Case Search

pillars

Case Action: Ruling


Anilkumar Manubhai Patel & Another V Andrew Odongo Okello [2014] eKLR

Case Number: Environment And Land Civil Case 258 of 2014 Date Delivered: 31 Oct 2014

Judge: Samson Odhiambo Okong'o

Court: High Court at Kisii

Parties: Anilkumar Manubhai Patel & another v Andrew Odongo Okello

Citation: Anilkumar Manubhai Patel & Another V Andrew Odongo Okello [2014] eKLR

Read More

Wilson Dinda Olilo V Principal Magistrate’s Court, Oyugis Law Courts & 3 Others [2014] eKLR

Case Number: Environment and Land Petition 8 of 2014 Date Delivered: 31 Oct 2014

Judge: Samson Odhiambo Okong'o

Court: Environment and Land Court at Kisii

Parties: Wilson Dinda Olilo v Principal Magistrate’s Court, Oyugis Law Courts, District Land Registrar, Rachuonyo District, Attorney General & Dalmas Akech Ngiela

Citation: Wilson Dinda Olilo V Principal Magistrate’s Court, Oyugis Law Courts & 3 Others [2014] eKLR

Read More

BM Logistics Ltd V Kenya National Bureau Of Statistics & Another [2014] eKLR

Case Number: Civil Case 79 of 2010 Date Delivered: 31 Oct 2014

Judge: Eric Kennedy Okumu Ogola

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

Parties: BM Logistics Ltd v Kenya National Bureau of Statistics & Bulk Movers and Logistics (EA) Co. Ltd

Citation: BM Logistics Ltd V Kenya National Bureau Of Statistics & Another [2014] eKLR

Read More

In Re George Waweru Wanjohi [2014] eKLR

Case Number: Bankruptcy Cause 10 of 2014 Date Delivered: 31 Oct 2014

Judge: Eric Kennedy Okumu Ogola

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

Parties: In Re George Waweru Wanjohi

Citation: In Re George Waweru Wanjohi [2014] eKLR

Read More

True North Construction Company Limited & 3 Others V Eco Bank Kenya Limited & Another [2015] eKLR

Case Number: Civil Case 26 of 2014 Date Delivered: 31 Oct 2014

Judge: Eric Kennedy Okumu Ogola

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

Parties: True North Construction Company Limited, Benson Murumba Sifuma , Daudi Kiptugen & Dorothy Chemutai Yator v Eco Bank Kenya Limited & Kenya National Highways Authority

Citation: True North Construction Company Limited & 3 Others V Eco Bank Kenya Limited & Another [2015] eKLR

Read More

Cornerstone Security Services (K) Limited V National Cereals & Produce Board 2014] eKLR

Case Number: Civil Case 389 of 2014 Date Delivered: 31 Oct 2014

Judge: Eric Kennedy Okumu Ogola

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

Parties: Cornerstone Security Services (K) Limited v National Cereals & Produce Board

Citation: Cornerstone Security Services (K) Limited V National Cereals & Produce Board 2014] eKLR

Read More

Charles Onyango Anguka And Gerphas Obonyo Training As Jopiju Electrical And General Works V Equity Bank Limited & Another [2014] EKL

Case Number: Civil Case 578 of 2009 Date Delivered: 31 Oct 2014

Judge: Eric Kennedy Okumu Ogola

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

Parties: Charles Onyango Anguka and Gerphas Obonyo training as Jopiju Electrical and General Works v Equity Bank Limited & Elisha Ochieng Ombere training as Jupiju Electrical Services Contractor

Citation: Charles Onyango Anguka And Gerphas Obonyo Training As Jopiju Electrical And General Works V Equity Bank Limited & Another [2014] EKL

Read More

Peter Mburu Burugu V Margaret Njeri Mburu [2014] eKLR

Case Number: Civil Suit 2276 of 1998 Date Delivered: 31 Oct 2014

Judge: Lucy Nyambura Gacheru

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Peter Mburu Burugu v Margaret Njeri Mburu

Citation: Peter Mburu Burugu V Margaret Njeri Mburu [2014] eKLR

Read More

Ibrahim Mungara Kamau V Francis Ndegwa Mwangi [2014] eKLR

Case Number: Civil Suit 120 of 2014 Date Delivered: 30 Oct 2014

Judge: Lucy Nyambura Gacheru

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Ibrahim Mungara Kamau v Francis Ndegwa Mwangi

Citation: Ibrahim Mungara Kamau V Francis Ndegwa Mwangi [2014] eKLR

Read More

Francis Marete V Philip Njeru Mwathi & 3 Others [2014] eKLR

Case Number: E & L Case 68 of 2013 Date Delivered: 30 Oct 2014

Judge: Peter Muchoki Njoroge

Court: High Court at Meru

Parties: Francis Marete v Philip Njeru Mwathi, Josphat Kithaka Kamwara, Tharaka District Land Adjudication Officer & Attorney General

Citation: Francis Marete V Philip Njeru Mwathi & 3 Others [2014] eKLR

Read More

Reuben Lotim Anisomuk & 7 Others V Director Of Kenya Forest Service & 5 Others [2014] eKLR

Case Number: Constitutional Petition 1 of 2014 Date Delivered: 30 Oct 2014

Judge: Elija Ogoti Obaga

Court: High Court at Kitale

Parties: Reuben Lotim Anisomuk & 7 others v Director of Kenya Forest Service & 5 others

Citation: Reuben Lotim Anisomuk & 7 Others V Director Of Kenya Forest Service & 5 Others [2014] eKLR

Read More

Delila Nanyama Wabuyele V Jairus Khaemba Sabuni & Another [2014] eKLR

Case Number: Environment And Land Case 207 of 2013 Date Delivered: 30 Oct 2014

Judge: Anne Omollo

Court: Environment and Land Court at Bungoma

Parties: Delila Nanyama Wabuyele v Jairus Khaemba Sabuni & John Kariuki Njuguna

Citation: Delila Nanyama Wabuyele V Jairus Khaemba Sabuni & Another [2014] eKLR

Read More

Mary Adhiambo Otieno V Raymond Oloo Ndong [2014] eKLR

Case Number: Civil Appeal 21 of 2013 Date Delivered: 30 Oct 2014

Judge: David Shikomera Majanja

Court: High Court at Homabay

Parties: Mary Adhiambo Otieno v Raymond Oloo Ndong

Citation: Mary Adhiambo Otieno V Raymond Oloo Ndong [2014] eKLR

Read More

Chamanlal Kamani & 2 Others V Attorney General [2014] eKLR

Case Number: Petition 326 of 2013 Date Delivered: 30 Oct 2014

Judge: Isaac Lenaola

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Chamanlal Kamani & 2 others v Attorney General

Citation: Chamanlal Kamani & 2 Others V Attorney General [2014] eKLR

Read More

Muungano Wa Wanavijiji & 40 Others V Attorney General & 17 Others[2014] eKLR

Case Number: Petition 403 of 2012 Date Delivered: 30 Oct 2014

Judge: Isaac Lenaola

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Muungano Wa Wanavijiji, Eric Maingi, Kevin Musomba, Christian Sada, Janet Nyamata, Mukuru Health Ad, Elijah, Roseline,Evans Kidala, Jacky Nyabos, James Arisa, Isaac Mose, Ruben Afya, Bridge Rurawebu, Bernard Mutiso, Stellamaries Nkonge, Henry Ongeri,Judith, Gideon Mbinda,Richard Musetu,Job Ombasa, Henry Nyabuto, Kilonzo Wilson,Eliud Ngare, Millicent Akinyi, Walter Khova,Jomo Oanga, Cliff Obonyo, Jane Asiko, Judith Musimbi, Josphat Mutiso, Kennedy Ototo, Samuel Kaunde, William Adoyo, Patere Ecarigo, Jonathan Wachira,Carol Mueni, Alex Vuguso, Dancan Mwaro, Wilson Mutua & Samuel v Attorney General,The Minister For Lands,The Minister Of State Office Of The President In Charge Of Provincial Administration, Commissioner Of Lands, Retired President His Excellency,Daniel Arap Moi, Wilson Gachanj,Sammy Mwaita,James Raymond Njenga, John Joseph Kamotho, Kuza Farms And Allied Limited, Embakasi Developers Limited, Nash Motors Limited, Midway Ventures Limited, Orbit Chemicals Limited, Beta Engineering Ltd & Amsco Chemicals Ltd, Woodcraft Industries Limited,Jandu Investment (K) Limited & Oceanfreight Transport Co. Limited

Citation: Muungano Wa Wanavijiji & 40 Others V Attorney General & 17 Others[2014] eKLR

Read More

Market Investments Limited V Eco Bank Kenya Limited & Another [2014] eKLR

Case Number: Civil Suit 270 of 2013 Date Delivered: 30 Oct 2014

Judge: Jacqueline Kamau

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

Parties: Market Investments Limited v Eco Bank Kenya Limited & Meridian Acceptances Limited

Citation: Market Investments Limited V Eco Bank Kenya Limited & Another [2014] eKLR

Read More

Jameny Mudaki Asava V Brown Oteng Asava & Another [2014] eKLR

Case Number: Civil Application 52 of 2014 (Ur. 36/2014) Date Delivered: 30 Oct 2014

Judge: David Kenani Maraga, Festus Azangalala, Sankale Ole Kantai

Court: Court of Appeal at Kisumu

Parties: Jameny Mudaki Asava v Brown Oteng Asava & Authur Mwanzi Asava

Citation: Jameny Mudaki Asava V Brown Oteng Asava & Another [2014] eKLR

Read More

Republic V Joseph Mutua Kasuva [2014] eKLR

Case Number: Criminal Case 23 of 2013 Date Delivered: 30 Oct 2014

Judge: Beatrice Thuranira Jaden

Court: High Court at Machakos

Parties: Republic v Joseph Mutua Kasuva

Citation: Republic V Joseph Mutua Kasuva [2014] eKLR

Read More

Rukia Raphael Toya V Stephen Wangura & 2 Others [2014] eKLR

Case Number: ELC. 325 of 2010 Date Delivered: 30 Oct 2014

Judge: Samwel Ndungu Mukunya

Court: High Court at Mombasa

Parties: Rukia Raphael Toya v Stephen Wangura, Kalolo/Kibaoni/Baya Magonzi Upgrading Project Committee & Anderson Peru

Citation: Rukia Raphael Toya V Stephen Wangura & 2 Others [2014] eKLR

Read More

Devki Steel Mills V Robert Aputo Amariati [2014] eKLR

Case Number: Civil Case 559 of 2014 Date Delivered: 30 Oct 2014

Judge: Roselyne Ekirapa Aburili

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Devki Steel Mills v Robert Aputo Amariati

Citation: Devki Steel Mills V Robert Aputo Amariati [2014] eKLR

Read More

Jonathan Kasaine Mbutu & Another V Republic [2014] eKLR

Case Number: Criminal Revision 336 of 2014 Date Delivered: 30 Oct 2014

Judge: Lilian Nabwire Mutende

Court: High Court at Machakos

Parties: Jonathan Kasaine Mbutu & Johnstone Jonisa Kenyatta v Republic

Citation: Jonathan Kasaine Mbutu & Another V Republic [2014] eKLR

Read More

Benedicto Angweye Lusichi V Alfred Shimila Manyonge [2014] eKLR

Case Number: Civil Appeal 500 of 2014 Date Delivered: 30 Oct 2014

Judge: Enock Chacha Mwita

Court: High Court at Kakamega

Parties: Benedicto Angweye Lusichi v Alfred Shimila Manyonge

Citation: Benedicto Angweye Lusichi V Alfred Shimila Manyonge [2014] eKLR

Read More

Catherine C. Kittony V Jonathan Muindi & 2 Other [2014] eKLR

Case Number: E&L 210 of 2012 Date Delivered: 30 Oct 2014

Judge: Munyao Sila

Court: Environment and Land Court at Eldoret

Parties: Catherine C. Kittony v Jonathan Muindi, Chairman Kapsaret Division Land Disputes Tribunal & Attorney General

Citation: Catherine C. Kittony V Jonathan Muindi & 2 Other [2014] eKLR

Read More

John Wekesa Khaoya V Ag. State Law Office [2014] eKLR

Case Number: Misc. App. 122 of 2014 Date Delivered: 30 Oct 2014

Judge: Stephen Kibunja

Court: High Court at Busia

Parties: John Wekesa Khaoya v Ag. State Law Office

Citation: John Wekesa Khaoya V Ag. State Law Office [2014] eKLR

Read More

Jaguar Petroleum Company Limited V Brighton Foods Limited & Another [2014] eKLR

Case Number: Civil Suit 240 of 2014 Date Delivered: 30 Oct 2014

Judge: Samwel Ndungu Mukunya

Court: Environment and Land Court at Mombasa

Parties: Jaguar Petroleum Company Limited v Brighton Foods Limited & Fusion Foods Limited

Citation: Jaguar Petroleum Company Limited V Brighton Foods Limited & Another [2014] eKLR

Read More

Republic V Margaret Nyaguthi Kimeu [2014] eKLR

Case Number: Criminal Case 13 of 2009 Date Delivered: 30 Oct 2014

Judge: Beatrice Thuranira Jaden

Court: High Court at Machakos

Parties: Republic v Margaret Nyaguthi Kimeu

Citation: Republic V Margaret Nyaguthi Kimeu [2014] eKLR

Read More

Republic V Minister Of Environment & Natural Resources & 3 Others Ex-parte Chorlim Multi-Purpose Co-operative Society Ltd [2014] eKLR

Case Number: Misc Civil App 67 of 2006 Date Delivered: 30 Oct 2014

Judge: Elija Ogoti Obaga

Court: Environment and Land Court at Kitale

Parties: Republic v Minister of Environment & Natural Resources, DFO Trans Nzoia & Attorney General Ex-parte Chorlim Multi-Purpose Co-operative Society Ltd

Citation: Republic V Minister Of Environment & Natural Resources & 3 Others Ex-parte Chorlim Multi-Purpose Co-operative Society Ltd [2014] eKLR

Read More

Martha Chelal & Another V Elijah Kipkemoi Boiywo & 2 Others [2014] eKLR

Case Number: E&l 62 of 2014 Date Delivered: 30 Oct 2014

Judge: Munyao Sila

Court: Environment and Land Court at Eldoret

Parties: Martha Chelal & Micah Kipyegomen v Elijah Kipkemoi Boiywo, Jonah Kurgat & District Land Registrar Uasin Gishu

Citation: Martha Chelal & Another V Elijah Kipkemoi Boiywo & 2 Others [2014] eKLR

Read More

Zadock Furnitures Systems Limited & Another V Central Bank Of Kenya [2014] eKLR

Case Number: Misc Civil Application 193 of 2014 Date Delivered: 30 Oct 2014

Judge: Francis Gikonyo

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

Parties: Zadock Furnitures Systems Limited & Maridadi Building Contractors Limited v Central Bank of Kenya

Citation: Zadock Furnitures Systems Limited & Another V Central Bank Of Kenya [2014] eKLR

Circumstances under Which a Court Can be Compelled to Strike off an Arbitrator

Zadock Furnitures Systems Limited & another v Central Bank of Kenya

Miscellaneous Civil Application 193 of 2014

High Court of Kenya at Nairobi

F Gikonyo (J)

October 30, 2014

Reported by Phoebe Ida Ayaya

FACTS

The applicant herein applied to court for the removal of the arbitrator on grounds that he had demonstrated partiality against the applicant’s counsel and lack of independence in the conduct of the arbitration.

ISSUES

  1. Whether the application to the court framed as an originating motion was in a competent form as to be sustainable
  2. What was the proper interpretation of sections 14(4) and (8) of the Arbitration Act
  3. Whether the circumstances of the case gave rise to justifiable doubts as to the impartiality and independence of the arbitrator

Arbitration – challenge to an arbitrator – proceedings to challenge an arbitrator – where the challenge to an arbitrator was filed in the High Court subsequent to being heard and dismissed by the arbitrator – where the challenge was filed by way of an originating motion – whether the challenge was competently filed – Arbitration Act, section 14(3); Constitution of Kenya, 2010 article 159(2)(d)

Arbitration – challenge to an arbitrator – proceedings to challenge an arbitrator – circumstances that give rise to justifiable doubt as to an arbitrator’s impartiality and independence – where the challenge to the arbitrator’s impartiality and independence was cast into doubt due to a multitude of grounds – whether the grounds raised were sufficient to impute the arbitrators partiality and lack of independence – Arbitration Act, section 13(3),

Statutes – interpretation of statutes – interpretation of section 14(4) of the Arbitration Act – interpretation of the word “shall” as used in the section – whether the word as used made the provision mandatory or optional – Arbitration Act, section 14(4)

Statutes – interpretation of statutes – interpretation of section 14(8) of the arbitration act – interpretation of the section with reference to continuance of arbitral proceedings while an application challenging an arbitrator was pending – whether it was the parties or the tribunal who had the power to decide whether the proceedings would continue or not – whether the court could grant an order for stay based on the parties’ challenge to the arbitrator – Arbitration Act, section 14(8)

Arbitration Act

Section 14(4) “on an application under subsection (3), the arbitrator who was challenged shall be entitled to appear and be heard before the High Court determines the application.”

Section 14(8) “while an application under subsection (3) is pending before the High Court, the parties may commence and conclude arbitral proceedings, but no award in such proceedings shall take effect until the application id decided, and such an award shall be void if the application is successful.”

HELD

  1. Pursuant to section 14(3) of the arbitration act that the challenging party who was unsuccessful before the arbitral tribunal had to apply to the High Court for relief 30 days after being notified of the decision to reject the challenge. The ruling rejecting the challenge was delivered on 30th April 2014 and the application was filed on 5th May 2014. As such it was not out of time.
  2. The title of the application indicated it was an application for challenge under section 14(3) of the Arbitration Act. In addition, although it was desirable to cite the relevant provisions of the law on which an application was premised, with the enactment of article 159(2)(d) of the Constitution, there had been a paradigm shift, with insistence on courts to decide cases on the substance rather than technicalities.
  3. Although several instances were cited in the arbitration rules where the mode of applying had been provided for a particular purpose, none of the rules provided the form that an application under section 14(3) of the Arbitration Act should take. An originating motion was an acceptable way of commencing substantive proceedings, and so there was nothing that prohibited its use to initiate a proceeding under section 14(3) of the arbitration act.
  4. The argument as to interpretation of section 14(4) of the Arbitration Act was with regard to the word shall – specifically to wit, whether the use of the word shall made it a mandatory requirement for the arbitrators presence during the hearing. The word ‘’shall’’ as used in the context referred to the right of the arbitrator to appear and be heard. It was a statutory expression of a much a higher constitutional principle of justice – that no party should be condemned unheard. The “mandatory nature” was to ensure that the Court gave the arbitrator the opportunity to be heard. The word did not make the exercise of the entitlement to appear and be heard, mandatory.
  5. The decision by the arbitrator not to invoke his right to be heard would however not prevent the court from determining the application. Thus the court order issued discharged it of its mandatory obligation to call upon the arbitrator to appear and be heard on the challenge and so the letter by the arbitrator was sufficient exercise of his entitlement to be heard under the section.
  6. The argument as to interpretation of section 14(8) of the Arbitration Act was that by asking for a stay of proceedings, the applicant was asking the court to re-write an Act of Parliament which would be an out-right contravention of the legislature’s wisdom in enacting the Section. The section vested in the parties – as opposed to the tribunal – the decision to commence, continue and conclude arbitral proceedings while an application under section 14(3) of the arbitration act was pending. If Parliament had intended the tribunal to make the decision to continue with the arbitral proceedings while such an application was pending, it would have enacted…the arbitral tribunal may…or something of that sort…instead of the parties may…as was the case with the provision in question.
  7. In the absence of an agreement of the parties therefore, section 14(8) of the Arbitration Act did not deny the Court jurisdiction to hear an application for stay and issue a stay while an application under section 14(3) of the Arbitration Act was pending.
  8. The grounds for removal of arbitrator were set out in section 13(3) of the arbitration act, but the one relevant to the application was “…only if circumstances exist that give rise to justifiable doubts as to his impartiality and independence...” This issue contained strands of arguments revolving around the stenographer, denial of the applicant an opportunity to present its case, the language used by the arbitrator and use of proceedings agreed to be off record.
  9. The circumstances surrounding the usage of stenography recording of proceedings and inquiries posed to the stenographer were justifiable as procedural issues relating to the inquiry itself. There was no particular style of carrying out an inquiry on such issues when they arose and therefore it would be invincible judicial folly to try to prescribe one. The choice by an arbitrator of a particular procedure, unless it breached his duty or completely negated the object of arbitration under the Arbitration Act ought not to be a basis for his removal.
  10. On the applicant being denied an opportunity to present its case two allegations arose: First, the allegation that the arbitrator assisted a witness was not accompanied by such concise particulars and proof of the specific questions asked and answers supplied by the arbitrator. In addition, looking at the record, there was nothing to support the allegation. Secondly, the allegation that the arbitrator interrupted and prevented the applicant’s counsel from carrying out cross-examination failed as there was nothing that showed that the arbitrator impeded cross-examination. The arbitrator merely sought for clarifications on certain issues especially on the documents he was cross-examining the witness on.
  11. The allegation that the arbitrator used unusually harsh language on counsel for the applicant was also not a ground for removal of the arbitrator. Instead, it was a matter of normal appellate judicial scrutiny.
  12. The final allegation, that the arbitrator recorded matters agreed upon to be off the record failed as the arbitrator categorically stated that he drew no adverse inferences from these recordings. As such it would not prejudice the applicant and so could not form a ground for impugning lack of impartiality and independence.

In sum, there being no circumstances that gave rise to justifiable doubts as to the impartiality and independence of the arbitrator, the challenge to his removal was dismissed and the order of stay of the arbitral proceedings was discharged.

Read More

Muna Hussein Adarus & Another V Khalithum Adbullahi Omar [2014] eKLR

Case Number: ELC.304 of 2010 Date Delivered: 30 Oct 2014

Judge: Samwel Ndungu Mukunya

Court: High Court at Mombasa

Parties: Muna Hussein Adarus & Shifaa Hussein Adarus v Khalithum Adbullahi Omar

Citation: Muna Hussein Adarus & Another V Khalithum Adbullahi Omar [2014] eKLR

Read More

Julius Gennings Gichoga & Another V Mwingoka Self Help Group & 3 Others [2014] eKLR

Case Number: Succession Cause 309 of 1994 Date Delivered: 30 Oct 2014

Judge: James Aaron Makau

Court: High Court at Meru

Parties: Julius Gennings Gichoga & Erastus Mugiira M'magiri v Mwingoka Self Help Group, Janet Kaimuri Kinyua Mwai, Julius Mugambi & Joseph Nkarichia

Citation: Julius Gennings Gichoga & Another V Mwingoka Self Help Group & 3 Others [2014] eKLR

Read More

Republic V Bernard Wainaina Mwangi [2014] eKLR

Case Number: Criminal Case 46 of 2014 Date Delivered: 30 Oct 2014

Judge: Stella Ngali Mutuku

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Republic v Bernard Wainaina Mwangi

Citation: Republic V Bernard Wainaina Mwangi [2014] eKLR

Read More

Republic V John Maina Mwangi [2014] eKLR

Case Number: Miscellaneous Criminal App 15 of 2014 Date Delivered: 30 Oct 2014

Judge: Jairus Ngaah

Court: High Court at Murang'a

Parties: Republic v John Maina Mwangi

Citation: Republic V John Maina Mwangi [2014] eKLR

Read More

Anne Jerop V Director Of Public Prosecutions [2014] eKLR

Case Number: Misc. Criminal Revision 121 of 2014 Date Delivered: 30 Oct 2014

Judge: Cecilia Wathaiya Githua

Court: High Court at Eldoret

Parties: Anne Jerop v Director of Public Prosecutions

Citation: Anne Jerop V Director Of Public Prosecutions [2014] eKLR

Read More

Gulbano Abdulrasal Achu V Fatma Ismail [2014] eKLR

Case Number: Environment and Land Case 204 of 2013 Date Delivered: 30 Oct 2014

Judge: Samwel Ndungu Mukunya

Court: High Court at Mombasa

Parties: Gulbano Abdulrasal Achu v Fatma Ismail

Citation: Gulbano Abdulrasal Achu V Fatma Ismail [2014] eKLR

Read More

Mulgold Limited V Maimuna Abdullahi Mohamed & 5 Others [2014] eKLR

Case Number: Environment and Land Case 555 of 2011 Date Delivered: 30 Oct 2014

Judge: Samwel Ndungu Mukunya

Court: High Court at Mombasa

Parties: Mulgold Limited v Maimuna Abdullahi Mohamed, Abubakar Salim Mohamed, Mangale Dzombo Ngoka, Kenga Gibson Kahindi, Sammy Mochu David & Emery Mihaki Kariuki

Citation: Mulgold Limited V Maimuna Abdullahi Mohamed & 5 Others [2014] eKLR

Read More

Kengas Link Limited V Time Line Construction Co Limited & 3 Others [2014] eKLR

Case Number: Civil Suit 149 of 2013 Date Delivered: 30 Oct 2014

Judge: Jacqueline Kamau

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Kengas Link Limited v Time Line Construction Co Limited, Grace Mutinda Maingi, Standard Chartered Bank & Chief Land Registrar

Citation: Kengas Link Limited V Time Line Construction Co Limited & 3 Others [2014] eKLR

Read More

In Re T W M & 2 Others [2014] eKLR

Case Number: Miscellaneous Civil Application 126 of 2014 Date Delivered: 30 Oct 2014

Judge: Stephen Kibunja

Court: High Court at Busia

Parties: In Re T W M, D M & K M

Citation: In Re T W M & 2 Others [2014] eKLR

Read More

Ushuru Co-op Savings & Credit Society Limited V Kepha M. Kerama [2014] eKLR

Case Number: Miscellaneous Civil Application 493 of 2013 Date Delivered: 30 Oct 2014

Judge: Jacqueline Kamau

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Ushuru Co-op Savings & Credit Society Limited v Kepha M. Kerama

Citation: Ushuru Co-op Savings & Credit Society Limited V Kepha M. Kerama [2014] eKLR

Read More

Josephine Wangui Ithondeka V Housing Finance Company Of Kenya [2014] eKLR

Case Number: Miscellaneous Application 486 of 2014 Date Delivered: 30 Oct 2014

Judge: Jacqueline Kamau

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

Parties: Josephine Wangui Ithondeka v Housing Finance Company Of Kenya

Citation: Josephine Wangui Ithondeka V Housing Finance Company Of Kenya [2014] eKLR

Read More

Elijah Mbogo M'Murunga V Sebastian Mwenda [2014] eKLR

Case Number: Misc Civil Application 89 of 2013 Date Delivered: 30 Oct 2014

Judge: James Aaron Makau

Court: High Court at Meru

Parties: Elijah Mbogo M'Murunga v Sebastian Mwenda [2014] eKLR

Citation: Elijah Mbogo M'Murunga V Sebastian Mwenda [2014] eKLR

Read More

Mary Mwalla Kisasa & 6 Others V Gapco (K) Limited [2014] eKLR

Case Number: Environment and Land Case 329 of 2009 Date Delivered: 30 Oct 2014

Judge: Samwel Ndungu Mukunya

Court: High Court at Mombasa

Parties: Mary Mwalla Kisasa & 6 others v Gapco (K) Limited

Citation: Mary Mwalla Kisasa & 6 Others V Gapco (K) Limited [2014] eKLR

Read More

In Re The National Lands Commission Under Article 163(6) Of The Constitution Of Kenya [2014] eKLR

Case Number: Reference 2 of 2014 Date Delivered: 30 Oct 2014

Judge: Philip Kiptoo Tunoi, Kalpana Hasmukhrai Rawal, Jackton Boma Ojwang, Mohammed Khadhar Ibrahim, Willy Munywoki Mutunga, Smokin C Wanjala, Susanna Njoki Ndung'u

Court: Supreme Court of Kenya

Parties: In Re the National Lands Commission Under Article 163(6) of the Constitution of Kenya

Citation: In Re The National Lands Commission Under Article 163(6) Of The Constitution Of Kenya [2014] eKLR

Supreme Court’s determination on the application seeking advisory opinion on whether an issue on the mandate of  National Land Commission touches on county governments

In Re the Matter of the National Lands Commission under Article 163(6) of the Constitution of Kenya in the Supreme Court of Kenya at Nairobi

 Reference No. 2 Of 2014

 W M Mutunga, CJ & P, K H Rawal, DCJ & V-P, M K Ibrahim, J B Ojwang, S C Wanjala, S N Njoki, SCJJ  

October 30, 2014

Reported by Teddy Musiga and Getrude Serem

Brief facts

The National Land Commission sought an advisory opinion from the Supreme Court on their functions and powers as provided for by the Constitution of Kenya, 2010, on the one hand, and the functions and powers of the Ministry of Land, Housing and Urban Development, on the other hand. The Attorney-General, and the Ministry of Land, Housing and Urban Development (1st and 2nd interested parties) filed a Preliminary Objection contesting the jurisdiction of the Court to hear and determine the request for Advisory Opinion on many grounds inter alia; that the Supreme Court’s jurisdiction on rendering advisory opinions was restricted and confined to “matters concerning County Governments and that the Supreme Court had in its previous decisions outlined what constituted “matters concerning county government”. Further, that questions concerning the powers and functions of the National Land Commission vis a vis those of the Ministry of Lands, Housing and Urban Development were not contemplated under the Supreme Court’s jurisdiction to render advisory jurisdictions.

Issues

  1. Whether the Supreme Court had the jurisdiction to render an advisory opinion under article 163(6) of the Constitution on the powers and functions of the National Land Commission vis a vis those of the Ministry of Lands, Housing & Urban Development
  2. Whether the dispute concerning the powers and functions of the National Land Commission vis a vis those of the Ministry of Lands, Housing & Urban Development were those that raised a Justiciable issue and whether the High Court would have been the best forum to resolve that dispute.
  3. What was the scope of a matter concerning county governments hence qualifying to be the subject of an advisory opinion?
  1. What was the scope of applications for certificate of urgency and whether a ruling on the certificate of urgency could be construed as conclusive determination of the matter?
  2. Whether a preliminary objection backed by annextures was improperly raised hence violating the rules on raising preliminary objections.

Jurisdiction – jurisdiction of the Supreme Court – advisory jurisdiction of the Supreme Court – scope of advisory opinion of the Supreme Court – What was the scope of a matter concerning county governments hence qualifying to be the subject of an advisory opinion? –- Whether the Supreme Court had the jurisdiction to render an advisory opinion under article 163(6) of the Constitution on the powers and functions of the National Land Commission vis a vis those of the Ministry of Lands, Housing & Urban Development - Constitution of Kenya ,2010 article 163 (6)

Held:

  1. The National Land Commission was a state organ established under Article 67(1) of the Constitution, and recognized under Article 248(2) (b), had the capacity to request the Supreme Court for an advisory opinion.
  2. The guidelines for the exercise of the Supreme Court’s Advisory opinion jurisdiction were as follows;
  1. It had to fall within the four corners of article 163(6) of the Constitution; it had to be a matter concerning County Government. The question as to whether a matter was one that “concerned county government” was to be determined by the court on a case to case basis.
  2. The only parties that could make a request for advisory opinion were the national government, a state organ or county government. Any other person or institution could only be enjoined in the proceedings with leave of the court, either as an intervener (interested party) or as amicus curiae.
  3. The court could be hesitant to render an advisory opinion where the matter in respect of which the advisory opinion was sought, was a subject of proceedings of lower court. However, where the court proceedings in question had been instituted after a request had been made to the Supreme Court for an advisory opinion, the court if satisfied that it was in the public interest to do so, would proceed to render an advisory opinion.
  4. Where a reference had been made to the court, the subject matter of which was also pending in the lower court, the court could none the less render an advisory opinion if the applicant could demonstrate that the issue was of great public importance that required urgent resolution through an advisory opinion. In addition, the applicant could be required to demonstrate that the matter in question would not be amenable to expeditious resolution through adversarial court process.

(Re IIEC)

  1.  Under the National Land Commission Act, 2012 (Act No. 5 of 2012), Section 5(2)(b) all land vested in the people and was to be administered by the National Land Commission. Therefore, the applicant as the State organ entrusted with the function of managing public land on behalf of both the national and county governments, its mandate cut across both spectra of national and county government.
  2. The instant Reference involved matters concerning county government; in particular, as the relevant issues involved the administration and management of public land, at both the national and the county level, precisely as contemplated under Articles 62(2) and 67(2) of the Constitution. From the terms of the Constitution, the applicant (National Land Commission) was a shared institution at the two levels of government, and did not fall within the exclusive sphere of the national government.
  3. Notwithstanding that a number of issues in the instant reference were proper justiciable causes for adjudication in the High Court, issues relating to institutional mandates assigned by the Constitution especially as it were in the instant matter involving contests between two state organs, properly fell to the advisory – opinion jurisdiction of the Supreme Court. The Supreme Court proceeded on a case by case basis in determining whether to exercise its advisory – opinion jurisdiction.
  1. The instant reference concerned land administration and management which was a matter of general public interest in Kenya. The Supreme Court however, could not deal with all the 27 issues raised in the Reference in the exercise of their advisory jurisdiction power. The Court had the power to exercise discretion as to whether to render an advisory opinion on any or all of the issues proposed because some of the issues raised could be dealt with before the High Court, in a normal process of litigation.
  1. some of the issues raised in the instant matter, even though they met the admissibility requirements for the Supreme Court’s advisory opinion (for instance, the administration and management of public land, or the registration of public land held in trust) certainly lent themselves in the first place to a genuine commitment on the part of the relevant organs to good-faith engagement aimed at co-operation and mutual accommodation.
  2. In rendering the instant decision, the Supreme Court was guided by the elaborate principles and values proclaimed in the Constitution, which though affirming independence on the part of separate governance entities, required common purpose in public service.  In that context, the Judiciary as an organ of dispute resolution was to be guided (Article 159(2)(c)) by the principle of promoting alternative forms of dispute resolution including reconciliation, mediation, arbitration and traditional dispute resolution. Therefore, the instant matter met the admissibility requirement as set out in article 163(6) of the Constitution.

Concuring opinion of Ibrahim SCJ

  1. A certification upon an application of urgency was only meant to determine whether the matter could be determined urgently. Urgency did not as a matter of fact even go to the approval of the matter being one of general public importance or one that involved the interpretation and/or application of the Constitution. It did not go to the jurisdiction of the court and there was no determination of any issue. The directions given by the court were pre-hearing preparatory guidelines and such directions could not be construed as being orders of the court determining an issue framed in the suit before the Court.
  2. The preliminary objection was properly raised and the law in Mukisa Biscuit Manufacturing Co. Ltd v East and Distributors Ltd [1969] case was not violated. The annextures did not in any way cloud the trajectory the preliminary objection took. It remained clear that the preliminary objection was anchored on the dictum in the Re IIEC matter: that a reference for an advisory opinion had to fall within the four corners of Article 163(6) of the Constitution. The annexures were meant to demonstrate to the Court that indeed in the 1st and 2nd interested parties’ assessment, the requirements of Article 163(6) were not meant. The annextures were not meant to bring to Court any contested facts. As a matter of fact, the applicant had not even alluded to the fact that the information contained in the annextures was contested.
  3. The Supreme Court had the discretion to admit the instant matter and to render an advisory opinion. The matter met the minimum threshold. The National Land Commission had the constitutional capacity to seek an advisory opinion and the subject matter indeed concerned county governments as provided by article 62 of the Constitution of Kenya, 2010 on public land.

DISSENTING OPINION OF NJOKI, SCJ

  1. The questions posed to this Court had no direct correlation with county government.  Rather, they merely had a remote nexus with county government by virtue of the fact that the operations of the Commission and the Ministry of Land ultimately impacted on both public and private land physically located within the boundaries of each county.
  2. Whereas, the majority bench treated the instant matter as concerning the operations of two constitutional institutions that were clearly within the national government, but considered their functions as impacting on the county government hence qualifying the subject of the reference before the court for Advisory Opinion, that view is not correct because all operations at the national level ultimately had an impact upon the county government, no matter how remotely.
  3. To uphold that all matters affecting the national government touched on the county governments would mean that any matter relating to the operations of the national government automatically qualified as subject for Advisory Opinion.  That created an absurdity and clearly went against the spirit and the letter of Article 163(6) of the Constitution.
  4. In setting the bounds of the subject of Advisory Opinions the drafters of the Constitution, were conscious that all functions of the national government eventually impacted on the county government, yet they restricted the subject to matters concerning county government. That signaled that not all matters that impacted on county government, irrespective of how tenuously, could qualify as subject for advisory opinion.
  5. For a matter to qualify as once concerning county government hence qualifying to be the subject of advisory opinion, its subject matter had to be significant; that was to say that it had to be one that had some effect, impact, consequence on, or one that affected the role, the structure, management or running of county government.
  6. By applying the test above to the instant matter, none of the questions posed to the court met the precondition of Article 163(6) requiring the matter to relate to county government. The court had to look into the substance of the questions referred to it and determine whether the gist of those questions indeed concerned county government.  In the instant matter, the applicant had cited articles 62(2) and 67(2)(a) of the Constitution which provided that public land vested in the county government, and it was to be managed by the National Land Commission on behalf of the national and county governments respectively.
  7. Notwithstanding the fact that public land vested in county government and the National Land Commission was charged with the mandate to administer and manage that public land by the Constitution did not by itself elevate the subject of the Reference before the Court to one that qualified for advisory opinion.  None of the questions for consideration by the instant court related to a challenge to, or change of, title of public land held by the County.  No party was suggesting that land should vest in an authority other than county government. The role of the county government as to the ownership, management and administration of public or private land, therefore, was not a question raised in the request for an advisory opinion. The subject matter of the reference therefore was not significant to the county government and did not in any way have any effect, impact, consequence on, or affected the role, the structure, management or running of county government.
  8. The Reference before the Court sought the delineation of the roles of two constitutional institutions in the National Government, since the relevant issues involved the operations of the two bodies in the administration and management of land at both the national and county level. That in no way concerned county government except that public land vested in the county government – a remote link to the questions posed to the instant Court.  It was instructive that some of the questions touched on the operations of the Land Ministry that inevitably affected management of private land which was not vested in county Government and therefore outside of the scope of the Courts Advisory-Opinion jurisdiction. The instant matter therefore, was one in which the court had no jurisdiction under the advisory opinion provisions of the Constitution.
  9. Although the majority position was that the Supreme Court had jurisdiction in the instant matter; the Supreme Court could decline to exercise that jurisdiction. Article 163(6) of the Constitution provided that the “Supreme Court may give an advisory opinion …” The use of the word “may” implied that that jurisdiction was discretionary.
  10. The instant Reference was not meritorious particularly because its motivation was the resolution of the existing conflict between the Commission and the Ministry of Land concerning their respective functions. It was not in doubt that the Reference sought to resolve a matter amenable to the ordinary process of litigation to one genuinely seeking an opinion-statement of the Court. The same bore justiciable elements that could be properly determined by the High Court as a forum of first instance with the possibility of appeal all the way to the Supreme Court.
  11. Before a party invoked the Advisory-Opinion jurisdiction of this Court he/she ought to have sought recourse through other available avenues. It was vital for the Court to allow other institutions created under the Constitution to exercise their constitutional mandate to resolve issues related to interpretation and application of the Constitution and statutes.  Such was the approach of cooperation and consultation required by Article 6 of the Constitution.
  12. Interpretation and application of the Constitution was, patently, not a preserve of the Courts.  Other constitutional institutions and offices were mandated to interpret and apply the Constitution albeit, in processes that differed from those engaged by the Courts. For instance Parliament, the Attorney General and Commissions mandated with the implementation of the Constitution played an invaluable role in the interpretation of the Constitution and resolution of disputes that could arise during the implementation process. The Commissions and Independent Offices, in the context of Chapter Fifteen of the Constitution had a direct mandate to promote constitutionalism and to secure the observance of the democratic values and principles.
  13. The current Reference was one in which the Court had to exercise restraint and decline to render an Advisory Opinion but rather allow the constitutional institutions to gradually work out their own internal operational mechanisms and exhaust the alternative avenues available to them for interpretation of the Constitution as well as dispute resolution before approaching the Supreme Court. To render an Advisory Opinion would be tantamount to endorsement of the actions of the applicant of seeking resolution of justiciable disputes through the channel of Advisory Opinion.
  14. The intervention of the Supreme Court at such an early stage in the life of the infantile Constitutional institutions would have interfered with the developmental milestones of the institutions which was likely to result in hitches within those institutions hence likely to result in setbacks in the internal workings of these institutions and their relations with each other. Therefore even if the majority decision was that the court had jurisdiction to give an advisory opinion in the instant matter, it was premature for the Supreme Court to grant an Advisory Opinion on the basis of the Reference presented before it.

 

  The preliminary objection dated 15th July, 2014 was disallowed.

 Prior to the conduct of a hearing, the Court allowed a 90-day interlude during which the parties could undertake a constructive engagement towards reconciliation and a harmonious division of responsibility.

The instant Reference was to be set down for hearing through the office of the Registrar, and a hearing date shall be given on the basis of priority.

  There were no order as to costs.

 

Cases

East Africa

  1. Armat, Lemanken v Harun Lempaka & 2 others Petition No 5 of 2014 – (Followed)
  2. In Re the Matter of the Interim Independent Electoral Commission Constitutional Application No 2 of 2011- (Followed)
  3. In Re the Matter of the Principle of Gender Representation in the National Assembly and the Senate (Re the Matter of the Principle of Gender Representation) Application No 2 of 2012 – (Cited in a Dissenting Ruling)
  4. In Re the Speaker of the Senate & another v Attorney-General & 4 others Advisory Opinion No 2 of 2013 – (Explained)
  5. In the Matter of the Kenya National Commission on Human Rights Reference No 1 of 2012 – (Explained)
  6. Macharia, Samuel Kamau & another v Kenya Commercial Bank & 2 others Civil Application No 2 of 2011 – (Explained)
  7. National Land Commission v Ministry of Land, Housing and Urban Development & 2 others Constitutional Petition No 219 of 2014 – (Explained)
  8. Ngoge, Peter Oduor v Francis Ole Kaparo & 5 others Petition No 2 of 2012 – (Explained)
  9. Mukisa Biscuit Manufacturing Co Ltd v East and Distributors Ltd [1969] EA 696 – (Followed)
  10. Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] KLR 1- (Explained)
  11. Waititu, Ferdinard Ndung’u v Independent Electoral and Boundaries & 8 others Civil Appeal No 324 of 2013 – (Mentioned)

Statutes

East Africa

  1. Constitution of Kenya, 2010 articles 62(2)(3); 67(1); 67(2),(a); 156(4)(6); 159(2)(d); 163(6)(4)(6); 165(3)(d)(ii); 252 (1)(b); 254; 260; Chapter Five; Chapter 10 – (Interpreted)
  2. Land Act, 2012 (Act No 6 of 2012) – In general - (Interpreted)
  3. Land Registration Act, 2012 (Act No 3 of 2012) In general – (Interpreted)
  4. National Land Commission Act, 2012, (Act No 5 of 2012) In general – (Interpreted)
  5. Supreme Court Act, 2011 (Act No 7 of 2011) section 3,(c) – (Interpreted)
  6. Supreme Court Rules, 2012 (Act No 7 of 2011 Sub Leg) rule 41(4)(c) – (Interpreted)

South Africa

  1. Constitution of the Republic of South Africa section 181 - (Interpreted)

Advocates

  1. Senior Counsel, Prof Tom Ojienda for the Applicant
  2. Senior Counsel, Dr John Khaminwa for the 1st amicus curiae
  3. Mr Wanyoike for the 2nd amicus curiae
  4. Senior Counsel Mr Muite for the 1st and 2nd Interested Parties

Read More

Mall Developers Limited V Postal Corporation Of Kenya [2014] eKLR

Case Number: Misc Civil Appl 26 of 2013 Date Delivered: 30 Oct 2014

Judge: Jacqueline Kamau

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

Parties: Mall Developers Limited v Postal Corporation Of Kenya

Citation: Mall Developers Limited V Postal Corporation Of Kenya [2014] eKLR

Read More

Holiday Bazaar Limited V Columbus Adventures Limited [2014] eKLR

Case Number: Civil Suit 448 of 2009 Date Delivered: 30 Oct 2014

Judge: Jacqueline Kamau

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

Parties: Holiday Bazaar Limited v Columbus Adventures Limited

Citation: Holiday Bazaar Limited V Columbus Adventures Limited [2014] eKLR

Read More

Republic V County Police Commander – Nairobi & 4 Others Ex-parte Samwell Mbata & [1497] Others [2014] eKLR

Case Number: Case 291 of 2013 Date Delivered: 30 Oct 2014

Judge: Weldon Kipyegon Korir

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Republic v County Police Commander – Nairobi & 4 others Ex-parte Samwell Mbata & 1497 others

Citation: Republic V County Police Commander – Nairobi & 4 Others Ex-parte Samwell Mbata & [1497] Others [2014] eKLR

Read More

Jeremiah Ole Matura Nkoitiko & 9 Others V Agriculture Syndicate Limited & Another [2014] eKLR

Case Number: Civil Case 371 of 2011 Date Delivered: 30 Oct 2014

Judge: Beatrice Thuranira Jaden

Court: High Court at Machakos

Parties: Jeremiah Ole Matura Nkoitiko, Siminkor Nkamiya, Kitasi Moitalel Nkiminis, James Kintanyei Kanyoro, Salau Ole Lolo Munantauwa, James Kosen, Simon Kosen, Peter Suakei Ole Patei, Erick Koisayo Kanyoro & Jeremiah Oltiti Kusero v Agriculture Syndicate Limited & National Housing Corporation

Citation: Jeremiah Ole Matura Nkoitiko & 9 Others V Agriculture Syndicate Limited & Another [2014] eKLR

Read More

Beth Wangari Njoroge V Njeri Mwangi Njoroge & 2 Others [2014] eKLR

Case Number: Judicial Review Case 823 of 2007 Date Delivered: 30 Oct 2014

Judge: Weldon Kipyegon Korir

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Beth Wangari Njoroge v Njeri Mwangi Njoroge,Chairman Gatanga Land Disputes Tribunal & Chief Magistrate,Thika

Citation: Beth Wangari Njoroge V Njeri Mwangi Njoroge & 2 Others [2014] eKLR

Read More

Eldoret Express Ltd V Tawai Limited [2014] eKLR

Case Number: Land Case 18 of 2008 Date Delivered: 30 Oct 2014

Judge: Elija Ogoti Obaga

Court: Environment and Land Court at Kitale

Parties: Eldoret Express Ltd v Tawai Limited

Citation: Eldoret Express Ltd V Tawai Limited [2014] eKLR

Read More

Benjamin Wafula Barasa V Public Health Officer & 23 Others [2014] eKLR

Case Number: Environment and Land Case 13 of 2014 Date Delivered: 30 Oct 2014

Judge: Anne Omollo

Court: High Court at Bungoma

Parties: Benjamin Wafula Barasa v Public Health Officer & 23 others

Citation: Benjamin Wafula Barasa V Public Health Officer & 23 Others [2014] eKLR

Read More