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Ranjit Singh Lochab & Another V Mumbu Holdings Ltd & Another [2015] eKLR

Case Number: Civil Case 69 of 2014(O.S) Date Delivered: 30 Nov 2015

Judge: Janet Nzilani Mulwa

Court: High Court at Nakuru

Parties: Ranjit Singh Lochab & Harvinder Kaur Lochab (Suing as the Legal Representative of the Estate of Randeep Singh Lochab v Mumbu Holdings Ltd & John Mbuu

Citation: Ranjit Singh Lochab & Another V Mumbu Holdings Ltd & Another [2015] eKLR

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Republic V Iqra Abdullahi Mohamed [2015] eKLR

Case Number: Revision Case 1 of 2015 Date Delivered: 30 Nov 2015

Judge: Lilian Nabwire Mutende

Court: High Court at Kitui

Parties: Republic v Iqra Abdullahi Mohamed

Citation: Republic V Iqra Abdullahi Mohamed [2015] eKLR

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Paul Chiuri Muriuki V Kenyatta National Hospital [2015] eKLR

Case Number: Cause .2064 of 2014 Date Delivered: 30 Nov 2015

Judge: Monica Mbaru

Court: Employment and Labour Relations Court at Nairobi

Parties: Paul Chiuri Muriuki v Kenyatta National Hospital

Citation: Paul Chiuri Muriuki V Kenyatta National Hospital [2015] eKLR

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J S N V R A N [2015] eKLR

Case Number: Civil Appeal 8 of 2015 Date Delivered: 30 Nov 2015

Judge: Thande Mugure

Court: High Court at Mombasa

Parties: J S N v R A N

Citation: J S N V R A N [2015] eKLR

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Njuguna Matiri & Company Advocates V National Bank Of Kenya [2015] eKLR

Case Number: Miscellaneous Civil Application 184 of 2014 Date Delivered: 30 Nov 2015

Judge: Janet Nzilani Mulwa

Court: High Court at Nakuru

Parties: Njuguna Matiri & Company Advocates v National Bank of Kenya

Citation: Njuguna Matiri & Company Advocates V National Bank Of Kenya [2015] eKLR

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Dirie Olow Mohamed V Tavevo Water And Sewerage Co Limited [2015] eKLR

Case Number: Civil Suit 3 of 2015 Date Delivered: 30 Nov 2015

Judge: Jacqueline Kamau

Court: High Court at Voi

Parties: Dirie Olow Mohamed v Tavevo Water and Sewerage Co Limited

Citation: Dirie Olow Mohamed V Tavevo Water And Sewerage Co Limited [2015] eKLR

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Church Commissioners For Kenya & 2 Others V Attorney General & 2 Others [2015] eKLR

Case Number: Civil Case13 of 2006 Date Delivered: 30 Nov 2015

Judge: Abigail Mshila

Court: High Court at Nyeri

Parties: Church Commissioners for Kenya, Fortunatus Karenju Mugwimi & Ruthanji & Njiruini Company v Attorney General, Commissioner of Lands & Sundown Properties

Citation: Church Commissioners For Kenya & 2 Others V Attorney General & 2 Others [2015] eKLR

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Mahat Sangweyhei Kedhiye V Republic [2015] eKLR

Case Number: Criminal Revision 5 of 2015 Date Delivered: 30 Nov 2015

Judge: Jacqueline Kamau

Court: High Court at Voi

Parties: Mahat Sangweyhei Kedhiye v Republic

Citation: Mahat Sangweyhei Kedhiye V Republic [2015] eKLR

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Samwel Otieno Ogola & 2 Others V Johnson Gor Ogola [2015] eKLR

Case Number: Succession Cause 399 of 2015 Date Delivered: 30 Nov 2015

Judge: David Shikomera Majanja

Court: High Court at Homabay

Parties: Samwel Otieno Ogola,Philip Obuya Gor & Gordon Ouma Ronga v Johnson Gor Ogola

Citation: Samwel Otieno Ogola & 2 Others V Johnson Gor Ogola [2015] eKLR

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Daniel Wainaina Njuguna V Christine Mbaika Musee & 3 Others [2015] eKLR

Case Number: Criminal Revision 23 of 2014 Date Delivered: 30 Nov 2015

Judge: Grace Wangui Ngenye

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Daniel Wainaina Njuguna v Christine Mbaika Musee, Bernard Otolo Onyango, Goeffrey Wesionga & Republic

Citation: Daniel Wainaina Njuguna V Christine Mbaika Musee & 3 Others [2015] eKLR

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Kenneth Kiaru Ngugi & Another V Hawa Nur Hussein [2015] eKLR

Case Number: Environment & Land Case 270 of 2014 (O.S) Date Delivered: 27 Nov 2015

Judge: Anne Omollo

Court: Environment and Land Court at Mombasa

Parties: Kenneth Kiaru Ngugi & Peter Kenneth Waititu Suing as Administrator of the Estate of Salome Wambui Waititu v Hawa Nur Hussein

Citation: Kenneth Kiaru Ngugi & Another V Hawa Nur Hussein [2015] eKLR

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Ogendo Kerosi Jason V Daniel Akoya Nyambega [2015] eKLR

Case Number: Environment and Land Case 296 of 1990 Date Delivered: 27 Nov 2015

Judge: John Mutungi

Court: High Court at Kisii

Parties: Ogendo Kerosi Jason v Daniel Akoya Nyambega

Citation: Ogendo Kerosi Jason V Daniel Akoya Nyambega [2015] eKLR

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David Mithamo Gatitu V Boniface Karimi Nyamu [2015] eKLR

Case Number: Elc Misc Application 13 of 2015 Date Delivered: 27 Nov 2015

Judge: Boaz Nathan Olao

Court: High Court at Kerugoya

Parties: David Mithamo Gatitu v Boniface Karimi Nyamu

Citation: David Mithamo Gatitu V Boniface Karimi Nyamu [2015] eKLR

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Michael E.G. Muhindi V John Ngure Murekio [2015] eKLR

Case Number: Elc Appeal 7 of 2015 Date Delivered: 27 Nov 2015

Judge: Boaz Nathan Olao

Court: Environment and Land Court at Kerugoya

Parties: Michael E.G. Muhindi v John Ngure Murekio

Citation: Michael E.G. Muhindi V John Ngure Murekio [2015] eKLR

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Stella Nyakio Ngugi V Wilberforce Njenga Ndonga & 7 Others [2015] eKLR

Case Number: Civil Case 115 of 2014 Date Delivered: 27 Nov 2015

Judge: Anne Omollo

Court: High Court at Mombasa

Parties: Stella Nyakio Ngugi v Wilberforce Njenga Ndonga & 7 Others

Citation: Stella Nyakio Ngugi V Wilberforce Njenga Ndonga & 7 Others [2015] eKLR

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A M Kimani & Co Advocates V Trident Insurance Co Limited [2015] eKLR

Case Number: Miscellaneous Application 208 of 2014 Date Delivered: 27 Nov 2015

Judge: Pauline Nyamweya

Court: High Court at Machakos

Parties: A M Kimani & Co Advocates v Trident Insurance Co Limited

Citation: A M Kimani & Co Advocates V Trident Insurance Co Limited [2015] eKLR

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Hannah Waruguru Mwangi Paul Mwaura Mwangi As Administrators And Legal Representatives Of Simon Ryboy Mwangi V Salome Wanjiru Gitoho & Another [2015] eKLR

Case Number: Environment & Land Case 140 of 2015 Date Delivered: 27 Nov 2015

Judge: Boaz Nathan Olao

Court: Environment and Land Court at Kerugoya

Parties: Hannah Waruguru Mwangi Paul Mwaura Mwangi As Administrators And Legal Representatives Of Simon Ryboy Mwangi v Salome Wanjiru Gitoho & District Land Registrar Muranga

Citation: Hannah Waruguru Mwangi Paul Mwaura Mwangi As Administrators And Legal Representatives Of Simon Ryboy Mwangi V Salome Wanjiru Gitoho & Another [2015] eKLR

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Joy Brenda Masinde V Law Society Of Kenya & Another [2015] eKLR

Case Number: Petition 54 of 2015 Date Delivered: 27 Nov 2015

Judge: Maureen Akinyi Odero

Court: High Court at Nakuru

Parties: Joy Brenda Masinde v Law Society of Kenya & Attorney General

Citation: Joy Brenda Masinde V Law Society Of Kenya & Another [2015] eKLR

Prescribing additional qualifications for vacant positions outside of those provided by Statute is Illegal

Joy Brenda Masinde v Law Society of Kenya & another

High Court at Nakuru

Petition No 54 of 2015

M A Odero J

November 27, 2015

Reported by Phoebe Ida Ayaya

 

Brief facts

The petition arose from an advertisement placed by the 1st Respondent in the Daily Nation Newspaper of Thursday August 20th 2015 inviting applications for the position of Secretary/CEO of the Law Society of Kenya.  The said advertisement indicated that in order to be appointed an applicant required the following qualifications:-

 i.  The applicant must be in possession of Bachelor of Laws Degree – it was indicated that an advanced degree would be an added advantage;

 ii.  The applicant must be an advocate of the High Court of Kenya of not less than ten (10) years standing;

 iii.  The applicant must be a Certified Public Secretary (CPS) with at least five (5) years standing;

 iv.  The applicant must have experience and knowledge in management.

 The Petitioner who expressed an intention to submit her application for the post of Secretary/CEO, objected to the qualifications set out in the impugned advertisement on the basis that specifically the requirement that an applicant be a CPS of five (5) years standing was unlawful as it was not a qualification for the position of Secretary/CEO provided for by section 26(4) of the Law Society of Kenya Act.

The Petitioner argued that the 1st Respondent had no power to prescribe additional qualifications outside of those provided by statute. The Petitioner finally asserted that the additional requirements were discriminatory towards herself and others like her who did not hold a CPS of five years and violated her rights under article 27 of the Constitution. 

Issues

  1. Whether the 1st Respondent violated the Petitioners Constitutional rights by not according her a right to fair administrative action by being denied a fair hearing
  2. Whether the 1st Respondent discriminated against the Petitioner by prescribing additional qualifications outside of those provided by statute in a vacant job advertisement
  3. Whether the 1st Respondent was ultra vires the legal statutory provisions in the action of prescribing additional qualifications outside of those provided by statute in a vacant job advertisement

 

 

Constitutional law – fundamental rights and freedoms - Enforcement of fundamental Rights and freedoms- right to fair administrative action- limitation of the right to fair administrative action- whether the Petitioner was subjected to any administrative actions by the 1st Respondent for which she was denied a fair hearing –whether she was denied access to justice within the meaning of article 47 - article 47(1) & (2) of the Constitution of Kenya, 2010

Constitutional Law-fundamental rights and freedoms-right against discriminations- whether the Respondents discriminated the Petitioner thus violating their rights under the Constitution of Kenya- whether the Respondents violated the Constitution on obligations relating to fair administrative action- Constitution of Kenya, 2010, article 47

Civil practice and procedure – judicial review – application for orders of certiorari to quash and prohibit the decision and conduct Law Society of Kenya from imposing additional requirements on a job position without a proper legislative framework – duty of the court to exercise its discretion judiciously based on the evidence of sound legal principles when granting judicial review orders – whether in the circumstances the application had merit

Administrative law -Judicial Review-certiorari-application for orders of certiorari to compel the 1st Respondent to comply with the recommendations of Statute - whether the application had merit –

Administrative Law-testing the legality of a statutory office in its exercise of statutory mandate- Whether the 1st Respondent acted unlawfully with respect to the additional requirements of the position of secretary/ceo –powers and limitations of the 1st respondent as a statutory body

Words and Phrases – definition - eligible - fit and proper to be selected or to receive a benefit; legally qualified for an office, privilege or status -Blacks Law Dictionary 9th Edn

 

 

 

 

 

Statutes

Law Society of Kenya Act

Section 17

The Council’ which is the governing body of the 1st respondent as per section 17(1) of the Act.  It is this Council which is vested with the powers under Section 26(2) to appoint the Secretary.  Section 26(2) provides:-

“The secretary shall be appointed by the Council through a transparent and competitive recruitment process.

Section 26(4) of the Law Society of Kenya Act provides:-

 (4)  A person shall be eligible for appointment as the secretary to the society if that person –

  a.  is an advocate of the High Court of Kenya with at least ten years experience, and

 b.  meets the requirements of Chapter Six of the Constitution.

Constitution of Kenya, 2010

Article 27(4) and (5)

 (4)  The state shall not discriminate directly or indirectly against any person on any ground including race, sex, pregnancy, marital status, health status, ethic or social origin, colour, age, disability, religion, conscience belief, culture, dress, language or birth.

 (5)  A person shall not discriminate directly or indirectly against another person on any of the grounds specified or contemplated in clause (4).

International Labour Organisation Discrimination (Employment and Occupation) Convention, 1958 (No.111

 Discrimination is defined in the as follows:-

For the purpose of this convention the term discrimination includes –

 a.  any distinction, exclusion or preference made on the basis of race, colour, sex, religion, political opinion, national extraction or social origin, which has  the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation;

 b.  such other distinction exclusion or preference which has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation as may be determined by the member concerned after consultation with representative employers’ and workers’ organizations where such exist, and with other appropriate bodies –

 2.  Any distinction, exclusion or preference in respect of a particular job based on the inherent requirements thereof shall not be deemed to be discrimination

 

 

Held:

  1. The Petitioner was never at any time subjected to any administrative actions by the 1st Respondent for which she was denied a fair hearing neither was she denied access to justice within the meaning of article 47 of the Constitution. These two claims failed to meet the threshold of a constitutional petition. The Petitioner totally failed to articulate the grounds upon which she relied and failed to demonstrate the manner in which these particular rights had been infringed by the actions of the 1st Respondent thus the ground of the petition failed.
  2. The Petitioner claimed that her right to equality and freedom against discrimination under article 27 had been infringed. Adding the extra requirement for appointment as Secretary/CEO the 1st Respondent unlawfully excluded persons who were otherwise qualified from applying for the petition.
  3. Discrimination meant affording different treatment to different persons attributable wholly or mainly to their descriptions by race, tribe, place of origin or residence or other local conviction, political opinions, colour, creed, or sex, whereby persons of one such description were subjected to disabilities or restrictions to which persons of another such description are not made subject or are accorded privileges or advantages which are not accorded to persons of another such description. Discrimination also meant unfair treatment or denial of normal privileges to persons because of their race, age, sex, a failure to treat all persons equally where no reasonable distinction could be found between those favored and those not favored.
  4. Discrimination could be said to have occurred where a person was treated differently from other persons who were in similar positions on the basis of one of the prohibited grounds like race, sex creed etc or due to unfair practice and without any objective and reasonable justification.
  5.  In this case the distinction was predicated upon academic qualification.  The 1st Respondent argued that in order to properly discharge the functions of Secretary, it was essential that the appointee be a CPS of five years standing.  In other words the 1st Respondent being the employer and cognizant of the job description felt that the ideal candidate ought to be a holder of CPS of five years standing.  This was a distinction that was based on job preference and/or performance.  It was not unreasonable for the 1st Respondent to declare what qualifications they believed an ideal candidate should hold. 
  6. In a similar way the impugned advertisement indicated that whilst a Bachelor of Laws Degree remained the minimum requirement an advanced degree would be an added advantage.  A statement of preference with regard to the qualification the ideal candidate should possess was unfair or illegitimate.  The job market currently was cutthroat.  Only the best or best qualified would succeed.  This was the reality of competition in a capitalistic society.  The mere expression of the preferred qualifications for the ideal candidate did not amount to discrimination under article 27 of the Constitution as it was not premised on any of the grounds stated on or contemplated by article 27(4) nor can the stated preference be said to amount to an illegitimate consideration.
  7. The substance of the Petitioner’s claim was that the 1st Respondent did not have powers under the Law Society of Kenya Act to impose the requirement of CPS 5 years standing on the applicants.  The Petitioner was therefore invoking the court’s supervisory jurisdiction over any person or body performing a public function.  The 1st Respondent being a statutory body established under article 3 of the Law Society of Kenya Act was subject to the judicial review jurisdiction of this court. The scope of Judicial Review was stated as concerning only the decision-making process and that the court was not required to enquire into the merits of that decision.
  8. In order to succeed in an application for judicial review, the applicant had to show that the decision or act complained of was tainted with illegality, irrationality and procedural impropriety. Illegality was when the decision-making authority committed an error of law in the process of taking or making the act, the subject of the complaint.  Acting without jurisdiction or ultra vires, or contrary to the provisions of a law or its principles were instances of illegality.
  9. Irrationality was when there was such gross unreasonableness in the decision taken or act done, that no reasonable authority, addressing itself to the facts and the law before it, would have made such a decision. Such a decision was usually in defiance of logic and acceptable moral standards. Procedural Impropriety was when there was a failure to act fairly on the part of the decision-making authority in the process of taking a decision.  The unfairness was non-observance of the Rules of Natural Justice or acted with procedural fairness towards one to be affected by the decision.  It also involved failure to adhere and observe procedural rules expressly laid down in a statute or legislative Instrument by which such authority exercised jurisdiction to make a decision.
  10.  Section 17 of the Law Society of Kenya Act created ‘The Council’ which was the governing body of the 1st Respondent as per section 17(1) of the Act.  It was this Council that was vested with the powers under section 26(2) to appoint the Secretary.
  11. The statute that formed the basis for the qualifications required of the role of the post of Secretary/CEO lists only two (2) such qualifications.  Yet in the impugned advertisement dated 20th August 2015 the 1st respondent added a third qualification being that an applicant for the position of secretary/CEO was also to be a CPS holder of five years standing.  The use of the word ‘shall’ in section 26(4) made this a mandatory requirement.  Section 26(4) stated that in order to be ‘eligible’ for appointment as secretary/CEO an applicant was required to meet only the two stated qualifications. Contrary to the submissions by the 1st Respondent this additional qualification was not expressed to be merely as an ideal qualification in the way that an advanced degree was expressed to be an added advantage.  Rather this additional CPS qualification was stated as a mandatory minimum requirement for consideration for the post advertised.  Thus a person not in possession of a CPS of five years standing was deemed not eligible to apply.  It was therefore a requirement that determined whether or not a person would apply for the position.
  12.  Where a body had been established by statute (such as the Law Society of Kenya) then that body was to act in accordance with the powers conferred upon it and could not allocate itself powers even when it felt those powers are necessary to enable it perform its functions. Where a statute donated powers to an authority, the authority ought to ensure that the powers that it exercised were within the four corners of the statute and ought not to extend its powers outside the statute under which it purported to exercise its authority.
  13.  Consequently, where the law exhaustively provided for the jurisdiction of a body or authority, the body or authority must operate within those limits and ought not to expand its jurisdiction through administrative craft or innovation.  Courts will not be rubber stamps of the decisions of administrative bodies.  However, if Parliament gave great powers to statutory bodies, the courts allowed them to exercise it.  The Courts must be vigilant to see that the said bodies exercised those powers in accordance with the law.
  14.  The 1st Respondent’s powers as donated by section 26(4) of the Law Society of Kenya Act was to appoint as Secretary/CEO persons who had qualified as for the Act a transparent and competitive recruitment process.  The 1st Respondent did not have the power under the Act to determine the minimum qualifications for Secretary/CEO or to set out the threshold of competence or eligibility..
  15.  The minimum qualifications were clearly set out in statute.  In selecting the ideal candidate out of the pool of interested applicants all of whom possess the minimum statutory qualifications the 1st Respondent were however, at liberty to take into consideration any additional qualification that may give one candidate an edge over the other candidates and proceed to appoint a suitable candidate on the basis of that additional qualification.  This would maintain the spirit of the Act and article 73(2)(a) of the Constitution that provided for selection on the basis of personal integrity, competence and suitability as one of the guiding principles of leadership and integrity.
  16.  Accordingly in making it a mandatory requirement for appointment as Secretary/CEO, that an applicant must in addition to the requirements set out in section 26(4) be a CPS of not less than five years standing the 1st Respondent acted outside of its statutory mandate.  This additional requirement was made ultra vires their powers and was thus quashed.

Orders:

i. A declaration that the decision by the Respondents to provide additional qualifications for the post of Chief Executive Officer/Secretary of the Law Society of Kenya was against the Law Society of Kenya Act hence ultra vires;

ii. An order of certiorari issued to quash the decision by the Respondents to provide additional qualifications for the post of Chief Executive Officer/Secretary of the Law Society of Kenya and the advertisement dated 20th August 2015.

iii. Costs are awarded to the petitioner

Parties:  Masinde v Law Society of Kenya & another [2015] KLR- HCK

Case Number: Petition No 54 of 2015

Coram: M A Odero J

Court Station: High Court at Nakuru

Date of Delivery:  November 27, 2015

Cases

East Africa

1. Anarita Karimi Njeru v Attorney General (No 1) [1979] KLR 154 – (Mentioned)

2. Commissioner of Lands v Kunste Hotel Ltd Civil Appeal No 234 of 1995- (Followed)

3. Mungai, Githu & another v Law Society of Kenya & another Petition No 286 of 2014 – (Followed)

4. Pastoli v Kabale District Local Government Council & others [2008] 2 EA 300 – (Followed)

5. Waweru, Peter K v Republic Miscellanous Civil Application No 118 of 2004 – (Followed)

Statutes

East Africa

1. Constitution of Kenya, 2010 articles 27(4) (5); 47; 48; 73(2) (a) – (Interpreted)

2. Certified Public Secretaries Act (cap 534) seciton 15 – (Interpreted)

3. Law Society of Kenya Act, 2014 (Act No 21 of 2014) sections 17(1); 26(4) – (Interpreted)

Texts & Journals

1. Garner, BA., (Ed) ( 2009) Blacks Law Dictionary St Paul Minnesota: West Group Publishers 9th Edn

International Instruments

1. International Labour Organisation Discrimination (Employment and Occupation) Convention, 1958 (No 111) (ILO)

Advocates

1. Mr Kipkoech for Petitioner

2. Mr Biko for the 1st Respondent

 

 

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Dick Maina Githaiga V Kenya National Chambers Of Commerce And Industry & Another [2015] eKLR

Case Number: Environment and Land Case 788 of 2013 Date Delivered: 27 Nov 2015

Judge: Boaz Nathan Olao

Court: High Court at Kerugoya

Parties: Dick Maina Githaiga v Kenya National Chambers of Commerce and Industry & National Land Commission

Citation: Dick Maina Githaiga V Kenya National Chambers Of Commerce And Industry & Another [2015] eKLR

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Benson Riitho Muriithi V Director Of Public Prosecutions & 3 Others Interested Party Robert Maina Githinji [2015] eKLR

Case Number: App 4 of 2015 Date Delivered: 27 Nov 2015

Judge: John Muting'a Mativo

Court: High Court at Nyeri

Parties: Benson Riitho Muriithi v Director of Public Prosecutions & 3 others Interested Party Robert Maina Githinji

Citation: Benson Riitho Muriithi V Director Of Public Prosecutions & 3 Others Interested Party Robert Maina Githinji [2015] eKLR

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Case Number: Misc Civil Application 2 of 2015 (Jr) Date Delivered: 27 Nov 2015

Judge: Hatari Peter George Waweru

Court: High Court at Murang'a

Parties: Ex-Parte Fredrick Githu Kamau v Kandara Sub-County Alcoholic Drinks Regulation Committee, Murang’a County Government & B Gicheha

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Case Number: Enviroment and land Case No. 13 of 2015 Date Delivered: 27 Nov 2015

Judge: Boaz Nathan Olao

Court: Environment and Land Court at Kerugoya

Parties: Margaret Ringa P.M. Gitonga & another v Jacinta Njoki Wahogo, James Muiru Wahogo, Solomon Njoroge Wahogo, Davit Mungai Wahogo, Edward Gitahi Mathenge & Daniel Ngugi Kinuthia

Citation: Margaret Ringa P.M. Gitonga & Another V Jacinta Njoki Wahogo & 5 Others [2015] eKLR

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Case Number: Environment & Land Case 7 of 2015 Date Delivered: 27 Nov 2015

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Case Number: Elc Case 278 of 2014 Date Delivered: 27 Nov 2015

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Case Number: Environment and Land Case 471’A’ of 2013 Date Delivered: 27 Nov 2015

Judge: Boaz Nathan Olao

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Parties: Muchiri Mutero v Patrick Muriuki Njeru,Peter Mwangi Munene,Cecily Wanja Mbogo,Esther Wambugi Nyaga,Emmah Wagatu Albert,Albert Githambo Kibonge,Fredrick Muriuki Njeru,Samuel Ngugi Marubu & Ceciliah Wanjiku Wachira

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Fadhil Juma Kisua & Another V Kenya Ports Authority [2015] eKLR

Case Number: Cause 793 of 2015 Date Delivered: 27 Nov 2015

Judge: Onesmus Ndambuthi Makau

Court: Employment and Labour Relations Court at Mombasa

Parties: Fadhil Juma Kisua & Bernard Chitiavi Bulinda v Kenya Ports Authority

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Case Number: Miscellaneous Application 36 37 to 45 of 2015 (Consolidated) Date Delivered: 26 Nov 2015

Judge: Said Juma Chitembwe

Court: High Court at Malindi

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Case Number: Miscellaneous Application 53 of 2015 Date Delivered: 26 Nov 2015

Judge: Said Juma Chitembwe

Court: High Court at Malindi

Parties: Onesmus Macharia Kimani v S K (minor suing thr' his father and next friend L K K & Hamisi Juma Kombo

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Case Number: Miscellaneous Civil Application 6 of 2014 Date Delivered: 25 Nov 2015

Judge: Ruth Nekoye Sitati

Court: High Court at Kakamega

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In Re Estate Of The Late Gedion Manthi Nzioka (Deceased)[2015]eKLR

Case Number: Succession Cause 122 of 2010 Date Delivered: 25 Nov 2015

Judge: Pauline Nyamweya

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Parties: In re Estate of The Late Gedion Manthi Nzioka (Deceased)

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In Re Estate Of Ndeto Mutwika (Deceased)[2015] eKLR

Case Number: succession cause 187 of 1998 Date Delivered: 25 Nov 2015

Judge: Pauline Nyamweya

Court: High Court at Machakos

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Case Number: Succession Cause 3519 of 2003 Date Delivered: 25 Nov 2015

Judge: Lydia Awino Achode

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Republic V John Kyai Kikuvi & Another [2015] eKLR

Case Number: Criminal Case 28 of 2015 Date Delivered: 25 Nov 2015

Judge: Bwonwong'a Justus Momanyi

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Case Number: Petition 456 of 2015 Date Delivered: 25 Nov 2015

Judge: Onguto Joseph Louis Omondi

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Koech Kemboi v Halakhe Waqo, Michael Mubea & Ethics and Anti-CorruptionCommission

Citation: Koech Kemboi V Halakhe Waqo & 2 Others [2015] eKLR

The Function of Recruitment and Employment of Staff Members to the Ethics and Anti-Corruption Commission to be undertaken by the EACC Commissioners Only

 

Koech Kemboi V. Halakhe Waqo & 2 Others

Petition No. 456 of 2015

High Court at Nairobi

Constitutional and Human Rights Division

J L Onguto, J

November 25, 2015

Reported By Robai Nasike Sivikhe

Brief Facts

The 1st and 2nd respondents, heads of the Secretariat to the 3rd respondent, engaged in an exercise to recruit 172 staff members of the 3rd respondent. Such an exercise could only be undertaken by the EACC Commission under article 252 of the Constitution. At the time the Secretariat decided to engage in the exercise, the EACC Commission was not properly constituted because there were no EACC Commissioners in the office. The petitioner, a citizen of Kenya, instituted a petition and similarly made an application for conservatory orders pending hearing and determination of the petition. The petitioner contented that the respondents would be in violation of article 252 (1) of the Constitution and section 18 of the Ethics and Anti-Corruption Commission Act if they continued with the recruitment process.

Issues

i. Whether the petitioner had made out a case for grant of conservatory orders preventing the respondents from proceeding with the recruitment exercise pending hearing and determination of the petition.

ii. Whether the petitioner had the requisite locus standi to institute the petition and application.

iii. Whether a 30 day delay in filing a constitutional petition materially affected the substance of the petition and subsequent applications emerging from the petition.

Constitutional Law- fundamental rights and freedoms-enforcement of fundamental rights and freedoms- remedies available on breach of fundamental rights and freedoms- conservatory orders- whether the threshold for grant of conservatory orders had been met- whether the petitioner had made out a case for grant of conservatory orders preventing the respondents from proceeding with the recruitment exercise pending hearing and determination of the petition- Constitution of Kenya, 2010, article 252; Ethics and Anti-Corruption Commission Act, sections 11, 16 and 18.

Constitutional Law­- fundamental right and freedoms- enforcement of fundamental rights and freedoms- locus standi- whether the petitioner could institute a constitutional petition even though he had not suffered personal prejudice- whether the petitioner had the requisite locus standi to institute the petition- Constitution of Kenya, 2010, article 3 (1) & article 258 (1)

 

Constitution of Kenya, 2010

Article 3 (1)

3. (1) Every person has an obligation to respect, uphold and defend this Constitution.

Article 252 (1) (c) and (d)

252. (1) Each commission, and each holder of an independent office—

 (c) shall recruit its own staff; and

(d) may perform any functions and exercise any powers prescribed by legislation, in addition to the functions and powers conferred by this Constitution.

Article 258 (1)

258. (1) Every person has the right to institute court proceedings, claiming that this Constitution has been contravened, or is threatened with contravention.

 

Held

1. The principles to be applied by courts faced with an application for conservatory orders were well settled. The principles were as follows:

i. The applicant had to demonstrate that they had a prima facie case with a likelihood of success and could suffer prejudice as a result of the violation or threatened violation.

ii. The decision to deny or grant conservatory relief had to enhance constitutional values and objects specific to the rights and freedoms provided in the bill of rights.

iii. The petition or its substratum could be rendered nugatory where the conservatory orders were not granted.

iv. Public interest had to favor the grant of conservatory orders.

v. The circumstances of the case dictated that the discretion of the court had to be exercised in favor of the applicant after considering all material facts.

vi. In exercising its discretion, the court had to balance the conflicting positions adopted by each party and where necessary, invoke the doctrine of proportionality.

2. The court could not engage in an element based inquiry when addressing the question whether the petitioner deserved the conservatory orders sought. Not every single element had to be proven; rather, the totality of facts had to guide the court. The court could still exercise its discretion to issue conservatory orders even where a prima facie case with a likelihood of success had not been established. The court always had to opt for a lower risk of injustice especially where factors appeared to be even.

3. According to article 3 (1) of the Constitution, every person had an obligation to respect, uphold and defend the Constitution. Article 258 (1) allowed every person the right to institute court proceedings claiming that the Constitution had been contravened or was threatened with contravention. A person did not have to suffer personal prejudice and could approach court out of genuine grievance and concern that the Constitution had been contravened or was threatened with contravention. The petition had not been filed for personal gain or out of ill motive. The petitioner was a citizen with a genuine concern and grievance, and had the requisite standing provided under article 258 (1) of the Constitution. 

4. An aggrieved party had to move with alacrity in matters concerning the Constitution. However, the Constitution was silent with regard to the time frame within which constitutional litigation had to be commenced. In cases where delay was alleged, the court had to determine whether justice would be done if the delay was excused. The court had to consider whether the delay could render the proceedings an abuse of judicial proceedings.

5. The alleged delay of 30 days in the circumstances of the case was not inordinate or inexcusable. The issue regarding the competence of the 3rd respondent to recruit staff in the absence of the EACC Commissioners was relatively weighty and substantial to warrant the petition and the intermediary application being determined on their respective merits. The interests of justice would be better served if the application was determined minus the hiccups of alleged delays.

6. Even though the EACC Commission continued to exist pursuant to article 253 of the Constitution, both the Constitution as read with the Ethics and Anti-Corruption Commission Act seemed to outline the functions of the Secretariat, the Commissioners and the Commission. Those functions were specifically reserved for each office and appeared discernible. The functions were not merely out of perception.

7. It could not be concluded that the Secretariat was empowered to carry out the mandates of the EACC Commission. The almost dichotomic provision of functions and roles under the statute would make little sense. The setting and establishment of a corporate entity could not allow its officers and employees to do everything in the absence of shareholders or directors. 

8. There was no provision in the statute that expressly empowered the Secretariat to recruit the 3rd respondent’s staff. The respondents stated that the 1st, 2nd respondents and Secretariat were responsible for the day to day administration and management of the affairs of the 3rd respondent. However, recruitment of staff could not be considered to fall within the purview of the day to day administration and management of affairs of the commission.

9. A cursory reading of article 252 of the Constitution as well as sections 11, 16 and 18 of the EACC Act appeared to reveal that the draftsmen had always intended that the commissioners would be involved in the recruitment of staff to the EACC Commission. That fact was buttressed by section 6 of the Ethics and Anti-Corruption Commission (Amendment) Act 2015 which provided that the new EACC Commissioners had to vet all employees of the EACC Commission once they had been recruited and within one year of assuming office. Therefore, the employees who had been in employment since 3rd September 2014, the date of commencement of the Ethics and Anti-Corruption Commission (Amendment) Act, had to be vetted by the Commissioners.

10. Any employees who had been engaged by the Secretariat after 3rd September 2015 in the absence of the EACC Commissioners could not be vetted. Such an exercise would not augur well with the Constitution as well as the Ethics and Anti-corruption Commission Act which seemed to suggest that the EACC Commissioners needed employees they believed could assist them in executing their mandate.

11. The petitioner had established a prima facie case with a likelihood of success. Furthermore, the public would suffer because prospective jobseekers could lose out if the conservatory orders were not granted.

12. The wider public interest would be affected due to the possible violation of the Constitution and statute. The newly appointed commissioners could find themselves surrounded by staff they do not consider suitable yet they cannot fire them under section 6 of the Ethics and Anti-Corruption Commission (Amendment) Act. In addition, the recruitment of the EACC Commissioners was underway and if completed fast, they would join the secretariat in the recruitment of new staff.

13. The petition could be rendered nugatory if conservatory orders were not granted.  If the conservatory orders were not granted and the petition succeeded, the EACC Commissioners could be overwhelmed with termination of employment contracts and that could result in a deluge of law suits. The cost of settling and fending off the suits would have to be borne by the public; hence it would be more proportionate to suspend the recruitment process.

14. The respondents had not argued that they would be completely short of staff. In addition, if the 3rd respondent had a shortage of staff, the Public Service Commission could be called upon under sections 18 (2) (b) and 18 (3) of the EACC Act to second staff from other sectors of public service.

Application allowed (Conservatory orders were granted); Order prohibiting the respondents from undertaking any exercise of recruitment of staff pursuant to the advertisements on 18th September 2015 pending hearing and determination of the petition was issued.

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Judge: Monica Mbaru

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Citation: Humphrey Irungu Mugo V Kenya Kazi Services Limited [2015] eKLR

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Judge: Janet Nzilani Mulwa

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Parties: Pinnacle Commnications Ltd v Menengai Oil Refineries

Citation: Pinnacle Commnications Ltd V Menengai Oil Refineries [2015] eKLR

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Judge: Ruth Nekoye Sitati

Court: High Court at Kakamega

Parties: Republic v Principal Secretary Ministry of Interior & Coordination of Government & Attorney General Ex parte Selfa Chalenga

Citation: Republic V Principal Secretary Ministry Of Interior & Coordination Of Government & Another Ex Parte Selfa Chalenga [2015] eKLR

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Judge: Aggrey Otsyula Muchelule

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Mungai Gitau v Paul Muroki Gitau

Citation: Mungai Gitau V Paul Muroki Gitau [2015] eKLR

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Judge: Bwonwong'a Justus Momanyi

Court: High Court at Embu

Parties: Emiel Njeru Nyaga v Republic

Citation: Emiel Njeru Nyaga V Republic [2016] eKLR

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Kenya Airways Pilots Association V Kenya Airways Limited [2015] eKLR

Case Number: Cause 1770 of 2015 Date Delivered: 25 Nov 2015

Judge: Monica Mbaru

Court: Employment and Labour Relations Court at Nairobi

Parties: Kenya Airways Pilots Association v Kenya Airways Limited

Citation: Kenya Airways Pilots Association V Kenya Airways Limited [2015] eKLR

Employees will not benefit from differential treatment or special treatment on the basis of being unionized or not being unionized.

 

Kenya Airways Pilots Association v Kenya Airways Limited

Cause No 1770 of 2015

Employment and Labour Relations Court at Nairobi

M Mbaru, J

November 25, 2015

 

Reported by Beryl A Ikamari

 

Brief facts

The Claimant sought interim orders which would effectively suspend the operationalization of a Code known as the Code of Business Conduct and Ethics Version 2 and referenced KQ/HR/3/CBC. The Claimant stated that the Code effectively changed the terms and conditions of service for its members without the requisite consultations and negotiations. The Claimant further elaborated that the Code was being applied in a coercive manner whereby the Claimant's members had to sign the Code before enjoying certain employee benefits. The benefits included the buddy program, issuance of confirmation letters of employment and enjoyment of staff travel benefits.

In response, the Respondent explained that the Code was not intended to amend the CBA and that the issues it dealt with were non-negotiable. According to the Respondent, the Claimant had not laid a basis for the grant of the interim orders sought.

 

Issues

  1. Whether the circumstances allowed for the grant of interim orders which would suspend the operationalization of the Code of Business Conduct and Ethics Version 2.
  2. Whether the application of the Code created circumstances where certain employees would receive differential treatment on the basis of unionization.

 

Employment Law-terms and conditions of employment-change in terms and conditions of employment-circumstances in which there would be a change in the employment terms-whether such changes would require consultations and negotiation with employees.

Employment Law- general principles-non-discrimination-whether employees could have differential treatment on the basis of being unionized or not being unionized-Employment Act, 2007, section 5.

 

Held

  1. Matters of employee disobedience, insubordination and uncooperativeness were serious disciplinary matters set out in the CBA and already regulated in the human resource policy. The Code was being used to withhold benefits, privileges and rights accorded to other employees where such employees failed to sign the code. The withholding of benefits in such manner subjected employees to differential treatment which amounted to discrimination.
  2. The Respondent failed to enter into negotiations on the Code and the Code touched on fundamental terms and conditions of service. Therefore, a prima facie case had been established.
  3. Both parties raised an issue on discrimination from different perspectives. Such matters would require the parties alleging discrimination to tender evidence.
  4. Under section 5 of the Employment Act, employees could not seek special treatment against other employees on grounds that they were unionized or that they were not unionized. The Code would have to apply to all employees and without separation and distinction on the basis of status of any kind.
  5. No Code, CBA or other policy document could create separate and different treatment without reasonable cause or without justification permitted in democratic societies.

 

Application dismissed

 

Orders: -

  1. The Claimant members shall proceed and sign the Code of Business Conduct and Ethics unconditionally as required by the Respondent;
  2. The Respondent shall proceed to re-open registration of the Claimant members’ nominee for the buddy pass program for 2015;
  3. The above (a) and (b) shall be undertaken within the next 7 calendar days from the date of the Ruling inclusive;
  4. The above (a), (b) and (c ) being mutually complementary, where any party does not comply, the other shall be at liberty to move the Court as appropriate;
  5. Noting the orders (a) and (b) above, a hearing date herein shall be allocated on priority basis;
  6. Costs shall be in the motion.

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Joseph Sebastian Ringo V Kenya Railways Corporation [2015] eKLR

Case Number: Cause 1585 of 2013 Date Delivered: 25 Nov 2015

Judge: Monica Mbaru

Court: Employment and Labour Relations Court at Nairobi

Parties: Joseph Sebastian Ringo v Kenya Railways Corporation

Citation: Joseph Sebastian Ringo V Kenya Railways Corporation [2015] eKLR

Joseph Sebastian Ringo v Kenya Railways Corporation

Cause No 1585 of 2013

Employment and Labour Relations Court at Nairobi

M Mbaru, J

November 25, 2015

 

Reported by Beryl A Ikamari

 

Brief facts

Pursuant to a concession agreement the Respondent, Kenya Railways Corporation transferred the Claimant to Rift Valley Railways (Kenya) Limited, on November 1, 2006. The Claimant ceased to be the Respondent's employee on October 25, 2006 when he accepted the letter of transfer.

Upon termination by Rift Valley Railways (Kenya) Limited, the Claimant sought retrenchment and terminal dues from the Respondent. He stated that his transfer to Rift Valley Railways (Kenya) Limited was one that should not have been done because there was a pending disciplinary matter with the Respondent. That matter had led to charges being made against the Claimant and he was acquitted.

A preliminary objection was raised to effect that under section 90 of the Employment Act and section 87 of the Kenya Railways Act, the suit was time barred. The suit was filed after a period that exceeded 7 years after the Claimant's transfer. 

 

Issue

  1. Whether the suit, which related to a transfer of an employee to a different employer undertaken 7 years prior to the filing of the suit, was time barred.
  2. The effect of a transfer of an employee to another employer on his employment contract.

 

Employment Law-limitation of actions-limitation period in relation to contracts of employment-whether a claim relating to a transfer of employment effected 7 years prior to the filing of the claim was time barred-Employment Act, 2007, section 90; Kenya Railways Corporation Act, (Cap 397).

 

 

Employment Act, 2007, section 90;

90. Notwithstanding the provisions of section 4 (1) of the Limitation of Actions Act, no civil action or proceedings based or arising out of this Act or a contract of service in general shall lie or be instituted unless it is commenced within three years next after the act, neglect or default complained or in the case of continuing injury or damage within twelve months next after the cessation thereof.

 

Kenya Railways Corporation Act, (Cap 397)

87. Limitation

Where any action or other legal proceeding is commenced against the Corporation for any act done in pursuance or execution, or intended execution, of this Act or of any public duty or authority or in respect of any alleged neglect or default in the execution of this Act or of any such duty or authority, the following provisions shall have effect—

(a) the action or legal proceeding shall not be commenced against the Corporation until at least one month after written notice containing the particulars of the claim, and of intention to commence the action or legal proceeding, has been served upon the Managing Director by the plaintiff or his agent; and

(b) the action or legal proceeding shall not lie or be instituted unless it is commenced within twelve months next after the act, neglect or default complained of or, in the case of a continuing injury or damage, within six months next after the cessation thereof.

 

Held

  1. Under section 90 of the Employment Act all actions on employment and labour relations, based on a contract of service were to be instituted within 3 years after the act, neglect or default which constituted the claim. Where there was continuous injury, the suit was to be filed within 12 months after cessation of the injury. The provision was mandatory.
  2. Under section 87(2) of the Kenya Railways Corporation Act, any action, claim, complaint was to be commenced within 12 months after the act, neglect or default complained of or in cases of continuing injury, within 6 months of the injury. The filing of the claim was to be done within the stated period.
  3. The applicable statutory time limitations were mandatory requirements. There were transitional provisions which were applicable to contracts entered into before the commencement of the Employment Act 2007. The provisions were to the effect that such contracts would remain in force to the extent that their terms and conditions were not inconsistent with the provisions of the Employment Act.
  4. The effect of the Claimant's transfer from the Kenya Railways Corporation to the Rift Valley Railways (K) Limited was that his employment contract with the Respondent was terminated and he acquired a new employer. If the Claimant was dissatisfied, he should have lodged a claim with the new employer and if necessary the Respondent would be enjoined as an Interested Party. Claims under the employment contract or his contract of service were claims against the new employer. Any liabilities of the previous employer, under the concession agreement between the two employers, had moved to the new employer.
  5. The claim had been filed out of time. The suit failed to meet the time limitations set in section 90 of the Employment Act and section 87 of the Kenya Railways Corporation Act.

Preliminary Objection upheld.

Cases

East Africa

1. Langat v Kenya Posts and Telecommunications Corporation [2000] 1 EA – (Mentioned)

 2. Mocheo, Benson Asiego v Kenya Railways Corporation Cause No 487 of 2011 – (Mentioned)

3. Mudegu, Francis Mwamburi v African Boot Company Limited Cause No 695 of 2012 – (Mentioned)

4. Mwangi, Francis & another v City Council of Nairobi & 3 others Cause No 561 (N) of 2009 – (Followed)

5. Shitiavai, Charles M v City Council of Nairobi, Cause No 2028 of 2011 – (Mentioned)

 6. Washeke, Elizabeth & 62 others v Airtel Networks (K) Limited & another Cause No1972 of 2013 – (Affirmed)

7. Wrigley Company (EA) Limited v Attorney General & 3 others Petition No 22 of 2012 – (Affirmed)

Statutes

East Africa

 1. Employment Act, (cap 226) repealed – Ingeneral – (Interpreted)

 2. Employment Act, 2007  (Act No 11 of 2007) sections 40, 90, 93 – (Interpreted)

 3. Industrial Court (Procedure) Rules, 2010   rules 4(e) – (Interpreted)

 4. Kenya Railways Act (cap 397) sections 11A, 87(b) (2) - (Interpreted)

5.  Pensions Act (cap 189) sections 40(1) (g); 16A – (Interpreted)

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