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Stephen Kipkosgei Samoei & 61 Others V William Chepkiyeng & 21 Others [2013] eKLR

Case Number: ELC 68 of 2013 Date Delivered: 09 Jul 2013

Judge: Munyao Sila

Court: Environment and Land Court at Eldoret

Parties: Stephen Kipkosgei Samoei & 61 Others v William Chepkiyeng & 21 Others

Citation: Stephen Kipkosgei Samoei & 61 Others V William Chepkiyeng & 21 Others [2013] eKLR

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Stephen Kipkosgei Samoei & 61 Others V William Chepkiyeng & 21 Others [2013] eKLR

Case Number: ELC 68 of 2013 Date Delivered: 09 Jul 2013

Judge: Munyao Sila

Court: Environment and Land Court at Eldoret

Parties: Stephen Kipkosgei Samoei & 61 Others v William Chepkiyeng & 21 Others

Citation: Stephen Kipkosgei Samoei & 61 Others V William Chepkiyeng & 21 Others [2013] eKLR

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Jonathan Kazungu Ngowa V Republic [2013] eKLR

Case Number: Miscellaneous Criminal Application 14 of 2013 Date Delivered: 09 Jul 2013

Judge: Christine Wanjiku Meoli

Court: High Court at Malindi

Parties: Jonathan Kazungu Ngowa v Republic

Citation: Jonathan Kazungu Ngowa V Republic [2013] eKLR

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Peter Amare & Another V Republic [2013] eKLR

Case Number: Criminal Appeal 48 of 2008 Date Delivered: 09 Jul 2013

Judge: Grace Wangui Ngenye

Court: High Court at Eldoret

Parties: Peter Amare & Fred Mukhono Mwashi v Republic

Citation: Peter Amare & Another V Republic [2013] eKLR

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Peter Amare & Another V Republic [2013] eKLR

Case Number: Criminal Appeal 48 of 2008 Date Delivered: 09 Jul 2013

Judge: Grace Wangui Ngenye

Court: High Court at Eldoret

Parties: Peter Amare & Fred Mukhono Mwashi v Republic

Citation: Peter Amare & Another V Republic [2013] eKLR

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Peter Amare & Another V Republic [2013] eKLR

Case Number: Criminal Appeal 48 of 2008 Date Delivered: 09 Jul 2013

Judge: Grace Wangui Ngenye

Court: High Court at Eldoret

Parties: Peter Amare & Fred Mukhono Mwashi v Republic

Citation: Peter Amare & Another V Republic [2013] eKLR

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Peter Amare & Another V Republic [2013] eKLR

Case Number: Criminal Appeal 48 of 2008 Date Delivered: 09 Jul 2013

Judge: Grace Wangui Ngenye

Court: High Court at Eldoret

Parties: Peter Amare & Fred Mukhono Mwashi v Republic

Citation: Peter Amare & Another V Republic [2013] eKLR

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Peter Amare & Another V Republic [2013] eKLR

Case Number: Criminal Appeal 48 of 2008 Date Delivered: 09 Jul 2013

Judge: Grace Wangui Ngenye

Court: High Court at Eldoret

Parties: Peter Amare & Fred Mukhono Mwashi v Republic

Citation: Peter Amare & Another V Republic [2013] eKLR

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Majanja Luseno & Company Advocates V Anastacia Wagichiengo [2013] eKLR

Case Number: Misc Civil Application. 18 Of 2013 Date Delivered: 09 Jul 2013

Judge: Jonathan Bowen Havelock

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

Parties: Majanja Luseno & Company Advocates v Anastacia Wagichiengo

Citation: Majanja Luseno & Company Advocates V Anastacia Wagichiengo [2013] eKLR

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Republic V District Commissioner Mbeere North District & 7 Others Ex-Parte Dangai Herbal Limited [2013] eKLR

Case Number: Misc.Application 76 of 2011 (Jr) Date Delivered: 09 Jul 2013

Judge: Hedwig Imbosa Ong'udi

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Republic v District Commissioner Mbeere North District, District Commissioner Mbeere South District,District Commissioner Masinga District,District Commissioner Yatta District, District Commissioner Embu East District, District Commissioner Embu West District, District Commissioner Embu North District ,Commissioner of Police Ex-Parte Dangai Herbal Limited

Citation: Republic V District Commissioner Mbeere North District & 7 Others Ex-Parte Dangai Herbal Limited [2013] eKLR

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Njoroge Mugo T/A Chege Haraka Timber V Stephen Mungania Mugwika [2013] eKLR

Case Number: Elc Civil Suit. 40 Of 2012 Date Delivered: 09 Jul 2013

Judge: Pauline Nyamweya

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Njoroge Mugo T/A Chege Haraka Timber v Stephen Mungania Mugwika

Citation: Njoroge Mugo T/A Chege Haraka Timber V Stephen Mungania Mugwika [2013] eKLR

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Wavinya Ndeti V The Independent Electoral And Boundaries Commission (Iebc) & 4 Others [2013] eKLR

Case Number: Election Petition 4 Of 2013 Date Delivered: 09 Jul 2013

Judge: David Shikomera Majanja

Court: High Court at Machakos

Parties: Wavinya Ndeti v The Independent Electoral And Boundaries Commission (Iebc) ,Isaac Hassan (Returning Officer Of The National Tallying Centre) ,The Machakos County Returning Officer ,Alfred Nganga Mutua & Mutua Katiku

Citation: Wavinya Ndeti V The Independent Electoral And Boundaries Commission (Iebc) & 4 Others [2013] eKLR

Election Law-election petition-practice and procedure-stay of proceedings-application for stay of proceedings pending appeal against the ruling of the Election Court declining to order a scrutiny of votes Court of Appeal Rules.  Rule 74(4)

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Fatuma Zainabu Mohamed V Ghati Dennitah & 10 Others [2013] eKLR

Case Number: Election Petition 6 of 2013 Date Delivered: 09 Jul 2013

Judge: Edward Muthoga Muriithi

Court: High Court at Kisii

Parties: Fatuma Zainabu Mohamed v Ghati Dennitah,Independent Electoral And Boundaries Commission (IEBC),Benson Njau (Kuria East Returning Officer),Lilina Liluma (Returning Officer Awendo Constituency,Moses Omondo Daula (Returning Officer Nyatike Constituency),Jackton Nyonje (Returning Officer Oriri Constituency),Noah Bowen (Rongo Constituency),Alex Oyuga (Returning Officer Suna East Constituency),Martin Chengere (Returning Officer Suna West Constituency,Jairus Obago (Returning Officer Migori County) & Adam Mohamed (Returning Officer Kuria West Constituency)

Citation: Fatuma Zainabu Mohamed V Ghati Dennitah & 10 Others [2013] eKLR

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John Ayieta Ondiek V Communication Workers Union [2013] eKLR

Case Number: Cause 21 Of 2011 Date Delivered: 09 Jul 2013

Judge: James Rika

Court: Industrial Court at Nairobi

Parties: John Ayieta Ondiek v Communication Workers Union

Citation: John Ayieta Ondiek V Communication Workers Union [2013] eKLR

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Ruth Wangui Kagunda (As Personal; Representative Of Keziah Wanjiru Gitau – The Deceased 1st Plaintiff) & 3 Others V Beatrice Muthoni Thumbi & Another [2013] eKLR

Case Number: ELC Suit 486 of 2007 Date Delivered: 09 Jul 2013

Judge: John Mutungi

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Ruth Wangui Kagunda (as Personal; Representative of Keziah Wanjiru Gitau – the Deceased 1st Plaintiff),Cyrus Reuben Kagunda,Felix Muchoki Wambugu & Kevin Kariuki v Beatrice Muthoni Thumbi & Beatrice Wambui Kigondu (Sued as Administrators of Estate of Godon Kigono Reuben)

Citation: Ruth Wangui Kagunda (As Personal; Representative Of Keziah Wanjiru Gitau – The Deceased 1st Plaintiff) & 3 Others V Beatrice Muthoni Thumbi & Another [2013] eKLR

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Harun Meitamei Lempaka V Lemanken Aramat & 2 Others [2013] eKLR

Case Number: Election Petition 2 of 2013 Date Delivered: 08 Jul 2013

Judge: Mathew John Anyara Emukule

Court: High Court at Nakuru

Parties: Harun Meitamei Lempaka v Lemanken Aramat, Isaac Ruto & Independent Electoral & Boundaries Commission (Iebc)

Citation: Harun Meitamei Lempaka V Lemanken Aramat & 2 Others [2013] eKLR

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Amina Shaban Salim & Another V Mariam Nyakinyua Salim & 2 Others [2013] eKLR

Case Number: Elc Case 286 of 2013 Date Delivered: 08 Jul 2013

Judge: Boaz Nathan Olao

Court: High Court at Kerugoya

Parties: Amina Shaban Salim & Embu Municipality Matakari Muslim Group v Mariam Nyakinyua Salim, Juma Shaban & Ibrahim Njuki Iddi

Citation: Amina Shaban Salim & Another V Mariam Nyakinyua Salim & 2 Others [2013] eKLR

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Patrick Njuguna Kariuki V Del Monte (K) Limited [2013] eKLR

Case Number: Cause 953 of 2011 Date Delivered: 08 Jul 2013

Judge: Mathews Nderi Nduma

Court: Industrial Court at Nairobi

Parties: Patrick Njuguna Kariuki v Del Monte (K) Limited

Citation: Patrick Njuguna Kariuki V Del Monte (K) Limited [2013] eKLR

Jurisdiction of the Industrial Court in an application for stay of its award

Patrick Njuguna Kariuki v Del Monte (K) Limited

Cause No 953 of 2011

Industrial Court at Nairobi

Mathews N Nduma J

July 8 2013

Reported by Njeri Githang’a Kamau & Victor L Andande

Issues

Whether the Industrial Court had jurisdiction to entertain an application for stay of execution of its award where a similar application was pending before the Court of Appeal.

Labour Law – stay of execution – application for stay of execution - jurisdiction of the Industrial Court to grant orders of stay of execution of its award - where the applicant sought an order for stay of release of the judgment sum deposited in court and stay of implementation of the award pending the hearing and determination by the Court of Appeal on the said award and orders – whether the Industrial Court had jurisdiction to entertain the application for stay in the circumstances - Industrial Court (Procedure) Rules 2010, rule 32.

Industrial Court (Procedure) Rules 2010 provide as follows;

Rule 32

(1) A person who is aggrieved by a decree or an order of the Court may apply for a review of the award, judgment or ruling —

 

(a) if there is a discovery of new and important matter or evidence which, after the exercise of due diligence, was not within the knowledge of that person or could not be produced by that person at the time when the decree was passed or the order made; or

 

(b) on account of some mistake or error apparent on the face of the record; or

 

(c) on account of the award, judgment or ruling being in breach of any written law; or

 

(d) if the award, the judgment or ruling requires clarification; or

 

(e) for any other sufficient reasons.

 

Held

  1. It was trite that the Industrial Court could not sit on appeal of its own decision. Thus, the court lacked jurisdiction to allow the applicant to have a second attempt on the matter.
  2. As soon as the applicant filed the application before the Court of Appeal, the jurisdiction of the Industrial Court was immediately pre-empted. The Industrial Court could thus not deal with the matter and had to await the outcome of the Court of Appeal.
  3. The Industrial Court could only sit on review of its own decision on very limited grounds outlined under Rule 32(1) of the Industrial Court (Procedure) Rules 2010. Nothing in the application before court had alluded to any such failures in the ruling of the trial judge nor had there been any indication that any review of the same was desired.

Application dismissed with costs

 

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Simon Kiprono Sang V Zakayo K. Cheruiyot & 2 Others [2013] eKLR

Case Number: Election Petition 1 of 2013 Date Delivered: 08 Jul 2013

Judge: Roseline Pauline Vunoro Wendoh

Court: High Court at Nakuru

Parties: Simon Kiprono Sang v Zakayo K. Cheruiyot, John Cox Lorionokou & 3. The Independent Electoral & Boundaries Commission

Citation: Simon Kiprono Sang V Zakayo K. Cheruiyot & 2 Others [2013] eKLR

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M'rukaria M'nkubitu V Julius Nturibi Rukaria & Another [2013] eKLR

Case Number: HCCA 72 of 2009 Date Delivered: 08 Jul 2013

Judge: Peter Muchoki Njoroge

Court: High Court at Meru

Parties: M'rukaria M'nkubitu v Julius Nturibi Rukaria & Mary Ncekei Kirianki

Citation: M'rukaria M'nkubitu V Julius Nturibi Rukaria & Another [2013] eKLR

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Nicholas Kiptoo Arap Salat V Independent Electoral And Boundaries Commission & 7 Otbers [2013] eKLR

Case Number: Election Petition 1 of 2013 Date Delivered: 08 Jul 2013

Judge: Aggrey Otsyula Muchelule

Court: High Court at Kericho

Parties: Nicholas Kiptoo Arap Salat v Independent Electoral And Boundaries Commission, Wilfred Rotich Lesan, Robert Shunet (Returning Officer, Bomet County), Kennedy Onchayo, Wilfred Wainaina,Patrick Wanyama, Mark Manko & Abdikadir Sheikh

Citation: Nicholas Kiptoo Arap Salat V Independent Electoral And Boundaries Commission & 7 Otbers [2013] eKLR

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Nils Bernard Fride Nelson & 3 Others V Dunson Karu & 7 Others [2013] eKLR

Case Number: Environment & Land Case 465 of 2011 Date Delivered: 08 Jul 2013

Judge: Lucy Nyambura Gacheru

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Nils Bernard Fride Nelson & 3 others V Dunson Karu & 7 others

Citation: Nils Bernard Fride Nelson & 3 Others V Dunson Karu & 7 Others [2013] eKLR

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John Bishi V Hedge Farm Ltd [2013] eKLR

Case Number: Cause 60 of 2012 Date Delivered: 08 Jul 2013

Judge: Onesmus Ndambuthi Makau

Court: Industrial Court at Mombasa

Parties: John Bishi v Hedge Farm Ltd

Citation: John Bishi V Hedge Farm Ltd [2013] eKLR

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Nuh Nassir Abdi V Ali Wario & 2 Others [2013] eKLR

Case Number: Election Petition 6 Of 2013 Date Delivered: 08 Jul 2013

Judge: George Vincent Odunga

Court: High Court at Mombasa

Parties: Nuh Nassir Abdi v Ali Wario, 2. Francis Runya(Returning Officer, Bura Constituency & Independent Electoral And Boundaries Commission

Citation: Nuh Nassir Abdi V Ali Wario & 2 Others [2013] eKLR

Review- application seeking a review of orders for scrutiny - whether the High Court could order for review of the orders of the High Court-claim by the 1st respondent that they did not have an agent for purpose of the scrutiny exercise and wanted postponement of the same to make travel arrangements for his agents- Constitution of Kenya, 2010 article 159(2)(d); Elections Act section 82 ; Elections (Parliamentary and County Elections) Petitions Rules Rule 4

 

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Okiya Omtatah Okoiti V Attorney General & 3 Others [2013] eKLR

Case Number: Petition 342 of 2013 Date Delivered: 08 Jul 2013

Judge: David Shikomera Majanja

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Okiya Omtatah Okoiti v Attorney General, Secretary of the Teachers Service Commission, Principal Secretary for Education & Secretary to the Cabinet

Citation: Okiya Omtatah Okoiti V Attorney General & 3 Others [2013] eKLR

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Hudson Maina Kamau V J. K. Horeria T/A Horeria & Company & Another [2013] eKLR

Case Number: Elc Case 1928 of 2007 Date Delivered: 08 Jul 2013

Judge: Pauline Nyamweya

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Hudson Maina Kamau v J. K. Horeria T/A Horeria & Company & Oakridge Investments Limited

Citation: Hudson Maina Kamau V J. K. Horeria T/A Horeria & Company & Another [2013] eKLR

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Peter Kinyua Ireri & Another V Republic [2013] eKLR

Case Number: Criminal Appeal Nos 22 & 24 of 2013 (Consolidated) Date Delivered: 08 Jul 2013

Judge: Hedwig Imbosa Ong'udi

Court: High Court at Embu

Parties: Peter Kinyua Ireri & John Muchangi Njiru v Republic

Citation: Peter Kinyua Ireri & Another V Republic [2013] eKLR

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Albinism Society Of Kenya V National Council For Persons With Disabilities & 2 Others [2013] eKLR

Case Number: Petition 341 of 2013 Date Delivered: 08 Jul 2013

Judge: David Shikomera Majanja

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Albinism Society Of Kenya v National Council For Persons With Disabilities, Attorney General & Suken International Limited

Citation: Albinism Society Of Kenya V National Council For Persons With Disabilities & 2 Others [2013] eKLR

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Richard Nchapi Leiyagu V Independent Electoral Boundaries Commission & 2 Others [2013] eKLR

Case Number: Election Petition 4 of 2013 Date Delivered: 08 Jul 2013

Judge: James wakiaga

Court: High Court at Nyeri

Parties: Richard Nchapi Leiyagu v Independent Electoral Boundaries Commission,Ismael Hashim & Mathew Kideme Lempurkel

Citation: Richard Nchapi Leiyagu V Independent Electoral Boundaries Commission & 2 Others [2013] eKLR

Reinstatement of dismissed election petitions

Richard Nchapi Leiyagu v Independent Electoral Boundaries Commission & 2 Others

Election Petition No. 4 of 2013

High Court at Nyeri

J. Wakiaga, J

July 8, 2013

Reported by Lynette A. Jakakimba

Brief facts

The applicant’s election petition was dismissed for non-attendance of the applicant or his advocate on the hearing date. The applicant subsequently applied for the court to review or set aside its decision to dismiss the petition. The respondents  opposed the application on basis that  there was no provision in the Elections Act for reinstatement of dismissed election petitions and that the petitioner had not offered any reasonable excuse for his non-attendance as the hearing dates had been taken by consent of all the parties.

 

Issues

  1. Whether there was a provision in law allowing the court to review or set aside an order dismissing an election petition.
  2. Whether a hearing notice, pursuant to rule 19 of the Election (Parliamentary and County) Petition Rules, 2013 ought to be issued even in instances where a hearing date is taken by consent.

 

 

Election Law-election petition – review or setting aside of a dismissed election petition - where the petition was dismissed due to non-attendance of the petitioner and his advocate-where the petitioner failed to attend due to mistake of the set hearing date  - whether there was provision in law to review or set aside a dismissed election petition

Election Law-election petition – hearing notice- whether a hearing notice ought to be issued even in instances where a hearing date is taken by consent- Election (Parliamentary and County) Petition Rules rule 19

Election (Parliamentary and County) Petition Rules

Rule 19

  1. The court shall, by notice issued by the Registrar, specify the time and place of the trial of an election petition.

    (2) The notice issued under sub-rule (1) shall be issued, not less than seven days before the date fixed for trial, by delivery at the address left by the Petitioner or Respondent with the Registrar, or if no such address has been left, by notice in the Gazette or by advertisement in a newspaper of national circulation.

    (3) The court may, on the application of a party or on its own motion, for sufficient reasons, postpone the commencement of the trial of an election petition to a date specified by the court.

 

Held

  1. There was no express or implied provision under the Elections Act or the Election Rules and Regulations for the review, setting aside and or reinstatement of a dismissed petition. This was founded on the fact that the legislature wanted election petitions to be expeditiously determined within the set timelines.
  2. All rights in respect of election disputes were statutorily given and therefore every petition had to be determined and decided within the statutory provisions contained in the Elections Act. However the lack of provision on reinstatement of dismissed petitions did not oust the inherent jurisdiction of the court to do justice.
  3. The court’s exercise of discretion to reinstate a dismissed suit or petition was to be based on evidence and sound legal principles. The court was required to consider all the circumstances of the case both before and after the decision being challenged was made, before coming to a decision on whether or not to vacate the decision. The court would only exercise its judicial discretion in favour of setting aside a judgment in order to avoid injustice or hardship resulting from accidental inadvertence or excusable mistake or error with the main concern to do justice between the parties.
  4. The petitioner had not produced any evidence to show that there was any fraud collusion or misrepresentation on the part of the court and the respondents in respect of the matter. The hearing date having been taken by consent, there was no need for the registrar of the court to serve a hearing notice under the provision of rule 19((h) of the rules as alleged by the petitioner.
  5. The Applicant did not place before the court sufficient material for the grant of orders sought and the court could therefore not exercise its discretion in his favour.

 

Application dismissed with cost.

 

Law Reform

There is no provision under the Election Act which allows for setting aside, review and or reinstatement of a dismissed petition.

 

Cases referred to

  1. Njeru v Muturi EP. No. 13 of 2003
  2. Shah & Mbogo [1967]
  3. Suleiman Said Shahbal v Independent Electoral and Boundaries Commission (IEBC) & 3 othersElection Petition No. 8 of 2013 Mombasa
  4. Chhaganlal Odhavjuj Vishram Vadgama vs Travis (EA) Ltd Nairobi High Court Civil case no. 1908 of 2000(Os) Milimani Commercial
  5. GM Jivanji vs M Jivanji & Another (1929-30) 12klr 44
  6. Uhuru Highway Development Ltd vs Central Bank of Kenya Ltd & 2 Others HCCC No. 29 of 1995.
  7. Patrick Ngeta Kimanzi vs Marcus Mutua Muluvi & Others EP No. 8 of 2013 Machakos
  8. Joho vs Nyange & Another Election Petition No. 8 (2006) eKLR
  9. Jyoti Basu & Others vs Debi GhosaL & Others 1982 AIR 983, 1982 SCR 318
  10. Karingi Kanyunguti & 4 Others vs David Njeru Njogu Nairobi Civil Appeal No. 181 of 1994
  11. Manji v Lalji & Others Civil App No. 236 of 1992
  12. Kettleman v Hansel Properties Ltd (1988)
  13. Raila Odinga Vs Independent Electoral & Boundaries Commission & Others Election Petition No. 4 of 2013

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Japheth Omari Ombeo V Robert Nyamache Siocha Returning Officer Bobasi Constituency & Another [2013] eKLR

Case Number: Election Petition 2 of 2013 Date Delivered: 08 Jul 2013

Judge: Daniel Ogolla Ag CM

Court: Election Petition in Magistrate Courts

Parties: Japheth Omari Ombeo v Robert Nyamache Siocha Returning Officer Bobasi Constituency & Independent Electoral & Boundaries Commission

Citation: Japheth Omari Ombeo V Robert Nyamache Siocha Returning Officer Bobasi Constituency & Another [2013] eKLR

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Roberts Insurance Brokers Limited V Kipng'etich K.Bett & Another [2013] eKLR

Case Number: Civil Case 74 of 2012 Date Delivered: 08 Jul 2013

Judge: Aggrey Otsyula Muchelule

Court: High Court at Kisumu

Parties: Roberts Insurance Brokers Limited v Kipng'etich K.Bett & Martin Owiti

Citation: Roberts Insurance Brokers Limited V Kipng'etich K.Bett & Another [2013] eKLR

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Rosebellah Jepkoech Ronoh V Telkom Kenya Limited [2013] eKLR

Case Number: Misc. Application 10 of 2012 Date Delivered: 08 Jul 2013

Judge: Monica Mbaru

Court: Industrial Court at Nairobi

Parties: Rosebellah Jepkoech Ronoh v Telkom Kenya Limited

Citation: Rosebellah Jepkoech Ronoh V Telkom Kenya Limited [2013] eKLR

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Luka Cheptum Bomett V Henry Kipyegon Nduati [2013] eKLR

Case Number: E.L.C 215 of 2013 Date Delivered: 05 Jul 2013

Judge: Lucy Waithaka

Court: High Court at Nakuru

Parties: Luka Cheptum Bomett v Henry Kipyegon Nduati

Citation: Luka Cheptum Bomett V Henry Kipyegon Nduati [2013] eKLR

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Paul Saiti Muthui Alias Paul Saidi Muthui V Wilson Maingi Mutia [2013] eKLR

Case Number: Elc.Case 415 of 2013 Date Delivered: 05 Jul 2013

Judge: Mary Muthoni Gitumbi

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Paul Saiti Muthui Alias Paul Saidi Muthui v Wilson Maingi Mutia

Citation: Paul Saiti Muthui Alias Paul Saidi Muthui V Wilson Maingi Mutia [2013] eKLR

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Paul Saiti Muthui Alias Paul Saidi Muthui V Wilson Maingi Mutia [2013] eKLR

Case Number: Elc.Case 415 of 2013 Date Delivered: 05 Jul 2013

Judge: Mary Muthoni Gitumbi

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Paul Saiti Muthui Alias Paul Saidi Muthui v Wilson Maingi Mutia

Citation: Paul Saiti Muthui Alias Paul Saidi Muthui V Wilson Maingi Mutia [2013] eKLR

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Waziri Abubakari Ali & Another V Muchani Mutuka [2013] eKLR

Case Number: Environmemtal Case 66 of 2012 Date Delivered: 05 Jul 2013

Judge: Anne Omollo

Court: High Court at Bungoma

Parties: Waziri Abubakari Ali & Ali Makohka Abdi v Muchani Mutuka

Citation: Waziri Abubakari Ali & Another V Muchani Mutuka [2013] eKLR

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Royal Media Services Ltd V Attorney General & 2 Others

Case Number: Civil Application Nai 44 of 2013 [Ur 28/2013] Date Delivered: 05 Jul 2013

Judge: George Benedict Maina Kariuki, Philomena Mbete Mwilu, Jamila Mohammed

Court: Court of Appeal at Nairobi

Parties: Royal Media Services Ltd v Attorney General, Minister Of Information & Communication & Communication Commission Of Kenya

Citation: Royal Media Services Ltd V Attorney General & 2 Others

Nature and scope of the applicability of the overriding objective vis a vis the rules applicable in granting injunctive orders

Royal Media Services Ltd v Attorney General & 2 others

Civil Application No 43 of 2013

Court of Appeal at Nairobi

G B M Kariuki, P M Mwilu & J Mohammed, JJA

July 5, 2013

Reported by Phoebe Ida Ayaya and Derrick Nzioka

Issue:

      i.         Whether in a scenario in which the preconditions necessary for granting injunctive orders are not proved the overriding objective could apply in favour of a party seeking the injunction.

 

Civil Practice and Procedure – injunctive orders – preconditions necessary for granting an injunctive order – overriding objective – where the applicant averred that the overriding objective was broader than the preconditions required to be established in granting an injunction – where the applicant averred that the court had to give effect to the overriding objective when exercising its power – whether the overriding objective could be applied in granting injunctive orders in an instance in which the preconditions necessary for the orders to be granted had not been proved – Appellate Jurisdiction Act, sections 3A & 3B – Appellate Jurisdiction Rules, rule 5(2)(b).

 

Held:

1.    In an application under rule 5(2)(b) of the Appellate Court’s Rules, the applicant was obligated, to show firstly, that his appeal or intended appeal was arguable or put differently, that it was not a frivolous one. Secondly, that unless he was granted a stay or injunction as the case may be, his appeal, if it were to eventually succeed, such success would be rendered nugatory.

2.    However, in determining the above preconditions, regard had to be made to the overriding objective (oxygen principle) set out in sections 3A and 3B of the Appellate Jurisdiction Act.

3.    In applying or interpreting the rule, the court was under a duty to ensure that the application or interpretation being given to any rule would facilitate the just, expeditious, proportionate and affordable resolution of an appeal. In addition the overriding objective conferred on the court considerable latitude in the interpretation of the law and rules made thereunder, and in the exercise of its discretion always with a view to achieving any or all the attributes of the overriding objective. This too was held in the cases of Deepak Chamanlal Kamani & Another v Kenya Anti-Corruption & 3 others, [2010] eKLR and City Chemist (Nbi) & Another v Oriental Commercial Bank Ltd, Civil Application No Nai 302 of 2008 (UR 199/2008) respectively.

4.    On the first limb, the applicant’s appeal was not frivolous and the requirement of arguability of the appeal was satisfied.

5.    On the nugatory aspect, it was trite law that the Court had to weigh and balance the competing claims of both parties and each case had to be determined on its own peculiar facts. The court noted that the frequencies would be readily available upon determination of the appeal and, therefore, the applicant, if successful, could continue to make transmissions on the frequencies that were the subject matter of the appeal after it was determined.

Application dismissed.

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Annan Warimu Mwangi V Timothy Mwinga Gacheru & 2 Others [2013] eKLR

Case Number: ELC 45 of 2013 Date Delivered: 05 Jul 2013

Judge: Oscar Angote

Court: High Court at Malindi

Parties: Annan Warimu Mwangi v Timothy Mwinga Gacheru,Alexander James Kimari,David Kamau Kimani

Citation: Annan Warimu Mwangi V Timothy Mwinga Gacheru & 2 Others [2013] eKLR

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Herbert Ngunyi Kamau V Isaiah Ngotho & Another [2013] eKLR

Case Number: ELC.Case 127 of 2013 Date Delivered: 05 Jul 2013

Judge: Mary Muthoni Gitumbi

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Herbert Ngunyi Kamau v Isaiah Ngotho,Andrew Kimani

Citation: Herbert Ngunyi Kamau V Isaiah Ngotho & Another [2013] eKLR

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Rosebell Wambui Muthee V Freight In Time Ltd [2013] eKLR

Case Number: Cause 1199 of 2011 Date Delivered: 05 Jul 2013

Judge: James Rika

Court: Industrial Court at Nairobi

Parties: Rosebell Wambui Muthee v Freight in Time Ltd

Citation: Rosebell Wambui Muthee V Freight In Time Ltd [2013] eKLR

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PLR V JNR & Another [2013] eKLR

Case Number: ELC 9 of 2012 Date Delivered: 05 Jul 2013

Judge: Lucy Waithaka

Court: High Court at Nakuru

Parties: PLR v JNR, District Land Registrar Narok

Citation: PLR V JNR & Another [2013] eKLR

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Job Waweru Kariuki V Ann Wambui Karioki & Another [2013] eKLR

Case Number: Elc. Case 323 of 2013 Date Delivered: 05 Jul 2013

Judge: Mary Muthoni Gitumbi

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Job Waweru Kariuki v Ann Wambui Karioki & Winnie Wanjiru Karioki

Citation: Job Waweru Kariuki V Ann Wambui Karioki & Another [2013] eKLR

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Job Waweru Kariuki V Ann Wambui Karioki & Another [2013] eKLR

Case Number: ELC. Case 323 of 2013 Date Delivered: 05 Jul 2013

Judge: Mary Muthoni Gitumbi

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Job Waweru Kariuki v Ann Wambui Karioki & Winnie Wanjiru Karioki

Citation: Job Waweru Kariuki V Ann Wambui Karioki & Another [2013] eKLR

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Micheal Njuguna T/a Njuakim Commercial Agencies V Equity Bank Ltd [2013] eKLR

Case Number: Elc 6 of 2013 Date Delivered: 05 Jul 2013

Judge: Lucy Nyambura Gacheru

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Micheal Njuguna t/a Njuakim Commercial Agencies v Equity Bank Ltd

Citation: Micheal Njuguna T/a Njuakim Commercial Agencies V Equity Bank Ltd [2013] eKLR

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Joseph Muya Njuru V Stephen Njoroge Guda & 4 Others [2013] eKLR

Case Number: E.L.C 156 of 2012 Date Delivered: 05 Jul 2013

Judge: Lucy Waithaka

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Joseph Muya Njuru v Stephen Njoroge Guda,Mwangi Kamau,Lucy Gathoni Wanyeki,Naftaly Njogu Kinyanjui & Teresia Wanjiku

Citation: Joseph Muya Njuru V Stephen Njoroge Guda & 4 Others [2013] eKLR

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Beverlin Ongoche V Peter Thuku & Another [2013] eKLR

Case Number: Elc.Case 78 of 2007 Date Delivered: 05 Jul 2013

Judge: Mary Muthoni Gitumbi

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Beverlin Ongoche v Peter Thuku & City Council Of Nairobi

Citation: Beverlin Ongoche V Peter Thuku & Another [2013] eKLR

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Joel Nyabuto Omwenga & 2 Others V IEBC & Another [2013] eKLR

Case Number: Election Petition 2 & 6 of 2013 (Consolidated) Date Delivered: 05 Jul 2013

Judge: A K Mwicigi, Ag. PM

Court: Election Petition in Magistrate Courts

Parties: Joel Nyabuto Omwenga, Daniel Munyao Nzwili & Rose Wambui Mungai v IEBC & Daniel Mbugua Mari

Citation: Joel Nyabuto Omwenga & 2 Others V IEBC & Another [2013] eKLR

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In Re The Estate Of Ngugi Kamau (Deceased) [2013] eKLR

Case Number: Succ Cause 204 of 1997 Date Delivered: 05 Jul 2013

Judge: William Musya Musyoka

Court: High Court at Nairobi (Milimani Law Courts)

Parties: In Re the Estate of Ngugi Kamau (Deceased)

Citation: In Re The Estate Of Ngugi Kamau (Deceased) [2013] eKLR

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Glory Driving School V Phoneart Solutions Ltd [2013] eKLR

Case Number: Civil Case 247 of 2013 Date Delivered: 05 Jul 2013

Judge: Hatari Peter George Waweru

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Glory Driving School v Phoneart Solutions Ltd

Citation: Glory Driving School V Phoneart Solutions Ltd [2013] eKLR

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R F S V J D S [2013] eKLR

Case Number: Civil Application 114 of 2012 Date Delivered: 05 Jul 2013

Judge: Daniel Kiio Musinga, Paul Kihara Kariuki, William Ouko

Court: Court of Appeal at Nairobi

Parties: R F S v J D S

Citation: R F S V J D S [2013] eKLR

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