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Hanington Malingi Janji V Katana Pekeshe & 7 Others [2013] eKLR

Case Number: Land Case 46 of 2013 Date Delivered: 22 Aug 2013

Judge: Oscar Angote

Court: Environment and Land Court at Malindi

Parties: Hanington Malingi Janji v Katana Pekeshe, Charo Shani, David Rodgers, Hamisi Sinema, Fikiri Sinema, Tume Kitsao, Nelson Kitsao & Baraka Kenga

Citation: Hanington Malingi Janji V Katana Pekeshe & 7 Others [2013] eKLR

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Felister Chitsaka Mwabaya V . Habib Abu Mohamed & Another [2013] eKLR

Case Number: Land Case 65 of 2013 Date Delivered: 22 Aug 2013

Judge: Oscar Angote

Court: Environment and Land Court at Malindi

Parties: Felister Chitsaka Mwabaya v Habib Abu Mohamed & Franklin Gambo

Citation: Felister Chitsaka Mwabaya V . Habib Abu Mohamed & Another [2013] eKLR

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Rodgers Kabila Mtsonga & Another V Japhet Mwangemi & Another [2013] eKLR

Case Number: Land Case 56 Of 2013 Date Delivered: 22 Aug 2013

Judge: Oscar Angote

Court: High Court at Malindi

Parties: Rodgers Kabila Mtsonga & Shadrack Nyinge Mtsonga v Japhet Mwangemi & Patrick Mwarome Mwangemi

Citation: Rodgers Kabila Mtsonga & Another V Japhet Mwangemi & Another [2013] eKLR

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Jacinta Wanjala Mwatela V I.E.B.C. & 3 Others [2013] eKLR

Case Number: Election Petition 2 of 2013 Date Delivered: 22 Aug 2013

Judge: Maureen Akinyi Odero

Court: High Court at Mombasa

Parties: Jacinta Wanjala Mwatela v I.E.B.C, County Returning Officer (Taita/Taveta), Secretary I.E.B.C & Johnson Mtuta Mruttu

Citation: Jacinta Wanjala Mwatela V I.E.B.C. & 3 Others [2013] eKLR

Election Law-election petition-striking out of election petition- whether the time for the filing of an election petition starts to run after announcement of results or upon gazettement of results-Elections Act section 76(1)(a) -Constitution of Kenya, 2010 article 87(2)

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Carol Silcock V Kassim Sharrif Mohamed [2013] eKLR

Case Number: Elc Case 55 of 2011 Date Delivered: 22 Aug 2013

Judge: Oscar Angote

Court: Environment and Land Court at Malindi

Parties: Carol Silcock v Kassim Sharrif Mohamed

Citation: Carol Silcock V Kassim Sharrif Mohamed [2013] eKLR

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Dancun Livingstone Kimanthi & Another V Republic [2013] eKLR

Case Number: Criminal Case. 50 Of 2012 Date Delivered: 22 Aug 2013

Judge: Roseline Lagat-Korir

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Dancun Livingstone Kimanthi & Another v Republic

Citation: Dancun Livingstone Kimanthi & Another V Republic [2013] eKLR

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Sanjay Solanki & 8 Others V Hirji Kanji Patel & 5 Others [2013] eKLR

Case Number: Elc Civil Suit 418 of 2013 Date Delivered: 22 Aug 2013

Judge: John Mutungi

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Sanjay Solanki & 8 others v Hirji Kanji Patel, Ramadhan Libwege, Pace Associates, Shayam World Enterprises, Director General National Environmental Management Authority & Nairobi City Council

Citation: Sanjay Solanki & 8 Others V Hirji Kanji Patel & 5 Others [2013] eKLR

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John Wepukhulu & 2 Others V Peter Mwega & Another [2013] eKLR

Case Number: Civil Suit 46 of 2003 Date Delivered: 22 Aug 2013

Judge: Elija Ogoti Obaga

Court: High Court at Kitale

Parties: John Wepukhulu,John Tanui & Susan Tanui v Peter Mwega & Mwireri Gicheru

Citation: John Wepukhulu & 2 Others V Peter Mwega & Another [2013] eKLR

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Media Council Of Kenya V Eric Orina [2013] eKLR

Case Number: Civil Suit 540 of 2012 Date Delivered: 22 Aug 2013

Judge: David A Onyancha

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Media Council Of Kenya v Eric Orina

Citation: Media Council Of Kenya V Eric Orina [2013] eKLR

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Chairman, B.O.G. Eronge Mixed Secondary School V Aska Obae [2013] eKLR

Case Number: Civil Appeal .97 Of 2013 Date Delivered: 21 Aug 2013

Judge: Ruth Nekoye Sitati

Court: High Court at Kisii

Parties: Chairman, B.O.G. Eronge Mixed Secondary School v Aska Obae

Citation: Chairman, B.O.G. Eronge Mixed Secondary School V Aska Obae [2013] eKLR

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Republic V Richard Nyaega Mogaka [2013] eKLR

Case Number: Criminal Murder 74 of 2013 Date Delivered: 21 Aug 2013

Judge: Ruth Nekoye Sitati

Court: High Court at Kisii

Parties: Republic v Richard Nyaega Mogaka

Citation: Republic V Richard Nyaega Mogaka [2013] eKLR

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Cortec Mining Kenya Limited V Cabinet Secretary, Ministry Of Mining & Another [2013] eKLR

Case Number: Misc. Appl. 298 of 2013 Date Delivered: 21 Aug 2013

Judge: David Shikomera Majanja

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Cortec Mining Kenya Limited v Cabinet Secretary, Ministry Of Mining & Attorney General

Citation: Cortec Mining Kenya Limited V Cabinet Secretary, Ministry Of Mining & Another [2013] eKLR

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Cortec Mining Kenya Limited V Cabinet Secretary, Ministry Of Mining & Another [2013] eKLR

Case Number: Misc. Appl. 298 of 2013 Date Delivered: 21 Aug 2013

Judge: David Shikomera Majanja

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Cortec Mining Kenya Limited v Cabinet Secretary, Ministry Of Mining & Attorney General

Citation: Cortec Mining Kenya Limited V Cabinet Secretary, Ministry Of Mining & Another [2013] eKLR

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Ali Ismail Baraki & Another V Chairman, Garissa County Public Service Board & 3 Others [2013] eKLR

Case Number: Misc Appl JR 301 of 2013 Date Delivered: 21 Aug 2013

Judge: David Shikomera Majanja

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Ali Ismail Baraki & Mohamed Adan Karbat v Chairman, Garissa County Public Service Board, Governor Garissa County, Cabinet Secretary incharge of Devolution & Transitional Authority

Citation: Ali Ismail Baraki & Another V Chairman, Garissa County Public Service Board & 3 Others [2013] eKLR

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Republic V Erick Masega Alias Madiaba [2013] eKLR

Case Number: Criminal Murder 49 of 2013 Date Delivered: 21 Aug 2013

Judge: Ruth Nekoye Sitati

Court: High Court at Kisii

Parties: Republic v Erick Masega Alias Madiaba

Citation: Republic V Erick Masega Alias Madiaba [2013] eKLR

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Republic V Waitaluk L. D. T. Comprising Of: John Kahengura, Boaz N. Owour & David Kiptanui & Another Ex-Parte: Musa Kiprono Maiyo (Deceased) & Another [2013] eKLR

Case Number: Miscellaneous Civil Application. 45 Of 2006 Date Delivered: 21 Aug 2013

Judge: Elija Ogoti Obaga

Court: High Court at Kitale

Parties: Republic v Waitaluk L. D. T. Comprising Of: John Kahengura, Boaz N. Owour & David Kiptanui & Spm's Court Kitale Ex-Parte: Musa Kiprono Maiyo (Deceased) & Dinah Jepkoech

Citation: Republic V Waitaluk L. D. T. Comprising Of: John Kahengura, Boaz N. Owour & David Kiptanui & Another Ex-Parte: Musa Kiprono Maiyo (Deceased) & Another [2013] eKLR

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Fred K. Sabai & 4 Others V District Land Adjudication & Settlement Officer Trans-Nzoia & 6 Others [2013] eKLR

Case Number: Civil Suit 107 of 2012 Date Delivered: 21 Aug 2013

Judge: Elija Ogoti Obaga

Court: High Court at Kitale

Parties: Fred K. Sabai, Richard Kipsoi, Daniel Kapkara, Daniel Chemaswet & Eliud Sichei v District Land Adjudication & Settlement Officer Trans-Nzoia, Attorney General, Peter Chemaswet, Nathan Jindet Ndiwa, James Boiyo Pello, Robinson K. Kiteywo & Barnaba K. Kiteywo

Citation: Fred K. Sabai & 4 Others V District Land Adjudication & Settlement Officer Trans-Nzoia & 6 Others [2013] eKLR

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Isaac Indah Muchesi V Lawrence Gichuru Njenga & 3 Others [2013] eKLR

Case Number: Civil Case 134 of 2013 Date Delivered: 21 Aug 2013

Judge: Lucy Waithaka

Court: High Court at Nakuru

Parties: Isaac Indah Muchesi v Lawrence Gichuru Njenga ,John Lusi , Silfestus Gitimu &Registerd; Trustees (Africa Israel Nineveh Church)

Citation: Isaac Indah Muchesi V Lawrence Gichuru Njenga & 3 Others [2013] eKLR

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Lydia Njanja Gichuki & Another V Simon Kamau Ben Ngugi [2013] eKLR

Case Number: Civil Suit 254 Of 2013 Date Delivered: 21 Aug 2013

Judge: Lucy Waithaka

Court: High Court at Nakuru

Parties: Lydia Njanja Gichuki & Peter Kibuthu Gichuki v Simon Kamau Ben Ngugi

Citation: Lydia Njanja Gichuki & Another V Simon Kamau Ben Ngugi [2013] eKLR

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Michael Kimani Kariuki V Registered Trustees Of The Catholic Church, Diocese Of Nakuru & 22 Others [2013] eKLR

Case Number: Elc 166 of 2013 Date Delivered: 21 Aug 2013

Judge: Lucy Waithaka

Court: High Court at Nakuru

Parties: Michael Kimani Kariuki v Registered Trustees of the Catholic Church, Diocese of Nakuru & 22 others

Citation: Michael Kimani Kariuki V Registered Trustees Of The Catholic Church, Diocese Of Nakuru & 22 Others [2013] eKLR

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Jasbir Singh Rai & 3 Others V Tarlochan Singh Rai Estate Of & 4 Others [2013] eKLR

Case Number: Petition 4 of 2012 Date Delivered: 20 Aug 2013

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: Jasbir Singh Rai,Iqbal Singh Rai,Daljit Kaur Hans & Sarjit Kaur Rai v Tarlochan Singh Rai Estate of,Jaswant Singh Rai,Sarbjit Singh Rai,Rai Plywoods (Kenya) Limited & Satjit Singh & Ram Singh Estate of

Citation: Jasbir Singh Rai & 3 Others V Tarlochan Singh Rai Estate Of & 4 Others [2013] eKLR


Supreme Court upholds its earlier ruling on unconstitutionality of section 14 of the Supreme Court Act which conferred ‘special jurisdiction’ on the Supreme Court

Jasbir Singh Rai & 3 others v Tarlochan Singh Rai& 4 others

Petition No 4 of 2012

Supreme Court at Nairobi

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

August 20, 2013

Reported by Njeri Githang’a Kamau & Victor L Andande

Upon the promulgation of the Constitution of Kenya, 2010 and the enactment of the Supreme Court Act, 2011 (No. 7 of 2011), the petitioners moved the newly-established Supreme Court, seeking redress, by invoking the Supreme Court’s ‘special jurisdiction’ under Section 14 of the Supreme Court Act, by way of petition.

While the petition was pending, the Supreme Court delivered pertinent ruling in another matter, Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & two Others, Supreme Court Application No. 2 of 2011 (Macharia Case). The burden of that Ruling, in relation to the present case, was the declaration of Section 14 of the Supreme Court Act to be unconstitutional, insofar as it purported to give the Supreme Court a ‘special jurisdiction’.

Soon after the Ruling in the Macharia Case, and as the petition herein was pending before the Supreme Court, the respondents raised a preliminary objection to the petitioners’ case. They contended that the Court lacked jurisdiction to entertain the matter.

In response to the preliminary objection on jurisdiction, as lodged, the petitioners applied to the Court for a review of the Macharia ruling, on the basis that the declaration of section 14 of the Supreme Court Act, 2011 as unconstitutional was “wrong”, and ought to be reversed.

Issues

  1. Whether the Supreme Court could depart from its earlier decision and if so under what circumstances?
  2. Whether the Supreme Court’s declaration that section 14 of the Supreme Court Act was unconstitutional could be reversed.
  3. Whether the Supreme Court could deal with matters on violation of fundamental rights.
  4. What is the distinction between an obiter dictum and per incuram decision?

 

Constitutional law – constitutionality of a statutory provision -constitutionality of section 14 of the Supreme Court Act – where the Supreme Court had declared the section unconstitutional – whether the Supreme Court rightly declared section 14 unconstitutional.

JurisdictionSupreme CourtJurisdiction of the Supreme Court – scope of jurisdiction of the Supreme Court – where the Supreme Court Act conferred special jurisdiction upon the Supreme Court – whether in the circumstances the Supreme Court could exercise special jurisdiction  – Supreme Court Act, section 14, Constitution of Kenya 2010, article 163.

Precedent – stare decisis – distinction between obiter dictum and per incuriam decision - where the petitioners requested the Supreme Court to depart from its earlier decision –whether the decision could be said to have been per incuriam – what were the circumstances under which the Supreme Court could depart from its earlier decisions –Constitution of Kenya, 2010, article163(7).

Article 163(7) of the Constitution of Kenya 2010 provided that:

“All courts, other than the Supreme Court, are bound by the decisions of the Supreme Court.”

Held

  1. As a matter of consistent practice, the decisions of the higher Courts were to be maintained as precedent; and the foundation laid by such Courts was to be sustained in principle. This left an opening for the special circumstances which would occasionally dictate a departure from previous decisions.
  2. Whether or not the apex court could adhere to its precedent, or depart therefrom, was dependent on that court’s perception of the claims of justice and equity, or of the fundamental constitutional or related principles coming to bear upon the issues raised.
  3. The immediate pragmatic purpose of such an orientation of the judicial process was to ensure predictability, certainty, uniformity and stability in the application of law. Such institutionalization of the play of the law gave scope for regularity in the governance of commercial and contractual transactions in particular, though the same scheme marked also other spheres of social and economic relations.
  4. The Supreme Court, as an apex Court, could indeed depart from its previous decision, for good cause, and after taking into account legal considerations of significant weight. Such a latitude for departure from precedent existed not only in principle, and from well-recorded common law experience, but also by virtue of the express provision of the Constitution.
  5. The following factors had to be considered, where the Supreme Court was called upon to overturn its past decision:

(i)whether the precedent set had become impracticable or intolerable;

(ii)whether overturning the precedent would occasion hardship, or inequities to those who had already relied on the authority of the precedent;

(iii)whether, since the setting of the precedent, related principles had evolved to such an extent that it was fair to conclude that the society’s conditions and expectations had taken new dimensions;

(iv)whether the facts had significantly changed, or were currently viewed so differently, that the design of the precedent had become irrelevant, or unjustifiable.

  1. The Supreme Court, if it was to “develop the law”, had to have the liberty to depart from previous decisions such as could stand as a constraint to the growth of the law.
  2. An obiter dictum statement was one made on an issue that did not strictly and ordinarily, call for a decision: and so it was not vital to the outcome set out in the final decision of the case. On the other hand, a decision per incuriam was mistaken, as it was not founded on the valid and governing pillars of law.
  3. Comparative judicial experience showed that the decision of a superior Court was not to be perceived as having been arrived at per incuriam, merely because it was thought to be contrary to some broad principle, or to be out of step with some broad trend in the judicial process; the test of per incuriam was a strict one, the relevant decision having not taken into account some specific applicable instrument, rule or authority.
  4. The decisions of Kenya’s Supreme Court, which ought always to be arrived at only after the most conscientious and detailed consideration, were to stand as the binding reference-point in the norms governing the judicial process. Such a position was vital for the maintenance of the certainty, predictability, and jurisprudential standards that sustained the principles of the Constitution, and the rights and duties flowing from the legal set-up, and which provided sanctity for the legitimate actions of the people.
  5. Subject to the broad principle, the following directions had to be considered by the court when dealing with precedents:

(i) where there were conflicting past decisions of the court, it could opt to sustain and to apply one of them;

(ii) the court could disregard a previous decision if it was shown that such decision was given per incuriam;

(iii) a previous decision would not be disregarded merely because some or all of the members of the Bench that decided it would presently arrive at a different conclusion;

(iv)the court would not depart from its earlier decision on grounds of mere doubts as to its correctness.

 

  1. The decision of the Supreme Court on the issue of the constitutionality of Section 14 of the Supreme Court Act was to be considered an element in the ratio decidendi of the Macharia Case in which the issue was handled, rather than an obiter dictum.
  2. If it would be thought that any error was entailed in the Court’s perception of jurisdiction, such an apprehension by itself, could not justify the reversal of the ruling declaring section 14 unconstitutional. That decision established itself as a mark of certainty and predictability in the law, and on the basis of which numbers of people would have figured out their rights and expectations. In these circumstances, public policy would not stand on the side of reversal of precedent.
  3. Section 14 of the Supreme Court Act was unconstitutional on two additional grounds:
  1. it was discriminatory, contrary to Articles 10(1)(b), 10(2)(b), and 27 of the Constitution; and
  2. it violated private property rights contrary to article 40 of the Constitution.
  1. Article 10 of the Constitution required Parliament to be non-discriminatory when it enacted laws. Parliament violated article 10 when it enacted section 14 of the Supreme Court Act because it limited the remedy of a new trial only to those who could prove that the judge in their case had been removed, retired or resigned on the basis of their complaints.
  2. Section 14 did not provide any criteria for the taking away of property rights properly vested after a judgment. It only provided for the re-opening of a case in which a complaint was filed against a judge leading to his or her removal, without an effective enquiry into how this affected the property rights already vested. Section 14 also did not address how “just compensation to the person” with such vested rights would be paid to them and by whom.
  3. While our jurisprudence could benefit from the strengths of foreign jurisprudence, it had to obviate the weaknesses of such jurisprudence, so that ours was suitably enriched, as decreed by the Supreme Court Act. Thus, the Supreme Court would have to avoid mechanistic approaches to precedent.
  4. The Kenyan Constitution gave the High Court the exclusive jurisdiction to deal with matters of violations of fundamental rights. This was found under article 23 as read with article 165 of the Constitution. The High Court had jurisdiction to redress a violation that arose from the operation of law through the system of courts, even if the case had gone through the appellate level.
  5. The canvassing of section 14 of the Supreme Court Act, and more particularly, the fact that it touched on jurisdiction required the Court to consider the constitutionality of that Section; and the outcome, in the circumstances, would stand as a declaration of status in rem.
  6. The conclusion arrived at in the Macharia Case was correct, in that section 14 of the Supreme Court Act was unconstitutional, insofar as it purported to give the Supreme Court a ‘special jurisdiction’. The Supreme Court, as an iconic court in the land, should however have approached the issue of the constitutionality, or lack thereof, of section 14 of the Supreme Court Act, in a more comprehensive manner, and  strived to explain its background and context extensively, or even painstakingly, so that the people of Kenya, and the litigants (present or prospective), could fully grasp the reasons behind its refusal to exercise jurisdiction as purportedly provided under Section 14 of the Supreme Court Act.

Per Ibrahim SCJ Dissenting:

  1. The Court was to take into account the following principles , in addition to those already stated when considering whether to depart from its precedents:
  1. A decision that was manifestly wrong on the face of it would occasion a departure by the Court. What was manifestly wrong would depend on a conscientious determination by the Court, and would vary from case to case.
  2. Whether a decision was erroneous, and severely affected the lives of people, and impacted negatively on the general welfare of the public.
  3. Upon consideration of such elements, the Court would be ready and willing to depart from an erroneous decision, where the decision was a recent one and the decision had not as yet created property rights around which individuals’ interests had vested.
  1. A question of jurisdiction when raised, occasionally by way of a preliminary objection, did not necessarily address the issue of the constitutionality of a piece of legislation. It would be questioning the applicability of that law to the issues forming the subject-matter under consideration.
  2. The issue of jurisdiction in the Macharia Case was framed not on the question of the constitutionality of Section 14 of the Supreme Court Act, but on whether the case as presented by the Applicant had met the threshold set by Section 14 of the Act: that a judge had been removed, retired or resigned; secondly, whether the procedural requirement of moving the Court by way of petition, provided for by the rules, had been followed; and if not, whether that was fatal to the application before the Court. The issue of the constitutionality of Section 14 never formed part of the jurisdictional challenge, and the Court should not have delved into it.
  3. The respondents’ opposition on jurisdiction was on the basis that Section 14 did not apply, and not that section 14 was unconstitutional. There was no single prayer, or relief sought, for the declaration of Section 14 of the Supreme Court Act as unconstitutional. Thus, in holding Section 14 to be unconstitutional, the Supreme Court acted suo motu. This was unnecessary, as it was never prayed for.
  4. The Supreme Court, or even the High Court, was not supposed to decide upon the constitutionality or unconstitutionality of a statutory provision, without the involvement of the Attorney-General as a respondent or as amicus curiae. The constitutionality of legislative provisions ought not to be determined as between private parties alone. This was because statutory laws belonged to, and affected the people of Kenya and the State; it was not a private matter, but rather, it was of a public nature, and it affected the public interest.
  5. Kenya operated an adversarial system, and the Court as an impartial umpire could not rightly descend into the arena of conflict. However, a matter touching on the constitutionality of a provision of the law was not a matter of conflict as between parties. It transcended the parties, and became a matter of general concern, that was to bind all persons as signified by article 3 of the Constitution.
  6. A Court of law had to be hesitant in declaring legislation unconstitutional in a private matter, where Parliament was not a party. Where such an application was made, the Court was supposed to invite all stakeholders on board. This would enhance fidelity to the doctrine of separation of powers, and contributed to respect for all constitutional organs, and for their mandates. This way, the principle of checks and balances would be seen to be truly operational, within the constitutional framework, in the terms of article 2 of the Constitution.
  7. Until the contrary was proved, a legislation was presumed to be constitutional. The onus was upon those who challenged the constitutionality of the legislation to rebut the presumption.
  8. An issue touching on a procedure challenging the constitutionality of statutory law was not a matter of procedural technicality. It was a matter of procedural substance.  The procedure towards the declaration of Section 14 of the Supreme Court Act as unconstitutional was a substantive procedure that went to the core of the constitutionality of a legislative activity. Thus, the declaration of Section 14 as being unconstitutional lacked the procedural substantive requirement, and it ought not to be left to stand as a precedent.
  9.  The declaration of Section 14 as being unconstitutional was made when the instant matter was pending before the Court. Therefore, the premature declaration in proceedings which did not call for such a determination, prejudiced litigants who were properly before the Court, given that the prima facie threshold requirement under Section 14 had been attained as the particular judge at the centre of the instant case retired as a consequence of the allegations made against him.

Application disallowed but an order as to costs to be made in the cause.

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Malindi Ginneries Limited V Pritpal Singh Kalsi & 6 Others [2013] eKLR

Case Number: Civil Case 60 of 2013 Date Delivered: 20 Aug 2013

Judge: Oscar Angote

Court: Environment and Land Court at Malindi

Parties: Malindi Ginneries Limited v Pritpal Singh Kalsi,Abdul Hassan Shabaan,Kassim Ali Sawa,Ali Mohamed Ali,Nurein T/A Star Hospital Malindi,Attorney General for and on Behalf of the Commissioner of Lands & Municipal Council of Malindi

Citation: Malindi Ginneries Limited V Pritpal Singh Kalsi & 6 Others [2013] eKLR

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Azar Mohammed Sheikh & 8 Others V Velji Narshi Shah & Another [2013] eKLR

Case Number: Elc Case 398 of 2013 Date Delivered: 20 Aug 2013

Judge: Lucy Nyambura Gacheru

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Azar Mohammed Sheikh, Abdula Said Ahmed, Tasnim Ashraf Shabir, Praful Jayantibhai Patel, Neelesh Shashiknt Shah, Jhaverkhan Jetha Shah, Mohammed Mustaque Isaak, Arafat Abdulla Hassan & Dipesh Kantilal Shah v Velji Narshi Shah & Rajin Velji Shah

Citation: Azar Mohammed Sheikh & 8 Others V Velji Narshi Shah & Another [2013] eKLR

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Geoffrey Githenya Mbuthia V Moses Irungu Mbui & Another [2013] eKLR

Case Number: ELC Case 749 of 2012 Date Delivered: 20 Aug 2013

Judge: Lucy Nyambura Gacheru

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Geoffrey Githenya Mbuthia v Moses Irungu Mbui & Mahiira Housing Company Ltd

Citation: Geoffrey Githenya Mbuthia V Moses Irungu Mbui & Another [2013] eKLR

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Jonathan Msokoa Shoka V Samuel Gona Ndoro & 2 Others [2013] eKLR

Case Number: Petition 5 of 2013 Date Delivered: 20 Aug 2013

Judge: Oscar Angote

Court: Environment and Land Court at Malindi

Parties: Jonathan Msokoa Shoka v Samuel Gona Ndoro, Joseph Kadenge Ndoro & David Nyiro Ndoro

Citation: Jonathan Msokoa Shoka V Samuel Gona Ndoro & 2 Others [2013] eKLR

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Jonathan Msokoa Shoka V Samuel Gona Ndoro & 2 Others [2013] eKLR

Case Number: Petition 5 of 2013 Date Delivered: 20 Aug 2013

Judge: Oscar Angote

Court: Environment and Land Court at Malindi

Parties: Jonathan Msokoa Shoka v Samuel Gona Ndoro, Joseph Kadenge Ndoro & David Nyiro Ndoro

Citation: Jonathan Msokoa Shoka V Samuel Gona Ndoro & 2 Others [2013] eKLR

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Zipporah Wambeti Kinyua & Another V K-Rep Bank Ltd & Another [2013] eKLR

Case Number: Environment and Land 120 of 2013 Date Delivered: 20 Aug 2013

Judge: Peter Muchoki Njoroge

Court: High Court at Meru

Parties: Zipporah Wambeti Kinyua & another v K-Rep Bank Ltd & another

Citation: Zipporah Wambeti Kinyua & Another V K-Rep Bank Ltd & Another [2013] eKLR

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Republic V Kipchana Kiboron & 3 Others & Another Ex-Parte Michael Bartenge [2013] eKLR

Case Number: Miscellaneous Civil Application 40 of 2012 Date Delivered: 20 Aug 2013

Judge: Elija Ogoti Obaga

Court: High Court at Kitale

Parties: Republic v Kipchana Kiboron & 3 others & Josephat Kiplagat Ex-Parte Michael Bartenge

Citation: Republic V Kipchana Kiboron & 3 Others & Another Ex-Parte Michael Bartenge [2013] eKLR

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Simon Gikonyo & 142 Others V Joseph Kamau Musa & 8 Others [2013] eKLR

Case Number: Elc Case 1002 of 1993 Date Delivered: 20 Aug 2013

Judge: Lucy Nyambura Gacheru

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Simon Gikonyo & 142 others v Joseph Kamau Musa,James Kariuki Muchiri, Mburu Muchina,Mwangi KarigiMukiri Ngotho,Nelphat Gichuhi, Ruigu Njiriri,Karanja Mbaya Karanja Mbaya Interested party Ereri Company Ltd

Citation: Simon Gikonyo & 142 Others V Joseph Kamau Musa & 8 Others [2013] eKLR

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Mary Wambui Maina & 2 Others V Little Woods Estates Co Ltd & Another [2013] eKLR

Case Number: ELC Case 444 of 2012 Date Delivered: 20 Aug 2013

Judge: Lucy Nyambura Gacheru

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Mary Wambui Maina, Francis Kyunguti & Francis K Kibor v Little Woods Estates Co Ltd & Samuel Kariba Waite

Citation: Mary Wambui Maina & 2 Others V Little Woods Estates Co Ltd & Another [2013] eKLR

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Francis Collins Ominde V National Social Security Fund & Another [2013] eKLR

Case Number: Elc Case 425 of 2011 Date Delivered: 20 Aug 2013

Judge: Lucy Nyambura Gacheru

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Francis Collins Ominde v National Social Security Fund & Ali Hussein Muhamud

Citation: Francis Collins Ominde V National Social Security Fund & Another [2013] eKLR

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Jayantilal Dharamsh Gosrani V Hon Attorney General & 3 Others [2013] eKLR

Case Number: Elc Case 972 of 2012 Date Delivered: 20 Aug 2013

Judge: Lucy Nyambura Gacheru

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Jayantilal Dharamsh Gosrani v Hon Attorney General, Kenya National Highways Authority, Commissioner of Lands & Permanent Secretary Ministry

Citation: Jayantilal Dharamsh Gosrani V Hon Attorney General & 3 Others [2013] eKLR

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Marky Njoroge Njunge & Others V Stephen Mbugua Gathuna & Another [2013] eKLR

Case Number: Elc. 643 Of 2012 Date Delivered: 20 Aug 2013

Judge: Lucy Nyambura Gacheru

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Marky Njoroge Njunge & Others v Stephen Mbugua Gathuna & Another

Citation: Marky Njoroge Njunge & Others V Stephen Mbugua Gathuna & Another [2013] eKLR

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Unity Party Of Kenya & Another V Independent Electoral & Boundaries Commission & Another [2013] eKLR

Case Number: Misc Appl 300 of 2013 Date Delivered: 19 Aug 2013

Judge: David Shikomera Majanja

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Unity Party of Kenya & Lucyline Karimi Murithi v Independent Electoral & Boundaries Commission & Anjeline Akai Lodi

Citation: Unity Party Of Kenya & Another V Independent Electoral & Boundaries Commission & Another [2013] eKLR

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Clement Wamalwa V Getrude N. Tsuma [2013] eKLR

Case Number: Civil Suit 137 of 2000 (OS) Date Delivered: 19 Aug 2013

Judge: Elija Ogoti Obaga

Court: High Court at Kitale

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Judge: Jairus Ngaah

Court: High Court at Nyeri

Parties: Wilson Nginga Kimotho v Independent Electoral & Boundaries Commission,Esther Murugi Mathenge, Margaret Lornah Kariuki (Nyeri Constituency Returning Officer)

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An Election Petition struck out where the petitioner’s advocate at the time of filing the petition, lacked a current practicing certificate.

 

Wilson Nginga Kimotho v Independent Electoral & Boundaries

Commission and 2 Others

Election Petition No. 5 of 2013

High Court at Nyeri

By Ngaah Jairus J,

On August 15, 2013

Reported by Emma kinya Mwobobia and Obura Paul Michael

 

Brief facts:

In the petition, doubts were raised by the respondents as to the qualification of the petitioner’s advocate. They claimed he didn’t have a current practicing certificate. Upon producing the receipts for payment for the practicing certificate and the certificate itself, it emerged that the certificate was paid for on 24th June 2013, and the certificate itself was issued on 1st July, 2013. The petition was drawn and filed in April, 2013, a time when the petitioner’s counsel did not have a current practicing certificate. He participated in the proceedings without the certificate until 1st July, 2013 when he finally obtained one.

 

Issues:

  1. Whether the petitioner’s advocate was qualified to act as an advocate even though he obtained his practicing certificate after filing the petition.
  2. Whether the advocate’s action was fatal to the petition.

 

Civil Procedure and Practice- striking out- striking out pleadings- where the advocate at the time of filing and signing the pleadings did not have a current practicing certificate- whether the court could dismiss the petition on that account only- Advocates Act, sections 2, 9, 21, 22, 34

 

Held:

  1. The law governing legal practice in Kenya was the Advocates Act Cap 16 of the Laws of Kenya (the Act). As per section 9(c), one was only qualified to act as an advocate if, amongst other requirements, he had in force a practicing certificate. This certificate was issued by the Registrar under section 21 of the Act on an application made under section 22 of the same Act. Without the certificate he would be an unqualified person who under section 2 of the Act, was defined as a person who was not qualified under section 9 to act as an advocate.
  2. The petitioner’s counsel, until 1st July 2013, was an unqualified person as defined in section 2 of the Act. He could not directly or indirectly take instructions or draw or prepare any document or instrument relating to a legal proceeding. The instructions he took, documents or instruments he drew relating to this petition were all illegitimate and deficient of any force of law.
  3. A notice of appeal, memorandum of appeal, and a record of appeal were struck out because the advocate who prepared the documents did not have a practicing certificate at the time he prepared them. (Kenya Power & Lighting Company Ltd v Mabinda t/a Nyeri Trading Centre, Nyeri Civil Appeal No. 148 of 2004)

Orders:

Petition struck out with costs to the respondent at Kshs.1million and subject to taxation by the Registrar.

The 2nd respondent was validly elected as Member of National Assembly for Nyeri Town Constituency.

Cases:

East Africa;

  1. Kenya Power & Lighting Company Ltd v Mahinda t/a Nyeri Trading Centre [2005] KLR 753 (Followed)

Statutes:

East Africa;

  1. Advocates Act (cap 16) sections 2, 9, 21, 22, 27, 34(1); 60(4)(c) – (Interpreted) 
  2.  Elections (Parliamentary and County Elections) Petition Rules, 2013 (Act No 24 Sub Leg) rule 34(1)(a)(b) – (Interpreted)

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