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George Onyango Ochieng V Chemelil Sugar Company Ltd [2014] eKLR

Case Number: Cause 54 of 2013 Date Delivered: 14 Mar 2014

Judge: Hellen Wasilwa Seruya

Court: Industrial Court at Kisumu

Parties: George Onyango Ochieng v Chemelil Sugar Company Ltd

Citation: George Onyango Ochieng V Chemelil Sugar Company Ltd [2014] eKLR

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R N M V W M K [2014] eKLR

Case Number: Civil Suit 6 of 2007 Date Delivered: 14 Mar 2014

Judge: William Musya Musyoka

Court: High Court at Nairobi (Milimani Law Courts)

Parties: R N M v W M K

Citation: R N M V W M K [2014] eKLR

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In Re The Estate Of Nawabali Shah – (Deceased) [2014] eKLR

Case Number: Succession Cause 1769 of 1999 Date Delivered: 14 Mar 2014

Judge: William Musya Musyoka

Court: High Court at Nairobi (Milimani Law Courts)

Parties: In Re the estate of Nawabali Shah – (Deceased)

Citation: In Re The Estate Of Nawabali Shah – (Deceased) [2014] eKLR

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Fidelis Kitili Kivaya, Returning Officer Njoro Constituency & Another V Karanja Kabage & Another [2014] eKLR

Case Number: Civil Application 21 of 2014 (UR 16/2014) Date Delivered: 14 Mar 2014

Judge: Philomena Mbete Mwilu

Court: Court of Appeal at Nairobi

Parties: Fidelis Kitili Kivaya, Returning Officer Njoro Constituency Independence Electoral & Boundaries Commission & Independence Electoral and Boundaries Commission v Karanja Kabage & Joseph Kiuna Kariambegu Ng’ang’a

Citation: Fidelis Kitili Kivaya, Returning Officer Njoro Constituency & Another V Karanja Kabage & Another [2014] eKLR

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F.W.N.M V S.M.M [2014] eKLR

Case Number: Civil Appeal 67 of 2013 Date Delivered: 14 Mar 2014

Judge: William Musya Musyoka

Court: High Court at Nairobi (Milimani Law Courts)

Parties: F.W.N.M v S.M.M

Citation: F.W.N.M V S.M.M [2014] eKLR

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Alice Aloo Betty Were Thompson V Said Mohamed Said & 2 Others [2014] eKLR

Case Number: Civil Case 6 of 2011 Date Delivered: 14 Mar 2014

Judge: Jacqueline Kamau

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Alice Aloo Betty Were Thompson v Said Mohamed Said, Industrial Development Bank Ltd & Equitorial Commercial Bank Limited

Citation: Alice Aloo Betty Were Thompson V Said Mohamed Said & 2 Others [2014] eKLR

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Freds Academy Limited V Emma Kinya Mugambi & 2 Others [2014] eKLR

Case Number: Misc Application 847 of 2013 Date Delivered: 14 Mar 2014

Judge: Rose Edwina Atieno Ougo

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Freds Academy Limited v Emma Kinya Mugambi, Johnson Mburu Kinyanjui & Stephen Mwiyoro Mucege

Citation: Freds Academy Limited V Emma Kinya Mugambi & 2 Others [2014] eKLR

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Ngei Matibo V Lawi Nyateng [2014] eKLR

Case Number: ELC 35 of 2014 Date Delivered: 14 Mar 2014

Judge: Mary Muthoni Gitumbi

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Ngei Matibo v Lawi Nyateng

Citation: Ngei Matibo V Lawi Nyateng [2014] eKLR

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G S A V A S A [2014] eKLR

Case Number: Civil Appeal 53 of 2013 Date Delivered: 14 Mar 2014

Judge: William Musya Musyoka

Court: High Court at Nairobi (Milimani Law Courts)

Parties: G S A v A S A

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

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Alice Aloo Betty Were Thompson V Said Mohamed Said & 2 Others [2014] eKLR

Case Number: Civil Case 6 of 2011 Date Delivered: 14 Mar 2014

Judge: Jacqueline Kamau

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

Parties: Alice Aloo Betty Were Thompson v Said Mohamed Said, Industrial Development Bank Ltd & Equitorial Commercial Bank Limited

Citation: Alice Aloo Betty Were Thompson V Said Mohamed Said & 2 Others [2014] eKLR

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Abdul Majeed V Anjuman Himayat-El-Islam & 2 Others [2014] eKLR

Case Number: Civil Case No.19 of 2013 Date Delivered: 14 Mar 2014

Judge: Anthony Ombwayo

Court: High Court at Nyeri

Parties: Abdul Majeed v Anjuman Himayat-El-Islam & 2 others

Citation: Abdul Majeed V Anjuman Himayat-El-Islam & 2 Others [2014] eKLR

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Saada Bakari Mohamed & 2 Others V Hans Gruber [2014] eKLR

Case Number: Hccc 49 of 2009 Date Delivered: 14 Mar 2014

Judge: Oscar Angote

Court: High Court at Malindi

Parties: Saada Bakari Mohamed, Rehema Abdul Hassan & Estate of Abdul Hassan Shaaban v Hans Gruber

Citation: Saada Bakari Mohamed & 2 Others V Hans Gruber [2014] eKLR

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Homescope Properties Ltd & Another V David Gachuki & Pamela Odera Sued As Chairman & Secretary Of Karen Ngong View Estate & Another [2014] eKLR

Case Number: Elc Civil Suit 793 of 2013 Date Delivered: 14 Mar 2014

Judge: John Mutungi

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Homescope Properties Ltd & Paul Ochanda Saoke v David Gachuki & Pamela Odera Sued as Chairman & Secretary of Karen Ngong View Estate & County Government of Nairobi

Citation: Homescope Properties Ltd & Another V David Gachuki & Pamela Odera Sued As Chairman & Secretary Of Karen Ngong View Estate & Another [2014] eKLR

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Peter Onditi Ogugu V Allpack Industries Limited & Another [2014] eKLR

Case Number: Civil Application No. Nai 147 of 2013 (UR 100/2013) Date Delivered: 14 Mar 2014

Judge: Wanjiru Karanja, George Benedict Maina Kariuki, Stephen Gatembu Kairu

Court: Court of Appeal at Nairobi

Parties: Peter Onditi Ogugu v Allpack Industries Limited & Industrial Promotion Services (K) Ltd

Citation: Peter Onditi Ogugu V Allpack Industries Limited & Another [2014] eKLR

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Moses C Muhia Njoroge & 2 Others V Jane W.Lesaloi & 5 Others [2014] eKLR

Case Number: ELC 514 of 2013 Date Delivered: 14 Mar 2014

Judge: Lucy Nyambura Gacheru

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Moses C Muhia Njoroge, Jacinta N. Mburu & James N.Kinyanjui v Jane W.Lesaloi, Joseph G Kagika, Andrian Muriithi, John G. Kioi, District Land Surveyor, [Kajiado] & District Land Registrar,[Kajiado]

Citation: Moses C Muhia Njoroge & 2 Others V Jane W.Lesaloi & 5 Others [2014] eKLR

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Lawrence Angolo Omuhaka V Mumias Sugar Company Ltd [2014] eKLR

Case Number: Cause 229/2013 Date Delivered: 14 Mar 2014

Judge: Hellen Wasilwa Seruya

Court: Industrial Court at Kisumu

Parties: Lawrence Angolo Omuhaka v Mumias Sugar Company Ltd

Citation: Lawrence Angolo Omuhaka V Mumias Sugar Company Ltd [2014] eKLR

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Alice Wanja Munji V Samuel Munji Kihanya & 2 Others [2014] eKLR

Case Number: Elc Civil Suit 350 of 2010 Date Delivered: 14 Mar 2014

Judge: John Mutungi

Court: Environment and Land Court at Nairobi

Parties: Alice Wanja Munji v Samuel Munji Kihanya, Nelson Gathogo Kibagu & Joseph Munji

Citation: Alice Wanja Munji V Samuel Munji Kihanya & 2 Others [2014] eKLR

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Nancy Wanjeri & 5 Others V Michael Mungai [2014] eKLR

Case Number: Civil Suit 17 & 3 of 2001 Date Delivered: 14 Mar 2014

Judge: William Musya Musyoka

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Nancy Wanjeri, Housing Finance Ltd, Kenya Building Society Ltd, Taifa Auctioneers, Christopher Avisa, Kcb Ltd, Cleophas Ogutu & others v Michael Mungai

Citation: Nancy Wanjeri & 5 Others V Michael Mungai [2014] eKLR

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Daniele Terzi & Another V Fred Lwande [2014] eKLR

Case Number: Land Case 108 of 2010 Date Delivered: 14 Mar 2014

Judge: Oscar Angote

Court: High Court at Malindi

Parties: Daniele Terzi & Erica Lugu v Fred Lwande

Citation: Daniele Terzi & Another V Fred Lwande [2014] eKLR

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Moonglow Assets Limited V Commissioner Of Lands & 4 Others [2014] eKLR

Case Number: Elc. 586 of 2013 Date Delivered: 14 Mar 2014

Judge: Mary Muthoni Gitumbi

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Moonglow Assets Limited v Commissioner of Lands, Registrar of Titles, Director of Surveys, Hekima Land Surveys Limited & Shamji Kalyan Pindoria Limited

Citation: Moonglow Assets Limited V Commissioner Of Lands & 4 Others [2014] eKLR

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Bihindi Mwijaka Mwinyifaki & Another (administrators Of The Estate Of Mwanahawa Mwinyijaka Mwinyifaki (Deceased) V Ima Matano Mzee & 3 Others [2014] eKLR

Case Number: Environment & Land Case 82 of 2013 Date Delivered: 14 Mar 2014

Judge: Samwel Ndungu Mukunya

Court: Environment and Land Court at Mombasa

Parties: Bihindi Mwijaka Mwinyifaki & Salama Mwijaka Mwinyifaka (administrators of the estate of Mwanahawa Mwinyijaka Mwinyifaki (Deceased) v Ima Matano Mzee, Julius Mathembe, Hassan Athman & Bimvua Abdalla

Citation: Bihindi Mwijaka Mwinyifaki & Another (administrators Of The Estate Of Mwanahawa Mwinyijaka Mwinyifaki (Deceased) V Ima Matano Mzee & 3 Others [2014] eKLR

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James Chuchu Kariuki (Suing As Administrator Of The Estate Of Kariuki Kuogothoka) V Esbon Ongoro Andika & 2 Others (Being Sued In Their Capacity As Officials Of Sahakia Development Youth) [2014] eKLR

Case Number: ELC. 673 of 2013 Date Delivered: 14 Mar 2014

Judge: Mary Muthoni Gitumbi

Court: High Court at Nairobi (Milimani Law Courts)

Parties: James Chuchu Kariuki (Suing as Administrator of the Estate of Kariuki Kuogothoka) v Esbon Ongoro Andika, Joseph Otieno Midan & Susan Beka Kasome (Being Sued In their Capacity as Officials of Sahakia Development Youth)

Citation: James Chuchu Kariuki (Suing As Administrator Of The Estate Of Kariuki Kuogothoka) V Esbon Ongoro Andika & 2 Others (Being Sued In Their Capacity As Officials Of Sahakia Development Youth) [2014] eKLR

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Kipapi Ole Tamaiyan & Another V George Ndula Meritei & 4 Others [2014] eKLR

Case Number: Elc. 991 of 2012 Date Delivered: 14 Mar 2014

Judge: Mary Muthoni Gitumbi

Court: Environment and Land Court at Nairobi

Parties: Kipapi Ole Tamaiyan & Mailua Group Ranch v George Ndula Meritei, Commissioner Of Police, Director of C.I.D, Director of Public Prosecution, Registrar of Lands

Citation: Kipapi Ole Tamaiyan & Another V George Ndula Meritei & 4 Others [2014] eKLR

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Kazungu Moli Chogo & 6 Others V Perihan Torun & 6 Others [2014] eKLR

Case Number: Environment And Land Case 134 of 2013 (Os) Date Delivered: 14 Mar 2014

Judge: Samwel Ndungu Mukunya

Court: High Court at Mombasa

Parties: Kazungu Moli Chogo, Changawa Moli Chogo, Shaban Bakari Moli, Sammy Keah Moli, Kadzitu Moli Chogo, Ramadhan Randu Moli & Mwenda Kahindi Moli v Perihan Torun, Cemalettin Kani Torun, Feisal Hassan Sherman, Amin Ali Swaleh, African University Trust Of Kenya, Mohamed Yusuf Haji & Zayed Bin Sultan Al Nahyan Charitable & Humanitarian Foundation

Citation: Kazungu Moli Chogo & 6 Others V Perihan Torun & 6 Others [2014] eKLR

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Samuel Ogodo Waga V Fish Processors [2000] Limited [2014] eKLR

Case Number: Civil Appeal 184 of 2011 Date Delivered: 13 Mar 2014

Judge: Aggrey Otsyula Muchelule

Court: High Court at Kisumu

Parties: Samuel Ogodo Waga v Fish Processors [2000] Limited

Citation: Samuel Ogodo Waga V Fish Processors [2000] Limited [2014] eKLR

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Koinange Investments & Development Ltd V Robert Nelson Ngethe [2014] eKLR

Case Number: Application 4 of 2013 Date Delivered: 13 Mar 2014

Judge: Philip Kiptoo Tunoi, Jackton Boma Ojwang, Mohammed Khadhar Ibrahim, Smokin C Wanjala, Susanna Njoki Ndung'u

Court: Supreme Court of Kenya

Parties: Koinange Investments & Development Ltd v Robert Nelson Ngethe

Citation: Koinange Investments & Development Ltd V Robert Nelson Ngethe [2014] eKLR

Service of court documents is not a “matter of general public importance” to be certified to go on appeal to the Supreme Court

Koinange Investments & Development Ltd V Robert Nelson Ngethe

Application No. 4 Of 2013

Supreme Court of Kenya

Tunoi, Ibrahim, Ojwang, Wanjala & Njoki Ndungu SCJJ

March 13, 2014

Reported by Njeri Githang’a Kamau

The application before the court was for review of the Court of Appeal’s ruling denying the applicant leave to appeal to the Supreme Court. The application was brought under Article 165(5) of the Constitution and Section 15 (1) of the Supreme Court Act. The Court of Appeal in a ruling dismissing the application for leave to appeal observed that the sale-contract nature of the Applicant’s claim as well as the procedural aspects that characterized the default judgment at the High Court were not matters that could be categorized as being of public importance.

Counsel for the applicant argued that service of Court documents was a critical aspect of the litigation process, bearing significantly on all litigants in the country. It was submitted that it was a matter involving the proper conduct of administration of justice when a specific court order regarding personal service was overlooked by the judges and deemed as postal service, in spite of absence of evidential proof of a search from the Companies Registry.

ISSUES

1.      Whether service of court documents was a “matter of general public importance” to be certified to go on appeal?

2.       Whether there was any uncertainty in the law of service of process; or it was an issue of administration of justice bearing upon public interest?

3.      Whether the ‘interest of justice’ was a relevant factor in considering the peculiarities of the instant matter in relation to “general public importance”

 

Civil Practice and Procedure –review –application for review of the decision  of the Court of Appeal denying the applicant leave to appeal to the Supreme Court with respect to a  matter of general public importance -what amounts to a matter of public importance – criteria to be considered – whether service of court documents was a “matter of general public importance” to be certified to go on appeal-whether there was any uncertainty in the law of service of process; or it was an issue of administration of justice bearing upon public interest- Constitution of Kenya, 2010, article 165(5) - Supreme Court Act, section 15 (1)

 

Held;

1.      The jurisdiction of the Court, especially on matters predicated on article 163(4) (b) of the Constitution, which relate to “a matter of general public importance”, was well settled. Two factors must be borne in mind by an Applicant who wished to move the Court under article 163(4) (b) of the Constitution.  One, to move the Court under the provision, an Applicant had to first seek leave at the Court of Appeal, consequent to which a party aggrieved by denial of permission or certification may exercise a right, under article 163(5), to seek a review, affirmation or overturning of the decision (see Sum Model Industries Limited v Industrial and Commercial Development Corporation, Sup. Ct. Civ. Appl. No. 1 of 2011).

2.      The right to seek such a review is not a carte blanche: for a question or issue of law or fact, however framed, must be a substantial one, transcending the concerned parties, and satisfying or falling within the category of the Hermanus Steyn principles on matters of general public importance. These principles were defined by both the majority and minority opinions, and restated, in the case of Malcom Bell v Daniel arap Moi & Another Sup. Ct. Application No. 1 of 2013.

3.      Service of Court documents was an important component in the administration of justice, and was a common aspect of litigation that confronts courts of all cadres, in the normal business schedule. Service as a procedural function was regulated by law and other relevant instruments.

4.      The onus of proving that a law bears uncertainty or lacunae impacting adversely on the public interest falls on the party who seeks to convince the Court that such was the case.

5.      A matter of general public importance warranting the exercise of appellate jurisdiction would be a matter of law or fact, provided only that: its impacts and consequences are substantial, broad-based, transcending the litigation-interest of the parties, and bearing upon the public interest. As the categories constituting the public interest are not closed, the burden falls on the intending appellant to demonstrate that the matter in question carries specific elements of real public interest and concern.

6.      Though service was an obvious procedural aspect of every Court-oriented action, the matter was regulated by law. Service was an issue of law that affected a broad spectrum of individuals in commercial and domestic relations. As the law on service of process on corporations stood, there was no lacuna calling for clarification, for the good of the public at large.

7.      It was not the object of the Court to intervene in the jurisdictional domains of other judicial organs a principle already stated in Peter Ngoge v Ole Kaparo Sup. Ct. Petition No. 2 of 2012 [2012] eKLR

8.      The Supreme Court, as the ultimate judicial agency ought to exercise its powers strictly within the jurisdictional limits prescribed; and it ought to safeguard the autonomous exercise of the respective jurisdictions of the other Courts and tribunals.

9.      For a matter to be categorized as one of general public importance, its impact and consequences must raise substantial and broad-based questions of law or fact that affect the public interest. It is not sufficient to merely allege that a provision of a law that touches on the administration of justice, ought to be categorized as “a matter of general public importance”. It must be a substantial question of law, if a party is to invoke the input of the Supreme Court.

10. The issue of service was a matter that Courts could competently deal with as an ordinary component of administration of justice, as long as there was no uncertainty or ambiguity occasioned by some law, or incongruent Court decisions. It falls ordinarily, outside the fine line of “matter of general public importance”, since “as a matter of principle and of judicial policy, the appellate jurisdiction of the Supreme Court is not to be invoked save in accordance with the terms of the Constitution and the law, and not merely for the purpose of rectifying errors with regard to matters of settled law” (Malcom Bell v Moi).

11. Courts are the wellsprings of justice, the bastion to which recourse in law is sought. Whenever a party seeks to vindicate infringed rights at any tier of Courts, the duty to do justice is always the rule of thumb. It was also a cardinal principle that flowed from the Constitution, and which demanded that the ends of justice be met when any Court of justice in the Republic of Kenya has been properly seized of a pertinent question. “Interest of justice” cannot therefore be an isolated criterion, on the basis of which the Court may be urged to allow an appeal as a matter of general public importance.

12. The Applicant had failed to demonstrate that the matter was of general public importance, in the terms of the Hermanus Steyn principles.  The Application failed to disclose any proper basis upon which an appeal may be preferred from the Court of Appeal to the Supreme Court under Article 163(5) of the Constitution.

 

Application for review of the Court of Appeal’s ruling dismissed.

Cases

East Africa

1.Kamau v Mungai & Another [2006] 1 KLR 150 –(Explained)

2.Selle & Another v Associated Motor Boat Co Ltd & Others [1968] EA 123 –(Explained)

Statutes

East Africa

1.Law of Succession Act (cap 160) sections 27, 29(b) –(Interpreted)

2.Probate & Administration Rules (cap 160 Sub Leg) rule 73 –(Interpreted)

Advocates

1.Mr Njoroge H/B for Ms Magee for the Appellant

2.Mr Kathungu for the Respondent

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Erustus Gituma & Another V Mohammed Noor Osman & Another [2014] eKLR

Case Number: Civil Appeal 200 of 2013 Date Delivered: 13 Mar 2014

Judge: Beatrice Thuranira Jaden

Court: High Court at Machakos

Parties: Erustus Gituma & James Muriithi Mumba v Mohammed Noor Osman & 2. Fatuma Yaro Adan (Suing as the Administrator of the Estate of the Late Aisha Mohammed Noor – Deceased

Citation: Erustus Gituma & Another V Mohammed Noor Osman & Another [2014] eKLR

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Okiya Omtatah Okoiti & Another V Attorney General & 3 Others (Kenya) [2014] eKLR

Case Number: Petition 58 of 2014 Date Delivered: 13 Mar 2014

Judge: David Shikomera Majanja

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Okiya Omtatah Okoiti & Nyakina Wyclife Gisebe v Attorney General, Kenya Railways Corporation, Public Procurement Oversight Authority & China Road and Bridge Corporation (Kenya)

Citation: Okiya Omtatah Okoiti & Another V Attorney General & 3 Others (Kenya) [2014] eKLR

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Shamas Velani V Raka Milk Processors Limited [2014] eKLR

Case Number: Cause 10 of 2013 Date Delivered: 13 Mar 2014

Judge: Linnet Ndolo

Court: Industrial Court at Nairobi

Parties: Shamas Velani v Raka Milk Processors Limited

Citation: Shamas Velani V Raka Milk Processors Limited [2014] eKLR

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State V Peter Onyango Vitalis Adero [2014] eKLR

Case Number: Hccr 72 of 2013 Date Delivered: 13 Mar 2014

Judge: Esther Nyambura Maina

Court: High Court at Homabay

Parties: State v Peter Onyango Vitalis Adero

Citation: State V Peter Onyango Vitalis Adero [2014] eKLR

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Timothy Asudi Malwa V E-Gap Solutions Limited & Another [2014] eKLR

Case Number: Cause 1146 of 2013 Date Delivered: 13 Mar 2014

Judge: Linnet Ndolo

Court: Industrial Court at Nairobi

Parties: Timothy Asudi Malwa v E-Gap Solutions Limited & Commissioner of Police through Attorney General

Citation: Timothy Asudi Malwa V E-Gap Solutions Limited & Another [2014] eKLR

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Richard Nyaga V Lucia Iruki Samwel & Sicilia Mutitu [2014] eKLR

Case Number: Succession Cause 679 of 2002 Date Delivered: 13 Mar 2014

Judge: Hedwig Imbosa Ong'udi

Court: High Court at Embu

Parties: Richard Nyaga v Lucia Iruki Samwel & Sicilia Mutitu

Citation: Richard Nyaga V Lucia Iruki Samwel & Sicilia Mutitu [2014] eKLR

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John Githua Muchiri V Koton Wandabe & Another [2014] eKLR

Case Number: Civil Case 136 of 2007 Date Delivered: 13 Mar 2014

Judge: Elija Ogoti Obaga

Court: High Court at Kitale

Parties: John Githua Muchiri v Koton Wandabe & Raymond Nyeris Plal

Citation: John Githua Muchiri V Koton Wandabe & Another [2014] eKLR

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Lunjalu Joram Okotsi V Vice Chancellor University Of Nairobi & Another [2014] eKLR

Case Number: Civil Suit 247 of 2008 Date Delivered: 13 Mar 2014

Judge: Rose Edwina Atieno Ougo

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Lunjalu Joram Okotsi v Vice Chancellor University Of Nairobi & University Of Nairobi

Citation: Lunjalu Joram Okotsi V Vice Chancellor University Of Nairobi & Another [2014] eKLR

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Abdalla Mohamed Bin Issa V Republic [2014] eKLR

Case Number: Criminal Revision 1 of 2014 Date Delivered: 13 Mar 2014

Judge: Christine Wanjiku Meoli

Court: High Court at Malindi

Parties: Abdalla Mohamed Bin Issa v Republic

Citation: Abdalla Mohamed Bin Issa V Republic [2014] eKLR

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Esther Lodenyi Adori V Sabatia District Alcoholic Drinks Regulation Committee & 2 Others [2014] eKLR

Case Number: Petition 1 of 2014 Date Delivered: 13 Mar 2014

Judge: George Matatia Abaleka Dulu

Court: High Court at Kakamega

Parties: Esther Lodenyi Adori v The Sabatia District Alcoholic Drinks Regulation Committee, The Sabasia District Commissioner & National Authority For The Campaign Against Alcohol And Drug Abuse (Nacada)

Citation: Esther Lodenyi Adori V Sabatia District Alcoholic Drinks Regulation Committee & 2 Others [2014] eKLR

Citing a non-existent or a wrong section of the law is not fatal to an application so long as the application and prayers are actionable

 

 

Esther Lodenyi Adori V Sabatia District Alcoholic Drinks Regulation Committee & 2 others

Petition No.1 of 2014

High Court at Kakamega

George Dulu   , J.

March 13, 2014

Reported by Phoebe Ida Ayaya and Maryconcepter Nzakuva

 

Brief Facts

The Petitioner filed an application within a Constitutional Petition seeking for orders to compel the Respondents and their agents to issue her with a provisional liquor license pending the hearing and determination of the petition.

The Petitioner had acquired a bar business which was in operation since 2007. The predecessor had been issued with the liquor licenses the last which had expired in November 2013. Upon application for renewal of the liquor license by the Petitioner, the Respondents did not formally communicate to her but she was verbally informed that the license had been denied. The Petitioner argued in her petition that she was denied right to be heard by the Respondents and that the Respondents acted in a discriminatory manner as it had issued similar licenses to other applicants.

Issues:

  1. Whether a party aggrieved by decision of an administrative body was justified in coming to the court through a constitutional application rather than judicial review application.
  2. Whether a party could be said to have come to court with unclean hands because of existence of a charge pending in a surbodinate court.
  3. Whether an application citing a wrong section of law was fatally defective.

 

Constitutional Law- Bill of Rights-Authority of courts to uphold and enforce the Bill of Rights-Jurisdiction of the High court to hear and determine applications for redress of a denial, violation or infringement of fundamental rights and freedoms- Whether a party aggrieved by decision of an administrative body was justified in coming to court through a constitutional application rather than judicial review application-Constitution of Kenya, 2010 article 23.

Equity-Maxims of equity-He who comes to equity must come with clean hands-Whether a party could be said to have come to court with unclean hands because of existence of a charge pending in a subordinate court.

Constitutional Law-Judicial Authority-Principles guiding courts in exercising judicial authority- Justice shall be administered without due regard to procedural technicalities- Whether an application citing a wrong section of law was fatally defective-Constitution of Kenya, 2010,article 159(2)(d).

 

Held:

  1. The Petitioner had a right to approach the constitutional court through a constitutional reference. The Constitution of Kenya, 2010 allowed the constitutional court to issue a wide range of reliefs including Judicial Review orders under article 23 of the Constitution of Kenya, 2010.
  2. The 1st Respondent did not communicate its decision to the Petitioner and did not come to court even after being served with the application hence the Petitioner approached the court in the proper way.
  3.  The pending charge in a surbodinate court based on allegations that the Petitioner operated her bar without a license was an allegation that had to be proved to the standard required by law hence it was not an impediment for a person coming to the constitutional court for resolution of an alleged contravention of his constitutional rights.
  4. Citing a non-existent or a wrong section of law was not fatal to the Petitioner’s application. Article 159(2) of the Constitution of Kenya, 2010 enjoined the courts to administer justice without undue regard to technicalities. So long as the main body of the application and prayers raised an actionable issue, the court could adjudicate on the matter. Further, wrong pleadings could still be amended in the course of proceedings hence the application was not fatally defective.

Application allowed.

Respondents ordered to issue the Petitioner with provisional liquor licenses pending the hearing and determination of the petition.

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Showcase Properties Limited V Kenya Commercial Bank Ltd [2014] eKLR

Case Number: Civil Suit 305 of 2013 Date Delivered: 13 Mar 2014

Judge: Eric Kennedy Okumu Ogola

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Showcase Properties Limited v Kenya Commercial Bank Ltd

Citation: Showcase Properties Limited V Kenya Commercial Bank Ltd [2014] eKLR

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Republic V Joseph Shitandi & Another [2014] eKLR

Case Number: Criminal Case 34 of 2007 Date Delivered: 13 Mar 2014

Judge: George Matatia Abaleka Dulu

Court: High Court at Kericho

Parties: Republic v Joseph Shitandi & Henry Ateya

Citation: Republic V Joseph Shitandi & Another [2014] eKLR

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Agnes Wachu & 104 Others V Barclays Bank Of Kenya [2014] eKLR

Case Number: Cause 806 of 2011 Date Delivered: 13 Mar 2014

Judge: Maureen Onyango Atieno

Court: Industrial Court at Nairobi

Parties: Agnes Wachu & 104 others v Barclays Bank of Kenya

Citation: Agnes Wachu & 104 Others V Barclays Bank Of Kenya [2014] eKLR

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Republic V County Council Of Narok & 2 Others Ex-parte Wildlife Lodges Limited [2014] eKLR

Case Number: JR Case 1350 of 2003 Date Delivered: 13 Mar 2014

Judge: Weldon Kipyegon Korir

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Republic v County Council of Narok, Permanent Secretary, Ministry of Local Government & District Lands Registrar, Narok District Ex-parte Wildlife Lodges Limited

Citation: Republic V County Council Of Narok & 2 Others Ex-parte Wildlife Lodges Limited [2014] eKLR

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In The Matter Of The Estate Of Dominic Kasona Kaleli (Deceased) [2014] eKLR

Case Number: Succession Cause 641 of 2010 Date Delivered: 12 Mar 2014

Judge: Beatrice Thuranira Jaden

Court: High Court at Machakos

Parties: Mutanu Ngumi Muindi v Lydia Ndulu Kasona

Citation: In The Matter Of The Estate Of Dominic Kasona Kaleli (Deceased) [2014] eKLR

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Winfred Mutheu Kiamuko & Another V Swaleh Breki Islam & Another [2014] eKLR

Case Number: Civil Case 130 of 2009 Date Delivered: 12 Mar 2014

Judge: Beatrice Thuranira Jaden

Court: High Court at Machakos

Parties: Winfred Mutheu Kiamuko & Titus Maundi Nzambu v Swaleh Breki Islam & Mash Bus Services Limited

Citation: Winfred Mutheu Kiamuko & Another V Swaleh Breki Islam & Another [2014] eKLR

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Jane Wanjira Kimani V Kamau Thiru Nguthiru & 3 Others [2014] eKLR

Case Number: Civil Cas 232 of 2011 Date Delivered: 12 Mar 2014

Judge: Beatrice Thuranira Jaden

Court: High Court at Machakos

Parties: Jane Wanjira Kimani v Kamau Thiru Nguthiru, Town Clerk Olkejuado County & Olkejuado County Council Interested party Benson Waringu Thigu

Citation: Jane Wanjira Kimani V Kamau Thiru Nguthiru & 3 Others [2014] eKLR

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East African Portland Cement Ltd V Capital Markets Authority & 4 Others [2014] eKLR

Case Number: Petition 600 of 2013 Date Delivered: 12 Mar 2014

Judge: Mumbi Ngugi

Court: High Court at Nairobi (Milimani Law Courts)

Parties: East African Portland Cement Ltd v The Capital Markets Authority,The Honourable Attorney General , The National Social Security Fund , The Trustees Of The Board Of The National Social Security Fund & Nairobi Securities Exchange Ltd

Citation: East African Portland Cement Ltd V Capital Markets Authority & 4 Others [2014] eKLR

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Mark Kimani Kago V Janet Wanja Kago [2014] eKLR

Case Number: Probate & Administration 94 of 2012. Date Delivered: 12 Mar 2014

Judge: Joseph Raphael Karanja

Court: High Court at Kitale

Parties: Mark Kimani Kago v Janet Wanja Kago

Citation: Mark Kimani Kago V Janet Wanja Kago [2014] eKLR

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Attorney General & Another V James Ndirangu Ng’ang’a [2014] eKLR

Case Number: Environment Land Case 31 of 2012 Date Delivered: 12 Mar 2014

Judge: Stephen Kibunja

Court: High Court at Busia

Parties: Attorney General & Busia Dairy Co–Op Society Ltd v James Ndirangu Ng’ang’a

Citation: Attorney General & Another V James Ndirangu Ng’ang’a [2014] eKLR

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Republic V Julius Sammy Katuma [2014] eKLR

Case Number: Criminal Revision 1 of 2014 Date Delivered: 12 Mar 2014

Judge: Beatrice Thuranira Jaden

Court: High Court at Machakos

Parties: Republic v Julius Sammy Katuma

Citation: Republic V Julius Sammy Katuma [2014] eKLR

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In Re The Estate Of Samwel Mulika Tonjo (Deceased) [2014] eKLR

Case Number: Succession Cause 174 of 2012 Date Delivered: 12 Mar 2014

Judge: Joseph Raphael Karanja

Court: High Court at Kitale

Parties: In Re the Estate of Samwel Mulika Tonjo (Deceased)

Citation: In Re The Estate Of Samwel Mulika Tonjo (Deceased) [2014] eKLR

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John Mureithi & Another V Joseph Kimenchu [2014] eKLR

Case Number: Misc. Application 92 of 2013 Date Delivered: 12 Mar 2014

Judge: James Aaron Makau

Court: High Court at Meru

Parties: John Mureithi & another v Joseph Kimenchu

Citation: John Mureithi & Another V Joseph Kimenchu [2014] eKLR

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Joseph Kabugo Njenga T/A Savior Property Developers & Another V Joseph Kimani Kamau & Another [2014] eKLR

Case Number: ELC Suit 893 of 2013 Date Delivered: 12 Mar 2014

Judge: Pauline Nyamweya

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Joseph Kabugo Njenga T/A Savior Property Developers & Samwel Kebugo Mburu v Joseph Kimani Kamau & Caroline Muthoni Njuguna

Citation: Joseph Kabugo Njenga T/A Savior Property Developers & Another V Joseph Kimani Kamau & Another [2014] eKLR

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