School V Ministry Of Education Science And Technology & Another [2014] eKLR

Case Number: Misc. Application 3 of 2013 Date Delivered: 22 Dec 2014

Judge: Mary Muhanji Kasango

Court: High Court at Mombasa

Parties: Registered Trustees of Baptist Convention of Kenya T/A Kiembeni Baptist Church Primary School v Ministry of Education Science and Technology & Municipal Council of Mombasa

Citation: Registered Trustees Of Baptist Convention Of Kenya T/A Kiembeni Baptist Church Primary School V Ministry Of Education Science And Technology & Another [2014] eKLR

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Labelle International Limited & Another V Fidelity Commercial Bank Limited & Another [2014] eKLR

Case Number: Civil Case 786 of 2002 Date Delivered: 19 Dec 2014

Judge: Eric Kennedy Okumu Ogola

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

Parties: Labelle International Limited & Tejinder Kaur Birdi v Fidelity Commercial Bank Limited & Ismael M.H Mawji

Citation: Labelle International Limited & Another V Fidelity Commercial Bank Limited & Another [2014] eKLR

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Kevin Michael Dunlop V CMC Motors Group Limited & Another [2015] eKLR

Case Number: Cause 1772 of 2013 Date Delivered: 19 Dec 2014

Judge: Mathews Nderi Nduma

Court: Employment and Labour Relations Court at Nairobi

Parties: Kevin Michael Dunlop v CMC Motors Group Limited & James Kariuki T/A Ndarugu Merchants

Citation: Kevin Michael Dunlop V CMC Motors Group Limited & Another [2015] eKLR

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Geoffrey Tinega Isaboke & William Nyabando Nyangau V Kisii County Government, Engineer Urban Development, Sealom Construction Co.Ltd & Robert Mainya [2014] eKLR

Case Number: Environment and Land Civil Case 238 of 2014 Date Delivered: 19 Dec 2014

Judge: Samson Odhiambo Okong'o

Court: High Court at Kisii

Parties: Geoffrey Tinega Isaboke & William Nyabando Nyangau v Kisii County Government, Engineer Urban Development, Sealom Construction Co.Ltd & Robert Mainya

Citation: Geoffrey Tinega Isaboke & William Nyabando Nyangau V Kisii County Government, Engineer Urban Development, Sealom Construction Co.Ltd & Robert Mainya [2014] eKLR

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George M. Muhoro V Mwalimu Investment Company Ltd & Another [2014] eKLR

Case Number: Civil Application Nai 312 of 2014 (UR 234/2014) Date Delivered: 19 Dec 2014

Judge: Roselyn Naliaka Nambuye

Court: Court of Appeal at Nairobi

Parties: George M. Muhoro v Mwalimu Investment Company Ltd & G.M. Muhoro

Citation: George M. Muhoro V Mwalimu Investment Company Ltd & Another [2014] eKLR

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In Re Estate Of Damaris Njeri Kimani – (Deceased) [2015] eKLR

Case Number: Succession Cause 2763 of 2008 Date Delivered: 19 Dec 2014

Judge: William Musya Musyoka

Court: High Court at Nairobi (Milimani Law Courts)

Parties: In re Estate Of Damaris Njeri Kimani – (Deceased)

Citation: In Re Estate Of Damaris Njeri Kimani – (Deceased) [2015] eKLR

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Elizaphan Nyamweya Obare & Another V Haron Kingoina Bogita [2014] eKLR

Case Number: Environment and Land Civil Case 112 of 2004 Date Delivered: 19 Dec 2014

Judge: Samson Odhiambo Okong'o

Court: Environment and Land Court at Kisii

Parties: Elizaphan Nyamweya Obare & Josephine Moraa Nyamweya v Haron Kingoina Bogita

Citation: Elizaphan Nyamweya Obare & Another V Haron Kingoina Bogita [2014] eKLR

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Rose Wangui Karuga V Kenya Railways Corporation[2014] eKLR

Case Number: Civil Application 263 of 2014 Date Delivered: 19 Dec 2014

Judge: Roselyn Naliaka Nambuye

Court: Court of Appeal at Nairobi

Parties: Rose Wangui Karuga v Kenya Railways Corporation

Citation: Rose Wangui Karuga V Kenya Railways Corporation[2014] eKLR

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