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Joseph Ngigi Ibare V Myovi James & Another [2016] eKLR

Case Number: Miscellaneous Application 179 of 2015 Date Delivered: 28 Jan 2016

Judge: Janet Nzilani Mulwa

Court: High Court at Nakuru

Parties: Joseph Ngigi Ibare v Myovi James & Paul Gakuo Mureithi

Citation: Joseph Ngigi Ibare V Myovi James & Another [2016] eKLR

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Cyrus Nyongesa Simiyu V Concepts African Limited [2016] eKLR

Case Number: Cause 1822 of 2011 Date Delivered: 28 Jan 2016

Judge: Hellen Wasilwa Seruya

Court: Employment and Labour Relations Court at Nairobi

Parties: Cyrus Nyongesa Simiyu v Concepts African Limited

Citation: Cyrus Nyongesa Simiyu V Concepts African Limited [2016] eKLR

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Lawrence Mwangi T/A Mwangi & Co. Advocates V John Mathiaka Kimundu [2016] eKLR

Case Number: Miscellaneous Appeal 100 of 2013 Date Delivered: 28 Jan 2016

Judge: Janet Nzilani Mulwa

Court: High Court at Nakuru

Parties: Lawrence Mwangi T/A Mwangi & Co. Advocates v John Mathiaka Kimundu

Citation: Lawrence Mwangi T/A Mwangi & Co. Advocates V John Mathiaka Kimundu [2016] eKLR

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Synergy Industrial Credit Limited V Tenderwood Industries Ltd, John Speke Mongare & Jane Wahu Karanja [2016] eKLR

Case Number: Civil Case 153 of 2009 Date Delivered: 28 Jan 2016

Judge: Joseph Raphael Karanja

Court: High Court at Kisii

Parties: Synergy Industrial Credit Limited v Tenderwood Industries Ltd, John Speke Mongare & Jane Wahu Karanja

Citation: Synergy Industrial Credit Limited V Tenderwood Industries Ltd, John Speke Mongare & Jane Wahu Karanja [2016] eKLR

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Patrick Kimathi Muchena T/a Arimi Kimathi & Co Advocates V Kenya Post Office Savings Bank [2016] eKLR

Case Number: Miscellaneous Suit 395 of 2009 Date Delivered: 28 Jan 2016

Judge: Fred Andago Ochieng

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Patrick Kimathi Muchena t/a Arimi Kimathi & Co Advocates v Kenya Post Office Savings Bank

Citation: Patrick Kimathi Muchena T/a Arimi Kimathi & Co Advocates V Kenya Post Office Savings Bank [2016] eKLR

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Gateway Insurance Co. Ltd V Simon W. Gakuru [2016] eKLR

Case Number: Civil Appeal 195 of 2005 Date Delivered: 28 Jan 2016

Judge: Janet Nzilani Mulwa

Court: High Court at Nakuru

Parties: Gateway Insurance Co. Ltd v Simon W. Gakuru

Citation: Gateway Insurance Co. Ltd V Simon W. Gakuru [2016] eKLR

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CFC Stanbic Bank V James Maina Kabatha [2016] eKLR

Case Number: Civil Suit 854 of 2009 Date Delivered: 28 Jan 2016

Judge: Fred Andago Ochieng

Court: High Court at Nairobi (Milimani Law Courts)

Parties: CFC Stanbic Bank v James Maina Kabatha

Citation: CFC Stanbic Bank V James Maina Kabatha [2016] eKLR

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Anthony Ngiri Ita V Republic [2016] eKLR

Case Number: Criminal Case 20 of 2014 Date Delivered: 28 Jan 2016

Judge: Bwonwong'a Justus Momanyi

Court: High Court at Embu

Parties: Anthony Ngiri Ita v Republic

Citation: Anthony Ngiri Ita V Republic [2016] eKLR

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Njoki Gicheru Ndiuni V Dadson Githenji Wahome & 3 Others [2016] eKLR

Case Number: Succession Cause 766 of 2010 Date Delivered: 28 Jan 2016

Judge: John Muting'a Mativo

Court: High Court at Nyeri

Parties: Njoki Gicheru Ndiuni v Dadson Githenji Wahome, Mary Muthoni Githenji, Dadson Githinji Stephen & James Gatere Wahome

Citation: Njoki Gicheru Ndiuni V Dadson Githenji Wahome & 3 Others [2016] eKLR

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Hosea Kosgei Yatich V Joseph Kibor Komen [2016] eKLR

Case Number: Probate & Administration Cause 309 of 2011 Date Delivered: 28 Jan 2016

Judge: George Kanyi Kimondo

Court: High Court at Eldoret

Parties: Hosea Kosgei Yatich v Joseph Kibor Komen

Citation: Hosea Kosgei Yatich V Joseph Kibor Komen [2016] eKLR

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In Re Estate Of Joseph Lisabushila Itambo (Deceased) [2016] eKLR

Case Number: Succession 24 of 1995. Date Delivered: 28 Jan 2016

Judge: John Mwangi Gachuhi

Court: High Court at Kakamega

Parties: In Re Estate of Joseph Lisabushila Itambo (Deceased)

Citation: In Re Estate Of Joseph Lisabushila Itambo (Deceased) [2016] eKLR

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Iris Properties Limited & Another V City Council Of Nairobi [2016] eKLR

Case Number: Judicial Review 433 of 2009 Date Delivered: 28 Jan 2016

Judge: George Vincent Odunga

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Iris Properties Limited & Proland Limited v City Council Of Nairobi

Citation: Iris Properties Limited & Another V City Council Of Nairobi [2016] eKLR

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Joseph G Naituli V Egerton University & Another [2016] eKLR

Case Number: Civil Case 6 of 2007 Date Delivered: 28 Jan 2016

Judge: Janet Nzilani Mulwa

Court: High Court at Nakuru

Parties: Joseph G Naituli v Egerton University & James K Tuitoek

Citation: Joseph G Naituli V Egerton University & Another [2016] eKLR

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David Nyantar & 4 Others V Church Of God In East Africa (Kenya) Registered Trustees & 4 Others [2016] eKLR

Case Number: Civil Suit 11 of 2015 Date Delivered: 28 Jan 2016

Judge: Joseph Raphael Karanja

Court: High Court at Kisii

Parties: David Nyantar, Jeremiaah Momanyi, Fredrick Nyamongo Ochanga, Eunice Obonyo Osoro & Florence Kemunto Nyabera v Church of God In East Africa (Kenya) Registered Trustees, James Obunde (sued on his personal capacity and as an official Deputy Archbishop an Administrator of and on behalf of The Church of God In East Africa Kenya), James Monyenye Mogire (sued on his own capacity as a Pastor, Representative of and on behalf of Getembe Church of God Kenya), Executive Council Church of God In East Africa & Ongera Rogers Moturi

Citation: David Nyantar & 4 Others V Church Of God In East Africa (Kenya) Registered Trustees & 4 Others [2016] eKLR

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Jesika Achola Ako V Paul Beta Ayo [2016] eKLR

Case Number: Land Case 17 of 2015 Date Delivered: 28 Jan 2016

Judge: Stephen Kibunja

Court: High Court at Kisumu

Parties: Jesika Achola Ako v Paul Beta Ayo

Citation: Jesika Achola Ako V Paul Beta Ayo [2016] eKLR

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Henry Kipkirong & Another V Robert Chesang [2016] eKLR

Case Number: Civil Appeal 304 of 2014 Date Delivered: 28 Jan 2016

Judge: Lucy Mwihaki Njuguna

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Henry Kipkirong & Pyramid Construction Ltd. v Robert Chesang

Citation: Henry Kipkirong & Another V Robert Chesang [2016] eKLR

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Gerald Macharia Njogu V Samuel Macharia Murimi [2016] eKLR

Case Number: Succession Cause 1141 of 2011 Date Delivered: 28 Jan 2016

Judge: John Muting'a Mativo

Court: High Court at Nyeri

Parties: Gerald Macharia Njogu v Samuel Macharia Murimi

Citation: Gerald Macharia Njogu V Samuel Macharia Murimi [2016] eKLR

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Jared Ombaraia Oima (Suing As The Legal Representative Of The Estate Of The Late Harrison Odhiambo Oima V Muigai Mututa Njau [2016] eKLR

Case Number: Civil Appeal 784 of 2006 Date Delivered: 28 Jan 2016

Judge: Lucy Mwihaki Njuguna

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Jared Ombaraia Oima (Suing As the Legal Representative of the Estate of the Late Harrison Odhiambo Oima v Muigai Mututa Njau

Citation: Jared Ombaraia Oima (Suing As The Legal Representative Of The Estate Of The Late Harrison Odhiambo Oima V Muigai Mututa Njau [2016] eKLR

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Mamba Trade Links Limited & Another V Southern Credit Banking Corporation Ltd [2016] eKLR

Case Number: Civil Appeal 656 of 2005 Date Delivered: 28 Jan 2016

Judge: Lucy Mwihaki Njuguna

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Mamba Trade Links Limited & Joseph Mbote Karwenji v Southern Credit Banking Corporation Ltd

Citation: Mamba Trade Links Limited & Another V Southern Credit Banking Corporation Ltd [2016] eKLR

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Francis Kimutai Bii V Kaisugu (Kenya) Ltd [2016] eKLR

Case Number: Cause 25 of 2015 Date Delivered: 28 Jan 2016

Judge: Marete D.K. Njagi

Court: Employment and Labour Relations Court at Kericho

Parties: Francis Kimutai Bii v Kaisugu (Kenya) Ltd

Citation: Francis Kimutai Bii V Kaisugu (Kenya) Ltd [2016] eKLR

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Henry Nyakoe Nyanchoka V Joel Omanga Okemwa & Another [2016] eKLR

Case Number: Succession Cause 448 of 2011 Date Delivered: 28 Jan 2016

Judge: Joseph Raphael Karanja

Court: High Court at Kisii

Parties: Henry Nyakoe Nyanchoka v Joel Omanga Okemwa & Prestor Okemwa

Citation: Henry Nyakoe Nyanchoka V Joel Omanga Okemwa & Another [2016] eKLR

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Gideon Kipngetich Sareto & Another V Emily Jeruto Yego & Another [2016] eKLR

Case Number: Probate & Administration Cause 47 of 2007 Date Delivered: 28 Jan 2016

Judge: George Kanyi Kimondo

Court: High Court at Eldoret

Parties: Gideon Kipngetich Sareto & Japheth Kipketer Bett v Emily Jeruto Yego & Felix Kiplagat Sareto

Citation: Gideon Kipngetich Sareto & Another V Emily Jeruto Yego & Another [2016] eKLR

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Francis Karioki Muruatetu & Another V Republic & 5 Others [2016] eKLR

Case Number: Petition 15 & 16 of 2015 (Consolidated) Date Delivered: 28 Jan 2016

Judge: Kalpana Hasmukhrai Rawal, Jackton Boma Ojwang, Mohammed Khadhar Ibrahim, Smokin C Wanjala, Susanna Njoki Ndung'u

Court: Supreme Court of Kenya

Parties: Francis Karioki Muruatetu & Wilson Thirimbu Mwangi v Republic, Kenya National Commission on Human Rights, Kenya Section of the International Interested Commission of Jurists, Legal Resources Foundation, Katiba Institute & Death Penalty Project

Citation: Francis Karioki Muruatetu & Another V Republic & 5 Others [2016] eKLR

Legal considerations pertaining to applications for parties to be joined as amici curiae and as interested parties at the Supreme Court

 

Francis Karioki Muruatetu & another v Republic & 3 others

Petition 15 & 16 of 2015 (Consolidated)

Supreme Court at Nairobi

K H Rawal, DCJ & VP, M K Ibrahim, J B Ojwang, S C Wanjala & N S Ndungu, SC JJ

January 28, 2016

 

Reported by Beryl A Ikamari

 

Brief facts

Three applications were brought by parties which sought to be enjoined in the matter. In the first application, the Death Penalty Project wanted to be enjoined as amicus curiae. The Death Penalty project was to be enjoined for purposes of assisting the Court in the interpretation and application of the law on the abolition of the mandatory death penalty in other common law jurisdictions and the applicable law if the death penalty was found to be unconstitutional in Kenya. It stated that it had unique international expertise on that question.

The second application was by Katiba Institute which sought to be enjoined to the proceedings as an interested party. It wanted to submit written and oral arguments and any other information or evidence that it deemed important and relevant to the just disposition of the matter.

The third application was from three Applicants, namely, Kenya National Commission on Human Rights (KNCHR), Kenya Section of the International Commission of Jurists (ICJ- Kenya), and Legal Resources Foundation, which sought to be enjoined as Interested Parties. The Applicants in the third application were members of a caucus known as the ‘Death Penalty Coalition.’ They sought to offer their expertise on the subject of the death penalty. They stated that they were institutions which dealt with human rights and had done research on the death penalty in the past. Their research was specifically on whether the death penalty as provided for in Kenyan law accorded with Kenya's international human rights obligations.

 

Issues

i.                Whether the Applicants satisfied legal requirements governing applications for parties to be enjoined as interested parties in a Supreme Court Petition.

ii.              Whether the application for the Death Penalty Project to be enjoined as an amicus curiae met the legal threshold set for such an application.

 

Criminal Practice & Procedure-parties to criminal proceedings-joinder of parties- joinder of interested parties-legal threshold to be met for purposes of an application to be joined as interested parties at a Supreme Court Petition- Supreme Court Act, No 7 of 2011, section 25

Criminal Practice & Procedure-parties to criminal proceedings-joinder of parties- joinder of amici curiae-circumstances in which the Supreme Court would allow an application for a party to be enjoined to a suit as an amicus curiae.

 

Supreme Court Act, No 7 of 2011, section 25;

Interventions.

25. (1) A person may at any time in any proceedings before the Court apply for leave to be joined as an interested party.

(2) An application under this rule shall include−

(a) a description of the interested party;

(b) any prejudice that the interested party would suffer if the intervention was denied; and

(c) the grounds or submissions to be advanced by the person interested in the proceeding, their relevance to the proceedings and the reasons for believing that the submissions will be useful to the Court and different from those of the other parties.

 

Held

  1. Section 25 of the Supreme Court Act, 2011 entailed legal provisions for applications for enjoinment as interested parties. A party seeking to be enjoined as an interested party had to make a formal application to Court and the Court had the discretion to enjoin the party on the basis of the following elements, namely;

a)    The application would have to disclose the personal interest or stake that the party had in the matter. That interest had to be clearly identifiable and proximate enough to be distinguished from anything that was merely peripheral.

b)    The prejudice that would be suffered by the non-joinder of the intended interested party had to be demonstrated to the Court's satisfaction. The prejudice would have to be one that was not remote but one that was clearly outlined.

c)    The intended submissions and their relevance had to be set out in the application. The party seeking to be enjoined had to demonstrate that the submissions were not merely a replication of what other parties were going to submit to the Court.

  1. An interested party would join proceedings on terms that the overriding interest or stake was always that of the primary or principal parties before Court. Interested Parties were only remotely or indirectly affected but the primary impact was on the parties who moved the Court first.
  2. Whether or not interested parties were enjoined to a suit, the issues to be determined by the Court would still be the issues presented by the principal parties or as framed by the Court from the pleadings and submissions of the principal parties. An Interested Party could not frame its own fresh issues or introduce new issues for determination by the Court. The stake that the interested party was required to have in the matter could not form an altogether new issue introduced to the Court. 
  3. The issue on the constitutionality of the death penalty or its abolition was not presented for determination by the Petitioners. Any interested party which sought to steer the Court towards a consideration of such new issues would not be allowed to do so.
  4. Issues on constitutionality of the death penalty or its abolition were issues of constitutional interpretation. Such issues could not be canvassed at the Supreme Court at the first instance as if the Supreme Court was a Court of first instance.
  5. Criminal proceedings were different from civil proceedings. Criminal proceedings would touch on the personal fundamental rights and freedoms of an individual and particularly the right to liberty. Just as the standard of proof (beyond reasonable doubt) in criminal proceedings was higher so should the threshold for admission of interested parties in criminal proceedings be higher than it would be in civil matters where the standard of proof was on the balance of probability.
  6. Article 22 of the Constitution allowed persons to institute proceedings for enforcement of fundamental rights and freedoms in order to protect public interest. However, article 22 was not a basis for the admission of an interested party to any existing proceedings, where such a party had not shown a personal stake or interest in the matter and only sought to champion public interest. Article 22 was not a formula for the admission of interested parties to any Court proceedings.
  7. The Death Penalty Project was seeking to be enjoined as amicus curiae in order to assist in offering legal expertise. It was an institution which dealt with criminal law, constitutional law and international human rights law in relation to the death penalty. It only sought to restrict itself to issues raised in the Petition and particularly, the mandatory nature of the death sentence.
  8. In its Application, the intended amicus curiae showed neutrality and it was apparent that it would restrict itself to the issues raised in the Petition. They intended to handle those issues without digressing into matters that were not otherwise brought for determination by the Court.
  9. The Court had discretion to allow a party to participate in proceedings as amicus curiae. In Kenya an amicus curiae had to be neutral and if such a party had an interest in the case, it would be enjoined as an intervener.
  10. Participation as amicus curiae was not a right, it was a privilege. In some instances it would be more appropriate for an applicant not to participate in proceedings, especially where such an Applicant would not be prejudiced by a non-joinder, adds no value to proceedings or increased the likelihood of diverting the natural course of proceedings.
  11. Where an amicus curiae was allowed to participate in proceedings the Court had the liberty to restrict the extent of participation. Such restrictions would serve the need to forestall the degeneration of an amicus curiae into a partisan role.
  12. The Supreme Court had stringent measures with respect to admitting parties into proceedings. The Court would admit additional parties only if satisfied that their participation would not prejudice an accused person or prisoner, occasion unnecessary delay, introduce issues that were foreign to the proceedings or protract the issues for determination.
  13. Given the contribution that the intended interested parties sought to make, the appropriate role for them would be that of amici curiae as opposed to interested parties. Their participation offered additional material on the subject of the Petition and would aid the Court in arriving at a judicious determination. However, their participation would be restricted to the making of written submissions.

 

Application partly allowed. (The application for the Death Penalty Project to be enjoined as amicus curiae was allowed. Applications for the other parties to be enjoined interested parties were disallowed and instead those parties were allowed to join the proceedings as amici curiae.)

 

 

 

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Shem Obuoch Kowuor & Another V Constituency Development Fund Board [2016] eKLR

Case Number: Environment and Land Case 22 of 2013 Date Delivered: 28 Jan 2016

Judge: Stephen Kibunja

Court: Environment and Land Court at Kisumu

Parties: Shem Obuoch Kowuor & Walter Owuor Sigu v Constituency Development Fund Board

Citation: Shem Obuoch Kowuor & Another V Constituency Development Fund Board [2016] eKLR

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Owuor Mbeke Silvanus V Peterlis Aloo Ligulo & 2 Others [2016] eKLR

Case Number: Succession Cause 134 of 2007 Date Delivered: 28 Jan 2016

Judge: Esther Nyambura Maina

Court: High Court at Kisumu

Parties: Owuor Mbeke Silvanus v Peterlis Aloo Ligulo, Mark Arodi Maduku & John Okoth Nunda

Citation: Owuor Mbeke Silvanus V Peterlis Aloo Ligulo & 2 Others [2016] eKLR

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Rashid Abdikadir Khalicha V Ali Suleman & Another [2016] eKLR

Case Number: Civil Case 7 of 2016 Date Delivered: 28 Jan 2016

Judge: Eric Kennedy Okumu Ogola

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Rashid Abdikadir Khalicha v Ali Suleman & another

Citation: Rashid Abdikadir Khalicha V Ali Suleman & Another [2016] eKLR

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Anthony Ngiri Ita V Republic [2016] eKLR

Case Number: Criminal Case 20 of 2014 Date Delivered: 28 Jan 2016

Judge: Bwonwong'a Justus Momanyi

Court: High Court at Embu

Parties: Anthony Ngiri Ita v Republic

Citation: Anthony Ngiri Ita V Republic [2016] eKLR

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Melsa Matendechere Musamba V Joseph Kataka Andabwa [2016] eKLR

Case Number: Succession 1010 of 2012 Date Delivered: 28 Jan 2016

Judge: Margaret Njoki Mwangi

Court: High Court at Kakamega

Parties: Melsa Matendechere Musamba v Joseph Kataka Andabwa

Citation: Melsa Matendechere Musamba V Joseph Kataka Andabwa [2016] eKLR

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Godfrey Egesa Odongo & 8 Others V Leader Of Majority County Assembly Of Busia & 3 Others [2016] eKLR

Case Number: Civil Suit 1 of 2016 Date Delivered: 28 Jan 2016

Judge: Francis Tuiyott

Court: High Court at Busia

Parties: Godfrey Egesa Odongo & 8 others v Leader of Majority County Assembly of Busia & 3 others

Citation: Godfrey Egesa Odongo & 8 Others V Leader Of Majority County Assembly Of Busia & 3 Others [2016] eKLR

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In Re Estate Of Raphael Opell Kinda Kinda (Deceased) [2016] eKLR

Case Number: Succession Cause 861 of 2014 Date Delivered: 28 Jan 2016

Judge: Esther Nyambura Maina

Court: High Court at Kisumu

Parties: In re Estate of Raphael Opell Kinda Kinda (Deceased)

Citation: In Re Estate Of Raphael Opell Kinda Kinda (Deceased) [2016] eKLR

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Paul Makatu & Another V Quandrant Services [2016] eKLR

Case Number: Civil Appeal 278 of 2015 Date Delivered: 27 Jan 2016

Judge: Roselyne Ekirapa Aburili

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Paul Makatu & Vekaria Construction Limited v Quandrant Services

Citation: Paul Makatu & Another V Quandrant Services [2016] eKLR

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Mwangi Gakuri V Bernard Kigotho Maina & Another [2016] eKLR

Case Number: Succession Cause 2335 of 2011 Date Delivered: 27 Jan 2016

Judge: Lydia Awino Achode

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Mwangi Gakuri v Bernard Kigotho Maina & Daniel Kamau Maina

Citation: Mwangi Gakuri V Bernard Kigotho Maina & Another [2016] eKLR

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Republic V Samwel Riogi Mokaya [2016] eKLR

Case Number: Criminal Case 58 of 2015 Date Delivered: 27 Jan 2016

Judge: Nagillah Chrispin Beda

Court: High Court at Nyamira

Parties: Republic v Samwel Riogi Mokaya

Citation: Republic V Samwel Riogi Mokaya [2016] eKLR

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Paul Muthie Munene V Republic [2016] eKLR

Case Number: Criminal Appeal 51 of 2015 Date Delivered: 27 Jan 2016

Judge: Robert Kipkoech Limo

Court: High Court at Kerugoya

Parties: Paul Muthie Munene v Republic

Citation: Paul Muthie Munene V Republic [2016] eKLR

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Jorim Owino Nyamor & Another V Kenya Airways Limited [2016] eKLR

Case Number: Cause 1621 of 2015 Date Delivered: 27 Jan 2016

Judge: Monica Mbaru

Court: Employment and Labour Relations Court at Nairobi

Parties: Jorim Owino Nyamor & Abdi Ali Hersi Idle v Kenya Airways Limited

Citation: Jorim Owino Nyamor & Another V Kenya Airways Limited [2016] eKLR

Benefits accrued to employees as a result of unionization do not cease following termination of their employment contract

Captain Jorim Owino Nyamor & another v Kenya Airways Limited

Cause No 1621 of 2015

Employment and Labour Relations Court at Nairobi

M Mbaru, J

January 27, 2016

Reported by Teddy Musiga and Mercy Cherotich

Brief facts

The claimants were former employees of the respondent. They were members of Kenya Airlines Pilots Association (KALPA) where they made monthly contributions while in the employment of the respondent. The Respondent had filed a claim against KALPA challenging industrial action to protest the retirement of the Claimants together with other pilots. Kenya Airlines Pilots Association (KALPA) filed a memorandum of defence and counter-claim and therein listed the Claimants among the pilots on whose behalf they were acting and in the claim seek compensation on account of alleged unfair termination by way of redundancy. The claimants subsequent filed a similar claim, they claimed that the trade union had a right to represent them while in employment but they had since been terminated. They subsequently informed the court through the letters to the Deputy Registrar that they wish to withdraw from the other suit.

Issues

  1. Whether the benefits accrued as a result of an employee being a unionisable employee ceased upon the termination of employment of such an employee.
  2. Whether a unionisable claimant filing a claim in person while the Union had filled a similar claim amounted to duplicity of suits.
  3. Whether the letters to the Deputy Registrar were sufficient notice of withdrawal for a party enjoying legal representation.

Labour Law – employment – trade unions – unionisation of employees – termination of services of a unionisable employee - whether the benefits accrued as a result of an employee being a unionisable employee ceased upon the termination of employment of such an employee – Constitution of Kenya, 2010, article 36, 41.

Civil Practise and Procedure – suits – filing of suits – duplicity of suits – capacity of trade unions to institute suits on behalf of its members -whether a claimant filing a claim in person while the Union had filed a similar claim amounted to duplicity of suits - Employment and Labour Relations Court Act, Section 22.

Held

  1. It was not within the rights of parties to engage in a multiplicity of suits as the multiplicity of suits were meant to obstruct the due process of law and when a party showed design to abuse the powers of the Court, such actions had to be stopped to avoid unnecessary costs and waste of judicial time.
  2. Where a claimant had filed numerous suits which revolved around the same issues, such conduct spoke of bad faith and the in the instant case the Respondent was entitled to apply for orders to have the same struck out for being an abuse of Court process so as to protect the dignity and authority of the Court, which should not be flagrantly abused.
  3. A party was at liberty to choose the right forum which had the jurisdiction to adjudicate his claim, or could choose to forgo part of his claim and he could not be heard to complain about that choice after the event and it would be otherwise oppressive and prejudicial to other parties and an abuse of the Court process to allow litigation in installments.
  4.  Pursuant to Section 22 of the Employment and Labour Relations Court Act, a party to any proceedings could act in person or be represented by an advocate, an office bearer or official of their union. As such, the claimants had an option of appearing in person or through their union and or legal representative. However, which mode of appearance, Rule 5 of the Employment and Labour Relations Court (Procedure) Rules required that the claimant or applicant and or petitioner had to file their Verifying Affidavit in terms of Rule 4.
  5. Rule 6 of the Employment and Labour Relations Court (Procedure) Rules regulated how matters filed under the provisions of the Labour Relations Act could be filed. Under the Labour Relations Act, employees who were unionized joined a particular trade union for the purpose of the union representing their collective interests. As such, where an employee opted to join a trade union on their own volition, such a trade union took the responsibility of protecting the interests of such an employee. The provisions of the Labour Relations Act with regard to unionization and the role of a trade union had its conceptual framework under the Bill of Rights under article 36 with regard to the right to association and under article 41 with regard to the right to unionisation.
  6. Unionisation was a constitutional right and with it every employee could exercise the right to join a trade union. The Claimants admitted that they were members of Kenya Airlines Pilots Association (KALPA). They paid their union dues while in the employment of the respondent. Such unionisation was protected under the Labour Relations Act which recognized that. For the Claimants to state that the trade union only represented them while in employment and such representation ought to have terminated with the termination of their employment was a misapplication of the law.
  7. The context of unionisation and indeed the purpose of Labour Relations Act with regard to the formation of trade union was precisely to secure the rights of employees and to ensure legal representation where a termination arose that was alleged to be unfair and or unprocedural with regard to the application of a collective agreement. Unionisation did not cease with termination of employment.
  8. Where KALPA therefore filed a claim through their counter-claim in another suit and listed the Claimants as grievants, therein, the Claimants ought to have set out their interests, to file a new suit such as in the instance case was a multiplicity of suits and such actions had to be stopped as these only served to increase costs and to waste courts time.
  9. The claimants retained the primary right to set out their claim before the court, such could be filed personally, through their legal representative or through their trade union. The claimants retained the right to articulate their case before the court, however that should not be abused as where a trade union moved the Court and filed a suit, where the employee stated as a grievant was no longer keen to proceed as therein, their union, such as Kenya Airlines Pilots Association (KALPA) should have received such instructions and cause a withdrawal and or amendment to the suit and have the grievants not interested removed. To proceed as the Claimants did by directing communication to the Deputy Registrar and not their union under whose umbrella the claim was filed led to a multiplicity of suits and marred issues.
  10. The rights of the claimant remained secured. They could maintain the claim as of right. However the cause could only proceed as such upon the claimant meeting the following conditions;
  1.  Moving the Court through Kenya Airlines Pilots Association (KALPA) in the other suit as the Respondent and with a counter-claim, to have the two Claimants herein withdrawn from that suit;
  2. The claimant could only be heard  upon filing an order that they have no claim whatsoever under the other suit;
  3. The Claimants had the option to withdraw the current suit and join under the other suit and move through their Union Kenya Airlines Pilots Association KALPA as appropriate.
  1. The Claimants should have settled their issues under the other suit before filing the current suit. To file that cause while the other suit still subsisted, despite the unfettered right to file individual suits, the mode of withdrawing from the other suit through letters to the deputy registrar as stated  was not what a party enjoying legal representation should do. However well set out the rights under article 51(1) of the Constitution should be enjoyed, due process was a cornerstone of our legal process. Where the Claimants enjoyed their right to access justice, the Respondent too enjoy similar rights.  Where procedure required that a suit be filed, no other new suit before the same forum could be maintained and or filed before the previous one was completed.

Application dismissed with costs to the claimants.

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Joseph Makanga Ong’ayo V Japeth Walutila [2016] eKLR

Case Number: Cause 1866 of 2014 Date Delivered: 27 Jan 2016

Judge: Hellen Wasilwa Seruya

Court: Employment and Labour Relations Court at Nairobi

Parties: Joseph Makanga Ong’ayo v Japeth Walutila

Citation: Joseph Makanga Ong’ayo V Japeth Walutila [2016] eKLR

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Peter Muturi Waithuo & Another V Margaret Nyakarima Waithuo & Another [2016] eKLR

Case Number: Succession Cause 436 of 2002 Date Delivered: 27 Jan 2016

Judge: John Muting'a Mativo

Court: High Court at Nyeri

Parties: Peter Muturi Waithuo & another v Margaret Nyakarima Waithuo & another

Citation: Peter Muturi Waithuo & Another V Margaret Nyakarima Waithuo & Another [2016] eKLR

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Alphonse Kondi Riaga V Commissioner For Co-operative Development [2016] eKLR

Case Number: Miscellaneous Civil Application 405 of 2014 Date Delivered: 27 Jan 2016

Judge: George Vincent Odunga

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Alphonse Kondi Riaga v Commissioner for Co-operative Development

Citation: Alphonse Kondi Riaga V Commissioner For Co-operative Development [2016] eKLR

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Republic V Pacificah Kenyansa Samuel & 3 Others [2016] eKLR

Case Number: Criminal Case 1 & 65 of 2012 (Consolidated) Date Delivered: 27 Jan 2016

Judge: Winfrida Adhiambo Okwany

Court: High Court at Kisii

Parties: Republic v Pacificah Kenyansa Samuel, Denis Obita Alias Boy & Douglas Nyandeko Omwamba

Citation: Republic V Pacificah Kenyansa Samuel & 3 Others [2016] eKLR

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Cosmas Mututa Muviu V Republic [2016] eKLR

Case Number: Criminal Case 33 of 2015 Date Delivered: 27 Jan 2016

Judge: Bwonwong'a Justus Momanyi

Court: High Court at Embu

Parties: Cosmas Mututa Muviu v Republic

Citation: Cosmas Mututa Muviu V Republic [2016] eKLR

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Hassan A.A. Zubeidi V Thika Muslim Housing Co-operative Society Limited [2016] eKLR

Case Number: Civil Suit 493 of 2004 Date Delivered: 27 Jan 2016

Judge: Fred Andago Ochieng

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

Parties: Hassan A.A. Zubeidi v Thika Muslim Housing Co-operative Society Limited

Citation: Hassan A.A. Zubeidi V Thika Muslim Housing Co-operative Society Limited [2016] eKLR

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David Kabubii Kuria V Bryan Eric Ltd & 4 Others [2016] eKLR

Case Number: Civil Suit 624 of 2012 Date Delivered: 27 Jan 2016

Judge: Fred Andago Ochieng

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

Parties: David Kabubii Kuria v Bryan Eric Ltd,Tafi Enterprises Ltd,Melde Vale Holdings Ltd,Simon Kimutai & Invesco Assurance Company Ltd

Citation: David Kabubii Kuria V Bryan Eric Ltd & 4 Others [2016] eKLR

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Charles Karanja Mashua V Jonah Mzee Orumoi & 4 Others [2016] eKLR

Case Number: Civil Case 89 of 2009 Date Delivered: 27 Jan 2016

Judge: Pauline Nyamweya

Court: High Court at Machakos

Parties: Charles Karanja Mashua v Jonah Mzee Orumoi, Rose Tito Metuo, Joseph Parsane Orumoy, Julius Sarumue Orumoi & Attorney General

Citation: Charles Karanja Mashua V Jonah Mzee Orumoi & 4 Others [2016] eKLR

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Kephar Kisiangani Lumukanda V Mash Bus Services & Another [2016] eKLR

Case Number: Civil Appeal 157 of 2007 Date Delivered: 27 Jan 2016

Judge: Pauline Nyamweya

Court: High Court at Machakos

Parties: Kephar Kisiangani Lumukanda v Mash Bus Services & Mash East Africa Ltd

Citation: Kephar Kisiangani Lumukanda V Mash Bus Services & Another [2016] eKLR

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North Tetu Farmers Co. Ltd V Joseph Nderitu Wanjohi [2016] eKLR

Case Number: Civil Case 13 of 2014 Date Delivered: 27 Jan 2016

Judge: John Muting'a Mativo

Court: High Court at Nyeri

Parties: North Tetu Farmers Co. Ltd v Joseph Nderitu Wanjohi

Citation: North Tetu Farmers Co. Ltd V Joseph Nderitu Wanjohi [2016] eKLR

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Kenya Hotels And Allied Workers Union V Sentrim Kenya Limited & Another [2016] eKLR

Case Number: Cause 2145 of 2014 Date Delivered: 27 Jan 2016

Judge: Hellen Wasilwa Seruya

Court: Employment and Labour Relations Court at Nairobi

Parties: Kenya Hotels and Allied Workers Union v Sentrim Kenya Limited & Kudheiha Workers

Citation: Kenya Hotels And Allied Workers Union V Sentrim Kenya Limited & Another [2016] eKLR

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George Aladwa Omwera V Republic [2016] eKLR

Case Number: Criminal Revision 277 of 2015 Date Delivered: 27 Jan 2016

Judge: James wakiaga

Court: High Court at Nairobi (Milimani Law Courts)

Parties: George Aladwa Omwera v Republic

Citation: George Aladwa Omwera V Republic [2016] eKLR

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Beatrice Kwamboka V Leader Of Majority Party Of The Nairobi County Assembly [2016] eKLR

Case Number: Miscellaneous Civil Application 112 of 2013 Date Delivered: 27 Jan 2016

Judge: George Vincent Odunga

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Beatrice Kwamboka v Leader of Majority Party of the Nairobi County Assembly

Citation: Beatrice Kwamboka V Leader Of Majority Party Of The Nairobi County Assembly [2016] eKLR

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Lydia Wambui Gitau V Regina Wambui Gitau [2016] eKLR

Case Number: Succ Cause 435 of 2006 Date Delivered: 27 Jan 2016

Judge: Aggrey Otsyula Muchelule

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Lydia Wambui Gitau v Regina Wambui Gitau

Citation: Lydia Wambui Gitau V Regina Wambui Gitau [2016] eKLR

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Mwangi Stephen Muriithi V Daniel Toroitich Arap Moi [2016] eKLR

Case Number: Petition 625 of 2009 Date Delivered: 27 Jan 2016

Judge: Onguto Joseph Louis Omondi

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Mwangi Stephen Muriithi v Daniel Toroitich Arap Moi

Citation: Mwangi Stephen Muriithi V Daniel Toroitich Arap Moi [2016] eKLR

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