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Case Action: Ruling


Said Safari V Republic [2015] eKLR

Case Number: Criminal Appeal 23 of 2015 Date Delivered: 12 May 2015

Judge: Martin Muya

Court: High Court at Mombasa

Parties: Said Safari v Republic

Citation: Said Safari V Republic [2015] eKLR

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Paul Tapukai Mebarne & Another V County Government Of Narok & Another [2015] eKLR

Case Number: Misc Civil Application 123 of 2015 Date Delivered: 12 May 2015

Judge: Munyao Sila

Court: Environment and Land Court at Nakuru

Parties: Paul Tapukai Mebarne & Mokonyo Ole Letiet v County Government of Narok & National Land Commission

Citation: Paul Tapukai Mebarne & Another V County Government Of Narok & Another [2015] eKLR

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Rahab Muthoni Mbatia V Job Karanja Ngugi & 2 Others [2015] eKLR

Case Number: ELC 806 of 2013 Date Delivered: 12 May 2015

Judge: Lucy Nyambura Gacheru

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Rahab Muthoni Mbatia v Job Karanja Ngugi, Geoffrey Karanja Mwaura & County Land Registrar Kiambu

Citation: Rahab Muthoni Mbatia V Job Karanja Ngugi & 2 Others [2015] eKLR

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Jairus Joseph Epong V Republic [2015] eKLR

Case Number: Criminal Appeal 140 of 2014 Date Delivered: 12 May 2015

Judge: Abida Ali-Aroni

Court: High Court at Bungoma

Parties: Jairus Joseph Epong v Republic

Citation: Jairus Joseph Epong V Republic [2015] eKLR

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In The Matter Of Payless Car Hire And Tours [2015] eKLR

Case Number: Winding Up Cause 19 of 2011 Date Delivered: 11 May 2015

Judge: Francis Gikonyo

Court: High Court at Nairobi (Milimani Law Courts)

Parties: In the Matter of Payless Car Hire and Tours

Citation: In The Matter Of Payless Car Hire And Tours [2015] eKLR

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John Mwangi Wamai V Teresa Gathiri Mwema [2015] eKLR

Case Number: ELC Cause 231 of 2013 Date Delivered: 11 May 2015

Judge: Lucy Waithaka

Court: Environment and Land Court at Nyeri

Parties: John Mwangi Wamai v Teresa Gathiri Mwema & William Ngatia Kariuki

Citation: John Mwangi Wamai V Teresa Gathiri Mwema [2015] eKLR

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Nancy Wanjiku Maina V Jane Wairimu Mwangi & 3 Others [2015] eKLR

Case Number: Elc Civil Suit 127 of 2014 Date Delivered: 11 May 2015

Judge: Lucy Nyambura Gacheru

Court: Environment and Land Court at Nairobi

Parties: Nancy Wanjiku Maina v Jane Wairimu Mwangi, John Njuguna Njoroge, Bernard Ngetha Kihagi & Land Registrar Nairobi

Citation: Nancy Wanjiku Maina V Jane Wairimu Mwangi & 3 Others [2015] eKLR

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M'Nguthari M'Ithewa V County Council Of Isiolo [2015] eKLR

Case Number: Civil Suit 88 of 2008 Date Delivered: 11 May 2015

Judge: Peter Muchoki Njoroge

Court: High Court at Meru

Parties: M'Nguthari M'Ithewa Alias Karimoni v County Council of Isiolo

Citation: M'Nguthari M'Ithewa V County Council Of Isiolo [2015] eKLR

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In Re Payless Car Hire And Tours [2015] eKLR

Case Number: Winding Up Cause 19 of 2011 Date Delivered: 11 May 2015

Judge: Francis Gikonyo

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

Parties: In re Payless Car Hire and Tours

Citation: In Re Payless Car Hire And Tours [2015] eKLR

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Reuben Lotim Anisomuk & 7 Others V Director Of Kenya Forest Service & 5 Others [2015] eKLR

Case Number: Constitutional Petition 1 of 2014 Date Delivered: 11 May 2015

Judge: Elija Ogoti Obaga

Court: High Court at Kitale

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

Citation: Reuben Lotim Anisomuk & 7 Others V Director Of Kenya Forest Service & 5 Others [2015] eKLR

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Transport And Allied Workers Union V Comarco Properties (EPZ) Limited [2015] eKLR

Case Number: Cause 118 of 2012 Date Delivered: 11 May 2015

Judge: James Rika

Court: Employment and Labour Relations Court at Mombasa

Parties: Transport and Allied Workers Union v Comarco Properties (EPZ) Limited

Citation: Transport And Allied Workers Union V Comarco Properties (EPZ) Limited [2015] eKLR

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Philip Wanjau Kariuki (Florence Wambugu) V Republic [2015] eKLR

Case Number: Criminal revision 53 of 2015 Date Delivered: 11 May 2015

Judge: Grace Wangui Ngenye

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

Parties: Philip Wanjau Kariuki (Florence Wambugu) v Republic

Citation: Philip Wanjau Kariuki (Florence Wambugu) V Republic [2015] eKLR

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Republic V Elly Waga Omondi [2015] eKLR

Case Number: Criminal Case 24 of 2012 Date Delivered: 11 May 2015

Judge: Stella Ngali Mutuku

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Republic v Elly Waga Omondi

Citation: Republic V Elly Waga Omondi [2015] eKLR

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Carl Gary Singleman V Republic [2015] eKLR

Case Number: Criminal Case17 of 2015 Date Delivered: 11 May 2015

Judge: Roseline Lagat-Korir

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Carl Gary Singleman v Republic

Citation: Carl Gary Singleman V Republic [2015] eKLR

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Harjinder Singh Bhogai & Another V Edward Mukundi Karanja & Another [2015] eKLR

Case Number: ELC Civil 821 of 2014 Date Delivered: 08 May 2015

Judge: John Mutungi

Court: Environment and Land Court at Nairobi

Parties: Harjinder Singh Bhogai & Kulwinder Singh Sandhu v Edward Mukundi Karanja & Veronica Wanjiku Karanja

Citation: Harjinder Singh Bhogai & Another V Edward Mukundi Karanja & Another [2015] eKLR

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David Ogega V East African Security Guards Ltd [2015] eKLR

Case Number: Cause 143 of 2013 Date Delivered: 08 May 2015

Judge: Stephen Radido Okiyo

Court: Employment and Labour Relations Court at Nakuru

Parties: David Ogega v East African Security Guards Ltd

Citation: David Ogega V East African Security Guards Ltd [2015] eKLR

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Lake Flowers Limited V Geoffrey Muhoro [2015] eKLR

Case Number: Civil Application 114 of 2011 Date Delivered: 08 May 2015

Judge: Daniel Kiio Musinga, Paul Kihara Kariuki, Mohammed Abdullahi Warsame

Court: Court of Appeal at Nairobi

Parties: Lake Flowers Limited v Geoffrey Muhoro

Citation: Lake Flowers Limited V Geoffrey Muhoro [2015] eKLR

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Chairman Board Of Governors Ng’iya Girls High School V Meshack Ochieng’ T/A Mecko Enterprises & 4 Others [2015] eKLR

Case Number: Civil Application Nai. 4 of 2015 (UR.4/2011) Date Delivered: 08 May 2015

Judge: Erastus Mwaniki Githinji, William Ouko, Agnes Kalekye Murgor

Court: Court of Appeal at Nairobi

Parties: Chairman Board of Governors Ng’iya Girls High School v Meshack Ochieng’ T/A Mecko Enterprises, Principal Secretary Ministry of Education, Attorney General, Secretary Cordinator Economic Stimulous Programme Public Works & Cabinet Secretary National Treasury

Citation: Chairman Board Of Governors Ng’iya Girls High School V Meshack Ochieng’ T/A Mecko Enterprises & 4 Others [2015] eKLR

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Mbugua & Mbugua Co.Advocates V Kenindia Assurance Company Ltd [2015] eKLR

Case Number: Miscellaneous Application 664 of 2013 Date Delivered: 08 May 2015

Judge: Roselyne Ekirapa Aburili

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Mbugua & Mbugua Co.Advocates v Kenindia Assurance Company Ltd

Citation: Mbugua & Mbugua Co.Advocates V Kenindia Assurance Company Ltd [2015] eKLR

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Samson Arap Bii & 9 Others V Benard Kiplagat Kilele T/a North Njoro Farm & 2 Others [2015] eKLR

Case Number: Cause 262 of 2013 Date Delivered: 08 May 2015

Judge: Stephen Radido Okiyo

Court: Employment and Labour Relations Court at Nakuru

Parties: Samson Arap Bii, Charles K Chepkwony, Simon Malei, Paul Bii, David Keter, Grace Chepkemoi, Ann Chepkoech, Helen Chepkorir, Alice Chelegat & Jane Chepchirchir v Benard Kiplagat Kilele t/a North Njoro Farm, Ronald Kipngetich Kilele & Anne Naanyu Kilele

Citation: Samson Arap Bii & 9 Others V Benard Kiplagat Kilele T/a North Njoro Farm & 2 Others [2015] eKLR

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Jackson Tompoi Ole Saika V Josephine Kiramaticho Teeka & 2 Others [2015] eKLR

Case Number: Civil Appeal 81 of 2014 Date Delivered: 08 May 2015

Judge: Abigail Mshila

Court: High Court at Nakuru

Parties: Jackson Tompoi Ole Saika v Josephine Kiramaticho Teeka, Veronica Wangoi Teeka & Mary Ndonaishi

Citation: Jackson Tompoi Ole Saika V Josephine Kiramaticho Teeka & 2 Others [2015] eKLR

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James Mbera Macharia & Another V Samuel Mwangi Macharia & Another [2015] eKLR

Case Number: Civil Appeal Case 213 of 2014 Date Delivered: 08 May 2015

Judge: Roselyne Ekirapa Aburili

Court: High Court at Nairobi (Milimani Law Courts)

Parties: James Mbera Macharia & Bi-Mach Engineers Limited v Samuel Mwangi Macharia & Bi-Mach Enterprises Ltd

Citation: James Mbera Macharia & Another V Samuel Mwangi Macharia & Another [2015] eKLR

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Kenga Iha Mitsanze V Kitsao Karisa & 2 Others [2015] eKLR

Case Number: Environment & Land Misc. Application 27 of 2014 Date Delivered: 08 May 2015

Judge: Oscar Angote

Court: Environment and Land Court at Malindi

Parties: Kenga Iha Mitsanze v Kitsao Karisa, Safari Karisa & Charo Karisa

Citation: Kenga Iha Mitsanze V Kitsao Karisa & 2 Others [2015] eKLR

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Municipal Council Of Mavoko V Aristocrats Concrete Company Limited [2015] eKLR

Case Number: Civil Application Nai 260 of 2011 Date Delivered: 08 May 2015

Judge: Philip Nyamu Waki, George Benedict Maina Kariuki, Jamila Mohammed

Court: Court of Appeal at Nairobi

Parties: Municipal Council of Mavoko v Aristocrats Concrete Company Limited

Citation: Municipal Council Of Mavoko V Aristocrats Concrete Company Limited [2015] eKLR

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Afya Investements Co-operative Society Limited V James Karimi [2015] eKLR

Case Number: Civil Suit 62 of 2015 Date Delivered: 08 May 2015

Judge: Joseph Kiplagat Sergon

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Afya Investements Co-operative Society Limited v James Karimi

Citation: Afya Investements Co-operative Society Limited V James Karimi [2015] eKLR

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Anthony Wahome V Parminder Saimbi & 2 Others [2015] eKLR

Case Number: Civil Suit 53 of 2013 Date Delivered: 08 May 2015

Judge: Joseph Kiplagat Sergon

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Anthony Wahome v Parminder Saimbi,Amos Weru & 3. Riaz Abdulgani (Sued as Officials and the Management Committee of Kenya Regiment Rifle Club)

Citation: Anthony Wahome V Parminder Saimbi & 2 Others [2015] eKLR

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Simon Ano Mua V Kioga Mukwano T/A Kioga Mukwano Transporters & 2 Others [2015] eKLR

Case Number: Misc. Application 31 of 2015 Date Delivered: 08 May 2015

Judge: Joseph Kiplagat Sergon

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Simon Ano Mua v Kioga Mukwano T/A Kioga Mukwano Transporters,Abubakar Islam & Kyoga Hauliers (U) Limited

Citation: Simon Ano Mua V Kioga Mukwano T/A Kioga Mukwano Transporters & 2 Others [2015] eKLR

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Philip K.Tunoi & 2 Others V Judicial Service Commission & Another [2015] eKLR

Case Number: Petition 244 & 495 of 2014 Date Delivered: 08 May 2015

Judge: Hedwig Imbosa Ong'udi, Richard Mururu Mwongo, Weldon Kipyegon Korir, Christine Wanjiku Meoli, Mutungi Charles Kariuki

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Philip K.Tunoi, David O. Onyancha & Leonard Njagi v Judicial Service Commission & Judiciary

Citation: Philip K.Tunoi & 2 Others V Judicial Service Commission & Another [2015] eKLR

Direction by the Chief Justice on Consolidation of Cases has no Binding Effect on the Empanelled Bench

Philip K. Tunoi & 2 Others v Judicial Service Commission & 3 Others

High Court at Nairobi

Petition No. 244 of 2014

R M Mwongo, W Korir, C Meoli, H Ong’udi, c Kariuki JJ

May 8, 2015

Reported by Emma Kinya Mwobobia

Brief facts

The two petitions were pursuant to Article 165(4) of the Constitution, for appointment of an uneven bench by the High Court. The Chief Justice empanelled a five judge bench through directions. Amongst other directions issued by the Chief Justice, was that the two petitions be consolidated. By a ruling delivered pursuant to two notices of objection by the petitioners, the constituted bench held that the petitions shall remain consolidated until the determination of the present applications as brought by the Attorney-General to be enjoined in Petition 244 of 2014 as Amicus Curiae, and by the Petitioners’ application for the vacation of the Chief Justice’s directions in the two matters.

 The instant Ruling relates to the two applications. The first was the Notice of Motion by the AG, in which he sought to be enjoined as Amicus. The second was the Notice of Motion by the Petitioners in Petition 244 of 2014 seeking orders vacating the directions given by the Chief Justice on consolidation of the two cases.

Issues:

  1.  Whether the Attorney General had met the threshold to be admitted as Amicus Curiae in the circumstances of the case
  2. Whether the Chief Justice in empanelling a bench under article 165 (4) of the Constitution could issue further directions on consolidation and case management of various petitions
  3. What was the scope of the Chief Justice’s role in appointing an extra ordinary bench under article 165 (4) Constitution

 

Civil Practice & Procedure – parties – application by the Attorney General to be admitted as amicus in the proceedings – role of an amicus – role of the Attorney General in any government proceedings – necessity or lack thereof of the Attorney General to be enjoined in the proceedings – Office of the Attorney General Act, section 5, 7(1); Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules (Mutunga Rules), 2012, rule 2

Civil Practice and Procedure – extra ordinary bench – role of the Chief Justice – administrative role of the Chief Justice to empanel a bench under the Constitution – where the directions to empanel a bench to determine the instant issue included directions to consolidate the two petitions which had the same issue for determination – whether the Chief Justice acted beyond his jurisdiction of empanelling a bench by giving further directions on consolidation of the two petitions – Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules (Mutunga Rules), 2012, rule 2, 5(d)

 

Office of the attorney General Act

Section 7(1)

Despite the provisions of any written law to the contrary or in absence of any other written law, the Attorney General shall have the right of audience in proceedings of any suit or inquiry in any administrative body which the Attorney General considers:

 

  1. To be of public interest or involves public property or
  2. To involve the legislature, the Judiciary or an independent department or agency of the government.

 

Mutunga Rules, 2012

 (1) In giving directions on the hearing of the case, a Judge may require that parties file and serve written submissions within fourteen days of such directions or such other time as the Judge may direct.

 (2) A party who wishes to file further information at any stage of the proceedings may do so with the leave of the Court.

 (3) The Court may frame the issues for determination at the hearing and give such directions as are necessary for the expeditious hearing of the case.

Held:

  1. The Attorney General was defined as the principal legal adviser to the Government and under article 156(4) of the Constitution, he represented the national government in court or in any other legal proceedings to which the national government was a party, other than criminal proceedings.  Section 7 (1) of the Office of the Attorney General Act further stipulates the broad and unlimited scope of the AG’s power of representation and right of audience in respect of matters of state, and in particular, in relation to the three arms of government.
  2. For an applicant to fit into the shoes of amicus curiae, one ought to be possessed of or demonstrate expertise in the area of controversy.
  3. The Attorney General was the constitutional and normative legal adviser and representative of the Judiciary as an arm of government. That was a position that was beyond contention, and could not be opposed with any seriousness when due consideration was taken of the constitutional and statutory provisions concerning the roles, responsibilities and rights or entitlements to audience of the Attorney General.  When due note of all such provisions as stated above was taken, the inevitable conclusion was that the AG was in a special representative position in respect of all matters that involved the Constitution and the three arms of government.
  4. There was sufficient material that in the circumstances of the instant case rendered the AG partisan. The National Government was sued in the matter via the Judiciary (the 2nd Respondent), which was one of the arms of Government.  By virtue of article 156(4)(b) of the Constitution, the Attorney General was expected to represent the Judiciary in the matter.  The mandate was further extended under section 5(1)(i) of the Office of the Attorney General Act which mandated the Attorney General to represent the National Government in civil and constitutional matters in accordance with the Government Proceedings Act.
  5. Given that the Attorney General was likely to be or to be seen to be partisan, his application for enjoinment as amicus curiae did not meet the criteria for amicus in the instant petition. However, there was no inherent necessity for the Attorney General to have audience in the proceedings.
  6. The Chief Justice was empowered by legislation to make rules in the overall administration of justice. One such provision was enshrined under article 22(3) of the Constitution pursuant to which, read together with article 165 (3) (b) of the Constitution the Chief Justice made “The Mutunga Rules”.
  7. The Constitution provided that the “Mutunga Rules” ought to satisfy the criteria that the formalities relating to the proceedings, including commencement of the proceedings, were kept to the minimum. In particular, there was provision that the court shall, if necessary, entertain proceedings on the basis of informal documentation. Further, the court, while observing the rules of natural justice, would not be unreasonably restricted by procedural technicalities. It was important to observe that the court was enjoined under article 159 of the Constitution to ensure that justice would be administered expeditiously and without undue regard to procedural technicalities.
  8. The overriding objective of the “Mutunga Rules” was to facilitate access to justice for all persons as required under article 48 of the Constitution. The Rules were to be interpreted in accordance with article 259 (1) of the Constitution, and would be applied with a view to advancing and realizing the rights and fundamental freedoms enshrined in the Bill of Rights and the values and principles in the Constitution. Further, the court in exercise of its jurisdiction under the Rules was required to facilitate the just, expeditious, proportionate and affordable resolution of all cases. For the purpose of furthering the overriding objectives, the Rules provided that the court would handle matters presented before it to achieve the just determination of the proceedings as well as the efficient use of the available and administrative resources.
  9. The Chief Justice’s express role was of course, to appoint a bench.  In his administrative role and as the head of the Judiciary, he could where necessary and convenient, issue general directions for instance, having empaneled a bench, it followed that he could, and that has been the practice, set a mention date before the bench. In the instant case, the Chief Justice was in the unique position of wearing two hats: as the chair of the 1st Respondent(Judicial Service Commission)  and the head of the 2nd Respondent (Judiciary), and as the assigning or empaneling authority under Article 165(4) of the Constitution.  In such circumstances one could be tempted to agree with the Petitioners’ exhortation that to avoid a perception of undue influence there was need for extra caution when issuing directions that were beyond the appointment of the bench.
  10. Rule 17 of the “Mutunga Rules” provided for consolidation and stated that it was for the Court on its own motion or on application by any party to determine the issue of consolidation of several petitions. The courts established under the Constitution were the superior courts and the subordinate courts in which proceedings were instituted. The Rules however, were applicable only to and specifically identified courts, the Supreme Court, the Court of Appeal and the High Court in the definitions provision. Rule 17 fell under Part III (Rules 4 to 19) of the Rules on instituting court proceedings in the High Court.
  11. The Rules specifically provided that the court could effect consolidation on its own motion or on application by a party. In the instant matter, the parties did not make any application for consolidation. Both petitions were before the High Court which certified both matters as raising a substantial question of law, but did not consolidate them, save for stating without determining the point, that the  issues in both petitions were similar.
  12. Substantive directions were to be issued by the court actually seized of the matter and not any other person or authority. Directions when issued formed part of the judicial exercise or the road map in the overall conduct of a matter. The situation was fraught with danger where the Chief Justice issued directions as to the hearing date or the date when the court ought to render judgment, because it ceased to be an administrative function and could be construed as bordering on interfering in the judicial conduct or road map of a matter. In any case, the court seized of the matter was obliged in law to dispose of all matters in an expeditious manner.
  13. In determining whether matters could be consolidated in accordance with Rule 17 of the “Mutunga Rules”, one ought to look closely at the petitions and the reliefs sought by the parties in the various petitions. The essence of consolidation was to facilitate the efficient and expeditious disposal of disputes and to provide a framework for a fair and impartial dispensation of justice to the parties. In the instant matter, the court would have to be satisfied that the appeals sought to be consolidated turn upon the same or similar issues.
  14. The pleadings in the two petitions appear to replicate each other. Gleaning through the reliefs sought in both petitions, the issues raised and reliefs sought by the parties in each petition were identical. The reliefs were similar in that they substantially concerned the retirement age of judges appointed in the period prior to the promulgation of the Constitution of Kenya, 2010. Accordingly, the bench constituted could and should, suo motu consolidate the petitions.
  15. It was alleged that the petitioners in filing the Notice of Motion, were not properly before the court for want of procedural form.  However, the Constitution demanded that justice be administered without undue regard to procedural technicalities. In addition, article 22(3) of the Constitution provided that formalities relating to the proceedings, including the mode of commencement of the proceedings were kept to the minimum. Further, the court while observing the rules of natural justice ought not to be unreasonably restricted by procedural technicalities.
  16. The timelines directed by the Chief Justice were not adhered to during the proceedings before the court and had been overtaken by events. They thus abated and the Petitioners’ fears ought to be allayed by the turn of events as nothing further turned on them.
  17. With specific regard to the direction on consolidation, it was not within the province of the Chief Justice, in exercise of the jurisdiction under article 165(4) of the Constitution to order consolidation that being a matter reserved for the empanelled bench in terms of Rule 17 of the “Mutunga Rules”.

Orders:

Application dismissed. Order for consolidation had no binding effect on the empanelled bench.

 

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Mereka & Company Advocates V Invesco Assurance Co. Ltd [2015] eKLR

Case Number: Misc Application 545 of 2007 Date Delivered: 08 May 2015

Judge: Joseph Kiplagat Sergon

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Mereka & Company Advocates v Invesco Assurance Co. Ltd

Citation: Mereka & Company Advocates V Invesco Assurance Co. Ltd [2015] eKLR

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Harun Osoro Nyamboki & Another V Enoch Wambua & 3 Others [2015] eKLR

Case Number: Civil Suit 519 of 2013 Date Delivered: 08 May 2015

Judge: Joseph Kiplagat Sergon

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Harun Osoro Nyamboki & another v Enoch Wambua & 3 others

Citation: Harun Osoro Nyamboki & Another V Enoch Wambua & 3 Others [2015] eKLR

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Maureen Waithera Mwenje & Another V David Kinyanjui Njenga & 2 Others [2015] eKLR

Case Number: Civil Appeal (Application) 104 of 2011 Date Delivered: 08 May 2015

Judge: Jamila Mohammed, Patrick Omwenga Kiage, Kathurima M'inoti

Court: Court of Appeal at Nairobi

Parties: Maureen Waithera Mwenje & Eric Kamau Mwenje v David Kinyanjui Njenga, Monica Wangui Njenga & Grace Njeri Njenga

Citation: Maureen Waithera Mwenje & Another V David Kinyanjui Njenga & 2 Others [2015] eKLR

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Said A Kariamburi V Zuhura A Kariamburi [2015] eKLR

Case Number: Misc Civil Application 13 of 2014 Date Delivered: 08 May 2015

Judge: Hatari Peter George Waweru

Court: High Court at Murang'a

Parties: Said A Kariamburi v Zuhura A Kariamburi

Citation: Said A Kariamburi V Zuhura A Kariamburi [2015] eKLR

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Linda Okello V Standard Group Media Group & 3 Others [2015] eKLR

Case Number: Civil Suit 215 of 2014 Date Delivered: 08 May 2015

Judge: Joseph Kiplagat Sergon

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Linda Okello v Standard Group Media Group & 3 others

Citation: Linda Okello V Standard Group Media Group & 3 Others [2015] eKLR

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Stephen Mburu Wainaina V Marjorie Njeri Karau [2015] eKLR

Case Number: Civil Appeal 9 of 2010 Date Delivered: 08 May 2015

Judge: Joseph Kiplagat Sergon

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Stephen Mburu Wainaina v Marjorie Njeri Karau

Citation: Stephen Mburu Wainaina V Marjorie Njeri Karau [2015] eKLR

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Samson Kigotho Njuguna V Republic [2015] eKLR

Case Number: Criminal Appeal 113 of 2014 Date Delivered: 08 May 2015

Judge: Hatari Peter George Waweru

Court: High Court at Murang'a

Parties: Samson Kigotho Njuguna v Republic

Citation: Samson Kigotho Njuguna V Republic [2015] eKLR

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Official Receiver & Liquidator Of Continental Credit Finance Limited & Another V Registrar Of Titles, Government Land Registry Nairobi & 9 Others [2015] eKLR

Case Number: Civil Suit 3462 of 1995 Date Delivered: 08 May 2015

Judge: Joseph Kiplagat Sergon

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Official Receiver & Liquidator of Continental Credit Finance Limited & Kisauni Properties Limited v Registrar of Titles, Government Land Registry Nairobi, Land Registry Nairobi, Jared Benson Kangwana, Sheikh Salim Mohammed Balala, Theofilo Muchiri, Peter Miriie Zakayo, Lawrence M. Mbaabu t/a L.M. Mbaabu & Co Advocates, Susan Salma Schiele, White Meg Industries Limited & M.Khoda Investments Limited

Citation: Official Receiver & Liquidator Of Continental Credit Finance Limited & Another V Registrar Of Titles, Government Land Registry Nairobi & 9 Others [2015] eKLR

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John Ndungu Wainaina & 2 Others V Mary Njeri Kimuyu [2015] eKLR

Case Number: Civil Application 231 of 2010 (Ur 25/2014 ) Date Delivered: 08 May 2015

Judge: Paul Kihara Kariuki, William Ouko, Stephen Gatembu Kairu

Court: Court of Appeal at Nairobi

Parties: John Ndungu Wainaina & 2 others v Mary Njeri Kimuyu

Citation: John Ndungu Wainaina & 2 Others V Mary Njeri Kimuyu [2015] eKLR

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Kenya Plantation & Agricultural Workers Union V P.J. Dave Flowers Ltd [2015] eKLR

Case Number: Cause 101 of 2015 Date Delivered: 08 May 2015

Judge: Stephen Radido Okiyo

Court: Employment and Labour Relations Court at Nakuru

Parties: Kenya Plantation & Agricultural Workers Union v P.J. Dave Flowers Ltd

Citation: Kenya Plantation & Agricultural Workers Union V P.J. Dave Flowers Ltd [2015] eKLR

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James Maina Nderitu & 6 Others V Kenya Power & Lighting Company Limited [2015] eKLR

Case Number: Civil Suit 151 of 2010 Date Delivered: 08 May 2015

Judge: Joseph Kiplagat Sergon

Court: High Court at Nairobi (Milimani Law Courts)

Parties: James Maina Nderitu, Top Range Limited, Josephat M. J. Kinyua, Tonny Enterprises Limited, Samuel Muriuki Murage, Grace Mumbi Kang'ethe & Irungu Kamau v Kenya Power & Lighting Company Limited

Citation: James Maina Nderitu & 6 Others V Kenya Power & Lighting Company Limited [2015] eKLR

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Abdulkadir Shariff Abdirahim V Ecobank Kenya Limited [2015] eKLR

Case Number: Civil Application 228 of 2013 Date Delivered: 08 May 2015

Judge: Roselyn Naliaka Nambuye, Wanjiru Karanja, William Ouko

Court: Court of Appeal at Nairobi

Parties: Abdulkadir Shariff Abdirahim v Ecobank Kenya Limited

Citation: Abdulkadir Shariff Abdirahim V Ecobank Kenya Limited [2015] eKLR

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Michael Manthi Kisoi V Commission Of Inquiry Into The Petition To Suspend Makueni County Government & 8 Others [2015] eKLR

Case Number: Petition 158 of 2015 Date Delivered: 08 May 2015

Judge: Mumbi Ngugi

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Michael Manthi Kisoi v Commission of Inquiry into the Petition to Suspend Makueni County Government,Mohammed Nyaoga,Johnston Kavuludi,Emily Gatuguta, Harrison Maithya,Alice Wairimu,Taib Ali Taib ,County Government of Makueni & Attorney General

Citation: Michael Manthi Kisoi V Commission Of Inquiry Into The Petition To Suspend Makueni County Government & 8 Others [2015] eKLR

High Court declines to restrain the Commission of inquiry from investigating the Makueni County Government

Michael Manthi Kisoi v Commission of Inquiry into the Petition to Suspend Makueni County Government & 8 others

High Court at Nairobi

Petition No 158 of 2015

M Ngugi J

May 8, 2015

Reported by Andrew Halonyere

 

Brief facts

The applicant, the Member of Parliament for Mbooni Constituency, Makueni County brought a petition challenging the establishment of the Commission of Inquiry and its members to inquire into the question whether the County Government of Makueni should be suspended. Together with the petition, he filed an application seeking inter-alia interim conservatory orders  to restrain the said commission from investigating or inquiring into the situation of Makueni County Government, or from making any recommendation concerning or related to suspension of Makueni County Government.

The Petitioners case was that the said petition to the president had never been published or publicized by the County Government of Makueni or any duly recognized constitutional organ, to enable the citizens and residents of Makueni County understand its contents, purport and consequences.

The petitioners submitted that the County Government did not educate its residents and citizens with regard to the petition to the president before they signed it and neither did the county set up structures for public participation.

 

Constitutional law – County Government – suspension of County Government-petition to the President to suspend County Government of Makueni  - whether the petition met the requirements of article 192(1)(b) of the Constitution and section 123 of the County Governments Act  during the signing of a petition to suspend the County Government – whether the County Governments Act was applicable  to the petition in question - Constitution of Kenya 2010 articles 192 (1)(b) – County Government Act section 123

Constitutional law  – conservatory orders – application for conservatory orders on the grounds that that no referendum or provision of public participation was availed during the signing of a petition to suspend the County Government of Makueni - whether the High Court could in the circumstances grant conservatory orders - Constitution of Kenya 2010, article 23 ,article 22

 

Constitution of Kenya, 2010

Article 22 of the Constitution

(3) In any proceedings brought under Article 22, a court may grant appropriate relief, including—

(a) a declaration of rights;

(b) an injunction;

(c) a conservatory order;

 

County Government Act

Section 123

(1)  Subject to subsection (2), a person may petition the President to suspend a county government in accordance with Article 192(1)(b) of the Constitution if the county government engages in actions that are deemed to be against the common needs and interests of the citizens of a county.

(2) A petition under subsection (1) shall be supported by the signatures of not less than ten percent of the registered voters in the county.

(3) The President shall, within fourteen days after receiving a petition against a county government under subsection (1), submit a report on the averments made and grounds giving rise to suspension of a county government before the apex intergovernmental body (hereinafter referred to as the apex body) established under the law governing intergovernmental relations for approval.

(4)  Upon approval by the apex body, the President shall nominate members of a Commission to inquire into and investigate the situation in the county and make recommendations on the suspension of the county government and shall, after approval by Senate, appoint the members of the Commission by notice in the Gazette

Section 88

 1.  Citizens have a right to petition the county government on any matter under the responsibility of the county government.

 2.  Citizen petitions shall be made in writing to the county government.

 3.  County legislation shall give further effect to section 88(1).

Issues

  1. Whether the petition presented to the President for the suspension of Makueni County Government met the requirements of article 192(1)(b) of the Constitution and section 123 of the County Governments Act.
  2. Whether the County Governments Act imposed on a County Government an obligation to conduct a referendum or provide such avenues for public participation during the signing of a petition for its suspension.
  3. Whether the County Governments Act, was applicable to the petition in question.
  4. Whether the High Court could in the circumstances grant conservatory orders under article 23, in respect of a claim for violation of fundamental freedom under article 22.

Held

  1. Conservatory orders, should be granted on the inherent merit of a case, bearing in mind the public interest, the constitutional values and the proportionate magnitudes, and priority levels attributable to the relevant causes. Thus, where a conservancy order was sought against a public agency like a legislative assembly that was mandated to carry out certain functions in the normal course of its business, it was only to be granted with due caution. The interruption of the lawful functions of the legislative body should take into account the need to allow for their ordered functioning in the public interest.
  2. The 1st respondent was appointed by the President and gazetted vide Gazette Notice. The argument that there was no approval by the National and County Government Coordinating Summit of the decision of the President to constitute the Commission had no merit.
  3. A petition to the President for suspension of a County Government was provided for, under section 123 of the County Governments Act.  The material before the court and upon a careful consideration of the provisions of the County Governments Act, such a petition did not appear to have been in any way similar to a County Government petition which was provided for under section 88 of the County Governments Act.
  4. The provisions of section 88 (3), were specific and limited to matters that were within the purview of the County Government.  Under section 123 of the Act, the suspension of a County Government was outside the mandate of the County Government. Section 123 allowed any person to lodge a petition with the President for the suspension of a County Government, provided that such petition was signed by not less than ten per cent of the registered voters in the County in question.
  5. The provisions of article 192 of the Constitution and section 123 of the County Governments Act, placed no obligation on a County Government to conduct a referendum or public education or even publish the contents of a petition for its suspension before the petition was submitted to the President.
  6. The petition was filed a day before the sitting of the Commission were to commence, and some five days after the advertisement was placed in the media. The contents of the advertisement were clear with respect to the Commission’s mandate, which was an inquiry into allegations that the Makueni County Government was dysfunctional and had failed to act in accordance with its constitutional mandate and the Commission invited interested persons to submit memoranda or statements for consideration, and supplied contact addresses for the submission of statements and memoranda. It was clear therefore that the 1st respondent had publicized what it intended to do, and invited citizen participation in its inquiry.
  7. The petition before the President was lodged in accordance with Article 192(1)(b) and section 123 of the County Government Act, not under section 88 of the County Governments Act. Secondly, the petition to the President was duly published, as evidenced by the copy produced in court, which was not challenged by the applicant.  Further, the approval of the apex body, the National and County Government Coordinating Summit, was obtained. There was no obligation on the 8th respondent to facilitate public participation on the petition either before its presentation to the President, or before the Commission of Inquiry commenced its work, as it was not a petition to the County Government under section 88 of the County Governments Act. Therefore the petitioner had not presented to the Court an arguable case that would justify the grant of conservatory orders in his favour.More importantly, the balance of convenience and the public interest would militate against the grant of such orders.
  8. The applicant had not established a prima facie case that either his rights or those of the residents of Makueni had in any way been violated or threatened.
  9. At no point did the applicant raise any issue regarding the petition the subject of the inquiry, or any other matter regarding the constitution of the Commission or the publication of the petition. To have raised those issues at the last moment, was not in the interests of the public, and to grant the orders sought would be against the public interest in view of the fact that the state had expended considerable resources to set up the Commission, which was set to commence its sittings the day after the application was filed. All things considered, the balance of convenience as well as the public interest demanded that the Commission ought to proceed with its mandate.
  10. While the core of the petition was the alleged violation of the rights of the petitioners and the residents of Makueni under articles 27 and 47(1) of the Constitution, nothing had been placed before the court in the course of the hearing of the application that even remotely suggested violation of those rights. The crux of the petition was the failure by the 8th respondent to abide by sections 88-91 of the County Governments Act, which did not apply to the petition in question and the alleged failure by the President to obtain the consent of the National and County Government Coordinating Summit, which was obtained. 
  11. The issue whether the petition the subject of inquiry by the 1st respondent met the criteria of article 192(1)(b), and whether it was instigated by the Governor and Deputy Governor, were matters which fell squarely within the mandate of the 1st – 7th respondents.

 

Application dismissed, parties to bear costs.

 

 

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