Case Search

pillars

Case Action: Ruling


Jedidah Wanjiru Wairimu V Simon Karogha Njoroge & 3 Others [2016] eKLR

Case Number: Civil Suit 17 of 2014 Date Delivered: 21 Apr 2016

Judge: Janet Nzilani Mulwa

Court: High Court at Nakuru

Parties: Jedidah Wanjiru Wairimu v Simon Karogha Njoroge, National Industrial Credit Bank Ltd, Credit Reference Bureau & African Provident Limited t/a Real People

Citation: Jedidah Wanjiru Wairimu V Simon Karogha Njoroge & 3 Others [2016] eKLR

Read More

Elphas Obel V Seweco Paints Ltd [2016] eKLR

Case Number: Cause 2159 of 2012 Date Delivered: 21 Apr 2016

Judge: Stephen Radido Okiyo

Court: Employment and Labour Relations Court at Nairobi

Parties: Elphas Obel v Seweco Paints Ltd

Citation: Elphas Obel V Seweco Paints Ltd [2016] eKLR

Read More

Eric Odhiambo V Karen Breeze Ltd [2016] eKLR

Case Number: Cause 2186 of 2012 Date Delivered: 21 Apr 2016

Judge: Stephen Radido Okiyo

Court: Employment and Labour Relations Court at Nairobi

Parties: Eric Odhiambo v Karen Breeze Ltd

Citation: Eric Odhiambo V Karen Breeze Ltd [2016] eKLR

Read More

Lawrence Ouma Musumba V Gurdev Engineering Construction Co [2016] eKLR

Case Number: Cause 2166 of 2012 Date Delivered: 21 Apr 2016

Judge: Stephen Radido Okiyo

Court: Employment and Labour Relations Court at Nairobi

Parties: Lawrence Ouma Musumba v Gurdev Engineering Construction Co. Ltd

Citation: Lawrence Ouma Musumba V Gurdev Engineering Construction Co [2016] eKLR

Read More

Formula Farm Feeds Ltd V Primesoft Solutions Ltd [2016] eKLR

Case Number: Civil Appeal 213 of 2012 Date Delivered: 21 Apr 2016

Judge: Janet Nzilani Mulwa

Court: High Court at Nakuru

Parties: Formula Farm Feeds Ltd v Primesoft Solutions Ltd

Citation: Formula Farm Feeds Ltd V Primesoft Solutions Ltd [2016] eKLR

Read More

Serah Nyambura T/a Crayfish Camp V Twiga Roses [2016] eKLR

Case Number: Civil Case 82 of 2014 (O.S) Date Delivered: 21 Apr 2016

Judge: Janet Nzilani Mulwa

Court: High Court at Nakuru

Parties: Serah Nyambura t/a Crayfish Camp v Twiga Roses

Citation: Serah Nyambura T/a Crayfish Camp V Twiga Roses [2016] eKLR

Read More

Zubeida Said Abdallah V Masoud Mohamed Shee [2016] eKLR

Case Number: Environment and Land Case 76 of 2013 Date Delivered: 21 Apr 2016

Judge: Anne Omollo

Court: High Court at Mombasa

Parties: Zubeida Said Abdallah v Masoud Mohamed Shee (alias) Mohamed Sudi Sheikh

Citation: Zubeida Said Abdallah V Masoud Mohamed Shee [2016] eKLR

Read More

Stephen Awino Ogaga V Kenya Kazi Services Ltd [2016] eKLR

Case Number: Cause 2223 of 2012 Date Delivered: 21 Apr 2016

Judge: Stephen Radido Okiyo

Court: Employment and Labour Relations Court at Nairobi

Parties: Stephen Awino Ogaga v Kenya Kazi Services Ltd

Citation: Stephen Awino Ogaga V Kenya Kazi Services Ltd [2016] eKLR

Read More

Patrick Wambua Mathuku V Sunflag Textile & Knitwear Mills Ltd [2016] eKLR

Case Number: Cause 2248 of 2012 Date Delivered: 21 Apr 2016

Judge: Stephen Radido Okiyo

Court: Employment and Labour Relations Court at Nairobi

Parties: Patrick Wambua Mathuku v Sunflag Textile & Knitwear Mills Ltd

Citation: Patrick Wambua Mathuku V Sunflag Textile & Knitwear Mills Ltd [2016] eKLR

Read More

Kenya Union Of Entertainment & Music Industry Employees V Zitron Ltd [2016] eKLR

Case Number: Cause 2205 of 2012 Date Delivered: 21 Apr 2016

Judge: Stephen Radido Okiyo

Court: Employment and Labour Relations Court at Nairobi

Parties: Kenya Union of Entertainment & Music Industry Employees v Zitron Ltd

Citation: Kenya Union Of Entertainment & Music Industry Employees V Zitron Ltd [2016] eKLR

Read More

Susy Ruguru Nkanata & 2 Others V Silas Kirimi Nkanata & Another [2016] eKLR

Case Number: Environment and Land Case 71 of 2012 Date Delivered: 21 Apr 2016

Judge: Peter Muchoki Njoroge

Court: High Court at Meru

Parties: Susy Ruguru Nkanata, Fridah Kajuju Kinyua & Winfred Kanario Kirimi v Silas Kirimi Nkanata & Jane Kinanu Rutere

Citation: Susy Ruguru Nkanata & 2 Others V Silas Kirimi Nkanata & Another [2016] eKLR

Read More

Beatrice Chepkemoi V Naivas Limited [2016] eKLR

Case Number: Cause 2285 of 2012 Date Delivered: 21 Apr 2016

Judge: Stephen Radido Okiyo

Court: Employment and Labour Relations Court at Nairobi

Parties: Beatrice Chepkemoi v Naivas Limited

Citation: Beatrice Chepkemoi V Naivas Limited [2016] eKLR

Read More

Joseph Kioko Muthoka V Republic [2016] eKLR

Case Number: Criminal Case 70 of 2015 Date Delivered: 21 Apr 2016

Judge: Pauline Nyamweya

Court: High Court at Machakos

Parties: Joseph Kioko Muthoka v Republic

Citation: Joseph Kioko Muthoka V Republic [2016] eKLR

Read More

Republic V Peter Karanja Alias Wanijuany [2016] eKLR

Case Number: Criminal Case 45 of 2010 Date Delivered: 21 Apr 2016

Judge: Jessie Wanjiku Lessit

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Republic v Peter Karanja Alias Wanijuany

Citation: Republic V Peter Karanja Alias Wanijuany [2016] eKLR

Read More

Africa Oil Turkana Limited & 2 Others V Maosa Kengara Monena & 3 Others [2016] eKLR

Case Number: Civil Application 51 of 2015 Date Delivered: 21 Apr 2016

Judge: David Kenani Maraga, Agnes Kalekye Murgor, Stephen Gatembu Kairu

Court: Court of Appeal at Eldoret

Parties: Africa Oil Turkana Limited, Africa Oil Kenya Bv, Africa Oil Corporation v Maosa Kengara Monena, Edward Kings Onyancha Maina, Centric Energy Corporation & Interstate Petroleum Company Limited

Citation: Africa Oil Turkana Limited & 2 Others V Maosa Kengara Monena & 3 Others [2016] eKLR

Read More

Republic V G K N [2016] eKLR

Case Number: Criminal Case 26 of 2015 Date Delivered: 21 Apr 2016

Judge: James wakiaga

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Republic v G K N

Citation: Republic V G K N [2016] eKLR

Read More

Rae Nyae V Mahindra Patel [2016] eKLR

Case Number: Cause 2140 of 2012 Date Delivered: 21 Apr 2016

Judge: Stephen Radido Okiyo

Court: Employment and Labour Relations Court at Nairobi

Parties: Rae Nyae v Mahindra Patel

Citation: Rae Nyae V Mahindra Patel [2016] eKLR

Read More

Joab Achieng V Afro Plastics (K) Ltd [2016] eKLR

Case Number: Cause 628 of 2013 Date Delivered: 21 Apr 2016

Judge: James Rika

Court: Employment and Labour Relations Court at Mombasa

Parties: Joab Achieng v Afro Plastics (K) Ltd

Citation: Joab Achieng V Afro Plastics (K) Ltd [2016] eKLR

Read More

Kenya Plantation & Agricultural Workers Union V Rift Valley Vegetables [2016] eKLR

Case Number: Cause 2260 of 2012 Date Delivered: 21 Apr 2016

Judge: Stephen Radido Okiyo

Court: Employment and Labour Relations Court at Nairobi

Parties: Kenya Plantation & Agricultural Workers Union v Rift Valley Vegetables

Citation: Kenya Plantation & Agricultural Workers Union V Rift Valley Vegetables [2016] eKLR

Read More

Erastus Safari Kenga V Awanad Enterprises Ltd [2016] eKLR

Case Number: Cause 2136 of 2012 Date Delivered: 21 Apr 2016

Judge: Stephen Radido Okiyo

Court: Employment and Labour Relations Court at Nairobi

Parties: Erastus Safari Kenga v Awanad Enterprises Ltd

Citation: Erastus Safari Kenga V Awanad Enterprises Ltd [2016] eKLR

Read More

Lawrence Kithuka V Afro Plastics (K) Ltd [2016] eKLR

Case Number: Cause 629 of 2013 Date Delivered: 21 Apr 2016

Judge: James Rika

Court: Employment and Labour Relations Court at Mombasa

Parties: Lawrence Kithuka v Afro Plastics (K) Ltd

Citation: Lawrence Kithuka V Afro Plastics (K) Ltd [2016] eKLR

Read More

Stephen Amollo V Afro Plastics (K) Ltd [2016] eKLR

Case Number: Cause 627 of 2013 Date Delivered: 21 Apr 2016

Judge: James Rika

Court: Employment and Labour Relations Court at Mombasa

Parties: Stephen Amollo v Afro Plastics (K) Ltd

Citation: Stephen Amollo V Afro Plastics (K) Ltd [2016] eKLR

Read More

Lucy Njeri Njogu V John Njenga Njogu [2016] eKLR

Case Number: HCC Succession 55 of 2014 Date Delivered: 21 Apr 2016

Judge: Christine Wanjiku Meoli

Court: High Court at Naivasha

Parties: Lucy Njeri Njogu v John Njenga Njogu

Citation: Lucy Njeri Njogu V John Njenga Njogu [2016] eKLR

Read More

Kenya Plantation & Agricultural Workers Union V Toyoi Farm [2016] eKLR

Case Number: Cause 2261 of 2012 Date Delivered: 21 Apr 2016

Judge: Stephen Radido Okiyo

Court: Employment and Labour Relations Court at Nairobi

Parties: Kenya Plantation & Agricultural Workers Union v Toyoi Farm

Citation: Kenya Plantation & Agricultural Workers Union V Toyoi Farm [2016] eKLR

Read More

Arthur I. Shikanga Mulama (Suing On Behalf Of Deborah Chitilwa Amahwa) V Elphas Nandi [2016] eKLR

Case Number: Environment & Land 125 of 2012 Date Delivered: 21 Apr 2016

Judge: Elija Ogoti Obaga

Court: Environment and Land Court at Kitale

Parties: Arthur I. Shikanga Mulama (Suing On Behalf Of Deborah Chitilwa Amahwa) v Elphas Nandi

Citation: Arthur I. Shikanga Mulama (Suing On Behalf Of Deborah Chitilwa Amahwa) V Elphas Nandi [2016] eKLR

Read More

In Re Estate Of Ali Bakari Mwadzinyeto Ali Bakari Harry (Deceased) [2016] eKLR

Case Number: Succession 297 of 2005 Date Delivered: 21 Apr 2016

Judge: Thande Mugure

Court: High Court at Mombasa

Parties: In re Estate of Ali Bakari Mwadzinyeto Ali Bakari Harry (Deceased)

Citation: In Re Estate Of Ali Bakari Mwadzinyeto Ali Bakari Harry (Deceased) [2016] eKLR

Read More

Chrispus Chengo Masha & 7 Others V Daniel Ricci [2016] eKLR

Case Number: Civil Suit 87 of 2009 Date Delivered: 21 Apr 2016

Judge: Said Juma Chitembwe

Court: High Court at Malindi

Parties: Chrispus Chengo Masha, Charo Mwadima Tunje, Joseph Kasena Yeri, Katana Nwaduna Nwange, Mwanje Mwadima Finyange, George Katana Yeri, Yeri Fredrick Changawa & Thomas Hinzano Ngonyo v Daniel Ricci

Citation: Chrispus Chengo Masha & 7 Others V Daniel Ricci [2016] eKLR

Read More

John Muriungi Mugwika V Charity Mpinda M'Mugwika [2016] eKLR

Case Number: Land Case 26 of 2013 Date Delivered: 21 Apr 2016

Judge: Peter Muchoki Njoroge

Court: High Court at Meru

Parties: John Muriungi Mugwika v Charity Mpinda M'Mugwika

Citation: John Muriungi Mugwika V Charity Mpinda M'Mugwika [2016] eKLR

Read More

In Re Estate Of M K Alias M [2016] eKLR

Case Number: Succession Cause 58 of 2015 Date Delivered: 21 Apr 2016

Judge: Christine Wanjiku Meoli

Court: High Court at Naivasha

Parties: In Re Estate of M K alias M

Citation: In Re Estate Of M K Alias M [2016] eKLR

Read More

Julius K. Tuwei V Joseph Birech & 2 Others [2016] eKLR

Case Number: Land Case 88 of 2000 Date Delivered: 21 Apr 2016

Judge: Elija Ogoti Obaga

Court: Environment and Land Court at Kitale

Parties: Julius K. Tuwei v Joseph Birech, Simion Rotich & Samuel Ngelel

Citation: Julius K. Tuwei V Joseph Birech & 2 Others [2016] eKLR

Read More

Maxam Liimited & 2 Others V Heineken E.A. Import Co. Ltd & 2 Others [2016] eKLR

Case Number: Civil Case 29 of 2016 Date Delivered: 21 Apr 2016

Judge: Eric Kennedy Okumu Ogola

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

Parties: Maxam Liimited, Modern Lane Limited & Olepasu Tanzania Limited v Heineken E.A. Import Co. Ltd, Heineken Brouwerijen B.V & Heineken International B.V

Citation: Maxam Liimited & 2 Others V Heineken E.A. Import Co. Ltd & 2 Others [2016] eKLR

Read More

Africa Oil Turkana Limited & 2 Others V Edward Kings Onyancha Maina & 3 Others [2016] eKLR

Case Number: Civil Application 50 of 2015 Date Delivered: 21 Apr 2016

Judge: David Kenani Maraga, Agnes Kalekye Murgor, Stephen Gatembu Kairu

Court: Court of Appeal at Eldoret

Parties: Africa Oil Turkana Limited,Africa Oil Kenya Bv & Africa Oil Corporation v Edward Kings Onyancha Maina,Maosa Kengara Monena,Centric Energy Corporation & Interstate Petroleum Company Limited

Citation: Africa Oil Turkana Limited & 2 Others V Edward Kings Onyancha Maina & 3 Others [2016] eKLR

Read More

Kenya Union Of Entertainment And Music Industry Employees V Bomas Of Kenya Limited [2016] eKLR

Case Number: Cause 759 of 2012 Date Delivered: 21 Apr 2016

Judge: Hellen Wasilwa Seruya

Court: Employment and Labour Relations Court at Nairobi

Parties: Kenya Union of Entertainment and Music Industry Employees v Bomas of Kenya Limited

Citation: Kenya Union Of Entertainment And Music Industry Employees V Bomas Of Kenya Limited [2016] eKLR

Read More

Ali Abdalla Duhmy (Chairman) & Others V Mohamed Abdisheikh & Others [2016] eKLR

Case Number: Civil Case 144 of 2012 Date Delivered: 21 Apr 2016

Judge: Said Juma Chitembwe

Court: High Court at Malindi

Parties: Ali Abdalla Duhmy (Chairman) & others v Mohamed Abdisheikh & others

Citation: Ali Abdalla Duhmy (Chairman) & Others V Mohamed Abdisheikh & Others [2016] eKLR

Read More

Mohammed Salim Balala & Another V Tor Allan Safaris Limited [2016] eKLR

Case Number: Civil Appeal 40 of 2015 Date Delivered: 21 Apr 2016

Judge: Said Juma Chitembwe

Court: High Court at Malindi

Parties: Mohammed Salim Balala & Abed Omar Abed p/a Balala & Abed Advocates v Tor Allan Safaris Limited

Citation: Mohammed Salim Balala & Another V Tor Allan Safaris Limited [2016] eKLR

Read More

In Re Estate Of Kahoro Muchiri Kahoro (Deceased) [2016] eKLR

Case Number: Succession Cause 85 of 2015 Date Delivered: 21 Apr 2016

Judge: Christine Wanjiku Meoli

Court: High Court at Naivasha

Parties: In re Estate of Kahoro Muchiri Kahoro (Deceased)

Citation: In Re Estate Of Kahoro Muchiri Kahoro (Deceased) [2016] eKLR

Read More

Nairobi City Council V Directorate Of Criminal Investigations & 3 Others [2016] eKLR

Case Number: Miscellaneous Criminal Application 323 of 2015 Date Delivered: 21 Apr 2016

Judge: Luka Kiprotich Kimaru

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

Parties: Nairobi City Council v Directorate of Criminal Investigations, National Police Service, Chaka Limited & Grace Wairimu Sorora

Citation: Nairobi City Council V Directorate Of Criminal Investigations & 3 Others [2016] eKLR

Read More

In Re Monica Malpeli [2016] eKLR

Case Number: Miscellaneous Civil Application 79 of 2015 (O.S) Date Delivered: 21 Apr 2016

Judge: Said Juma Chitembwe

Court: High Court at Malindi

Parties: In Re Monica Malpeli

Citation: In Re Monica Malpeli [2016] eKLR

Read More

Zeinab Khalifa & 4 Others V Abdulrazak Khalifa & Another [2016] eKLR

Case Number: Succession 62 of 2000 Date Delivered: 21 Apr 2016

Judge: Thande Mugure

Court: High Court at Mombasa

Parties: Zeinab Khalifa, Rahima Khalifa, Fatuma Mohammed Said, Salma Mohammed Said & Abdulkarim Mohammed Said v Abdulrazak Khalifa & Omar Mohamed Siad

Citation: Zeinab Khalifa & 4 Others V Abdulrazak Khalifa & Another [2016] eKLR

Read More

Andrew Omwenga Wanjiku T/A Triangle Bar & Others V Nakuru County Commissioner & 3 Others [2016] eKLR

Case Number: Constitutional Petition 5 of 2015 Date Delivered: 21 Apr 2016

Judge: Christine Wanjiku Meoli

Court: High Court at Naivasha

Parties: Andrew Omwenga Wanjiku T/A Triangle Bar & others v Nakuru County Commissioner & 3 others

Citation: Andrew Omwenga Wanjiku T/A Triangle Bar & Others V Nakuru County Commissioner & 3 Others [2016] eKLR

Read More

Republic V Castro Liyayi Mosotsi & Another [2016] eKLR

Case Number: Criminal Case 29 of 2009 Date Delivered: 21 Apr 2016

Judge: Ruth Nekoye Sitati

Court: High Court at Kakamega

Parties: Republic v Castro Liyayi Mosotsi & Idi Ismael Longu

Citation: Republic V Castro Liyayi Mosotsi & Another [2016] eKLR

Read More

Stephen Kariuki Kamunge V Joseph Mwaura Kamunge [2016] eKLR

Case Number: Succession 51 Of 2015 Date Delivered: 21 Apr 2016

Judge: Christine Wanjiku Meoli

Court: High Court at Naivasha

Parties: Stephen Kariuki Kamunge v Joseph Mwaura Kamunge

Citation: Stephen Kariuki Kamunge V Joseph Mwaura Kamunge [2016] eKLR

Read More

Ken Fazakerley V Tom Ayieko Okundi T/a Okundi & Company Advocates [2016] eKLR

Case Number: Miscellaneous Civil Appllication 324 of 2015 Date Delivered: 21 Apr 2016

Judge: Roselyne Ekirapa Aburili

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Ken Fazakerley v Tom Ayieko Okundi t/a Okundi & Company Advocates

Citation: Ken Fazakerley V Tom Ayieko Okundi T/a Okundi & Company Advocates [2016] eKLR

Read More

Mable Muruli V Wycliffe Ambetsa Oparanya & 3 Others [2016] eKLR

Case Number: Petition 11 of 2014 Date Delivered: 21 Apr 2016

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: Mable Muruli v Wycliffe Ambetsa Oparanya,Philip Museve Kutima,Nicholas Sumba & Independent Electoral and Boundaries Commission

Citation: Mable Muruli V Wycliffe Ambetsa Oparanya & 3 Others [2016] eKLR

Circumstances under which the Supreme Court may overturn/overrule its own Decision

Mable Muruli v Wycliffe Ambetsa Oparanya & 3 others

Petition 11 of 2014

Supreme Court of Kenya

W. M.  Mutunga CJ, K.H. Rawal DCJ, P. K. Tunoi, SCJ,

M. K. Ibrahim, SCJ, J.B. Ojwang, SCJ, S. C. Wanjala, SCJ, S. N. Ndungu, SCJ

April 21, 2016

Reported by Teddy Musiga and Mercy Cherotich

Brief Facts

The appellant filed the application before the Supreme Court seeking a review of the Supreme Court’s decision in Hassan Ali Joho and Another v. Suleiman Said Shahbal and 2 others. The review application emanated from a preliminary objection filed by the 1st and 2nd respondents. The respondents objected to the appellant’s appeal, on the ground that the High Court petition which the appeal originated from was filed outside the stipulated constitutional timelines, and that consequently, the Court lacked jurisdiction to entertain it. They supported the contention with the Court’s prior decisions, notably, the Joho case. The appellant, on the contrary, was of the view that the Joho decision was incorrect. He contended that there had been conflicting decisions in Mary Wambui Munene v. Peter Gichuki King’ara and 2 Others, Sup. Ct. Petition No. 7 of 2014; Peter Munya; and Lemanken Aramat v. Harun Meitamei Lempaka & 2 others, Sup Ct. Petition No.5 of 2014; and that there was obvious error in the prior Supreme Court interpretation of Article 87(2), in Joho, in view of the holdings in the Wambui, Munya and Aramat. The appellant further stated the overruling of Joho would be merely declaratory of a “prior virtual overruling”.

 

Issues

  1. What were the principles to be considered before the Supreme Court could depart from its own decisions?
  2. What was the meaning of declaration of election results?
  3. Whether the announcement by the returning officer amounted to the Declaration of Election Results
  4. Whether the Returning Officer is a mere employee or a Representative of the Independent Electoral and Boundaries Commission (IEBC)

 

Jurisdiction – jurisdiction of the Supreme Court to review its decisions – what were the principles to be considered before the Supreme Court could depart from its own decisions – claim where the applicant sought to review a decision of the Supreme Court on the grounds that the said decision was in conflict with other decisions of the Supreme Court on the meaning of declaration of election results - Constitution of Kenya, 2010, article 163(7)

Precedent – binding nature of precedents from the Supreme Court – circumstances in which the Supreme Court may depart from its own decisions – whether decisions of the Supreme Court can be declared per incuriam - Constitution of Kenya, 2010, article 163(7)

Electoral law – declaration of election results – what is the meaning of declaration of results – claim seeking review of the Supreme Court’s decision in the Joho case on the declaration of election results -

Civil practice and Procedure –suits – filing of suits – filing of review of Supreme Court decisions – principles to be considered when seeking review of a Supreme Court decision – procedure for seeking review of a Supreme Court decision - whether a review matter can be instituted by way of submissions – claim seeking review of the Supreme Court decision in Joho case on the meaning of declaration of results on the contention that it conflicted with other decisions of the Supreme Court -  The Constitution of Kenya, 2010 – article 159, 163 -Supreme Court Rules, rule 20 (4).

 

 

Held

  1. Rule 20 (4) of the Supreme Court Rules, 2012 provided that a party desirous of moving the Court to exercise its powers of review, had to do so by way of an application, rather than just incidentally, through submissions. The rules of procedure are a handmaid to the course of justice and had to be followed with fidelity.
  2. Article 159 of the Constitution of Kenya, 2010 bore the principle that the exercise of judicial authority was to ensure that justice had to be done to all, irrespective of status; and that justice had to be administered without undue regard to procedural technicalities. In more general terms, that Article reposed in the Courts the obligation to protect and promote the purposes and principles of the Constitution. The courts were inclined to exercise its discretion as called for, and in the interest of justice, to overlook the procedural constraint. That, however, was not to compromise the important role of prescribed process in the fulfilment of goals of justice and of fair hearing.
  3. A precedent of the supreme Court could be departed from in certain recognized situations,
  1. Where the Supreme Court had to choose between conflicting precedents;
  2. Where there had been obvious error in the prior supreme Court decision;
  3. Where an express overruling was merely declaratory of a prior virtual overruling.

 

  1.  The Constitution of Kenya, 2010 anticipated that the Court could in a proper case, depart from its decisions. Article 163(7) of the Constitution of Kenya, 2010 provided that, all courts, other than the Supreme Court, were bound by the decisions of the Supreme Court. What was in contention was whether circumstances had now arisen that necessitated that Court departing from its precedent. 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.
  2. The immediate pragmatic purpose of such an orientation of the judicial process was to ensure predictability, certainty, uniformity and stability in the application of the 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.
  3. In principle, an apex Court could depart from its previous decision, for good cause, and after taking into account legal considerations of significant weight. Such latitude for departure from precedent exists not only in principle, and from well-recorded common law experience, but also by virtue of the express provision of the Constitution.
  4. There were grounds of substance which showed that the Supreme Court of Kenya could depart from its previous decisions of precedent-value. In that regard, the purpose and intent flowed from two complementary Articles. Article 159, which declared that the judicial authority was derived from the people, further stated that, the purposes and principles of the Constitution had to be protected and promoted. Article 259 (1) stipulated that Constitution ought to be interpreted in a manner that permitted the development of the law. The inference was to be drawn that the Supreme Court, if it was to ‘develop the law’, it had to have the liberty to depart from previous decisions such as could stand as a constraint to the growth of the law.
  5. The special role of precedent in the certainty and predictability of the law as it played out in daily transactions; any departure was to be guided by rules well recognized. It was a general rule that the Court was not bound to follow its previous decision where such decision was an obiter dictum, or was given per incuriam. A statement obiter dictum 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. And a decision per incuriam was mistaken, as it was not founded on the valid and governing pillars of law.
  6. The decision of a superior Court could not 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. Subject to the broad principle, certain directions could, be laid down:
  1. where there were conflicting past decisions of the Court, it could opt to sustain and to apply one of them;
  2. the Court could disregard a previous decision if it was shown that such decision was given per incuriam;
  3. a previous decision could not be disregarded merely because some, or all of the members of the Bench that decided it had now arrived at a different conclusion;
  4. the Court could not depart from its earlier decision on grounds of mere doubts as to its correctness.
  1. The Joho case had been endorsed in a number of election petitions that had come before the Supreme Court. Examples are: Mary Wambui Munene v. Peter Gichuki King’ara and 2 others, Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others, Lemanken Aramat v. Harun Meitamei Lempaka & 2 others, Anami Silverse Lisamula v Independent Electoral & Boundaries Commission & 2 others; and the Appellate Court case, Paul Posh Aborwa v Independent Election and Boundaries Commission & 2 others. In all these decisions, the Court and the Appellate Court had laid out a set of guiding principles regarding the declaration of results. Besides, it was by no means insignificant that, recognizable political rights had vested in the parties, with consequent public-interest expectations on the part of the electorate.
  2. The value of precedent in judicial decision-making was a recurring theme in the decisions of the court. The principle of stare decisis in Kenya unlike other jurisdictions was a constitutional requirement aimed at enhancing certainty and predictability in the legal system. The Articles of establishment and jurisdiction revealed the Court’s vital essence and the decisions of the Supreme Court protect settled anticipations by ensuring that the Constitution was upheld and enforced and that the aspirations of the Kenyan people embodied in a system of constitutional governance were legitimized. 
  3. The constitutional contours of Article 163(7) oblige the Supreme Court to settle complex issues of constitutional and legal controversy and to give jurisprudential guidance to the lower Courts.  In the exercise of that mandate, the court determined the constitutional legality of statutes and other political acts to produce judicially-settled principles that consolidate the rule of law and the operation of government, and the political disposition, particularly in the settlement of electoral disputes.  As a Court entrusted with the final onus of settling constitutional controversies, one of the principal duties was the enforcement of constitutional norms.  Therefore, no valid cause had been shown, for the Court to exercise its power of review of its past decisions.
  4. The concept of “declaration of election results” was considered and perceived by the Supreme Court, in the Joho case, as ‘Declaration’ takes place at every stage of tallying. For example, the first declaration takes place at the polling station; the second declaration at the Constituency tallying centre; and the third declaration at the County tallying centre. Thus the declaration of election results was the aggregate of the requirements set out in the various forms, involving a plurality of officers. The finality of the set of stages of declaration was depicted in the issuance of the certificate in Form 38 to the winner of the election. That marked the end of the electoral process by affirming and declaring the election results which could not be altered or disturbed by any authority.
  5. The declared election results, enumerated in the Forms provided, were quantitative, and involved a numerical composition. It would be safe to assume, therefore, that where a candidate was challenging the declared results of an election, a quantitative break down would be a key component in the cause. It must also be ascertainable who the winner, and the loser(s) in an election, was. The certificate in Form 38 declared the winner of the election and terminated the mandate of the returning officer, who acted on behalf of the Commission, shifting the jurisdiction in respect of the electoral process to challenge the results of the election to the election Court. It was held that the certificate in Form 38 comprised the declaration of election results. That declaration set in motion the time-frame within which to lodge an election petition. Consequently, the provision of Section 76 (1) (a) of the Elections Act was inconsistent with the provisions of Article 87 (2) of the Constitution, as elaborated and was therefore declared unconstitutional to that extent.
  6. Article 88 (1) of the Constitution of Kenya, 2010 established the IEBC, and article 88(4) of the Constitution, outlined the responsibilities of the IEBC. The Elections (General) Regulations, 2012 in Regulation 3, provided for the appointment of the Returning Officer by the Commission (IEBC). Under Regulation 3(a), the Returning Officer was responsible for conducting elections at the constituency level.  The Constitution of Kenya, 2010, in Article 88(4) provided that, the Commission was responsible for conducting or supervising referenda and elections to any elective body or office established by the Constitution of Kenya, 2010 and any other elections as prescribed by an Act of Parliament. Section 87 of the Elections Act could not be equated to constitutional provision, the Elections Act, and the Regulations thereunder, were normative derivatives of the principles embodied in Articles 81 and 86 of the Constitution of Kenya, 2010, and that in interpreting them, a Court of law could not disengage from the Constitution.
  7. The Election (General) Regulations, 2012 were to be read in conformity with the Constitution.  The effect was that, the Returning Officer was the IEBC, when conducting the relevant duties under the Constitution, the Elections Act, and the Regulations thereunder. No less relevant was the Independent Electoral and Boundaries Commission Act, 2011.  That Act, in Section 4, set out the functions of the IEBC which were for the most part, replicated in article 88(4) of the Constitution of Kenya, 2010.  It also provided for the composition of the Commission.
  8. The IEBC Act also provided for a Secretary to the Commission (Section 10), who was appointed pursuant to Article 250 (12) of the Constitution of Kenya, 2010. The Secretary was the chief executive officer of the Commission; head of the secretariat;  accounting officer of the Commission; custodian of all Commission records; bearer of responsibility for executing decisions of the Commission; officer in charge of assignment of duties and supervision of all employees of the Commission; facilitator, co-ordinator and executor of Commission’s mandate; guarantor of staff compliance with public ethics and values; executor of such other duties as may be assigned by law and  by the Commission. Without a doubt, the Secretary was a vital component of the IEBC – indeed, a central part of the IEBC, regardless of not bearing the designation “Commissioner”. Section 11 of the Act made provisions regarding employees of the Commission, who conducted their functions at headquarters, and at the numerous regional offices of IEBC.
  9.  It would be impractical to expect the Commissioners, to conduct all the functions entrusted to the Commission under Article 88 (4) of the Constitution of Kenya, 2010. The secretary could hardly do without employees entrusted with specified duties.  Had it been the case that, all such tasks devolved only to “Commissioners”, the consequence would be that all actions routinely taken by the IEBC staff, such as continuous registration of voters, regular revision of voters’ roll, and registration of candidates, would be a nullity in law. There was need to avoid such construction of the Constitution as would be contrary to the public interest. The requisite approach in interpreting article 88 (1) of the Constitution of Kenya, 2010, was one that vindicated the constitutional purposes and objectives, and that fosters good governance, in accordance with the terms of article 259. Good governance in that instant entailed ensuring that the constitutional functions of the Commission do not come to a standstill, as was destined to happen if the discharge of such functions were left entirely to the nine Commissioners.
  10.  The IEBC comprised of the Commissioners, as well as its employees who had been duly authorised. Consequently, and in accordance with the Joho precedent, the Returning Officer, an employee of the IEBC, properly acted on its behalf.

Application dismissed, costs to the applicant.

 

 

 

 

 

Read More

Maurice Aldous Opar V Trinity Prime Investments Limited & 3 Others [2016] eKLR

Case Number: Civil Case 1492 of 2000 Date Delivered: 21 Apr 2016

Judge: Rose Edwina Atieno Ougo

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Maurice Aldous Opar v Trinity Prime Investments Limited, Erick Ananda, Josephine Mongare t/a. J.W Wambua & Co. Advocat & Joseph Ngerogenge Njoroge t/a Janen Maroa Agencies

Citation: Maurice Aldous Opar V Trinity Prime Investments Limited & 3 Others [2016] eKLR

Read More

Joseph Matias Muthanya V Republic [2016] eKLR

Case Number: Criminal Case 86 of 2015 Date Delivered: 21 Apr 2016

Judge: Pauline Nyamweya

Court: High Court at Machakos

Parties: Joseph Matias Muthanya v Republic

Citation: Joseph Matias Muthanya V Republic [2016] eKLR

Read More

Wycliffe Ambetsa Oparanya & 2 Others V Governors V Director Of Public Prosecutions & Another [2016] eKLR

Case Number: Constitutional Petition 561 of 2015 Date Delivered: 20 Apr 2016

Judge: George Vincent Odunga

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Wycliffe Ambetsa Oparanya, County Government of Kakamega & Council of County Governors v Director of Public Prosecutions & Senate

Citation: Wycliffe Ambetsa Oparanya & 2 Others V Governors V Director Of Public Prosecutions & Another [2016] eKLR

Read More

Edward Kiarie Ndegwa & Another V Registrar Of Trade Unions & Another [2016] eKLR

Case Number: Cause 485 of 2011 Date Delivered: 20 Apr 2016

Judge: Stephen Radido Okiyo

Court: Employment and Labour Relations Court at Nairobi

Parties: Edward Kiarie Ndegwa & Geoffrey Githia Gichira v Registrar of Trade Unions & Kenya National Union of Teachers

Citation: Edward Kiarie Ndegwa & Another V Registrar Of Trade Unions & Another [2016] eKLR

Read More

Pauline Aseyo Kibayo V Ukwala Supermarkets Ltd [2016] eKLR

Case Number: Cause 426 of 2012 Date Delivered: 20 Apr 2016

Judge: Stephen Radido Okiyo

Court: Employment and Labour Relations Court at Nairobi

Parties: Pauline Aseyo Kibayo v Ukwala Supermarkets Ltd

Citation: Pauline Aseyo Kibayo V Ukwala Supermarkets Ltd [2016] eKLR

Read More

Petersen Mwashigandi V Senior Best Garments Kenya(Epz) Ltd [2016] eKLR

Case Number: Cause 519 of 2011 Date Delivered: 20 Apr 2016

Judge: Stephen Radido Okiyo

Court: Employment and Labour Relations Court at Nairobi

Parties: Petersen Mwashigandi v Senior Best Garments Kenya(Epz) Ltd

Citation: Petersen Mwashigandi V Senior Best Garments Kenya(Epz) Ltd [2016] eKLR

Read More