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Municipal Council Of Bungoma V Bungoma Teachers Savings & Credit Society Ltd [2014] KLR

Case Number: Civil Suit 143 of 2011 Date Delivered: 13 May 2014

Judge: Anne Omollo

Court: High Court at Bungoma

Parties: Municipal Council Of Bungoma v Bungoma Teachers Savings & Credit Society Ltd

Citation: Municipal Council Of Bungoma V Bungoma Teachers Savings & Credit Society Ltd [2014] KLR

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Eliud Wepukhulu Khaukha V Attorney General & Another [2014] eKLR

Case Number: Misc Civil Appl. 395 of 2005 Date Delivered: 13 May 2014

Judge: Anne Omollo

Court: High Court at Bungoma

Parties: Eliud Wepukhulu Khaukha v Attorney General & Zebedayo M. Korosia

Citation: Eliud Wepukhulu Khaukha V Attorney General & Another [2014] eKLR

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Johanah Githinji Njoroge & 400 Others V Attorney General & 5 Others [2014] eKLR

Case Number: Petition 14 of 2013 Date Delivered: 13 May 2014

Judge: Anthony Ombwayo

Court: Environment and Land Court at Nyeri

Parties: Johanah Githinji Njoroge & 400 others v Attorney General & 5 others

Citation: Johanah Githinji Njoroge & 400 Others V Attorney General & 5 Others [2014] eKLR

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Hassan Nyanje Charo V Khatib Mwashetani & 3 Others [2014] eKLR

Case Number: Civil Application 14 of 2014 Date Delivered: 13 May 2014

Judge: Kalpana Hasmukhrai Rawal, Mohammed Khadhar Ibrahim

Court: Supreme Court of Kenya

Parties: Hassan Nyanje Charo v Khatib Mwashetani, Independent Electoral and Boundaries Commission, Juma Musa & Gideon Mwangangi Wambua

Citation: Hassan Nyanje Charo V Khatib Mwashetani & 3 Others [2014] eKLR

Supreme Court declines to certify a matter as of general public importance where a similar application also lay at the court of appeal for determination.

Hassan Nyanje Charo v Khatib Mwashetani & 3 others

 In the Supreme Court of Kenya at Nairobi

 Civil Application No. 14 of 2014

 K H Rawal, DCJ & M K Ibrahim, SCJ

May 13, 2014

Reported by Teddy Musiga and Getrude Serem

Brief facts

The applicants filed an application to the Court of Appeal to certify their appeal as a matter of general public importance. However, the court of Appeal took a long time to make a determination to that application and during that pendency, the applicants moved to the Supreme Court to have their application to be certified as a matter of general public importance. However, the respondents challenged that application as an abuse of court proceedings.

Issues:

  1. Whether the Supreme Court could entertain a matter where a ruling for a similar application was pending at the court of appeal
  2. Whether it was against public policy and an abuse of the court process for a party to institute proceedings at the Supreme Court where a ruling for a similar application was pending at the court of appeal.

 

Jurisdiction  – appellate jurisdiction – appeals to the Supreme Court – certification of matters as of public importance – concurrent jurisdiction of the Supreme Court to certify matters as of public importance -  Constitution of Kenya ,2010 article 163 (4) ; Supreme Court Rules, 2012 Rule 24 .

 

Held:

  1. A certification for leave to appeal to the Supreme Court on a matter of general public importance could  be granted by either the Court of Appeal or the Supreme Court. When approaching the Supreme Court for grant of certification for leave to appeal to the Supreme Court, the Court exercised, not an appellate jurisdiction, but a Review Jurisdiction. That jurisdiction would be exercised where a party had initially approached the Court of Appeal for certification. Where one was denied leave, then such a person had a right to approach the Supreme Court for review of that decision. Similarly, where leave was granted by the Court of Appeal, an aggrieved party also had a right to approach the Supreme Court for a review of that decision.
  2. The law had to be certain, consistent and predictable. The Supreme Court’s Rules of Procedure and Directions were to also apply indiscriminately to all persons. The Supreme Court was obliged to follow the laid down principles and was bound by its previous decisions. Consequently, until the Court of Appeal had pronounced itself as to whether to grant or deny certification for leave, the Supreme Court was reluctant to assume jurisdiction.
  3. Abuse of court process included the deliberate use of the court and court process to settle vendetta, to intimidate, to inflict fear and involves the bringing of matters to Court that have no justiciable cause of action
  4. The instant matter being heard originated from the High Court where there was a justiciable cause of action. It was apparent that the Applicant appreciated the sanctity and hierarchy of courts by proceeding from the High Court to the Court of Appeal first.
  5. Courts were financed by the public fund hence; they have to be used and managed so as to enhance good governance. Public policy demanded that the rule of law was to be enhanced in the invocation of courts’ jurisdiction. Litigants were to adhere to the procedures established in regard to invocation of courts’ jurisdictions. On the other hand, courts had the duty to protect citizens’ constitutional rights; provide procedural due processes; give timely determination of matters; and preserve the rule of law. Courts were a cornerstone of the society and litigants’ legitimate expectation of timely and expeditious determination of their matters was justified.
  6. Considering the pendency of the same application at the court of Appeal, the Supreme Court for the sake of good order and good governance declined the call to entertain the applicant’s application.
  7. The concerns about the delay in determining by the court of Appeal to were noted. In order to aid in dispensing justice, it was incumbent upon judicial officers and Courts in general to expedite the matters before them. Indeed article 159(2)(b) of the Constitution of Kenya ,2010 provided that justice could not be delayed. The Supreme Court implored the Court of Appeal to consider the plight of the Applicant herein and render the pending ruling expeditiously. The situation at hand was exacerbated by the fact that Election Petitions by their very nature had timelines that had to be conformed with.

The Originating Motion dated 15th April, 2014 in Civil Application No. 14 of 2014 was dismissed.

Parties to bear their own costs

 

 

Cases
East Africa

1. Joho ,Hassan Ali & Another v Suleiman Said Shahbal & 2 others Petition No 10 of 2013 - (Mentioned)
2. Munene ,Mary Wambui v Peter Gichuki King’ara & 2 others Petition no 7 of 2013 – (Explained)
3. Sum Model Industries Ltd v Industrial & Commercial Development Corporation, Civil Application No 1 of 2011 – (Followed)
4. Hermanus Phillipus Steyn v Giovanni Gnecchi-Ruscone, Application No 4 of 2012 - (Followed)
Statutes
East Africa
1. Constitution of Kenya,2010 articles 159(2)(b) ; 163(4)(b) - (Interpreted)
2. Elections Act 2011(Act No 24 of 2011)  section 76(1)(a) - (Interpreted)
3. Supreme Court Act,2011 (Act No 7 of 2011) sections 3, 16 - (Interpreted)
4.  Supreme Court Rules, 2012 (Act No 7 of 2011 Sub Leg) rule 24 – (Interpreted)
 

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Francis Wisitsa Gyideya V Kenya Commercial Bank Ltd [2014] eKLR

Case Number: Land and Environment Case 160 of 2013 Date Delivered: 13 May 2014

Judge: Anne Omollo

Court: High Court at Bungoma

Parties: Francis Wisitsa Gyideya v Kenya Commercial Bank Ltd

Citation: Francis Wisitsa Gyideya V Kenya Commercial Bank Ltd [2014] eKLR

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Asha Charik Hamad V Ismail Lunani Wambuto & 3 Others [2014] eKLR

Case Number: Hcca 35 of 1998 Date Delivered: 13 May 2014

Judge: Anne Omollo

Court: High Court at Bungoma

Parties: Asha Charik Hamad v Ismail Lunani Wambuto,Fred N. Opilo, Fatuma Njoha Hasan & Mwanarabu Shisia Hamisi

Citation: Asha Charik Hamad V Ismail Lunani Wambuto & 3 Others [2014] eKLR

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Hellen Waruguru Waweru V Kiarie Shoe Stores Limited [2014] eKLR

Case Number: Civil Application 36 of 2013 Date Delivered: 13 May 2014

Judge: James Otieno Odek

Court: Court of Appeal at Nyeri

Parties: Hellen Waruguru Waweru v Kiarie Shoe Stores Limited

Citation: Hellen Waruguru Waweru V Kiarie Shoe Stores Limited [2014] eKLR

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Elinathan Kitiro Mwamburi V Telkom (K) Limited [2014] eKLR

Case Number: Cause 2487 of 2012 Date Delivered: 13 May 2014

Judge: Linnet Ndolo

Court: Employment and Labour Relations Court at Nairobi

Parties: Elinathan Kitiro Mwamburi v Telkom (K) Limited

Citation: Elinathan Kitiro Mwamburi V Telkom (K) Limited [2014] eKLR

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Republic V Fadai Idi Ismael [2014] eKLR

Case Number: Criminal Revision 20 of 2014 Date Delivered: 13 May 2014

Judge: Martin Muya

Court: High Court at Mombasa

Parties: Republic v Fadai Idi Ismael

Citation: Republic V Fadai Idi Ismael [2014] eKLR

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Charles Jonyo Osicho V City Council Of Nairobi & 2 Others [2014] eKLR

Case Number: ELC Suit 717 of 2013 Date Delivered: 13 May 2014

Judge: Pauline Nyamweya

Court: Environment and Land Court at Nairobi

Parties: Charles Jonyo Osicho v City Council of Nairobi,

Citation: Charles Jonyo Osicho V City Council Of Nairobi & 2 Others [2014] eKLR

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Ludwig Allnoch V Savanna International Limited [2014] eKLR

Case Number: Cause 32 of 2010 Date Delivered: 13 May 2014

Judge: Maureen Onyango Atieno

Court: Employment and Labour Relations Court at Nairobi

Parties: Ludwig Allnoch v Savanna International Limited

Citation: Ludwig Allnoch V Savanna International Limited [2014] eKLR

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Joyce Wanza Mutua V Republic [2014] eKLR

Case Number: Criminal Case 10 of 2014 Date Delivered: 13 May 2014

Judge: Roseline Lagat-Korir

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Joyce Wanza Mutua v Republic

Citation: Joyce Wanza Mutua V Republic [2014] eKLR

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Republic V Michael Thuo Gikaru [2014] eKLR

Case Number: Criminal Case 9 of 2013 Date Delivered: 13 May 2014

Judge: Roseline Lagat-Korir

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Republic v Michael Thuo Gikaru

Citation: Republic V Michael Thuo Gikaru [2014] eKLR

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Wilson Nato V Francis Simiyu Wekesa & Another [2014] eKLR

Case Number: Environment Case 3 of 2013 Date Delivered: 13 May 2014

Judge: Anne Omollo

Court: High Court at Bungoma

Parties: Wilson Nato v Francis Simiyu Wekesa & Joseph Namasaka Nato

Citation: Wilson Nato V Francis Simiyu Wekesa & Another [2014] eKLR

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In Re Estate Of Kariuki Kubuta (Deceased) [2014] eKLR

Case Number: Miscellaneous Application 7 of 2014 Date Delivered: 13 May 2014

Judge: Cecilia Wathaiya Githua

Court: High Court at Kerugoya

Parties: In Re Estate of Kariuki Kubuta (Deceased)

Citation: In Re Estate Of Kariuki Kubuta (Deceased) [2014] eKLR

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James Akelerio Alias Muguu & Another V Moses Kasaine Lenolkilal & 3 Others [2014] eKLR

Case Number: Petition No.17 Of 2014 Date Delivered: 13 May 2014

Judge: Abigail Mshila

Court: High Court at Nakuru

Parties: James Akelerio Alias Muguu & Boniface Eyianae Lowoi v Moses Kasaine Lenolkilal, County Government Of Samburu, Samburu County Public Services Board & Stephen Lelemgwe

Citation: James Akelerio Alias Muguu & Another V Moses Kasaine Lenolkilal & 3 Others [2014] eKLR

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Zealia Wanjiru Moguku & Another V Florence Wangechi Kabiri [2014] eKLR

Case Number: Civil Application 290 of 2012 Date Delivered: 13 May 2014

Judge: Stephen Gatembu Kairu

Court: Court of Appeal at Nyeri

Parties: Zealia Wanjiru Moguku & Githaiga Mbuthia v Florence Wangechi Kabiri

Citation: Zealia Wanjiru Moguku & Another V Florence Wangechi Kabiri [2014] eKLR

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Syvester Kioko Ngui & 2 Others V Republic [2014] eKLR

Case Number: Application 297, 331 & 332 of 2013 Date Delivered: 13 May 2014

Judge: Lydia Awino Achode

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Syvester Kioko Ngui,Simon Mwangi Mugi & Alphus Dadies Wafula v Republic

Citation: Syvester Kioko Ngui & 2 Others V Republic [2014] eKLR

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Nelson W. Muchemo V Joseph Wekulo Muchemo & 2 Others [2014] eKLR

Case Number: Misc.Civil Appl. 104 of 2013 Date Delivered: 13 May 2014

Judge: Anne Omollo

Court: High Court at Bungoma

Parties: Nelson W. Muchemo v Joseph Wekulo Muchemo,David Chivole Musonye & Elijah Othieno Otieno

Citation: Nelson W. Muchemo V Joseph Wekulo Muchemo & 2 Others [2014] eKLR

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David William Tett V Republic [2014] eKLR

Case Number: Miscellaneus Criminal Application 285 of 2013 Date Delivered: 13 May 2014

Judge: Amraphael Mbogholi-Msagha, Lydia Awino Achode

Court: High Court at Nairobi (Milimani Law Courts)

Parties: David William Tett v Republic

Citation: David William Tett V Republic [2014] eKLR

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Eunice Nafula Tembe V Multiple Hauliers (E.A) Ltd & 3 Others [2014] eKLR

Case Number: Civil Appeal 71 of 2007 Date Delivered: 12 May 2014

Judge: Alfred Mabeya

Court: High Court at Bungoma

Parties: Eunice Nafula Tembe v Multiple Hauliers (E.A) Ltd, Manuel Otiangala T/A Kuronya Auctioneers,Samson I. Tumbo T/A Dominion Yards & Paul B. Wamoto T/A Pawaba Traders

Citation: Eunice Nafula Tembe V Multiple Hauliers (E.A) Ltd & 3 Others [2014] eKLR

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Martin Nyaga Wambora V Speaker Of The County Of Assembly Of Embu & 3 Others [2014] eKLR

Case Number: Constitutional Petition 7 of 2014 Date Delivered: 12 May 2014

Judge: Richard Mururu Mwongo

Court: High Court at Embu

Parties: Martin Nyaga Wambora v The Speaker Of The County Of Assembly Of Embu , The County Assembly Of Embu,The Speaker Of The Senate &The; Senate

Citation: Martin Nyaga Wambora V Speaker Of The County Of Assembly Of Embu & 3 Others [2014] eKLR

Court Declines to Issue Conservatory Orders in Respect of Impeachment of Governor

Martin Nyaga Wambora v Speaker County Assembly of Embu & 3 Others

Constitutional Petition No 7 of 2014

High Court at Embu

R Mwongo, J

May12, 2014

Reported by Andrew Halonyere & Valarie Adhiambo

 

Brief Facts

Following the judgment in, Martin Nyaga Wambora & others v. Speaker of the Senate and others Petition No. 3 of 2014(Wambora’s case) declaring the removal proceedings before Embu County Assembly (the County Assembly) and impeachment of the petitioner null and void, a new motion was filed in the County Assembly for the removal of the petitioner (Martin Nyaga Wambora) from office. The application by the petitioner sought conservatory orders restraining the Speaker of the Senate (3rd respondent) or any member of the Senate from introducing discussing or deliberating his impeachment, and a stay of the resolution passed by the County Assembly regarding the motion to remove him from office.

The respondents on the other hand raised preliminary objections on jurisdiction of the Court on grounds that the proceedings before the County Assembly were in contravention of powers, privileges and immunities of the County Assembly as per article 196 of the Constitution read with section 4 and 12 of the National Assembly (Powers and Privileges) Act and section 17 of the County Government Act and further that the applications and proceedings were res judicata considering the judgment in the Wambora case.

 

Issues:

  1. Whether county assemblies and the Senate enjoyed the powers and privileges provided in the National Assembly (Powers and Privileges) Act (Cap 6 Laws of Kenya)
  2. Whether the High Court had jurisdiction in issues and procedures that were before a County Assembly where these were, by law, within the mandate of the County Assembly and Senate
  3. Whether the matter was res judicata in light of the decision by the Court in a former suit by the Petitioner
  4. What principles guided the granting of conservatory orders?
  5. Whether the Petition was arguable and whether a prima facie case had been established that would warrant the granting of conservatory orders
  6. Whether the matter was sub judice effectively prohibiting the Senate from acting on the resolution by the County Assembly
  7. Whether a resolution passed by a county assembly to impeach a Governor violated his rights to hold elective office, to human dignity and to fair administrative action
  8. Whether the reintroduction of the resolution in the County Assembly before the lapse of three months breached section 33(8)of the County Governments Act which required that a  re-introduction of a removal vote be brought to the Senate three months after a previous similar vote

Constitutional law- the legislature- establishment of Parliament- the Senate- powers and privileges of the National Assembly- whether the Senate enjoyed the powers and privileges of the National Assembly- the National Assembly (Powers and Privileges) Act (Cap 6 Laws of Kenya)

Constitutional law- devolved government- county governments- County Assemblies- powers, privileges and immunities of county assemblies-legislation providing for the powers and privileges of county assemblies- whether county assemblies enjoyed the powers and privileges of the National Assembly- law regulating powers and privileges of Parliament to apply mutatis mutandis to County Assemblies - transitional provisions of the Constitution- existing laws to continue in force with necessary adaptations for conformity with Constitution- County Government Act, 2012 section 17; Constitution of Kenya, 2010 sixth schedule section 7

Constitutional law- fundamental rights and freedoms- right to hold elective office- where a County Assembly passed a motion to impeach a Governor- whether that resolution violated the Governor’s right to hold elective office- Constitution of Kenya, 2010 article 38 (3)(c)

Constitutional law- fundamental rights and freedoms- right to human dignity- where a County Assembly passed a motion to impeach a Governor- whether that resolution violated the Governor’s right to human dignity- Constitution of Kenya, 2010 article 28

Constitutional law- fundamental rights and freedoms- right to fair administrative action- where a County Assembly passed a motion to impeach a Governor- whether that resolution violated the Governor’s right to fair administrative action- Constitution of Kenya, 2010 article 47

Jurisdiction-jurisdiction of the High Court-jurisdiction of the High Court in issues and procedures that are by law within the mandate of the County Assembly and Senate - whether the High Court had jurisdiction in issues and procedures that were before a County Assembly where these were by law within the mandate of the County Assembly and Senate -Constitution of Kenya, 2010 article 165 (3)

Civil Practice & Procedure-conservatory orders –principles guiding grant of conservatory orders- - whether the Petition was arguable and whether a prima facie case had been established that would warrant the granting of conservatory orders- what principles guided the granting of conservatory orders

Constitutional law-devolved government-county governments-removal of a county governor-resolution by the County Assembly to remove the Governor-where a previous resolution by the County Assembly to remove the Governor was declared null and void - whether the reintroduction of the resolution in the County Assembly before the lapse of three months breached section 33(8)of the County Governments Act which required that  a re-introduction of a removal vote be brought to the Senate three months after a previous similar vote-Constitution of Kenya,2010 article 181;County Government Act section 33(8)

 

Held

  1.  Article 196(3) of the Constitution gave Parliament powers to enact legislation providing for powers, privileges and immunities of county assemblies, their committees and members. Section 17 of the County Government Act, 2012, on the other hand, provided that the national law that regulated the powers and privileges of Parliament would, with the necessary modifications, apply to the County Assembly.
  2. Section 7 of the sixth schedule to the Constitution provided that all laws in force immediately before the effective date of the Constitution were to be construed with the alterations adaptations, qualifications and exceptions necessary to bring them into conformity with the Constitution. In light of that provision, and noting that National Assembly (Powers and Privileges) Act was in existence before the effective date, it was applicable in relation to the Senate and the County Assembly pursuant to article 196(3) and section 17 of the County Government Act.
  3. No other law regulated the powers and privileges of Parliament, which included the Senate, under article 93 of the Constitution. Accordingly, the National Assembly (Powers and Privileges) Act was applicable to the Senate with the necessary modifications, as it was to the County Assembly, and both the County Assembly and the Senate enjoyed the powers and privileges provided in the National Assembly (Powers and Privileges) Act, which was the national law that regulated the powers and privileges of Parliament.
  4. Article 165 (3) of the Constitution vested the High Court with unlimited original jurisdiction in civil matters.  Further, the High Court had jurisdiction, under article 165(3) (b) and (d) (ii), to determine the question whether a right or fundamental freedom in the Bill of Rights had been denied, violated, infringed or threatened; and to hear any question respecting the interpretation of the Constitution, including the determination of the question whether anything said to be done under the authority of the Constitution or of any law was inconsistent with or in contravention of the Constitution. The Court, clothed with the constitutional provisions under article 165 (3), was seized of jurisdiction to entertain the suit and the application therein.
  5. The principle behind res judicata held that litigation had to come to an end on a matter the substance of which had previously been heard and determined by the Court. Such matter could therefore not be re-opened to be restarted all over again, unless the decision reached had been set aside. It was not the reasons for the decision that were res judicata but the decision itself.
  6. The first process of removal of the County Governor was concluded with the rendering of the Court’s decision, declaring the processes null and void; both at the County Assembly and at the Senate, inter alia, on grounds of failure to obey the Court’s orders. In the contrary, the suit at hand, commenced with a fresh notice of motion in the County Assembly, which resulted in a resolution which was then under consideration in the Senate. The facts and circumstances at hand were not the same as those in the earlier litigation, and the two processes were, completely different. The Petitioner had moved to Court to litigate on the second process, which was a new matter, the substance of which had not been litigated before.
  7. In terms of section 7 of the Civil Procedure Act, the matter was not one that qualified as being “in the former suit” or as a matter which had “been heard and finally decided”. It therefore could not be said to be the same matter as that in the prior suit by the Petitioner and was therefore not res judicata.
  8. In determining whether or not to grant conservatory orders, several principles had been established by the courts. The Court would only issue conservatory orders in exceptional circumstances and would be minded of the mandate of other constitutional organs in exercise of their constitutional mandate.
  9. An applicant had to demonstrate that he had a prima facie case with a likelihood of success and that unless the court granted the conservatory order, there was real danger that he would suffer prejudice as a result of the violation or threatened violation of the Constitution. The danger had to be imminent and evident, true and actual and not fictitious; so much so that it deserved immediate remedial attention or redress by the court. Thus, an allegedly threatened violation that was remote and unlikely would not attract the court’s attention.
  10. The second principle was whether if a conservatory order was not granted, the matter would be rendered nugatory. The third principle was that the public interest had to be considered before grant of a conservatory order. Where a conservatory order was sought against a public agency like a legislative assembly that was mandated to carry out certain functions in the normal course of its business, it was only to be granted with due caution. The interruption of the lawful functions of the legislative body had to take into account the need to allow for their ordered functioning in the public interest.
  11. The allegations of breach of fair administrative action on the basis of threshold of seriousness and nexus prescribed by the High Court in the Petitioner’s prior suit could not stand. When the County Assembly exercised its statutory mandate under section 33 of the County Governments Act and pursuant to the constitutional power under article 181, it was for that Assembly, and not for the Court, to ascertain that the legal threshold was satisfied whilst conducting its quasi-judicial inquiry. The Court’s role could not precede the County Assembly’s inquiry role. The role of the Court was not essentially to conduct a merit review of the Assembly’s actions.
  12. There was no indication that the County Assembly did not, in terms of the requirements of natural justice, deliberate on the charges to ascertain their legality or otherwise. Accordingly, the Petitioner had not demonstrated a prima facie case that called for the issuance of a conservatory order to preserve his right to hold office. The right under article 38(3) (c) was constitutionally circumscribed by article 181 and a statutory process was prescribed under section 33 County Governments Act for effecting the removal of the office holder.
  13. In the prior suit by the Petitioner, the Court had found that the impugned vote had been done in breach of court orders and was therefore a nullity. That characterization of the word “nullity” was the trite and common legal appreciation of it, which was described as “Nothing; no proceeding; an act or proceeding in a cause which the opposite party may treat as though it had not taken place, or which has absolutely no legal force or effect.” (Black’s Law Dictionary)
  14. If the previous resolution as presented to the Senate and the subsequent Senate proceedings had already been described as non-existent or a nullity, it followed on a prima facie basis, that no vote could have taken place there. The Petitioner’s allegation of breach based on section 33 (8) of the County Governments Act did not therefore assist the Petitioner’s plea of a prima facie case meriting a conservatory order.
  15. A matter that was sub judice was a matter pending before the court or judge for determination. The Court at that point did not have enough information to determine whether the matter before it was actually sub judice.
  16. No interlocutory order could be issued in the case unless the Court had the benefit of all the arguments by all the Parties on the merits. The Court had to further be minded that the matter began through a process enshrined under the Constitution, by virtue of article 181 and section 33 of the County Government Act, 2012 and was at that time before the Senate. The application did not merit the orders of conservatory sought at that stage.

 

Preliminary objection disallowed and notice of motion dismissed with no order as to costs

 

 

 

 

 

 

 

 

 

Court Declines to Issue Conservatory Orders in Respect of Impeachment of Governor

Martin Nyaga Wambora v Speaker County Assembly of Embu & 3 Others

Constitutional Petition No 7 of 2014

High Court at Embu

R Mwongo, J

May12, 2014

Reported by Andrew Halonyere & Valarie Adhiambo

 

Brief Facts

Following the judgment in, Martin Nyaga Wambora & others v. Speaker of the Senate and others Petition No. 3 of 2014(Wambora’s case) declaring the removal proceedings before Embu County Assembly (the County Assembly) and impeachment of the petitioner null and void, a new motion was filed in the County Assembly for the removal of the petitioner (Martin Nyaga Wambora) from office. The application by the petitioner sought conservatory orders restraining the Speaker of the Senate (3rd respondent) or any member of the Senate from introducing discussing or deliberating his impeachment, and a stay of the resolution passed by the County Assembly regarding the motion to remove him from office.

The respondents on the other hand raised preliminary objections on jurisdiction of the Court on grounds that the proceedings before the County Assembly were in contravention of powers, privileges and immunities of the County Assembly as per article 196 of the Constitution read with section 4 and 12 of the National Assembly (Powers and Privileges) Act and section 17 of the County Government Act and further that the applications and proceedings were res judicata considering the judgment in the Wambora case.

 

Issues:

  1. Whether county assemblies and the Senate enjoyed the powers and privileges provided in the National Assembly (Powers and Privileges) Act (Cap 6 Laws of Kenya)
  2. Whether the High Court had jurisdiction in issues and procedures that were before a County Assembly where these were, by law, within the mandate of the County Assembly and Senate
  3. Whether the matter was res judicata in light of the decision by the Court in a former suit by the Petitioner
  4. What principles guided the granting of conservatory orders?
  5. Whether the Petition was arguable and whether a prima facie case had been established that would warrant the granting of conservatory orders
  6. Whether the matter was sub judice effectively prohibiting the Senate from acting on the resolution by the County Assembly
  7. Whether a resolution passed by a county assembly to impeach a Governor violated his rights to hold elective office, to human dignity and to fair administrative action
  8. Whether the reintroduction of the resolution in the County Assembly before the lapse of three months breached section 33(8)of the County Governments Act which required that a  re-introduction of a removal vote be brought to the Senate three months after a previous similar vote

Constitutional law- the legislature- establishment of Parliament- the Senate- powers and privileges of the National Assembly- whether the Senate enjoyed the powers and privileges of the National Assembly- the National Assembly (Powers and Privileges) Act (Cap 6 Laws of Kenya)

Constitutional law- devolved government- county governments- County Assemblies- powers, privileges and immunities of county assemblies-legislation providing for the powers and privileges of county assemblies- whether county assemblies enjoyed the powers and privileges of the National Assembly- law regulating powers and privileges of Parliament to apply mutatis mutandis to County Assemblies - transitional provisions of the Constitution- existing laws to continue in force with necessary adaptations for conformity with Constitution- County Government Act, 2012 section 17; Constitution of Kenya, 2010 sixth schedule section 7

Constitutional law- fundamental rights and freedoms- right to hold elective office- where a County Assembly passed a motion to impeach a Governor- whether that resolution violated the Governor’s right to hold elective office- Constitution of Kenya, 2010 article 38 (3)(c)

Constitutional law- fundamental rights and freedoms- right to human dignity- where a County Assembly passed a motion to impeach a Governor- whether that resolution violated the Governor’s right to human dignity- Constitution of Kenya, 2010 article 28

Constitutional law- fundamental rights and freedoms- right to fair administrative action- where a County Assembly passed a motion to impeach a Governor- whether that resolution violated the Governor’s right to fair administrative action- Constitution of Kenya, 2010 article 47

Jurisdiction-jurisdiction of the High Court-jurisdiction of the High Court in issues and procedures that are by law within the mandate of the County Assembly and Senate - whether the High Court had jurisdiction in issues and procedures that were before a County Assembly where these were by law within the mandate of the County Assembly and Senate -Constitution of Kenya, 2010 article 165 (3)

Civil Practice & Procedure-conservatory orders –principles guiding grant of conservatory orders- - whether the Petition was arguable and whether a prima facie case had been established that would warrant the granting of conservatory orders- what principles guided the granting of conservatory orders

Constitutional law-devolved government-county governments-removal of a county governor-resolution by the County Assembly to remove the Governor-where a previous resolution by the County Assembly to remove the Governor was declared null and void - whether the reintroduction of the resolution in the County Assembly before the lapse of three months breached section 33(8)of the County Governments Act which required that  a re-introduction of a removal vote be brought to the Senate three months after a previous similar vote-Constitution of Kenya,2010 article 181;County Government Act section 33(8)

 

Held

  1.  Article 196(3) of the Constitution gave Parliament powers to enact legislation providing for powers, privileges and immunities of county assemblies, their committees and members. Section 17 of the County Government Act, 2012, on the other hand, provided that the national law that regulated the powers and privileges of Parliament would, with the necessary modifications, apply to the County Assembly.
  2. Section 7 of the sixth schedule to the Constitution provided that all laws in force immediately before the effective date of the Constitution were to be construed with the alterations adaptations, qualifications and exceptions necessary to bring them into conformity with the Constitution. In light of that provision, and noting that National Assembly (Powers and Privileges) Act was in existence before the effective date, it was applicable in relation to the Senate and the County Assembly pursuant to article 196(3) and section 17 of the County Government Act.
  3. No other law regulated the powers and privileges of Parliament, which included the Senate, under article 93 of the Constitution. Accordingly, the National Assembly (Powers and Privileges) Act was applicable to the Senate with the necessary modifications, as it was to the County Assembly, and both the County Assembly and the Senate enjoyed the powers and privileges provided in the National Assembly (Powers and Privileges) Act, which was the national law that regulated the powers and privileges of Parliament.
  4. Article 165 (3) of the Constitution vested the High Court with unlimited original jurisdiction in civil matters.  Further, the High Court had jurisdiction, under article 165(3) (b) and (d) (ii), to determine the question whether a right or fundamental freedom in the Bill of Rights had been denied, violated, infringed or threatened; and to hear any question respecting the interpretation of the Constitution, including the determination of the question whether anything said to be done under the authority of the Constitution or of any law was inconsistent with or in contravention of the Constitution. The Court, clothed with the constitutional provisions under article 165 (3), was seized of jurisdiction to entertain the suit and the application therein.
  5. The principle behind res judicata held that litigation had to come to an end on a matter the substance of which had previously been heard and determined by the Court. Such matter could therefore not be re-opened to be restarted all over again, unless the decision reached had been set aside. It was not the reasons for the decision that were res judicata but the decision itself.
  6. The first process of removal of the County Governor was concluded with the rendering of the Court’s decision, declaring the processes null and void; both at the County Assembly and at the Senate, inter alia, on grounds of failure to obey the Court’s orders. In the contrary, the suit at hand, commenced with a fresh notice of motion in the County Assembly, which resulted in a resolution which was then under consideration in the Senate. The facts and circumstances at hand were not the same as those in the earlier litigation, and the two processes were, completely different. The Petitioner had moved to Court to litigate on the second process, which was a new matter, the substance of which had not been litigated before.
  7. In terms of section 7 of the Civil Procedure Act, the matter was not one that qualified as being “in the former suit” or as a matter which had “been heard and finally decided”. It therefore could not be said to be the same matter as that in the prior suit by the Petitioner and was therefore not res judicata.
  8. In determining whether or not to grant conservatory orders, several principles had been established by the courts. The Court would only issue conservatory orders in exceptional circumstances and would be minded of the mandate of other constitutional organs in exercise of their constitutional mandate.
  9. An applicant had to demonstrate that he had a prima facie case with a likelihood of success and that unless the court granted the conservatory order, there was real danger that he would suffer prejudice as a result of the violation or threatened violation of the Constitution. The danger had to be imminent and evident, true and actual and not fictitious; so much so that it deserved immediate remedial attention or redress by the court. Thus, an allegedly threatened violation that was remote and unlikely would not attract the court’s attention.
  10. The second principle was whether if a conservatory order was not granted, the matter would be rendered nugatory. The third principle was that the public interest had to be considered before grant of a conservatory order. Where a conservatory order was sought against a public agency like a legislative assembly that was mandated to carry out certain functions in the normal course of its business, it was only to be granted with due caution. The interruption of the lawful functions of the legislative body had to take into account the need to allow for their ordered functioning in the public interest.
  11. The allegations of breach of fair administrative action on the basis of threshold of seriousness and nexus prescribed by the High Court in the Petitioner’s prior suit could not stand. When the County Assembly exercised its statutory mandate under section 33 of the County Governments Act and pursuant to the constitutional power under article 181, it was for that Assembly, and not for the Court, to ascertain that the legal threshold was satisfied whilst conducting its quasi-judicial inquiry. The Court’s role could not precede the County Assembly’s inquiry role. The role of the Court was not essentially to conduct a merit review of the Assembly’s actions.
  12. There was no indication that the County Assembly did not, in terms of the requirements of natural justice, deliberate on the charges to ascertain their legality or otherwise. Accordingly, the Petitioner had not demonstrated a prima facie case that called for the issuance of a conservatory order to preserve his right to hold office. The right under article 38(3) (c) was constitutionally circumscribed by article 181 and a statutory process was prescribed under section 33 County Governments Act for effecting the removal of the office holder.
  13. In the prior suit by the Petitioner, the Court had found that the impugned vote had been done in breach of court orders and was therefore a nullity. That characterization of the word “nullity” was the trite and common legal appreciation of it, which was described as “Nothing; no proceeding; an act or proceeding in a cause which the opposite party may treat as though it had not taken place, or which has absolutely no legal force or effect.” (Black’s Law Dictionary)
  14. If the previous resolution as presented to the Senate and the subsequent Senate proceedings had already been described as non-existent or a nullity, it followed on a prima facie basis, that no vote could have taken place there. The Petitioner’s allegation of breach based on section 33 (8) of the County Governments Act did not therefore assist the Petitioner’s plea of a prima facie case meriting a conservatory order.
  15. A matter that was sub judice was a matter pending before the court or judge for determination. The Court at that point did not have enough information to determine whether the matter before it was actually sub judice.
  16. No interlocutory order could be issued in the case unless the Court had the benefit of all the arguments by all the Parties on the merits. The Court had to further be minded that the matter began through a process enshrined under the Constitution, by virtue of article 181 and section 33 of the County Government Act, 2012 and was at that time before the Senate. The application did not merit the orders of conservatory sought at that stage.

 

Preliminary objection disallowed and notice of motion dismissed with no order as to costs

 

 

 

 

 

 

 

 

 

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Paternity must be established before subjecting a putative father to pay child maintenance

ZW v MGW

Miscellaneous Case No. 108 of 2013

High Court of Kenya at Nairobi

W. Musyoka, J

May 9, 2014

 

Reported by Andrew Halonyere & Anne Mbuthia

 

Issues:

  1. What is the broad objective of the Children Act, 2001 with regard to parental responsibility for children born out of wedlock?
  2. Whether it was imperative to determine the paternity of a child before subjecting a putative father to pay child maintenance
  3. What was the principal consideration in determining children’s cases?

 

Family law – DNA testing – application against the Respondent to submit to DNA test to determine paternity – principal consideration in determining children’s cases - Whether it was imperative to determine the paternity of a child before subjecting a putative father to maintenance – Children Act, 2001 section 4(2)& (3),90

 

Section 4 (2) and (3) of the Children Act, 2001:

(2)       In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.

(3)       All judicial and administrative institutions, and all persons acting in the name of these institutions, where they are exercising any powers conferred by this Act shall treat the interests of the child as the first and paramount consideration to the extent that this is consistent with adopting a course of action calculated to—

(a)      safeguard and promote the rights and welfare of the child;

(b)      conserve and promote the welfare of the child;

(c)       secure for the child such guidance and correction as is necessary for the welfare of the child and in the public interest.

 

Held:

  1. The spirit of the Children Act was that parents had to care, protect and provide for the children that they were responsible for bringing into this world.  The broad objective of the Act was not that protection was to be afforded only to those children born within wedlock, or where the father had assumed parental responsibility, as adopting such an approach to the matter would be discriminatory of children born outside wedlock, where the putative father declined to assume parental responsibility.
  2. The “paramountcy principle”, provided under section 4(2) and (3) of the Children Act, had to be the principal consideration in determining children’s cases. The matter was one involving a child and had to be looked at from that perspective.
  3. In order to determine whether the Respondent could be ordered to maintain the subject child, it was imperative to determine first whether the Respondent was the father of the said child. The most modern and effective way for doing so was to subject the putative father to a DNA test.
  4. (Obiter) “I am conscious of the conditions stated by GBM Kariuki J. in MW v KC.  That is a decision of court of concurrent jurisdiction.  The decision is persuasive but not binding on me.  In my view, and with utmost respect, the said decision to the extent it sets out the conditions to be met in determining whether to order a DNA test or not, gives undue focus on the interests of the putative father as against those of the child.  Yet Section 4 of the Children Act makes the welfare of the child the principal consideration.”

 

  1. Respondent to submit to DNA test to determine paternity of L.G.W
  2. Test to be conducted at the Government Laboratory within thirty (30) days of the date of the ruling
  3. Both the Applicant and Respondent to meet the cost of the DNA test equally, but in the event of a positive result the Respondent to refund the Applicant’s costs, and in the event of a negative result the Applicant to refund the Respondent’s costs
  4. Matter to be mentioned after thirty (30) days to monitor compliance
  5. The costs of the application to abide the results of the DNA test

 

Cases

East Africa

1.MW v KC [2005] 2 KLR 246 –(Explained)

2.PM v JK Miscellaneous Case No 159 of 2009 –(Explained)

3.ZAK& another v MA & another Petition No 193 of 2011 –(Explained)

Statutes

East Africa

1.Children Act, 2001 (Act No 8 of 2001) sections 4(20(3); 6-19, 22, 90(a)(c) –(Interpreted)

2.Constitution of Kenya, 2010 articles 27(1)(2)(4); 53(1)(c) –(Interpreted)

Advocates

1.Mr Makumi for the Respondent

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