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Samuel Kago Mungai Kimari & Another V Miliam Wanjiru & 2 Others [2013] eKLR

Case Number: Election Petition 4 of 2013 Date Delivered: 30 May 2013

Judge: R A Oganyo

Court: Election Petition in Magistrate Courts

Parties: Samuel Kago Mungai Kimari &Titus; Bweya Omuka v Miliam Wanjiru, Independent Electoral and Boundaries Commission& Daniel Kithama Mutiso

Citation: Samuel Kago Mungai Kimari & Another V Miliam Wanjiru & 2 Others [2013] eKLR

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Laporte Holdings Limited & Another V Equity Bank Limited [2013] eKLR

Case Number: Civil Case 752 of 2009 Date Delivered: 30 May 2013

Judge: Eric Kennedy Okumu Ogola

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

Parties: Laporte Holdings Limited & Intex Secretarial Bureau Limited v Equity Bank Limited

Citation: Laporte Holdings Limited & Another V Equity Bank Limited [2013] eKLR

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Arthur Mbaisi Musagala V Peter Mahenda Mwakisaghu & 2 Others [2013] eKLR

Case Number: Civil Appeal 43 of 2012 Date Delivered: 29 May 2013

Judge: Said Juma Chitembwe, Beatrice Thuranira Jaden

Court: High Court at Kakamega

Parties: Arthur Mbaisi Musagala v Peter Mahenda Mwakisaghu, Pamela Kavai Majanga & Kenya Commercial Bank Ltd

Citation: Arthur Mbaisi Musagala V Peter Mahenda Mwakisaghu & 2 Others [2013] eKLR

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Republic V Gladys Bwari Ichwara [2013] eKLR

Case Number: Criminal Case 8 of 2013 Date Delivered: 29 May 2013

Judge: Edward Muthoga Muriithi

Court: High Court at Kisii

Parties: Republic v Gladys Bwari Ichwara

Citation: Republic V Gladys Bwari Ichwara [2013] eKLR

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Grace Wachuka V Jackson Njuguna Gathungu & Another [2013]eKLR

Case Number: Civil Application 161 of 2012 Date Delivered: 29 May 2013

Judge: Martha Karambu Koome

Court: Court of Appeal at Nyeri

Parties: Grace Wachuka v Jackson Njuguna Gathungu & another

Citation: Grace Wachuka V Jackson Njuguna Gathungu & Another [2013] eKLR

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Nazir Jinnah V Asmahan Peterson & 2 Others [2013] eKLR

Case Number: Civil Case 746 of 2012 Date Delivered: 28 May 2013

Judge: Jonathan Bowen Havelock

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

Parties: Nazir Jinnah v Asmahan Peterson, Wright Auctioneers & Stephen Nyambu Mbijiwe

Citation: Nazir Jinnah V Asmahan Peterson & 2 Others [2013] eKLR

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RICHARD N. KALEMBE NDILE V PATRICK MUSIMBA MWEU & 2 Others [2013] eKLR

Case Number: Election Petition 1 of 2013 Date Delivered: 28 May 2013

Judge: David Shikomera Majanja

Court: High Court at Machakos

Parties: RICHARD N. KALEMBE NDILE v PATRICK MUSIMBA MWEU & 2 others

Citation: RICHARD N. KALEMBE NDILE V PATRICK MUSIMBA MWEU & 2 Others [2013] eKLR

Electoral law- election petition- election petition challenging the validity of National Assembly elections for Kibwezi West Constituency- Dr. Patrick claimed that the petition was fatally invalid- that it does not state the result of the election declared- that it does not disclose a cause of action- whether the petition is fatally defective in that regard- whether stating election results in the petition is a mandatory requirement in the circumstances- Elections (Parliamentary and County Elections) Petition Rules, 2013, rules 10(1)(c), 10(3)(b), 12(1), 21(b)

Statute interpretation- striking out- striking out an election petition- striking out an election petition on the grounds that it does not state the election results contrary to the rules on election petitions- the rules governing such a principle- whether the rule is mandatory- Elections (Parliamentary and County Elections) Petition Rules, 2013, rules 4, 5, 10(1)- Constitution of Kenya, Articles 10, 159(2)(d)

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Rono Limited V Caltex Oil (K) Ltd [2013] eKLR

Case Number: Civil Suit 1388 of 1992 Date Delivered: 28 May 2013

Judge: Jonathan Bowen Havelock

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

Parties: Rono Limited v Caltex Oil (K) Ltd

Citation: Rono Limited V Caltex Oil (K) Ltd [2013] eKLR

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Charles Nyaga Njeru V Independent Electoral & Boundaries Commission & Another [2013] eKLR

Case Number: Election Petition. 1 Of 2013 Date Delivered: 28 May 2013

Judge: C. K. OBARA – SRM

Court: Election Petition in Magistrate Courts

Parties: Charles Nyaga Njeru v Independent Electoral & Boundaries Commission & Nevert Ntwiga

Citation: Charles Nyaga Njeru V Independent Electoral & Boundaries Commission & Another [2013] eKLR

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David Wambua Ngii & Another V Kiesta Industrical Technical Services Limited & 6 Others [2013] eKLR

Case Number: Miscellaneous Cause 340 of 2011 Date Delivered: 28 May 2013

Judge: Jonathan Bowen Havelock

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

Parties: David Wambua Ngii & Maluki K. Kisangula v Kiesta Industrical Technical Services Limited, Peter M. Kabecha , Lazarus M. Murathe, Evans V. Boge, Fredrick N. Kimani, Abedi S. Alembi & Rodgers M. Ngotya

Citation: David Wambua Ngii & Another V Kiesta Industrical Technical Services Limited & 6 Others [2013] eKLR

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Rwaikamba & Rwathia Trading Co. Limited V Town Clerk City Council Of Nairobi [2013] eKLR

Case Number: JR ELC Case 65 of 2010 Date Delivered: 28 May 2013

Judge: Weldon Kipyegon Korir

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Rwaikamba & Rwathia Trading Co. Limited v Town Clerk City Council of Nairobi

Citation: Rwaikamba & Rwathia Trading Co. Limited V Town Clerk City Council Of Nairobi [2013] eKLR

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Gerald Neville Ogunah V Republic [2013] eKLR

Case Number: Miscellaneous Criminal Application No. 60 of 2011 Date Delivered: 28 May 2013

Judge: Lydia Awino Achode

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Gerald Neville Ogunah v Republic

Citation: Gerald Neville Ogunah V Republic [2013] eKLR

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Lukas Ongaki V Samwel Kenny Nyangenya & 2 Others [2013] eKLR

Case Number: Election Petition 2 of 2013 Date Delivered: 27 May 2013

Judge: K.Sambu PM

Court: Election Petition in Magistrate Courts

Parties: Lukas Ongaki v Samwel Kenny Nyangenya,Ng'eny Robert & Independent Electoral & Boundaries Commision

Citation: Lukas Ongaki V Samwel Kenny Nyangenya & 2 Others [2013] eKLR

Electoral law – election petition- scrutiny and re-count – application for scrutiny and re-count of votes- whether the chief magistrate's court could grant and order for scrutiny, recount and re-tallying for all the votes cast and /or in favour of all the candidates who contested for Bobaracho county assembly ward, during the general elections held on the 4th day of March 2013- claims that there were he numerous anomalies  discrepancies, contradiction and variations noted in the authentic statutory documents supplied to the applicant –claims of mis-entry of the actual votes  garnered by the petitioner on the statutory forms that the total votes garnered  were not posted to the petitioner but, instead posted to a third party- Constitution of Kenya, 2010 articles 81 & 86 civil Procedure rules 2010 rules 1&2 Civil Procedure Act section  1A,B,3A, & 63(e) of  election Act section 82, 2011 and of the elections  (Parliamentary and County  elections ) petitions rules 2013 regulation 17 &13,

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Kanduyi Holdings Limited V Balm Kenya Foundation & Another [2013] eKLR

Case Number: Civil Case 5 of 2013 Date Delivered: 26 May 2013

Judge: Francis Gikonyo

Court: High Court at Bungoma

Parties: Kanduyi Holdings Limited v Balm Kenya Foundation & Susan Ombunya

Citation: Kanduyi Holdings Limited V Balm Kenya Foundation & Another [2013] eKLR

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Ole Chesusua Kiputit V Ampany Lekakeny [2013] eKLR

Case Number: Civil Case 85A of 2005 Date Delivered: 24 May 2013

Judge: Edward Muthoga Muriithi

Court: High Court at Kisii

Parties: Ole Chesusua Kiputit v Ampany Lekakeny

Citation: Ole Chesusua Kiputit V Ampany Lekakeny [2013] eKLR

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Angata Bargoi Farmers Co-Operative Society Ltd V David Kiptunui Korir & 601 Others [2013] eKLR

Case Number: Civil Case 176 of 2011 Date Delivered: 24 May 2013

Judge: Samson Odhiambo Okong'o

Court: High Court at Kisii

Parties: Angata Bargoi Farmers Co-Operative Society Ltd v David Kiptunui Korir & 87 Others & Jonathan Kiplangat Bor & 523 Others

Citation: Angata Bargoi Farmers Co-Operative Society Ltd V David Kiptunui Korir & 601 Others [2013] eKLR

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Joseph Kipngetich Bet V Antony Langat & Another [2013] eKLR

Case Number: Civil Case 89 of 2012 Date Delivered: 24 May 2013

Judge: Samson Odhiambo Okong'o

Court: High Court at Kisii

Parties: Joseph Kipngetich Bet v Antony Langat & Samwel Sang

Citation: Joseph Kipngetich Bet V Antony Langat & Another [2013] eKLR

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Kituo Cha Sheria V John Ndirangu Kariuki & Another [2013] eKLR

Case Number: Election Petition 8 of 2013 Date Delivered: 24 May 2013

Judge: George Kanyi Kimondo

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Kituo Cha Sheria v John Ndirangu Kariuki & another

Citation: Kituo Cha Sheria V John Ndirangu Kariuki & Another [2013] eKLR

Brief facts
John Ndirangu Kariuki, the 1st Respondent, was elected a member of the National Assembly on 4/3/2013 to represent the people of Embakasi Central Constituency, Nairobi County. He was a
former mayor of Nairobi City. While still the mayor, he was convicted of abuse of office charges
in the Chief Magistrate’s Anti-corruption Court, Nairobi case Number 25 of 2002 Republic v John
Ndirangu Kariuki & another.
He was found guilty on two counts of obtaining by false pretences and uttering a false document.
He was fined Kshs 100,000 on each count. The nature of offences was relevant to the Petition
before the Court.
The Petitioner brought these proceedings to challenge the nomination and subsequent election
of the 1st Respondent. The main contention was that the 1st Respondent was not qualified to be
a candidate for election in view of the conviction. The 2nd Respondent’s (Independent Electoral
& Boundaries Commission) conduct in clearing the 1st Respondent to run for election and
confirming him as duly elected was impeached for the same reason.
 

Issues:
i. Whether the 1st Respondent met the Constitutional qualification threshold to vie for political
office despite the serious questions of integrity raised by the Petitioner.
ii. Whether the entity Kituo Cha Sheria had legal capacity to file and prosecute a petition in its’
own name.
iii. Whether the Respondent’s challenge that the Petitioner lacked legal capacity to sue before
court was a technical objection or a matter of substance and the law.
Constitutional law– petition- political rights- political rights of a candidate to vie for political officewhere
the 1st Respondent vied for political office and was elected despite previous conviction
for abuse of office- whether the 1st Respondent met the constitutional qualification threshold-
Constitution of Kenya, article 38(3)
Electoral law - election petition- election petition challenging the nomination and subsequent
election of the 1st Respondent as a member of the National Assembly for Embakasi Central
Constituency on grounds that he did not meet the constitutional threshold to vie- a claim that he
had previously been convicted for abuse of office- whether the conviction affected his suitability
as a candidate- Elections Act, section 77- Elections (Parliamentary and County Elections) Petitions
Rules, 2013, rule 4.
Article 99 of the Constitution of Kenya, 2010 provides:-
“99(2) A person is disqualified from being elected a member of parliament if
the person –
(h) is found, in accordance with any law, to have misused or abused a State
office or public office or in any way to have contravened Chapter six.
(3) a person is not disqualified under clause (2) unless all possibility of appeal or review of the relevant sentence or decision has been exhausted”.

Held:
1. The 1st Respondent, on the face of it, failed the qualification or integrity test under article 99(2(h).
He was convicted of abuse of office charges on 14/1/2004. He did not appeal the decision. He
purported to file an application 9 years later for leave to appeal out of time. This had all the
hallmarks of a self-serving afterthought. It was meant to create, during the nomination and in
the Petition the impression that there was a pending appeal yet there was none. There was doubt
that an application for leave to appeal out of time was what was contemplated by article 99(3).
2. If the Petition had been brought by a competent party the question whether the 1st Respondent
qualified for nomination and whether the 2nd Respondent erred in clearing him was not entirely
without merit.
3. Artificial legal persons could institute legal proceedings. The capacity to sue and be sued in
their own names wass however limited. Incorporated companies and statutory corporations
are clothed with that legal power. A relevant example was is the Legal Advice Centre. It
was registered as a non-governmental organization. By virtue of section 12(3) of the Non-
Governmental Organizations Co-ordination Act, the Centre had perpetual succession and
power to sue and be sued in its own name. Had the Centre brought the proceedings in its own
name, that debate would have been unnecessary.
4. Article 38 of the Constitution enshrined political rights. The rights secured were for adult
citizens and it guaranteed citizens freedom to make political choices and provided that every
adult citizen had the right without unreasonable restriction, to be a candidate for public office
and if elected to hold office.
5. Neither non-citizens nor a minor could bring an action to enforce the right. While article
258 contemplated a party acting in person or by a representative to enforce the Constitution,
the nature of political rights could as well preclude non-political actors such as corporations.
However, within the context of an election, and once a candidate was duly elected, the
enforcement of the political right would be limited to the narrow confines of the Elections Act.
In that limited space, the Petitioner being an unincorporated person had to meet the strict code
governing electoral dispute settlement.
6. In the equivalent continuum of a National Assembly election, there were various independent
state actors such as the Independent Electoral and Boundaries Commission (IEBC) under the
IEBC Act, and the Ethics and Anti-Corruption Commission (EACC) under the EACC Act that
had jurisdiction to settle nomination disputes. However, the Petitioner had not sought redress
from the IEBC on nomination of the 1st Respondent.
7. The High Court was not divested of jurisdiction in all matters relating to nomination. If by
negligence or otherwise, a non-citizen was nominated for election and elected, it would have
been perfectly in order for the Court to right the wrong. Further, where IEBC had failed to
exercise its mandate under the statute, the High Court could intervene as was held in the case
of Luka Lubwayo & another v Gerald Otieno Kajwang & another [2013] eKLR
8. The incompetence of the Petitioner to sue was not a simple technical matter that could be
cured by the provisions of article 159(2)(d) of the Constitution or rule 4 of the Petition Rules.
The failure to bring an action by a recognized juridical person was one of law and substance
and went to the root of the Petition hence the substratum upon which the Petition had been
brought was compromised completely.

The Petition struck out and dismissed. Petitioner to pay costs assessed at Ksh150,000.

Cases:
East Africa;

1. AN Phakey v World Wide Agencies Ltd [1948] Vol XV EACA 1 - (Explained)
2. Centre for Rights Education and Awareness (CREW) &7 others v Attorney General Petition No
16 of 2011 - (Mentioned)
3. Coast Projects Ltd v MR Shah Construction [2004] KLR 119 – (Followed)
4. D T Dobie & Company (Kenya) Limited v Muchina [1982] KLR 1 (Mentioned)
5. Dickson Karaba v John Ngata Kariuki & another 2010 e KLR, (Mentioned)
6. Famy Care Limited v Public Procurement Administrative Review Board & another Petition 43
of 2012 – (Explained)
7. Fort Hall Bakery Supply Co v Fredrick Muigai Wangoe [1959] EA 474 - (Explained)
8. Francis Ngira Batware v Ashimosi Shatabansi t/a Ashimosi Shatabansi & Associates Advocates
& 2 others
Nairobi High Court case 476 of 2009 - (Explained)
9. In the matter of the Gender Representation in the National Assembly and Senate Advisory
opinion No 2 of 2012 - (Explained)
10. International centre for policy and conflict and others v Attorney General & 2 others Petitions
552 of 2012 - (Explained)
11. Kanyua, Priscilla Nyokabi v Attorney General &another Petition 1 of 2010 - (Explained)
12. Kariuki, Steven v George Mike Wanjohi & 2 others Petition No 2 of 2013 - (Explained)
13. Kenya National Union of Nurses v Attorney General Cause No 1049 of 2012 - (Explained)
14. Kones v Republic & another exparte Kimani wa Nyoike & 4 others [2006] 2 KLR 226 –
(Mentioned)
15. Lubwayo, Luka Angaiya & another v Gerald Otieno Kajwang & another Petition 120 of 2013
- (Explained)
16. Muiya v Nyaga & 2 others [2008] 2 KLR (EP) 493 - (Explained)
17. Narok Council v Transmara County Council [2002] 1 EA 161 - (Explained)
18. Nyambega, Mose v Walter Nyambati & 2 others Petition 4 of 2008 -(Mentioned)
19. Odinga, Raila &2 others v Independent Electoral and Boundaries Commission & 3 others
Petition No 5 of 2013 - (Explained)
20. Otaja, Samuel Otieno v IEBC & 2 others Judicial Review No 20 of 2013 - (Mentioned)
21. Parsimei, Francis Gitau v National Alliance Party & 2 others Petition 356 of 2012 – (Mentioned)
22. Rumanywa Sikudhani Ajwang v Pius Otieno & 2 others Petition 53 of 2012 - (Explained)
23. Sankale Ole Kantai t/a Kantai & Company Advocates v Housing Finance Company of Kenya
Limited Case No 471 of 2012 – (Mentioned)
24. Savana Jua Kali Association v Amos Ngata Civil Case No 529 of 2004 - (Explained)
25. Speaker of the National Assembly v James Njenga Karume [1992] KLR 22 - (Explained)
26. Waititu, Ferdinand v IEBC & 6 others Petition 1 of 2013 - (Mentioned)
27. Wambua v Wathome [1968] EA 40 - (Followed)
28. Wanyoike v Electoral Commission of Kenya (No 2) [2008] 2 KLR (EP) 43 - (Mentioned)
United Kingdom;
29. Banque Internationale de Commerce de Petrograd v Goukassaow [1923] 2 KB 682 -
(Mentioned)
30. Dyson v Attorney General [1911] 1 KB 410- (Explained)
Statutes:
East Africa;
1. Constitution of Kenya, 2010 articles 7, 22, 38, 88(4)(e); 99(2)(h)(3); 103(g); 105(1)((a); 159(2)
(d); 258, 260 – (Interpreted)
2. Elections (Parliamentary and County Elections) Petition Rules, 2013 rule 36(1); 37(3) –
(Interpreted)
Advocates:
1. Mr C Agwara with him Ms C Mburugu instructed by the Petitioner, Kituo Cha Sheria.
2. Mr D Wambola for 1st Respondent instructed by Ongoya & Wambola Advocates.
3. Ms W Thanji for Ms Ndegwa for 2nd Respondent instructed by Sisule Munyi Kilonzo &
Advocates

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Carlile College V Peter Karanja Kuria [2013] eKLR

Case Number: Civil Application 67 of 2013 Date Delivered: 24 May 2013

Judge: David Kenani Maraga

Court: Court of Appeal at Nairobi

Parties: Carlile College v Peter Karanja Kuria

Citation: Carlile College V Peter Karanja Kuria [2013] eKLR

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Ajit Singh Virdi V J F McCloy [2013] eKLR

Case Number: Civil Suit 618 of 2012 Date Delivered: 24 May 2013

Judge: Jacqueline Kamau

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

Parties: Ajit Singh Virdi v J F McCloy

Citation: Ajit Singh Virdi V J F McCloy [2013] eKLR

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Charles Manono Onchiri V Kenyatta National Hospital & 2 Others [2013] eKLR

Case Number: Cause 1627 of 2012 Date Delivered: 24 May 2013

Judge: Monica Mbaru

Court: Industrial Court at Nairobi

Parties: Charles Manono Onchiri v Kenyatta National Hospital, The Board Of Management Kenyatta National Hospital & The Director, Kenyatta National Hospital

Citation: Charles Manono Onchiri V Kenyatta National Hospital & 2 Others [2013] eKLR

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In The Matter Of Application By Pangea Development Holdings Ltd [2013] eKLR

Case Number: Winding Up Cause 23 of 2011 Date Delivered: 24 May 2013

Judge: Jonathan Bowen Havelock

Court: High Court at Nairobi (Milimani Law Courts)

Parties: In the Matter of Application by Pangea Development Holdings Ltd

Citation: In The Matter Of Application By Pangea Development Holdings Ltd [2013] eKLR

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Ramji Meghji Gudka Limited V The Town Clerk, Municipal Council Of Kisii & Another [2013] eKLR

Case Number: Land Case 83 Of 2013 Date Delivered: 24 May 2013

Judge: Samson Odhiambo Okong'o

Court: Environment and Land Court at Eldoret

Parties: Ramji Meghji Gudka Limited v The Town Clerk & Municipal Council Of Kisii,

Citation: Ramji Meghji Gudka Limited V The Town Clerk, Municipal Council Of Kisii & Another [2013] eKLR

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Elizabeth Chelangat V Republic [2013] eKLR

Case Number: Criminal Application 4 of 2012 Date Delivered: 24 May 2013

Judge: Paul Kihara Kariuki, William Ouko, Philomena Mbete Mwilu

Court: Court of Appeal at Nairobi

Parties: Elizabeth Chelangat v Republic

Citation: Elizabeth Chelangat V Republic [2013] eKLR

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Vincent Kimani & 2 Others V Michael Njoroge “B” & Others [2013] eKLR

Case Number: Civil Application 272 of 2012 (UR 197/2012) Date Delivered: 24 May 2013

Judge: John Wycliffe Mwera

Court: Court of Appeal at Nairobi

Parties: Vincent Kimani, Arcadius Njora Chege, Onesmus Burugu “C” v Michael Njoroge “B” & others

Citation: Vincent Kimani & 2 Others V Michael Njoroge “B” & Others [2013] eKLR

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Joseph Mworia John & 2 Others V Lower Imenti Forester [2013] eKLR

Case Number: Civil Case 64 of 2011 Date Delivered: 24 May 2013

Judge: Peter Muchoki Njoroge

Court: High Court at Meru

Parties: Joseph Mworia John & 2 Others v Lower Imenti Forester

Citation: Joseph Mworia John & 2 Others V Lower Imenti Forester [2013] eKLR

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Isaac Ndungu Muchemi V Marula Estate Limited [2013] eKLR

Case Number: Civil Appeal NO. 111 of 1995 Date Delivered: 24 May 2013

Judge: Mathew John Anyara Emukule

Court: High Court at Nakuru

Parties: Isaac Ndungu Muchemi v Marula Estate Limited

Citation: Isaac Ndungu Muchemi V Marula Estate Limited [2013] eKLR

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Isaac Kamau Irungu V Republic [2013] eKLR

Case Number: Criminal Application 2 of 2012 Date Delivered: 24 May 2013

Judge: Wanjiru Karanja, Patrick Omwenga Kiage, Agnes Kalekye Murgor

Court: Court of Appeal at Nairobi

Parties: Isaac Kamau Irungu v Republic

Citation: Isaac Kamau Irungu V Republic [2013] eKLR

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Kuwinda Rurinja Co. Ltd V Kuwinda Holdings Ltd & 13 Others [2014] eKLR

Case Number: Civil Appeal 8 of 2003 Date Delivered: 24 May 2013

Judge: Roselyn Naliaka Nambuye, William Ouko, Stephen Gatembu Kairu

Court: Court of Appeal at Nairobi

Parties: Kuwinda Rurinja Co. Ltd v Kuwinda Holdings Ltd, Colin Davies, Joint Liquidators of Ndumberi Farmers Co. Ltd. (In Liquidation), Simon Kimani, Nyawira Kariuki, Samuel Muchoki, Culumbanis Mlure Ngugi, David Kiguru, Wairimu Kariuki, Mwaura Wamuti Muthee, Mbugu Ngigi, Francis Ndung'u, Njeri Mbugua & G. R. Muthuri

Citation: Kuwinda Rurinja Co. Ltd V Kuwinda Holdings Ltd & 13 Others [2014] eKLR

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Turibu Moses Kinyua V Andrew Kobia M’eringo & 2 Others [2013] eKLR

Case Number: Election Petition 1 of 2013 Date Delivered: 24 May 2013

Judge: J.G KINGORI

Court: Election Petition in Magistrate Courts

Parties: Turibu Moses Kinyua v Andrew Kobia M’eringo, Abdi Sheikh Mohammed &Independent; Election and Boundariescommission

Citation: Turibu Moses Kinyua V Andrew Kobia M’eringo & 2 Others [2013] eKLR

Electoral Law – election petition – service of election petition – mode of service in election petitions -personal service in election petitions – claim that the petition was never served on the respondents – Constitution of Kenya, 2010, article 87(2) Elections Act, section 77(2)

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Joseph Mworia John & 2 Others V Lower Imenti Forester [2013] eKLR

Case Number: Civil Case 64 of 2011 Date Delivered: 24 May 2013

Judge: Peter Muchoki Njoroge

Court: High Court at Meru

Parties: Joseph Mworia John & 2 others v Lower Imenti Forester

Citation: Joseph Mworia John & 2 Others V Lower Imenti Forester [2013] eKLR

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Kituo Cha Sheria V John Ndirangu Kariuki & Another [2013] eKLR

Case Number: Election Petition 8 of 2013 Date Delivered: 24 May 2013

Judge: George Kanyi Kimondo

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Kituo Cha Sheria v John Ndirangu Kariuki & Independent Electoral & Boundaries Commission

Citation: Kituo Cha Sheria V John Ndirangu Kariuki & Another [2013] eKLR

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Eric Soita Patroba V Martin Wafula Wawire & 2 Others [2013] eKLR

Case Number: Election Petition 1 of 2013 Date Delivered: 24 May 2013

Judge: SN ABUYA

Court: Election Petition in Magistrate Courts

Parties: Eric Soita Patroba v Martin Wafula Wawire, IEBC & Oduol Bernard Arwings

Citation: Eric Soita Patroba V Martin Wafula Wawire & 2 Others [2013] eKLR

 

Electoral Law-election petition-filing of further affidavits-whether there was a provision for a petitioner to file a response to respondent’s response to a petition-whether court could grant leave for petitioner to file further affidavit in the  interests of justice- Election (parliamentary and county Elections)petitions Rules 2013,rule 14(1),17

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Eric Soita Patroba V Martin Wafula Wawire & 2 Others [2013] eKLR

Case Number: Election Petition 1 of 2013 Date Delivered: 24 May 2013

Judge: S N Abuya

Court: Election Petition in Magistrate Courts

Parties: Eric Soita Patroba v Martin Wafula Wawire, IEBC & Oduol Benard Arwings

Citation: Eric Soita Patroba V Martin Wafula Wawire & 2 Others [2013] eKLR

Electoral Law - Scrutiny & Recount of votes - scrutiny by court's own motion - basis for scrutiny - whether an order of scritiny of votes coulsd be made as of right - whether an application for production of documents can be used to pray for scrutiny of votes - Election Act, section 82

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Erick Soita Patroba V Martin Wafula Wawire & 2 Others [2013] eKLR

Case Number: Election Petition 1 of 2013 Date Delivered: 24 May 2013

Judge: S N Abuya

Court: Election Petition in Magistrate Courts

Parties: Erick Soita Patroba v Martin Wafula Wawire, IEBC & Oduol Bernand Arwings

Citation: Erick Soita Patroba V Martin Wafula Wawire & 2 Others [2013] eKLR

Election Petitioners’ Right to Information in Custody of the Independent Electoral Boundaries Commission

Eric Soita Patroba V Martin Wafula Wawire & 2 others

Election Petition No. 1 of 2013

Senior Principal Magistrate’s Court at Webuye

S.N Abuya, M

May 24th, 2013

Reported by Cornelius Lupao & Mercy Ombima

Brief Facts

The Petitioner challenged the election results for Sitikho Ward held during the 4th March, 2013 general elections. He asked the court to compel the second Respondent (the Independent Electoral Boundaries Commission (the IEBC)) to produce and deliver to the petitioner certified copies of the principal Register of voters, including electoral statutory forms that had been used. The IEBC had claimed that the Petitioner needed to lay a basis for requiring to be issued with documents in their custody.

Electoral Law – election petition proceedings – production of electoral documents as evidence – where the Second Respondent, the Independent Electoral Boundaries Commission, claimed that the Petition had not laid a basis for wanting the election documents in question – claim that the Petitioner had the constitutional right of access to information – whether the claim had merit - Constitution of Kenya 2010 articles 35(1); Elections Act No.24 of 2011, section 4; Elections(parliamentary & county elections) petition rules 2013, rules 4 & 33

Issue

i. Whether the petitioner had the right to access electoral documents in custody of the Independent Electoral Boundaries Commission.

Held

1. Under article 35 of the Constitution of Kenya 2010, as read with section 27(3) & (4) of the Independent Electoral Boundaries Commission Act, the Petitioner had a right to information in IEBC'S possession. The IEBC could only decline to give the Petitioner the said information if the request was unreasonable.

2. The petitioner was entitled to the said information (documents) as the IEBC never proved any of the conditions that allowed them to refuse/decline to give the said information to the petitioner. All that the IEBC had said was that form 33s were in the ballot boxes which were sealed, and the seals could only be removed through a court order as provided by regulation 93 of the Election Regulations.

3. Further, the Petitioner’s prayer in the supplementary affidavit, to be supplied with certified copies of the marked register, not the principal register, was a new prayer not prayed for in the original application. The new prayer was guided by section 80(1)(d) of the Election Act 2011 which stated that the court should decide all matters that come before it without undue regard to technicalities. The Petitioner was thus entitled to be supplied with a copy of the marked register by IEBC.

IEBC to supply the petitioner with certified copies of the marked register 

 

 

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Cyrus Muriuki Mathangani V Rose Wanjiku Mbai [2013] eKLR

Case Number: Civil Application Nai 207 of 2010 Date Delivered: 23 May 2013

Judge: Alnashir Ramazanali Magan Visram

Court: Court of Appeal at Nyeri

Parties: Cyrus Muriuki Mathangani v Rose Wanjiku Mbai

Citation: Cyrus Muriuki Mathangani V Rose Wanjiku Mbai [2013] eKLR

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REPUBLIC V LUCA GIKUNDA ZACHARY & 2 OTHERS[2013]eKLR

Case Number: Criminal Case 9 of 2013 Date Delivered: 23 May 2013

Judge: Jessie Wanjiku Lessit

Court: High Court at Meru

Parties: REPUBLIC V LUCA GIKUNDA ZACHARY & 2 OTHERS

Citation: REPUBLIC V LUCA GIKUNDA ZACHARY & 2 OTHERS[2013] eKLR

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Emanga Ne-Semata Investments Limited V Attorney General & 4 Others[2013]eKLR

Case Number: Petition 224 of 2010 Date Delivered: 23 May 2013

Judge: Mumbi Ngugi

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Emanga Ne-Semata Investments Limited V Attorney General, Minister for Lands, Commissioner 0f Lands , District Land Registrar, Nairobi & Board of Governors Langata High School

Citation: Emanga Ne-Semata Investments Limited V Attorney General & 4 Others[2013] eKLR

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Suleiman Said Shahbal V Independent Electoral & Boundaries Commission (IEBC) & 3 Others [2013] eKLR

Case Number: Election Petition 8 of 2013 Date Delivered: 23 May 2013

Judge: Fred Andago Ochieng

Court: High Court at Mombasa

Parties: Suleiman Said Shahbal v Independent Electoral & Boundaries Commission (IEBC), Mwadime Mwashigadi & Hassan Ali Joho

Citation: Suleiman Said Shahbal V Independent Electoral & Boundaries Commission (IEBC) & 3 Others [2013] eKLR

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Eliud Buku Thuku V Beatrice Wambui Mwangi [2013]eKLR

Case Number: Civil Application 267 of 2011 Date Delivered: 23 May 2013

Judge: James Otieno Odek

Court: Court of Appeal at Nyeri

Parties: Eliud Buku Thuku v Beatrice Wambui Mwangi

Citation: Eliud Buku Thuku V Beatrice Wambui Mwangi [2013] eKLR

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Mwamlome Tchappu Mbwana & Another V Boy Juma Boy & 2 Others [2013] eKLR

Case Number: Election Petition 5 of 2013 Date Delivered: 23 May 2013

Judge: Fred Andago Ochieng

Court: High Court at Mombasa

Parties: Mwamlome Tchappu Mbwana & Kalimbo Naveed Mwaega v Boy Juma Boy, Rashid Soud & Independent Electoral and Boundaries Commission of Kenya

Citation: Mwamlome Tchappu Mbwana & Another V Boy Juma Boy & 2 Others [2013] eKLR

Reported by Beryl A Ikamari

Issues

i. Whether responses filed out of time would be struck out despite the fact that the responses were filed after leave of court had been sought and granted.

ii. Whether the High Court had jurisdiction to extend the time for filing and serving responses.

Electoral Law-filing responses-time for filing and serving responses-whether time for filing a response in opposition to an election petition could be extended-Elections (Parliamentary and County Elections) Petition Rules, 2013, rule 20.

Electoral Law-jurisdiction of the High Court-whether the High Court had jurisdiction to extend time for the filing of responses-Elections (Parliamentary and County Elections) Petition Rules, 2013, rule 20.

Held:

1. Rule 20 of the Elections (Parliamentary and County Elections) Petition Rules, 2013, provided for the High Court's jurisdiction to extend time for matters provided for in the rules. Matters pertaining to responses to an election petition were dealt with in the rules.

2. The time within which responses ought to be filed was not spelt out in the Constitution of Kenya, 2010. If such stipulations concerning responses had been provided for in the Constitution, the petitioners would have had a right to resist attempts to have time enlarged.

3. The High Court had acted within its jurisdiction when leave to file the responses was granted. If the petitioners were aggrieved by that decision, they ought to have appealed or applied for a review of the decision.

4. The petitioners would not suffer prejudice due to the extension of time but the respondents would be unable to effectively oppose the petition if their responses were struck out.

5. The extension of time, as granted, was in the interests of justice.

Application dismissed.

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Republic V Mary Akinyi Ngesa & Another [2013] eKLR

Case Number: Criminal Case 27 of 2013 Date Delivered: 23 May 2013

Judge: Edward Muthoga Muriithi

Court: High Court at Kisii

Parties: Republic v Mary Akinyi Ngesa & Stephen Odhiambo Obonyo

Citation: Republic V Mary Akinyi Ngesa & Another [2013] eKLR

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Bwana Mohamed Bwana V Silvano Buko Bonaya & 2 Others [2013] eKLR

Case Number: Election Petition 7 of 2013 Date Delivered: 23 May 2013

Judge: Florence Nyaguthii Muchemi

Court: High Court at Malindi

Parties: Bwana Mohamed Bwana v Silvano Buko Bonaya, Independent Electoral & Boundaries Commission & Shakila Abdalla Mohamed

Citation: Bwana Mohamed Bwana V Silvano Buko Bonaya & 2 Others [2013] eKLR

Reported by Lynette A. Jakakimba

Issue

i. Whether the High Court could allow an application by a respondent to an election petition who failed to serve their response to the election petition on the election petitioners, to serve the response out of the time prescribed by law.

Election Law-service-service of response to an election petition– application to serve response to an election petition out of time – whether the court could allow a respondent to an election petition who failed to serve their response to the election petition on the petitioners, to serve the response out of time – Elections Act, 2011 section 77 and 80–Elections (Parliamentary and County Election) Petitions Rules, 2013 rule14

Elections Act, 2011:

section 77

(1) A petition concerning an election, other than a presidential election, shall be filed within twenty-eight days after the declaration of the election results by the Commission.(2) A petition may be served personally upon a respondent or by advertisement in a newspaper with national circulation.”

Section 80(1)

“(1) An election court may, in the exercise of its jurisdiction—

(a)…

(b)…

(c)…

(d) decide all matters that come before it without undue regard to technicalities.”

Held

1. The Elections Act did not consist of any provision relating to service of a response to an election petition.   Section 77 provided for the filing of the petition and the mode of service. Rule 14(1) of the Elections (Parliamentary and county) Petition Rules, 2013 provided:

14(1) Upon being served with an election petition under Rule 13 the respondent may oppose the petition by filing and serving a response within a period of not more than fourteen days.”

2. The facts of this application were that the respondents filed their response within the time allowed by the law but failed to serve the petitioner and the 3rd respondent. For a respondent who filed and did not serve the response, the Elections Act and the Rules were silent on the consequences.  It therefore followed that just like the failure to file a response, the applicant who filed the document and failed to effect service within the time allowed by the law had to show sufficient cause for the court to exercise its discretion.

3. In the present application the 1st and 2nd respondents filed their documents in court within the stipulated time and that indicated that the 1st and 2nd respondent intended to defend the petition.  The failure to serve the petitioner and 3rd respondent the filed response had to be treated differently from failure to file and serve a response in court. It would be a very grave matter had the respondent not filed and served the response. Further the mistake was on counsel for the 1st and the 2nd respondent who inadvertently failed to serve the response and there was no indication that the 1st and the 2nd respondent were aware of the omission of the advocate on the issue of service of the response.

4. Article 159 of the Constitution called for the courts to deliver justice without undue regard to technicalities. Rule 4 of the Election (Parliamentary and County) Petition rules, 2013 put great emphasis on the overriding objective of the rules which was to facilitate just and expeditious justice.

5. The applicants had satisfied the court that the failure to serve the petitioner and the 3rd respondent was not deliberate.  The failure to serve could not be used to deny the applicants the right to defend the petition. If this was to be done, it would defeat the overriding objective of the rules to achieve a just, expedient, proportionate and affordable resolution of the election petition.  The doors of justice could not be shut against the respondents given the facts of the application.

Application allowed. The response to be served on the petitioner's counsel and that of the 3rd respondent within three (3) days. The applicant’s advocates to meet the costs of the application.

Cases referred to:

Dickson Karaba &  Hon.  John  Ngata  Kariuki Civil Appeal (Application) 125 of 2008 Court of Appeal Nairobi

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Abdinoor Adan Abdikarim V Independent Electoral & Boundaries Commission & Another [2013] eKLR

Case Number: Petition 3 of 2013 Date Delivered: 23 May 2013

Judge: B. J. NDEDA SPM

Court: Election Petition in Magistrate Courts

Parties: Abdinoor Adan Abdikarim v Independent Electoral & Boundaries Commission & Mohamed Mohamud Osman

Citation: Abdinoor Adan Abdikarim V Independent Electoral & Boundaries Commission & Another [2013] eKLR

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Robert Bisakaya Wanyera V Nathan Obwana & 3 Others [2013] eKLR

Case Number: Election Petition 1 of 2013 Date Delivered: 23 May 2013

Judge: R.B. Ngetich, Ag. CM

Court: Election Petition in Magistrate Courts

Parties: Robert Bisakaya Wanyera v Nathan Obwana, Caleb S Gekonde, Independent Electoral & Boundaries Commission & Lorna Nanjala Khaemba

Citation: Robert Bisakaya Wanyera V Nathan Obwana & 3 Others [2013] eKLR

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John Mugo Ngunga V Business Premises Rent Tribunal & Another [2013] eKLR

Case Number: Civil Application 303 of 2010 Date Delivered: 23 May 2013

Judge: Alnashir Ramazanali Magan Visram

Court: Court of Appeal at Nyeri

Parties: John Mugo Ngunga v Business Premises Rent Tribunal & Margaret M. Murangu

Citation: John Mugo Ngunga V Business Premises Rent Tribunal & Another [2013] eKLR

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Tabitha Njambi Njuguna V Jane Nungari [2013] eKLR

Case Number: Civil Application 125 of 2013 Date Delivered: 23 May 2013

Judge: John walter Onyango Otieno

Court: Court of Appeal at Eldoret

Parties: Tabitha Njambi Njuguna v Jane Nungari

Citation: Tabitha Njambi Njuguna V Jane Nungari [2013] eKLR

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Republic V Land Adjudication Officer Igembe/Tigania Districts & 2 Others [2013] eKLR

Case Number: 22 of 2008 Date Delivered: 23 May 2013

Judge: Peter Muchoki Njoroge

Court: High Court at Meru

Parties: Republic v Land Adjudication Officer Igembe/Tigania Districts & 2 others

Citation: Republic V Land Adjudication Officer Igembe/Tigania Districts & 2 Others [2013] eKLR

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Republic V Land Adjudication Officer Igembe/Tigania Districts & 2 Others [2013] eKLR

Case Number: ELC Misc Application No 22 of 2008 Date Delivered: 23 May 2013

Judge: Peter Muchoki Njoroge

Court: High Court at Meru

Parties: Republic v Land Adjudication Officer Igembe/Tigania Districts Interested parties Julius M'ndewa Marimba Exparte Jesee Mungania Itharia

Citation: Republic V Land Adjudication Officer Igembe/Tigania Districts & 2 Others [2013] eKLR

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Joseph Murage Weru V Stephen Kariuki Kahubi [2014] eKLR

Case Number: Civil Appeal 267 of 2013 Date Delivered: 23 May 2013

Judge: Jairus Ngaah

Court: High Court at Murang'a

Parties: Joseph Murage Weru v Stephen Kariuki Kahubi

Citation: Joseph Murage Weru V Stephen Kariuki Kahubi [2014] eKLR

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