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Hezekiel Oira V Kenya Broadcasting Corporation & Another [2014] eKLR

Case Number: Cause 299 of 2011 Date Delivered: 19 Feb 2014

Judge: Linnet Ndolo

Court: Employment and Labour Relations Court at Nairobi

Parties: Hezekiel Oira v Kenya Broadcasting Corporation & Board of Directors Kenya Broadcasting Corporation

Citation: Hezekiel Oira V Kenya Broadcasting Corporation & Another [2014] eKLR

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Muiruri Njoroge V Wanjiku Kiguru [2014] eKLR

Case Number: Civil Suit 3269 of 1990 Date Delivered: 19 Feb 2014

Judge: David A Onyancha

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Muiruri Njoroge v Wanjiku Kiguru

Citation: Muiruri Njoroge V Wanjiku Kiguru [2014] eKLR

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Joseph Gitari Wamburi V General Motor Limited [2014] eKLR

Case Number: Civil Appeal 161 of 2010 Date Delivered: 19 Feb 2014

Judge: David A Onyancha

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Joseph Gitari Wamburi v General Motor Limited

Citation: Joseph Gitari Wamburi V General Motor Limited [2014] eKLR

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Moraa Masare & 4 Others V Geoffrey Matoke [2014] eKLR

Case Number: Environment & Land Civil Appeal 44 of 2010 Date Delivered: 19 Feb 2014

Judge: Samson Odhiambo Okong'o

Court: High Court at Kisii

Parties: Moraa Masare,Jemima Masare, Bwari Masare, Evans Samwel Mochache Masare & Peter Mokebo Miencha v Geoffrey Matoke

Citation: Moraa Masare & 4 Others V Geoffrey Matoke [2014] eKLR

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Richard Buddy Okemwa & Another V Kenya Power & Lighting Co. Ltd [2014] eKLR

Case Number: E L C Case 125 of 2010 Date Delivered: 19 Feb 2014

Judge: Samson Odhiambo Okong'o

Court: High Court at Kisii

Parties: Richard Buddy Okemwa & another v Kenya Power & Lighting Co. Ltd

Citation: Richard Buddy Okemwa & Another V Kenya Power & Lighting Co. Ltd [2014] eKLR

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Eddison Henrie Barry T/A Business & Allied Equipment V Oliver Ndichu Kimani [2014] eKLR

Case Number: Civil Appeal 60 of 2013 Date Delivered: 19 Feb 2014

Judge: David A Onyancha

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Eddison Henrie Barry T/A Business & Allied Equipment v Oliver Ndichu Kimani

Citation: Eddison Henrie Barry T/A Business & Allied Equipment V Oliver Ndichu Kimani [2014] eKLR

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International Legal Consultancy Group V Senate & Another [2014] eKLR

Case Number: Constitutional Petition 74 of 2014 Date Delivered: 19 Feb 2014

Judge: Mumbi Ngugi

Court: High Court at Nairobi (Milimani Law Courts)

Parties: International Legal Consultancy Group v Senate & Clerk of the Senate

Citation: International Legal Consultancy Group V Senate & Another [2014] eKLR

Court Restrains Senate from Summoning Governors and County Executive Members

International Legal Consultancy Group v Senate & Another

Constitutional Petition No 74 of 2014

High Court at Nairobi

Mumbi Ngugi, J

February 19, 2014

Reported by Phoebe Ida Ayaya

Brief facts:

The Senate and its Standing Committee on Finance, Commerce and Economic Affairs, through the clerk to the Senate, issued witness summons to governors named in the application and County Executive Committee members for finance to appear before it on diverse dates to answer questions on county financial management. The petitioner filed the petition challenging that decision.

Issue:

  1. Whether the senate could summon governors and county executive committee members responsible for finance to answer questions regarding county government finances.

Devolution – senatorial powers – where the senate purported to summon governors and members of the county executive committees in charge of finance to appear before it – whether the senate had power to summon a governor or county executive committee member – Constitution of Kenya, 2010 article 226(2).

Constitution of Kenya, 2010

Article 165(3)(d) “Jurisdiction to hear any question respecting the interpretation of this Constitution including the determination of:-”

  1. “The question whether any law is inconsistent with or in contravention of this Constitution;”
  2. “The question whether anything said to be done under the authority of this Constitution or of any law is inconsistent with, or in contravention of, this Constitution;”
  3. “Any matter relating to constitutional powers of State organs in respect of county governments and any matter relating to the constitutional relationship between the levels of government;”

Article 226(2) “The accounting officer of a national public entity is accountable to the National Assembly for its financial management, and the accounting officer of a county public entity is accountable to the county assembly for its financial management.”

 

Held:

  1. As the senate has not deemed it necessary to appear before the court to deal with the contentions made by the petitioner despite being served, the court had no benefit of its response and consequently the court had no material before it on the basis of which it could determine under what powers the senate exercised the mandate to summon the governors and demand production of the documents that it sought produced.
  2. The court appreciated that the senate had an important role to play in the implementation of the Constitution, particularly with regard to devolved government. However, just like all other state organs, it was bound by the Constitution, and it could not arrogate to itself powers that it had not been given under the Constitution.
  3. On the material before the court, and taking into account the provisions of article 226(2), the senate could have had overstepped its mandate in purporting to summon the governors and the County Finance Committees. While it did have power under article 125 to summon anyone, that power could not have been intended to be exercised arbitrarily and in isolation. Put differently, the provisions of article 125 could not be read in isolation, but had to be read in conjunction with other provisions of the Constitution that allocated functions and powers to the various organs created by the Constitution.
  4. The court was alive to the doctrine of separation of powers but as the final arbiter under the Constitution, it was obliged to adjudicate any dispute between various arms of state and determine the contours of separation having regard to the constitutional functions of each organ. The orders then prayed for were merited.
  5. (Obiter per Mumbi Ngugi, J) “The court takes judicial notice of, and observes with regret, the recalcitrance of the legislative arm of government with regard to the exercise of judicial authority by the courts. While both the clerk to the senate and the senate as an institution were served with the application now before the court, they have not deemed it necessary to appear before the Court.”

“This court will continue to exercise the judicial authority vested in it by the people of Kenya. In this regard, it deems the issues raised by this petition, which fall within the jurisdiction of the Court under article 165(3)(d), as raising a critical and substantial question of law with regard to the powers of the senate vis a vis governors and oversight over county finances to merit hearing and determination by an uneven number of judges as provided under article 165(4) of the Constitution”

“This matter is hereby referred to the Chief Justice in accordance with the provisions of article 165(4) of the Constitution to constitute a bench of an uneven number of judges to hear and determine”

Pending the hearing and determination of the petition, a temporary injunction issued restraining the respondents from summoning the Governors and County Executive Committee members responsible for finance from appearing before it to answer questions on county government finances, and an order suspending the summons issued by the respondents to the Governors and County Executive Committees Members issued.

 


Cases

East Africa

  1. Re Matter of the Interim Independent Electoral Commission Constitutional Application No 2 of 2011 – (Followed)
  2. Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others  Civil Appeal No 290 of 2012 – (Followed)

Statutes

East Africa

  1. Constitution of Kenya, 2010 articles 1(3); 2; 2(2); 3; 6; 10; 125; 159; 165(3)(d)(i)(ii)(iii); 165(4); 226(2) – (Interpreted)
  2. National Assembly (Powers and Privileges) Act (cap 6) section 7 – (Interpreted)

 

 

 

 

 

 

 

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Republic V Danson Mgunya [2014] eKLR

Case Number: Criminal Case 26 of 2008 Date Delivered: 19 Feb 2014

Judge: Maureen Akinyi Odero

Court: High Court at Mombasa

Parties: Republic v Danson Mgunya

Citation: Republic V Danson Mgunya [2014] eKLR

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Mulu Mbuvi V John Syanda [2014] eKLR

Case Number: Civil Case No 2 Of 2012 Date Delivered: 19 Feb 2014

Judge: Stella Ngali Mutuku

Court: High Court at Garissa

Parties: Mulu Mbuvi v John Syanda

Citation: Mulu Mbuvi V John Syanda [2014] eKLR

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Samuel Gikunda V Joyce Ncee John & 7 Others [2014] eKLR

Case Number: Civil Case 82 (Os) of 2011 Date Delivered: 19 Feb 2014

Judge: Peter Muchoki Njoroge

Court: High Court at Meru

Parties: Samuel Gikunda v Joyce Ncee John, Beatrice Miriam Ismail (Sued as dministratrix of the estate of Munyua Miguari – Deceased), Abdul Mwirigi Munyua, Peter Meme, Jackline Nkatha John, Florence Kanja Mwiti, Samuel Miriti & Sabina Kangai

Citation: Samuel Gikunda V Joyce Ncee John & 7 Others [2014] eKLR

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Francis Muriuki Gikigi & 2 Others V Richard Muriithi Tiri & Another [2014] eKLR

Case Number: Elc Case 708 of 2013 (Originating Summons) Date Delivered: 19 Feb 2014

Judge: Boaz Nathan Olao

Court: High Court at Kerugoya

Parties: Francis Muriuki Gikigi, David Mugo Gikigi & Misheck Muriuki Muthike v Richard Muriithi Tiri & Timothy Muriithi Tiri

Citation: Francis Muriuki Gikigi & 2 Others V Richard Muriithi Tiri & Another [2014] eKLR

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Philip Kibirech Ng'etich V Peter Owich Mangula & Others [2014] eKLR

Case Number: E&L 553 of 2012 Date Delivered: 18 Feb 2014

Judge: Munyao Sila

Court: High Court at Eldoret

Parties: Philip Kibirech Ng'etich v Peter Owich Mangula & Others

Citation: Philip Kibirech Ng'etich V Peter Owich Mangula & Others [2014] eKLR

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Susan Nyanchama Ombati V Standard Chartered Bank Ltd [2014]eKLR

Case Number: Miscellaneous Application 9 of 2014 Date Delivered: 18 Feb 2014

Judge: James Rika

Court: Employment and Labour Relations Court at Nairobi

Parties: Susan Nyanchama Ombati v Standard Chartered Bank Ltd

Citation: Susan Nyanchama Ombati V Standard Chartered Bank Ltd [2014] eKLR

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Republic V John Kararu Wangui [2014] eKLR

Case Number: Criminal Case 73 of 2011 Date Delivered: 18 Feb 2014

Judge: Roseline Lagat-Korir

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Republic v John Kararu Wangui

Citation: Republic V John Kararu Wangui [2014] eKLR

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Civicon Limited V Kenya Revenue Authority The Commisioner Of Customs & Another [2014] eKLR

Case Number: Constitutional Petition 4 of 2014 Date Delivered: 18 Feb 2014

Judge: Mary Muhanji Kasango

Court: High Court at Mombasa

Parties: Civicon Limited v Kenya Revenue Authority the Commisioner of Customs & Kivuwatt Limited

Citation: Civicon Limited V Kenya Revenue Authority The Commisioner Of Customs & Another [2014] eKLR

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In Re Matter Of Mwithiga Kimani [2014]eKLR

Case Number: Petition Elc 75 of 2014 Date Delivered: 18 Feb 2014

Judge: David Shikomera Majanja

Court: High Court at Nairobi (Milimani Law Courts)

Parties: In Re Matter of Mwithiga Kimani

Citation: In Re Matter Of Mwithiga Kimani [2014] eKLR

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Republic V Attorney General Exparte Samuel Ndungu Wainaina [2014] eKLR

Case Number: Misc. Civil Appl. 366 of 2013 Date Delivered: 18 Feb 2014

Judge: David Shikomera Majanja

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Republic v Attorney General Exparte Samuel Ndungu Wainaina

Citation: Republic V Attorney General Exparte Samuel Ndungu Wainaina [2014] eKLR

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Ratemo Oira & Company Advocates V Kenya Steel Fabricators Limited [2014] eKLR

Case Number: Misc.Civil Application 78 of 2008 Date Delivered: 18 Feb 2014

Judge: Francis Tuiyott

Court: High Court at Busia

Parties: Ratemo Oira & Company Advocates v Kenya Steel Fabricators Limited

Citation: Ratemo Oira & Company Advocates V Kenya Steel Fabricators Limited [2014] eKLR

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Kagai Mwangi V Ephantus Ngari Mwangi [2014] eKLR

Case Number: ELC Case 174 of 2013 Date Delivered: 18 Feb 2014

Judge: Boaz Nathan Olao

Court: High Court at Kerugoya

Parties: Kagai Mwangi v Ephantus Ngari Mwangi

Citation: Kagai Mwangi V Ephantus Ngari Mwangi [2014] eKLR

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Unga Limited V Magina Limited [2014] eKLR

Case Number: Civil Suit 1250 of 1999 Date Delivered: 18 Feb 2014

Judge: George Kanyi Kimondo

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Unga Limited v Magina Limited

Citation: Unga Limited V Magina Limited [2014] eKLR

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C N G V L N N [2014] eKLR

Case Number: Misc Civil Application No. 337 of 2013 Date Delivered: 18 Feb 2014

Judge: Mathew John Anyara Emukule

Court: High Court at Nakuru

Parties: C N G v L N N

Citation: C N G V L N N [2014] eKLR

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Republic V Erick Onyango Okoth [2014] eKLR

Case Number: Criminal Case 6 of 2010 Date Delivered: 18 Feb 2014

Judge: Grace Wangui Ngenye

Court: High Court at Eldoret

Parties: Republic v Erick Onyango Okoth

Citation: Republic V Erick Onyango Okoth [2014] eKLR

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Mukuti Mwinzi Musyoki V Republic [2014] eKLR

Case Number: Criminal Appeal 56 of 2007 Date Delivered: 18 Feb 2014

Judge: Beatrice Thuranira Jaden

Court: High Court at Machakos

Parties: Mukuti Mwinzi Musyoki v Republic

Citation: Mukuti Mwinzi Musyoki V Republic [2014] eKLR

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Registrar Of Co-Operatives Societies V Mukuuni Secondary School [2014] eKLR

Case Number: Civil Case 859 of 2001 Date Delivered: 18 Feb 2014

Judge: David A Onyancha

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Registrar of Co-Operatives Societies v Mukuuni Secondary School

Citation: Registrar Of Co-Operatives Societies V Mukuuni Secondary School [2014] eKLR

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Cosmas Mwanzia Mutinda V Republic [2014] eKLR

Case Number: Criminal Appeal 22 of 2012 Date Delivered: 18 Feb 2014

Judge: Beatrice Thuranira Jaden

Court: High Court at Machakos

Parties: Cosmas Mwanzia Mutinda v Republic

Citation: Cosmas Mwanzia Mutinda V Republic [2014] eKLR

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Kudheiha Workers V Gerald Mwangi [2014]eKLR

Case Number: Cause 1254 of 2010 Date Delivered: 18 Feb 2014

Judge: Linnet Ndolo

Court: Employment and Labour Relations Court at Nairobi

Parties: Kudheiha Workers v Gerald Mwangi

Citation: Kudheiha Workers V Gerald Mwangi [2014] eKLR

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Joseph Okoth Opiyo V Teachers Service Commission [2014] eKLR

Case Number: Cause 3/2012 Date Delivered: 18 Feb 2014

Judge: Hellen Wasilwa Seruya

Court: Employment and Labour Relations Court at Kisumu

Parties: Joseph Okoth Opiyo v Teachers Service Commission

Citation: Joseph Okoth Opiyo V Teachers Service Commission [2014] eKLR

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Zipporah Nkoyai Henry V James Kaberia M'itwamwari & 6 Others [2014] eKLR

Case Number: Petition 2 of 2012 Date Delivered: 18 Feb 2014

Judge: Peter Muchoki Njoroge

Court: High Court at Meru

Parties: Zipporah Nkoyai Henry v James Kaberia M'itwamwari & 6 others

Citation: Zipporah Nkoyai Henry V James Kaberia M'itwamwari & 6 Others [2014] eKLR

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Justus Mugaa M'impwi V Francis Kamuta M'thiruaine [2014]eKLR

Case Number: E & L Case 236 of 2012 Date Delivered: 18 Feb 2014

Judge: Peter Muchoki Njoroge

Court: High Court at Meru

Parties: Justus Mugaa M'impwi v Francis Kamuta M'thiruaine

Citation: Justus Mugaa M'impwi V Francis Kamuta M'thiruaine [2014] eKLR

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Micro & Small Enterprises Association Of Kenya Mombasa Branch (Acting In The Interest Of Its Members To The Exclusion Of Those Who May Have Sought Reliefs In Their Own Right) V Mombasa County Government & 43 Others [2014] eKLR

Case Number: Constitution Petition 3 of 2014 Date Delivered: 18 Feb 2014

Judge: Edward Muthoga Muriithi

Court: High Court at Mombasa

Parties: Micro & Small Enterprises Association of Kenya Mombasa Branch (Acting in the interest of its Members to the exclusion of those who may have sought reliefs in their own right) v Mombasa County Government, Attorney General, Inspector General of Police, Sarah Fashions & 40 others

Citation: Micro & Small Enterprises Association Of Kenya Mombasa Branch (Acting In The Interest Of Its Members To The Exclusion Of Those Who May Have Sought Reliefs In Their Own Right) V Mombasa County Government & 43 Others [2014] eKLR

Socioeconomic rights: protection offered to the opportunity to earn a living through hawking.

 

Micro and Small Enterprises Association of Kenya, Mombasa Branch v Mombasa County Government & 43 others

Petition No 3 of 2014

High Court of Kenya at Mombasa

Edward M Muriithi, J

February 18, 2014

Reported by Beryl A Ikamari

Brief facts

In exercise of powers provided in article 186 and the Fourth Schedule of the Constitution of Kenya 2010, the Mombasa County Government removed hawkers and prevented them from operating their businesses at certain places in Mombasa. The powers exercised included trade development and regulation. The affected hawkers constituted part of the membership of the Micro and Small Enterprises Association, Mombasa branch, which was the association which sought reliefs from the court.

The petitioner, Micro and Small Enterprises Association, Mombasa branch, explained that there had been previous arrangements, with the Municipal Council of Mombasa, which was the predecessor to the Mombasa County Government. The Municipal Council of Mombasa allowed hawkers to carry on business while paying hawking levy. The payment arrangement was stopped in March 2013 and there were negotiations with the new county government for permissions that would allow the hawkers to trade at designated places on certain terms.

The petition was for the enforcement of fundamental rights and freedoms and was based on the contention that there was no notice issued to the traders before their removal and that there was a violation of their right to life in that they had lost the means to earn a living for purposes which included buying food.

Issues

  1. The nature of protection provided to the opportunity to earn of living, through hawking, under article 43 of the Constitution of Kenya 2010.
  2. Whether, pursuant to the right to fair administrative action, the demolition of street hawkers' hawking tables would require consultations with the hawkers and the giving of adequate notice.
  3. Whether section 16 of the Government Proceedings Act (Cap 40), could prevent the grant of an injunction as a remedy against the violation of fundamental rights and freedoms by the state or the state's organs.

 

Constitutional Law-fundamental rights and freedoms-enforcement of fundamental rights and freedoms-socioeconomic rights-right to freedom from hunger and right to social security-protection offered to the opportunity to earn a living through hawking- Constitution of Kenya 2010; article 43.

Constitutional Law-fundamental rights and freedoms-enforcement of fundamental rights and freedoms-right to fair administrative action-notice and consultations-fair administration action guarantees relating to demolition of hawking tables for street hawkers-Constitution of Kenya 2010; article 47.

Constitutional Law-fundamental rights and freedoms-enforcement of fundamental rights and freedoms-availability of injunctions against the government as a remedy for a violation of fundamental rights and freedoms-whether the Government Proceedings Act provision preventing the grant of injunctions against the government could make an injunction unavailable in a fundamental rights and freedoms enforcement suit- Constitution of Kenya 2010; article 23(3) and Government Proceedings Act (Cap 40); section 16.

 

Held

  1. In spite of the provisions of section 16 of the Government Proceedings Act (Cap 40), an injunction would be available as a remedy for the violation of fundamental rights and freedoms by the state or the state's organs.
  2. While the petitioners claimed that there had been a violation of the right to life on the basis of the metaphysical causation of death by lack of food, occasioned by a denial to carry on business and earn a living, their grievance entailed an infringement of the socioeconomic right to social security recognized in article 43 of the Constitution of Kenya, 2010.
  3. The socioeconomic rights recognized in article 43 of the Constitution of Kenya 2010 would entitle the petitioners to have their opportunity to earn a living through hawking protected, as a means of protecting them from hunger.
  4. The petitioners’ socioeconomic rights would not arise from the payment of a licence fee. The payment of licence fees did not create those rights but it was a means of raising revenue for government expenditure. Therefore, the failure to pay licence fees did not take away social security rights, and other socioeconomic rights, protected in article 43 of the Constitution of Kenya 2010.
  5. The right to fair administrative action as protected in article 47 of the Constitution of Kenya 2010 would require consultation and the grant of adequate notice to hawkers, when a County Government made the decision to demolish hawking tables.
  6. The rules for the grant of injunctions in civil cases were well-established (Giella v Casman Brown [1973] EA 583). In the context of a constitutional application, great premium would be placed on the need to protect fundamental rights and freedoms. It would therefore be important to preserve the enjoyment of such rights pending the hearing and determination of a suit.
  7. In the circumstances, it was necessary to balance the rights of the petitioners to earn a living by hawking and the public interest in security from terrorism, safety in case of fires, the general convenience of vulnerable groups and the development of tourism as a single important revenue earner for the County and the country. The public interest in the free flow of people and traffic along roads and streets was therefore important. However, both interests could be met by allocating appropriate designated areas to hawkers for purposes of hawking.

Conservatory orders granted. (The respondents were ordered to permit hawking outside of the Mombasa Central Business District (CBD), at designated times and places, subject to the daily or weekly payment of levies, and on condition that no structures were erected on the street. Such permission would take into account the interests of other stakeholders, security concerns, cleanliness and decongestion of the streets.)

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Cabinet Secetary,Ministry Of Mining & Another V National Environment Management Authority & 3 Others Ex-Parte Cortex Mining Kenya Limited

Case Number: Miscellaneous Application 298 of 2013 Date Delivered: 18 Feb 2014

Judge: George Vincent Odunga

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Cabinet Secetary, Ministry of Mining & Attorney General v National Environment Management Authority, Basu Mining Company Limited, Kenya Forest Service & National Museums of Kenya Ex-Parte Cortex Mining Kenya Limited

Citation: Cabinet Secetary,Ministry Of Mining & Another V National Environment Management Authority & 3 Others Ex-Parte Cortex Mining Kenya Limited

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Aryan Limited V Fidelity Commercial Bank Ltd & 2 Others [2014] eKLR

Case Number: Civil Suit 130 of 2012 Date Delivered: 17 Feb 2014

Judge: Martin Muya

Court: High Court at Mombasa

Parties: Aryan Limited v Fidelity Commercial Bank Ltd, Mahendrakumar Chandulal Shah & Kirtibala Mahendrakumar Shah

Citation: Aryan Limited V Fidelity Commercial Bank Ltd & 2 Others [2014] eKLR

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Republic V Mtawali Amini Ngawa & 7 Others [2014] eKLR

Case Number: Criminal Case 40 of 2012 Date Delivered: 17 Feb 2014

Judge: Martin Muya

Court: High Court at Mombasa

Parties: Republic v Mtawali Amini Ngawa, Safari Foleni Ngawa, Charo Chome Kitsao, Foleni Karima Ngawa, Saidi Amini Ngawa, Banaka Ngawa Chome, Ngala Charo Ponda & Abeid Amin Ngawa

Citation: Republic V Mtawali Amini Ngawa & 7 Others [2014] eKLR

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Joseph Kalenyan Cheboi V William Suter Ruto [2014] eKLR

Case Number: E& L 974 of 2012 (formerly Hcc 209 of 2012) Date Delivered: 17 Feb 2014

Judge: Munyao Sila

Court: High Court at Eldoret

Parties: Joseph Kalenyan Cheboi v William Suter Ruto

Citation: Joseph Kalenyan Cheboi V William Suter Ruto [2014] eKLR

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Aquarius Beach Resort V Cinza Re [2014] eKLR

Case Number: Miscellaneous Civil Appl 107 of 2013 Date Delivered: 17 Feb 2014

Judge: Christine Wanjiku Meoli

Court: High Court at Malindi

Parties: Aquarius Beach Resort v Cinza Re

Citation: Aquarius Beach Resort V Cinza Re [2014] eKLR

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Esther Syonthi Musyoka V Republic [2014] eKLR

Case Number: Criminal Revision 622 of 2013 Date Delivered: 17 Feb 2014

Judge: Lilian Nabwire Mutende

Court: High Court at Machakos

Parties: Esther Syonthi Musyoka v Republic

Citation: Esther Syonthi Musyoka V Republic [2014] eKLR

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Jonathan Karanja Thuo & 6 Others V Bata Shoe Company Ltd & Another [2014] eKLR

Case Number: Cause 926 of 2010 Date Delivered: 17 Feb 2014

Judge: Nzioki wa Makau

Court: Employment and Labour Relations Court at Nairobi

Parties: Jonathan Karanja Thuo, Patrick Wamalwa Masungo,Stephen Orima Ochieng,Eliud Munene Ng’ang’a,Emmanuel Nato Wakhungu,George Makenzi & Joash Machoka v Bata Shoe Company Ltd & Fast Track Company Ltd

Citation: Jonathan Karanja Thuo & 6 Others V Bata Shoe Company Ltd & Another [2014] eKLR

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Paul Ngotwa V Telkom Kenya Limited [2014] eKLR

Case Number: Cause 798 of 2010 Date Delivered: 17 Feb 2014

Judge: Linnet Ndolo

Court: Employment and Labour Relations Court at Nairobi

Parties: Paul Ngotwa v Telkom Kenya Limited

Citation: Paul Ngotwa V Telkom Kenya Limited [2014] eKLR

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County Government Of Nyeri V Cabinet Secretary, Ministry Of Education Science & Technology & Another [2014] eKLR

Case Number: Petition 3 of 2014 Date Delivered: 17 Feb 2014

Judge: James wakiaga

Court: High Court at Nyeri

Parties: County Government Of Nyeri v Cabinet Secretary, Ministry Of Education Science & Technology & Principal Secretary, Ministry Of Education Science And Technology

Citation: County Government Of Nyeri V Cabinet Secretary, Ministry Of Education Science & Technology & Another [2014] eKLR

Scope of Intergovernmental Disputes Within the Intergorvernment Relations Act

County Government of Nyeri v Cabinet Secretary, Ministry of Education Science & Technology &another

Petition No 3 of 2014

High Court at Nyeri

J Wakiaga, J

February 17, 2014

Reported by Phoebe Ida Ayaya

Brief facts:

By a letter to all County Directors of Education, District Education Officers and all principals of secondary schools in Kenya the 2nd respondent issued guidelines for form one selection in 2014 aimed at ensuring placement of candidates in schools of their choice and through merit, equity in school placement through quotas and affirmative action where applicable, proportionate sharing of national schools places between public and private schools candidates in every district based on the number of candidates taking KCPE from either category of primary schools and harmonization of the selection polices throughout the county at all levels national county and district.

The extra-county schools (high performing schools with a mean score of 6.5 in KCSE) and county schools were supposed to admit students as follows: Extra County:  40% National, 40% from within county and 20% from the district hosting the school and County:  20% from the district hosting the school and 80% from the rest of the county.

The petitioner stated that the circular was not followed in schools within Nyeri county thereby violating the constitutional provision under article 27 of the Constitution of Kenya, 2010 by discriminating against the students from Nyeri County and its various districts by having negligible students admitted from its host district schools and a staggering of students from other counties admitted in its schools over and above the 40% prescribed in the guidelines.

Issues:

  1. Whether the court had jurisdiction to determine a dispute between the national and county governments
  2. Whether the dispute before the court was a dispute between national and county governments
  3. What constituted a dispute between the national and county governments within the provisions of the Intergovernmental Relations Act and the Constitution

Government Relations – intergovernmental dispute – dispute between the national and county governments – where a dispute arose as to the guidelines issued for selection process of form one students – where the dispute touched on the relations between the two levels of government – whether the dispute was one which could be termed as an intergovernmental dispute – Intergovernmental Relations Act sections 30 & 31; Constitution of Kenya, article 189; South African Intergovernmental Relations Frameworks Act 2005.

Jurisdiction – jurisdiction of the High Court – where the jurisdiction of the High Court was questioned in regard to the provisions of the Intergovernmental Relations Act – where the dispute was framed as a constitutional question – whether the High Court had jurisdiction to hear the dispute as framed – Constitution of Kenya, 2010 article 165.

Constitution of Kenya, 2010

Article 189(1) “Government at either level shall:”

  1. “Perform its functions and exercise its powers in a manner that respects the functional and institutional integrity of government as the other level and respect the constitutional status and institution of government at the other level and in case of county government within the county level.”
  2. “Assist, support and consult and as appropriate implement the Legislation of the other level of Government and”
  3. “Liase with government at the other level for purposes of exchanging information, coordinating polices and administration and enhancing capacity”

(2) “Government at each level and different governments at the county level shall cooperate in the performance of functions and exercise of powers and for that purpose may set up joint committees and joint authorities.”

(3) “In any dispute between governments the governments shall make every reasonable effort to settle the dispute, including by means of procedure provided under National Legislation.

(4) “National legislation shall provide procedures for settling Intergovernmental disputes by alternative dispute resolution mechanism including negotiation, mediation and arbitration.

Intergovernmental Relations Acts Cap 5(a)

Section 30(1) “In this part unless the context otherwise requires 'dispute' means an Intergovernmental dispute.”

Section 31 “The National and County Governments shall take reasonable means to:

  1. resolve disputes amicably and
  2. apply and exhaust the mechanisms for alternative dispute resolutions provided under the Act or any other Legislation before resorting to judicial proceedings as contemplated by Article 189(3) and (4) of the Constitution

South African Intergovernmental Relations Frameworks Act 2005 defined Intergovernmental Disputes as:

“a dispute between different governments or between organs of state from different governments concerning a matter:

  1. arising from
  1. Statutory powers or function assigned to any of the parties
  2. an agreement between the parties regarding the implementation of a statutory power or function and
  1. which is justifiable in a court of law and include any dispute between parties regarding a related matter”

Held:

  1. What the provisions of the Constitution and statute in respect of the dispute resolution between the national and county governments did was not to oust the jurisdiction of the court but to postpone the same until the alternative dispute mechanism had been attempted.
  2. The express provisions of article 165 of the Constitution of Kenya, 2010 gave the court unlimited original jurisdiction in criminal or civil matters and jurisdiction to determine the question whether a right or fundamental freedom in the bill of rights had been denied violated infringed or limited.
  3. Section 30(1) of the Intergovernmental Relations Act provided that disputes, which could be resolved under the act, were disputes between the national government and a county government or amongst county governments. The existence of the alternative remedy and procedure could not necessarily oust the jurisdiction of the court (Republic v Transition Authority & another ex-parte Kenya Medical Practitioner, Pharmacist & Dentist Board (KMPDH) & 2 others).
  4. The court had jurisdiction but the exercise of that jurisdiction was postponed or the court could decline to exercise jurisdiction pending settlement of the same.
  5. In determining the question as to whether the dispute was one between a county and national government to which dispute settlement mechanism under the Intergovernmental Relations Act applied and for which the court ought to postpone or decline the exercise of its jurisdiction to enable the parties exhaust the procedures set therein, a definition of a dispute had to be undertaken as it was missing from the Intergovernmental Relations Act and to get the definition thereof the court had to look at the South African Intergovernmental Relations Frameworks Act 2005.
  6. The disputes referred to by both the Constitution and statute were those in respect of traditional government functions at the two levels of governments established by the constitution as stated at articles 6(2) & 189 which provided for cooperation between national and county governments. A dispute between governments was a dispute in relation to the functions and exercise of powers between the different levels of government.
  7. The nature of the dispute had to be looked at in totality and the dispute before court related to selection of form one in county schools within Nyeri County. It was brought to enforce fundamental rights and freedoms under articles 22 and 23 and 27 of the Constitution and so was a dispute in respect of the functions of the petitioner as stated in schedule 4 of the Constitution. There was no reason to hold that it was an intergovernmental dispute simply because the County Government of Nyeri was the petitioner and an entity of the National Government which was the respondent.
  8. There was no reason to reduce an allegation of violation of fundamental rights to a dispute between a county and national Government as to do so would amount to judicially created limitations on the express provision of the Constitution. The Constitution was clear that any person could bring an action in respect of an allegation of breach of fundamental rights and freedom but the court was not persuaded that the petitioner was not a person with the meaning of article 22.

Preliminary objection dismissed.

 

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