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Case Action: Ruling


James Omariba Nyaoga & Another V Speaker Of The County Assembly (Kisii) & 2 Others [2015] eKLR

Case Number: Petition 12 of 2015 Date Delivered: 24 Jun 2015

Judge: Stephen Radido Okiyo

Court: Employment and Labour Relations Court at Nyeri

Parties: James Omariba Nyaoga & Joseph Maranga Amenya v Speaker of the County Assembly (Kisii), County Assembly Service Board (Kisii) & Kisii County Assembly

Citation: James Omariba Nyaoga & Another V Speaker Of The County Assembly (Kisii) & 2 Others [2015] eKLR

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James S Kinyanjui V Gatitu Wang’oo & Co Advocates & Another [2015] eKLR

Case Number: Originating Summons 87 of 2014 Date Delivered: 24 Jun 2015

Judge: Francis Gikonyo

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

Parties: James S Kinyanjui v Gatitu Wang’oo& Co Advocates & Macharia & Co Advocates

Citation: James S Kinyanjui V Gatitu Wang’oo & Co Advocates & Another [2015] eKLR

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Jamleck Muchira Wanjau V Charles Maina Muriuki [2015] eKLR

Case Number: Elc 18 of 2015 Date Delivered: 24 Jun 2015

Judge: Lucy Waithaka

Court: Environment and Land Court at Nyeri

Parties: Jamleck Muchira Wanjau v Charles Maina Muriuki

Citation: Jamleck Muchira Wanjau V Charles Maina Muriuki [2015] eKLR

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Peter Kimandiu V Land Adjudication Officer & 5 Others [2015] eKLR

Case Number: Civil Application Nyr 17 of 2015 (UR 12/15) Date Delivered: 24 Jun 2015

Judge: Roselyn Naliaka Nambuye

Court: Court of Appeal at Nyeri

Parties: Peter Kimandiu v Land Adjudication Officer, Tigania West District, Zaverio Mithika, James Mwingilia , Charles Kingeere & Daniel M’rithara

Citation: Peter Kimandiu V Land Adjudication Officer & 5 Others [2015] eKLR

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Republic V County Government Of Uasin Gishu & Another [2015]eKLR

Case Number: Judicial Review 117 of 2015 Date Delivered: 24 Jun 2015

Judge: George Kanyi Kimondo

Court: High Court at Eldoret

Parties: Republic v County Government Of Uasin Gishu & Siriba Ontita

Citation: Republic V County Government Of Uasin Gishu & Another [2015] eKLR

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Shem Sanya Balongo & Another V Municipal Council Of Busia & Another [2015] eKLR

Case Number: Civil Appeal 55 of 2010. Date Delivered: 24 Jun 2015

Judge: Stephen Kibunja

Court: High Court at Busia

Parties: Shem Sanya Balongo & William Mireri v Municipal Council of Busia & Alice Ikolomi Thuranira

Citation: Shem Sanya Balongo & Another V Municipal Council Of Busia & Another [2015] eKLR

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Joseph Gichuhi T/A Gaitara Saw Mills & Another V Agnes Mwenesi Sitekah [2015] eKLR

Case Number: Civil Appeal 180 of 2014 Date Delivered: 24 Jun 2015

Judge: Janet Nzilani Mulwa

Court: High Court at Nakuru

Parties: Joseph Gichuhi T/A Gaitara Saw Mills & another v Agnes Mwenesi Sitekah

Citation: Joseph Gichuhi T/A Gaitara Saw Mills & Another V Agnes Mwenesi Sitekah [2015] eKLR

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Samuel Kiptui Ngeiywa V Patrick Kwalia Moikut & 2 Others [2015] eKLR

Case Number: Land Case 148 of 2013 Date Delivered: 24 Jun 2015

Judge: Elija Ogoti Obaga

Court: High Court at Kitale

Parties: Samuel Kiptui Ngeiywa v Patrick Kwalia Moikut, Phillip Lochok Ekai & Matayo Ndila Cheprot

Citation: Samuel Kiptui Ngeiywa V Patrick Kwalia Moikut & 2 Others [2015] eKLR

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Republic V Pharis Kabaiku Mbuthia [2015] eKLR

Case Number: Criminal Case 4 of 2013 Date Delivered: 24 Jun 2015

Judge: Stella Ngali Mutuku

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Republic v Pharis Kabaiku Mbuthia

Citation: Republic V Pharis Kabaiku Mbuthia [2015] eKLR

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Republic V E M [2015] eKLR

Case Number: Criminal (Revision) Case 14 of 2015 Date Delivered: 24 Jun 2015

Judge: Florence Nyaguthii Muchemi

Court: High Court at Embu

Parties: Republic v E M

Citation: Republic V E M [2015] eKLR

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Wellington Lusweti Barasa & 74 Others V Lands Limited & Another [2015] eKLR

Case Number: Civil Application 23 of 2015 Date Delivered: 24 Jun 2015

Judge: Daniel Kiio Musinga

Court: Court of Appeal at Eldoret

Parties: Wellington Lusweti Barasa & 74 others v Lands Limited & another

Citation: Wellington Lusweti Barasa & 74 Others V Lands Limited & Another [2015] eKLR

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David Kipkurui Tenai V Nyayo Tea Zones Development [2015] eKLR

Case Number: Civil Application 159 of 2013 (Ur 108/2013) Date Delivered: 24 Jun 2015

Judge: Stephen Gatembu Kairu

Court: Court of Appeal at Eldoret

Parties: David Kipkurui Tenai v Nyayo Tea Zones Development

Citation: David Kipkurui Tenai V Nyayo Tea Zones Development [2015] eKLR

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William Kiptarbei Korir & 6 Others V Danson Muniu Njeru [2015] eKLR

Case Number: Civil Application 308 of 2014 Date Delivered: 24 Jun 2015

Judge: Stephen Gatembu Kairu

Court: Court of Appeal at Eldoret

Parties: William Kiptarbei Korir, Peter Kipsat Lelei, Susan Kemei, Nixon Kipchumba, David Butty, William Butty & Dinah Korir v Danson Muniu Njeru

Citation: William Kiptarbei Korir & 6 Others V Danson Muniu Njeru [2015] eKLR

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Basil Criticos V Independent Electoral And Boundaries Commission & 2 Others [2015] eKLR

Case Number: Petition 22 of 2014 Date Delivered: 24 Jun 2015

Judge: Smokin C Wanjala, Susanna Njoki Ndung'u

Court: Supreme Court of Kenya

Parties: Basil Criticos v Independent Electoral and Boundaries Commission, Isaiah Saha Madungu & Naomi Namsi Shaban

Citation: Basil Criticos V Independent Electoral And Boundaries Commission & 2 Others [2015] eKLR

An appeal against a Court of Appeal decision declining to extend time was not a matter falling under the purview of article 163(4)(a) of the Constitution.

Basil Criticos v Independent Electoral and Boundaries Commission & 2 others

Petition 22 of 2014

Supreme Court of Kenya at Nairobi

S C Wanjala& S N Ndungu, SCJJ

June 24, 2015

Reported by Nelson Tunoi& John Ribia Wainaina

Brief facts:

The petitioner had filed an election petition before the High Court but was unsuccessful and costs awarded to the respondents. The petitioner filed a notice of appeal giving notice of an intended appeal against the High Court judgment. After the lapse of the statutory period of thirty (30) days, the petitioner filed an application for extension of time to file his appeal on grounds that there was delay in obtaining certified proceedings from the High Court. The application was dismissed by a single judge of the Court of Appeal and the applicant filed for a reference of a full bench of the Court of Appeal, but which application was consequently dismissed.

Pursuant to filing a petition of appeal against the ruling and orders of the Court of Appeal, the petitioner subsequently filed a notice of motion under certificate of urgency seeking to stay the execution of the ruling and orders of the Court of Appeal and the judgment and orders of the High Courtpending the hearing and determination of the appeal. The application was heard ex parte and orders of stay issued by the Supreme Court. The respondents through a preliminary objection application sought to have the order of stay vacated.

 

Issues:

  1. Whether an appeal against the denial extension of time by the Court of Appeal could be heard in the Supreme Court as a matter of right as a case involving the interpretation or application of the constitution,  on the basis of Article 163 (4)(a) of the Constitution.
  2. Whether an order of stay of execution could be sustained on the basis of article 163(4)(a) of the Constitution.

 

Jurisdiction – appellate jurisdiction of the Supreme Court – appellate jurisdiction of the Supreme Court in matters involving the interpretation and application of the Constitution - whether the Supreme Court could extend time for an intending appellant to lodge an appeal at the Court of Appeal – where the Court of Appeal had declined to extend time for the applicant to lodge his appeal –whether an appeal against a Court of Appeal decision declining to extend time was a matter falling under the purview of article 163(4)(a) of the Constitution - Constitution of Kenya, 2010, article 163(4)(a)

Civil practice and procedure – preliminary objection –respondents objecting to the stay orders issued by a single judge of the Supreme Court –whether the Supreme Court could issue stay of execution of the lower courts orders in the circumstances - whether a preliminary objection application was sustainable on the basis of article 163(4)(a) of the Constitution –whether the application was merited – Constitution of Kenya, 2010, article 163(4)(a)

 

Constitution of Kenya, 2010, article 163(4):

Appeals shall lie from the Court of Appeal to the Supreme Court;

(a) as of right in any case involving the interpretation or application of this Constitution; and

(b) in any other case in which the Supreme Court, or the Court of Appeal, certifies that a matter of general public importance is involved, subject to clause

 

Held:

  1. An appeal against a Court of Appeal decision declining to extend time was not a matter falling under the purview of article 163(4)(a) of the Constitution, as a matter of right as a case involving the interpretation or application of the constitution,  on the basis of Article 163 (4)(a) of the Constitution.
  2. The petitioner had not kept due diligence in filing his appeal against the High Court decision.He waited until the expiry of the prescribed time for filing an appeal then filed an application for extension of time to file his appeal, which application was dismissed by the Court of Appeal.
  3. The application (notice of motion) before the Supreme Court amounted to an appeal against the ruling of the Court of Appeal. The petitioner (applicant) was “appealing” against the denial of extension of time by the Court of Appeal. The substantive appeal was yet to be filed.
  4. Extension of time was an equitable dispensation. It was a creature of equity that could be enjoyed if one acted equitably. It was not a right of a litigant against a court, but a discretionary power of the courts.
  5. An appeal against a Court of Appeal decision declining to extend time was not a matter falling under the purview of article 163(4)(a) of the Constitution.The Supreme Court would not be sitting on appeal in the absence of a judgment by the Court of Appeal, in which constitutional issues had been canvassed.
  6. An order of stay would only issue from the Supreme Court to preserve either the subject matter of an appeal or the appeal itself. If interlocutory applications were excluded as a necessary step to preserve the subject-matter of an appeal, the Supreme Court’s capability to arrive at a just decision on the merits of an appeal would be substantially diminished. Both the Constitution and the Supreme Court Act granted the Court the appellate jurisdiction; and within that jurisdiction, the parties were at liberty to seek interlocutory reliefs, in a proper case.
  7. The application before the Supreme Court could not be saved by the principles governing stay of execution. The application was actually premised upon an intended appeal that existed in a vacuum.It was an application that, were it to be allowed, would have the effect of compelling the Court of Appeal to exercise a discretion of which it was itself the lawful repository. Such would perversely affect the vital principle of unconstrained decisional liberty for every Court and every Bench.
  8. It was clear that the grant of stay orders did not benefit from an all-round set of submissions. There was no opportunity, in the circumstances, to consider vital questions relating to the Supreme Court’s jurisdiction as regards the exercise of purely discretionary powers by other Courts. That was a proper basis for vacating the said Orders.

Preliminary objection allowed; ex parte orders issued by Supreme Court vacated; notice of motion dismissed; petitioner to bear the costs of the application.

Cases

East Africa

 1. Anami Silverse Lisamula v Independent Electoral and Boundaries Commision & 2 others Petition No 9 of 2014 – (Explained)

2. Board of Governors, Moi High School, Kabarak & another v Malcolm Bell Applications Nos 12 and 13 of 2012 – (Followed)

3. Erad Suppliers & General Contractors Limited v National Cereals & Produce Board [2012] 2 KLR 454– (Mentioned)

4. Gatirau, Peter Munya v Dickson Mwenda Kithinji & 2 others Petition No 2B of 2014 – (Followed)

 Joho, Hassan Ali & another v Suleiman Said Shahbal & 2 others Petition No 10 of 2013 – (Explained)

 5. Kenya Section of the International Commission of Jurists v Attorney-General & 2 others [2012] 3 KLR 436 - (Mentioned)

6. Kidero, Evans Odhiambo & 5 others v Ferdinand Ndungu Waititu & 4 other Petition No 18 of 2014 (Consolidated with Petition No 20 of 2014 – (Mentioned)

7.  Macharia, Samuel & another v Kenya Commercial Bank Limited & 2 others [2012] 3 KLR 199– (Mentioned)

 8. Malcom Bell v Daniel Torotich Arap Moi & another Application No 1 of 2013 – (Mentioned)

 9. Munene, Mary Wambui v Peter Gichuki King’ara & 2 others Petition No 7 of 2014- (Explained)

10. Munya and Hon Lemanken Aramat v Harun M Lempaka & 2 others Petition No 5 of 2014 – (Explained)

 11. Ndeti, Wavinya v Independent Electoral & Boundaries Commission & 4 others Civil Appeal No 323 of 2013 – (Mentioned)

12.  Nduttu & 6000 v Kenya Breweries Ltd & another [2012] 2 KLR 804– (Mentioned)

13. Ngoge v Francis Ole Kaparo [2012] 2 KLR 419 - (Mentioned)

14. Salat, Nick Kiptoo Arap Korir v Independent Electoral & Boundaries Commission & 7 others Application No 16 of 2014 – (Followed)

Nigeria

1. All Progressive Grand Alliance v Senate Christiana ND Anyanwu & 2 others LER (2014) SC 20/2013 – (Explained)

Ireland

1.  A v Governor of Arbour Hill Prison 2006 (IESC 45) [2006] IEHC 169, [2006 No 694 SS]; [2006] IESC 45 - (Explained)

Statutes

East Africa

1. Constitution articles 25(c);27(1); 48; 50(1); 87(2);105;140; 159; 163(4)(a)(b); 164;259(a)(e)(8) - (Interpreted)

2. Appellate Jurisdiction Act (cap 9) sections 3A, 3B - (Interpreted)

3. Court of Appeal Rules, 2010 (cap9 Sub Leg) rules 4, 26, 47, 82 - (Interpreted)

4. Elections Act, 2011 (Act No 24 of 2011) sections 76(1) (a); 85A - (Interpreted)

Advocates

1. Mr Lubulellah for the 1st and 2nd respondents

2. Mr Nyakundi for the 3rd Respondent

3. Mr Gichuhi for the Petitioner

 

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Grace Jelei Boit V Sammy Some Kosgei [2015] eKLR

Case Number: Civil Appeal 33 of 2014 Date Delivered: 24 Jun 2015

Judge: David Kenani Maraga, Daniel Kiio Musinga, Stephen Gatembu Kairu

Court: Court of Appeal at Eldoret

Parties: Grace Jelei Boit v Sammy Some Kosgei

Citation: Grace Jelei Boit V Sammy Some Kosgei [2015] eKLR

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David Maritim Rotuk & Another V Jepsongok Cheruiyot & Another [2015] eKLR

Case Number: Civil Application 77 of 2015 Date Delivered: 24 Jun 2015

Judge: David Kenani Maraga

Court: Court of Appeal at Eldoret

Parties: David Maritim Rotuk & Petronilla Chepkurgat Kebenei v Jepsongok Cheruiyot & Kirwa Tarus

Citation: David Maritim Rotuk & Another V Jepsongok Cheruiyot & Another [2015] eKLR

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Canon Assurance (Kenya) Limited V Another & Mathew Nthenge [2015] eKLR

Case Number: Civil Case 160 of 2010 Date Delivered: 23 Jun 2015

Judge: Jacqueline Kamau

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

Parties: Canon Assurance (Kenya) Limited v Peter L. Masaku & Mathew Nthenge

Citation: Canon Assurance (Kenya) Limited V Another & Mathew Nthenge [2015] eKLR

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Satbachan Singh Lall V Satpal Singh Jowhal [2015] eKLR

Case Number: Civil Suit 412 of 2014 Date Delivered: 23 Jun 2015

Judge: Fred Andago Ochieng

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

Parties: Satbachan Singh Lall v Satpal Singh Jowhal

Citation: Satbachan Singh Lall V Satpal Singh Jowhal [2015] eKLR

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Kivuwatt Limited & Another V Commissioner Kra & Another [2015] eKLR

Case Number: Civil Case 117 of 2013 Date Delivered: 23 Jun 2015

Judge: Edward Muthoga Muriithi

Court: High Court at Mombasa

Parties: Kivuwatt Limited & Smart Cargo Limited v Commissioner Kra & Customs Service Department

Citation: Kivuwatt Limited & Another V Commissioner Kra & Another [2015] eKLR

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Ahmed Abdalla Mohamed & 3 Others V Salim Islam Bashmakh [2015] eKLR

Case Number: Elc Misc. Civil App. 327 of 2014 Date Delivered: 23 Jun 2015

Judge: Anne Omollo

Court: Environment and Land Court at Mombasa

Parties: Ahmed Abdalla Mohamed, Khalfan Abdalla, Salim Al-Amin &Mbaruk; Abdalla Suleiman (Suing As Trustees Of Mazrui Trust Land v Salim Islam Bashmakh

Citation: Ahmed Abdalla Mohamed & 3 Others V Salim Islam Bashmakh [2015] eKLR

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Republic V Mwangangi Mwendwa [2015] eKLR

Case Number: Criminal Case 68 of 2010 Date Delivered: 23 Jun 2015

Judge: Lilian Nabwire Mutende

Court: High Court at Machakos

Parties: Republic v Mwangangi Mwendwa

Citation: Republic V Mwangangi Mwendwa [2015] eKLR

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NIC Bank Limited V Llyod Masika Limited [2015] eKLR

Case Number: Civil Case 644 of 2009 Date Delivered: 23 Jun 2015

Judge: Francis Gikonyo

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

Parties: NIC Bank Limited v Llyod Masika Limited

Citation: NIC Bank Limited V Llyod Masika Limited [2015] eKLR

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Republic V Wambua Kithuka Muthami & Another [2015] eKLR

Case Number: Criminal Case 56 of 2009 Date Delivered: 23 Jun 2015

Judge: Lilian Nabwire Mutende

Court: High Court at Machakos

Parties: Republic v Wambua Kithuka Muthami & Jacob Matheka Malombe

Citation: Republic V Wambua Kithuka Muthami & Another [2015] eKLR

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SGS Societies Generale De Surveillance SA & Another V Tracer Limited & 2 Others[2015] eKLR

Case Number: Civil Case 54 of 2012 Date Delivered: 23 Jun 2015

Judge: Eric Kennedy Okumu Ogola

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

Parties: SGS Societies Generale De Surveillance SA & SGS Kenya Limited v Tracer Limited, Peter Nanyumba Echessah & Automated Logistics Kenya Limited

Citation: SGS Societies Generale De Surveillance SA & Another V Tracer Limited & 2 Others[2015] eKLR

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Eastleigh Mattress Limited V Stanley Chege Mbuthia & 2 Others [2015] eKLR

Case Number: Civil Case 467 of 2013 Date Delivered: 23 Jun 2015

Judge: Francis Gikonyo

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

Parties: Eastleigh Mattress Limited v Stanley Chege Mbuthia, Joseph Mbugua Mwaura & John Kariuki Mwangi

Citation: Eastleigh Mattress Limited V Stanley Chege Mbuthia & 2 Others [2015] eKLR

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Milka Waithera Thuo V Vision Fund Kenya (Naivasha) & Another [2015] eKLR

Case Number: Civil Appeal 21 of 2015 Date Delivered: 23 Jun 2015

Judge: Christine Wanjiku Meoli

Court: High Court at Naivasha

Parties: Milka Waithera Thuo v Vision Fund Kenya (Naivasha) & Superview Investments

Citation: Milka Waithera Thuo V Vision Fund Kenya (Naivasha) & Another [2015] eKLR

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George Oloo Okello V Republic [2015] eKLR

Case Number: Criminal Revision 53 of 2015 Date Delivered: 23 Jun 2015

Judge: David Shikomera Majanja

Court: High Court at Migori

Parties: George Oloo Okello v Republic

Citation: George Oloo Okello V Republic [2015] eKLR

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Julius Wainaina Kariuki & 3 Others V Michael Kandie Kamonjo Kiburi & 4 Others [2015] eKLR

Case Number: Civil Case 30 of 2015 Date Delivered: 23 Jun 2015

Judge: Janet Nzilani Mulwa

Court: High Court at Nakuru

Parties: Julius Wainaina Kariuki, Zachariah Mwangi Njeru, John Macharia Nganga & Charles Karinga Wambugu (Suing in their capacity as members of Nakuru Golf Club) v Michael Kandie Kamonjo Kiburi, Zack Irieri (Suing in their capacity as Chairman, Secretary and Treasurer respectively of Nakuru Golf Club, Kenya Rural Road Authority & Attorney General

Citation: Julius Wainaina Kariuki & 3 Others V Michael Kandie Kamonjo Kiburi & 4 Others [2015] eKLR

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Kudakwashe Nhiwatiwa V Brenda Elizabeth Sapani Waka [2015] eKLR

Case Number: Civil Case 269 of 2014 Date Delivered: 23 Jun 2015

Judge: Jacqueline Kamau

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

Parties: Kudakwashe Nhiwatiwa v Brenda Elizabeth Sapani Waka

Citation: Kudakwashe Nhiwatiwa V Brenda Elizabeth Sapani Waka [2015] eKLR

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Kenya Forest Service V Rutongo’t Farm Ltd [2015] eKLR

Case Number: Civil Application 273 of 2014 Date Delivered: 23 Jun 2015

Judge: David Kenani Maraga

Court: Court of Appeal at Eldoret

Parties: Kenya Forest Service v Rutongo’t Farm Ltd

Citation: Kenya Forest Service V Rutongo’t Farm Ltd [2015] eKLR

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Republic V Richard Munyi Ndwiga & Another [2015] eKLR

Case Number: Criminal Case 15 of 2015 (Murder) Date Delivered: 23 Jun 2015

Judge: Florence Nyaguthii Muchemi

Court: High Court at Embu

Parties: Republic v Richard Munyi Ndwiga & Bedan Mwaniki

Citation: Republic V Richard Munyi Ndwiga & Another [2015] eKLR

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Benjamin Barasa Wafula V Moses Chetame Sikanga & 22 Others [2015] eKLR

Case Number: Civil Application 275 of 2014(UR 206/2014) Date Delivered: 23 Jun 2015

Judge: David Kenani Maraga

Court: Court of Appeal at Eldoret

Parties: Benjamin Barasa Wafula v Moses Chetame Sikanga & 22 others

Citation: Benjamin Barasa Wafula V Moses Chetame Sikanga & 22 Others [2015] eKLR

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Julius Musiva Obuga V Kenya Broadcasting Corporation [2015] eKLR

Case Number: Civil Application 43 of 2015 Date Delivered: 23 Jun 2015

Judge: Daniel Kiio Musinga

Court: Court of Appeal at Eldoret

Parties: Julius Musiva Obuga v Kenya Broadcasting Corporation

Citation: Julius Musiva Obuga V Kenya Broadcasting Corporation [2015] eKLR

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Patrick Saidi Musyoka V Republic [2015] eKLR

Case Number: Criminal Appeal 146 of 2015 Date Delivered: 22 Jun 2015

Judge: Grace Wangui Ngenye

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Patrick Saidi Musyoka v Republic

Citation: Patrick Saidi Musyoka V Republic [2015] eKLR

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Republic V Margaret Ndunge Mutua [2015] eKLR

Case Number: Criminal Case 80 of 2012 Date Delivered: 22 Jun 2015

Judge: Stella Ngali Mutuku

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Republic v Margaret Ndunge Mutua

Citation: Republic V Margaret Ndunge Mutua [2015] eKLR

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Jaguar Petroleum Company Limited V Brighton Foods Limited & Another [2015] eKLR

Case Number: Environment & Land Case 240 of 2014 Date Delivered: 22 Jun 2015

Judge: Anne Omollo

Court: Environment and Land Court at Mombasa

Parties: Jaguar Petroleum Company Limited v Brighton Foods Limited & Fusion Foods Limited

Citation: Jaguar Petroleum Company Limited V Brighton Foods Limited & Another [2015] eKLR

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Vimalvelji Shah V Chemaafrica Ltd [2015] eKLR

Case Number: Civil Suit 509 of 2013 Date Delivered: 22 Jun 2015

Judge: Francis Gikonyo

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Vimalvelji Shah v Chemaafrica Ltd

Citation: Vimalvelji Shah V Chemaafrica Ltd [2015] eKLR

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Samuel Kisang Cheboi & 2 Others V Elisha Kipleting Murei & 4 Others [2015] eKLR

Case Number: Land Case 110 of 2013 Date Delivered: 22 Jun 2015

Judge: Elija Ogoti Obaga

Court: Environment and Land Court at Kitale

Parties: Samuel Kisang Cheboi & 2 others v Elisha Kipleting Murei & 4 others

Citation: Samuel Kisang Cheboi & 2 Others V Elisha Kipleting Murei & 4 Others [2015] eKLR

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Republic V T M N [2015] eKLR

Case Number: Criminal Case 34 of 2013 Date Delivered: 22 Jun 2015

Judge: Stella Ngali Mutuku

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Republic v T M N

Citation: Republic V T M N [2015] eKLR

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Lagoon Development Limited V Beijing Industrial Designing & Research Institute [2015] eKLR

Case Number: Civil Suit 486 of 2014 Date Delivered: 22 Jun 2015

Judge: Francis Gikonyo

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Lagoon Development Limited v Beijing Industrial Designing & Research Institute

Citation: Lagoon Development Limited V Beijing Industrial Designing & Research Institute [2015] eKLR

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Loise Njeri & 9 Others V Joseph Maina [2015] eKLR

Case Number: Environment and Land Case 423 of 2014 Date Delivered: 22 Jun 2015

Judge: Lucy Waithaka

Court: High Court at Nyeri

Parties: Loise Njeri & 9 others v Joseph Maina

Citation: Loise Njeri & 9 Others V Joseph Maina [2015] eKLR

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Bashir Muse Mohamed & Another V Owners Of Motor Vessel “Ghadeer 1” & Another [2015] eKLR

Case Number: Admirality Claim 12 of 2011 Date Delivered: 22 Jun 2015

Judge: Mary Muhanji Kasango

Court: High Court at Mombasa

Parties: Bashir Muse Mohamed & Sahil Developers Company Limited v Owners of Motor Vessel “Ghadeer 1” & P.Mugo T/A Mugo Scrap Merchants

Citation: Bashir Muse Mohamed & Another V Owners Of Motor Vessel “Ghadeer 1” & Another [2015] eKLR

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William Charles Fryda V John Cardinal Njue & Another [2015] eKLR

Case Number: Civil Case 423 of 2012 Date Delivered: 22 Jun 2015

Judge: David A Onyancha

Court: High Court at Nairobi (Milimani Law Courts)

Parties: William Charles Fryda v John Cardinal Njue & Marie Therese Gacambi

Citation: William Charles Fryda V John Cardinal Njue & Another [2015] eKLR

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Rosemary B. Koinange(Suing As Legal Representative Of The Late Dr. Wilfred Koingange And Also In HerOwn Personal Capacity) & 5 Others V Isabella Wanjiku Karanja & 3 Others [2015] eKLR

Case Number: Succession Cause 998 of 2006 Date Delivered: 22 Jun 2015

Judge: Luka Kiprotich Kimaru

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Rosemary B. Koinange(Suing As Legal Representative Of The Late Dr. Wilfred Koingange And Also In HerOwn Personal Capacity) & 5 others v Isabella Wanjiku Karanja & 3 others

Citation: Rosemary B. Koinange(Suing As Legal Representative Of The Late Dr. Wilfred Koingange And Also In HerOwn Personal Capacity) & 5 Others V Isabella Wanjiku Karanja & 3 Others [2015] eKLR

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Mourice Ochieng Ogundo & 2 Others V Leonida Achila Odundo & Another [2015] eKLR

Case Number: Succession Cause 300 of 2014 (Formerly Migori Pm’s Court Succession Cause No. 63 Of 2009) Date Delivered: 22 Jun 2015

Judge: David Shikomera Majanja

Court: High Court at Migori

Parties: Mourice Ochieng Ogundo, Everlyn Auma Obote & Victor Ouma v Leonida Achila Odundo & Benedeta Akelo Nyawana

Citation: Mourice Ochieng Ogundo & 2 Others V Leonida Achila Odundo & Another [2015] eKLR

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Protein & Fruits Processors Limited & Another V Diamond Trust Bank Kenya Limited [2015] eKLR

Case Number: Civil Appeal 9 of 2007 Date Delivered: 22 Jun 2015

Judge: David A Onyancha

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Protein & Fruits Processors Limited & Patrick Kirono Mwaura v Diamond Trust Bank Kenya Limited

Citation: Protein & Fruits Processors Limited & Another V Diamond Trust Bank Kenya Limited [2015] eKLR

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Martin Ngomat V Dinah Jepkemboi Bartilol [2015] eKLR

Case Number: Land Case 37 of 2015 Date Delivered: 22 Jun 2015

Judge: Elija Ogoti Obaga

Court: Environment and Land Court at Kitale

Parties: Martin Ngomat v Dinah Jepkemboi Bartilol

Citation: Martin Ngomat V Dinah Jepkemboi Bartilol [2015] eKLR

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Republic V Boniface Kabucho Kuria [2015] eKLR

Case Number: Criminal Case 27 of 2015 Date Delivered: 22 Jun 2015

Judge: Stella Ngali Mutuku

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Republic v Boniface Kabucho Kuria

Citation: Republic V Boniface Kabucho Kuria [2015] eKLR

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E M K V S S S [2015] eKLR

Case Number: Originating Summons 3 of 2015 Date Delivered: 22 Jun 2015

Judge: Edward Muthoga Muriithi

Court: High Court at Mombasa

Parties: E M K v S S S

Citation: E M K V S S S [2015] eKLR

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Haki Na Sheria Initiative V Inspector General Of Police & 2 Others [2015] eKLR

Case Number: Petition 6 of 2015 Date Delivered: 22 Jun 2015

Judge: George Matatia Abaleka Dulu

Court: High Court at Garissa

Parties: Haki na Sheria Initiative v Inspector General of Police, Minister for Internal Security & Attorney General

Citation: Haki Na Sheria Initiative V Inspector General Of Police & 2 Others [2015] eKLR

An Applicant in a Constitutional Petition has Locus Standi to Approach the Constitutional Court where the Petition affects the Public

Haki na Sheria Initiative v Inspector General of Police & 2 others [2015] eKLR

In the High Court of Kenya at Garissa

Petition 6 Of 2015

G. Ndulu J

July 22, 2015

Reported by Andrew Halonyere &John Ribia

Brief facts:

Following the attack on Garissa University by terrorists, attacks that led to the loss of over 148 Kenyans, the Inspector General of Police declared a curfew in the Garissa, Wajir, Mandera, and Tana River Counties between the hours 6.30 PM and 6.30 AM. The curfew was originally set for a period of 13 days and later extended for a further 61 days.

The petitioner approached the Court via a Constitutional Petition seeking orders that declared the curfew unconstitutional as it affected the enjoyment of fundamental rights under the constitution and sought conservatory orders to restrict the respondents from effecting the curfew pending the determination of the suit.

The respondent objected on grounds that the application was premature and frivolous, as the curfew had expired. They also objected to the application on the grounds that the petitioner had no locus standi.

Issues:

  1. Whether a Constitutional Petition against a curfew that was about to expire or a Constitutional Petition against a curfew that could be extended was premature and frivolous.
  2. Whether an applicant in a Constitutional petition had locus standi to approach the Constitutional Court where the petition affected the public.
  3. Whether the Curfew was unlawful as it extended beyond the limit of 7 days as stipulated in Section 8 of the Public Order Act.

Constitutional Law – locus standi – locus standi to approach Constitutional Court – whether the applicant in a Constitutional petition has locus standi to approach the Constitutional Court where the petition affects the public – Constitution of Kenya, 2010, article 22(1), (2)(b) and (c)

Administrative Law-Public interestadministrative action – curfew - whether the Curfew was unlawful as it extended beyond the statutory limit of 7 days – Public Order Act, (cap) 56 , section 8.

Constitution of Kenya, 2010

Article 22 (1)

  1. Every person has the right to institute court proceedings claiming that a right or fundamental freedom in the Bill of Rights has been denied, violated or infringed, or is threatened.

Article 22 (2)(b) and (c)

  1. In addition to a person acting in their own interest, court proceedings under clause (1) may be instituted by;

(b) a person acting as a member of, or in the interest of, a group or class of persons;

(c) a person acting in the public interest.

Public Order Act, Cap 56 , section 8.

  1. The Cabinet Secretary, on the advice of the Inspector-General of the National Police Service may, if he considers it necessary in the interests of public order so to do, by order (hereinafter referred to as a curfew order) direct that, within such area and during such hours as may be specified in the curfew order, every person, or, as the case may be, every member of any class of persons specified in the curfew order, shall, except under and in accordance with the terms and conditions of a written permit granted by an authority or person specified in the curfew order, remain indoors in the premises at which he normally resides, or at such other premises as may be authorised by or under the curfew order.
  2. (a)    It shall be a condition of every permit granted under subsection (1) of this section that the holder thereof shall at all times while acting under the authority thereof during the hours of darkness carry a light visible at a distance of twenty-five feet.

  (b)    Subject to paragraph (a) of this subsection, a permit under subsection (1) of this section may be granted subject to such conditions, to be specified in the permit, as the authority or person granting it may think fit.

  1. A curfew order shall be published in such manner as the authority making it may think sufficient to bring it to the notice of all persons affected thereby, and shall come into force on such day, being the day of or a day after the making thereof, as may be specified therein, and shall remain in force for the period specified therein or until earlier rescinded by the same authority or by the Minister as hereinafter provided:

Provided that no curfew order which imposes a curfew operating during more than ten consecutive hours of daylight shall remain in force for more than three days, and no curfew order which imposes a curfew operating during any lesser number of consecutive hours of daylight shall remain in force for more than seven days.

  1. Deleted by Act No. 19 of 2014, s. 4(b)
  2. The variation or rescission of a curfew order shall be published in like manner as that provided in subsection (3) of this section for the publication of a curfew order.
  3. Any person who contravenes any of the provisions of a curfew order or any of the terms or conditions of a permit granted to him under subsection (1) of this section shall be guilty of an offence and liable to a fine not exceeding ten thousand shillings or to imprisonment for a term not exceeding three months, or to both such fine and such imprisonment.
  4. A certificate under the hand of the authority making, varying or rescinding a curfew order, specifying the terms, and the date and manner of publication, of such order, variation or rescission, shall be prima facie evidence thereof in all legal proceedings.
  5. Any person who, without lawful excuse, carries or has in his possession, in any area in which a curfew order is in force and during the hours during which the curfew imposed thereby is operative, any offensive weapon shall be guilty of an offence:

Provided that no person shall be convicted of an offence under this section if he proves to the satisfaction of the Court that he carried or had in his possession the offensive weapon—

  1. solely for domestic or defensive purposes within enclosed premises which he lawfully occupied or in which he was lawfully present; or
  2. with the authority of his employer and solely for domestic or defensive purposes within enclosed premises in the lawful occupation of his employer. [Act No. 53 of 1960, s. 6, L.N. 402/1963, L.N. 153/1965, Act No. 19 of 2014, s. 4.]

Held:

  1. The fact that the curfew was about to expire, and that if the curfew was to continue it would have to be extended, did not make the petition premature. The mischief had already been in operation and that mischief required to be addressed by the Court when the applicant approached the court. The application was not premature or frivolous.
  2. The petitioner had locus standi to approach the Court. There was no requirement that the petitioner in a Constitutional petition was to be given permission by members of the public before the petitioner approached the Court; even if the orders sought would have affected the public, or be directly affected by the violation challenged. The Constitution of Kenya, 2010 widened the latitude of applicants who pursued claims for violation of Constitutional rights.  All those who fell within the parameters of article 22 of the Constitution had locus standi to approach the Court.
  3. However, the issue of whether or not the curfew was unconstitutional because it affected the enjoyment of fundamental rights under the Constitution was a matter that could not be determined by the Court at the preliminary stage.
  4. The 1st and 2nd respondents had powers to impose a curfew under Section 8 of the Public Order Act. The said section limited the period of the curfew to a maximum of seven days only when the curfew covered hours of daylight. The curfew did not cover the hours of daylight. The Court, at the preliminary stage, was not persuaded that the curfew could not last for a maximum of seven days.
  5. The petitioner established that he had a locus standi and a prima facie case at the preliminary stage.  However, though the petitioner had locus standi and a prima facie case, it failed to show the Court that it would suffer damage to its Constitutional rights should the conservatory orders sought not be granted.

Application dismissed, costs of the application would be determined in the main petition.

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