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Case Action: Ruling


Commodity House Ltd V Simba Merchandising Co. (K) Ltd & Another [2013] eKLR

Case Number: Civil Suit 622 of 2012 Date Delivered: 28 Jun 2013

Judge: Jonathan Bowen Havelock

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

Parties: Commodity House Ltd v Simba Merchandising Co. (K) Ltd & Amasel Builders Ltd

Citation: Commodity House Ltd V Simba Merchandising Co. (K) Ltd & Another [2013] eKLR

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Razor Investments Limited V Murabaha Holding Limited [2013] eKLR

Case Number: ELC.Case 262 of 2012 Date Delivered: 28 Jun 2013

Judge: Mary Muthoni Gitumbi

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Razor Investments Limited v Murabaha Holding Limited

Citation: Razor Investments Limited V Murabaha Holding Limited [2013] eKLR

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Ferdinard Ndung'u Waititu V Independent Electoral & Boundaries Commission (IEBC) & 8 Others [2013] eKLR

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

Judge: Richard Mururu Mwongo

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Ferdinard Ndung'u Waititu v Independent Electoral & Boundaries Commission (IEBC), Isaac Hassan (Returning officer of the National Tallying Centre), the Nairobi County Returning officer, Evans Odhiambo Kidero, Jonathan Mweke, the Hon. Attorney General, the Divisional Commanding officer, (DCIO) Gigiri Police Station Nairobi, the Divisional Commanding officer, (DCIO) Kayole Police Division Nairobi, the Inspector General of the National Police Service

Citation: Ferdinard Ndung'u Waititu V Independent Electoral & Boundaries Commission (IEBC) & 8 Others [2013] eKLR

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A.H.C V N.P.C & Another [2013] eKLR

Case Number: Adoption 4 of 2013 Date Delivered: 28 Jun 2013

Judge: Said Juma Chitembwe

Court: High Court at Kakamega

Parties: A.H.C and N.P.C, D.N.C

Citation: A.H.C V N.P.C & Another [2013] eKLR

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Sote Komen V Grace Samson Komen & 3 Others [2013] eKLR

Case Number: Succession Cause 500 of 1997 Date Delivered: 28 Jun 2013

Judge: Mathew John Anyara Emukule

Court: High Court at Nakuru

Parties: Sote Komen v Grace Samson Komen, William Kiprop Komen, Rachel Chepng'eno Komen & Mohammed Komen

Citation: Sote Komen V Grace Samson Komen & 3 Others [2013] eKLR

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Magnate Ventures Ltd & Another V City Council Of Nairobi & 2 Others [2013] eKLR

Case Number: Civil Case 708 of 2008 Date Delivered: 28 Jun 2013

Judge: Jonathan Bowen Havelock

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

Parties: Magnate Ventures Ltd & Stanley Kinyanjui & Ignatius Obonyo Suing On Behalf Of Outdoor Advertising Association Of Kenya v City Council Of Nairobi, Adopt-A-Light Ltd & Norman Mururu

Citation: Magnate Ventures Ltd & Another V City Council Of Nairobi & 2 Others [2013] eKLR

Nature and scope of the High Court’s power to set aside or review its decision notwithstanding the fact that an appeal has been lodged

Magnate Ventures Ltd & another v City Council of Nairobi & 2 others

Civil Case No 708 of 2008

High Court at Nairobi

J B Havelock, J

June 28, 2013

Reported by Phoebe Ida Ayaya and Derrick Nzioka

Facts:

The plaintiffs herein had filed an application dated 1st December, 2008 that sought an injunction restraining the defendants from proceeding with the arbitration process in their absence. The court rendered its ruling on 10th March, 2009 allowing the application. Pursuant to orders of the court, the plaintiffs were invited to participate in the arbitration proceedings but refused. The applicant being aggrieved by the ruling and the conduct of the plaintiffs filed an application for stay, within an appeal that had been filed, but the application was dismissed. The 2nd defendant/applicant now sought for the setting aside of interlocutory orders given by the High Court on 10th March, 2009.

Issues:

  1. Whether the applicant established the required grounds for granting an order varying and/or setting aside another court order.
  2. Whether the matter had been determined by the Court of Appeal and was consequently res judicata.

 

Civil Practice and Procedure – varying and setting aside of orders of court – grounds required for an order varying and/or setting aside another order to be given – claim that the order of varying and/or setting aside was similar to an order for stay – where the respondents averred that the applicant had applied for a stay in an appeal to an order, which application had been dismissed, and so could not subsequently apply for varying and/or setting aside of the said order that had been appealed against – where the appeal was still pending before the Court of Appeal, and the application for varying and/or setting aside was made in the High Court – whether the matter was res judicata – whether the court could entertain an application for varying and/or setting aside when an appeal was still pending – order 40 rule 7, order 43 rule 1(u) Civil Procedure Rules – section 1A (3) Civil Procedure Act.

 

Held:

  1. In as much as the court may have had unfettered discretion to vary and/or set aside an order as provided under order 40 rule 7 of the Civil Procedure Rules, the discretion had to be informed and exercised with caution.
  2. The onus was upon an applicant to show that the maintenance of the orders of court to be varied and/or set aside were contrary to justice, unjust and/or oppressive and would otherwise not serve the ends of justice. (Reef Building Systems Ltd v Nairobi City Council, Civil Appeal Nyeri No 103 of 1999 and George Muraya Kirira v Zadock A M Enane (2006) eKLR)
  3. The plaintiffs herein after being granted injunctive orders, failed to adhere to the same by refusing to participate in arbitration proceedings that they had sought to be allowed to join. The change in circumstance was therefore, that the arbitration proceedings could not proceed as the plaintiffs were unwilling to participate in them. It was unfair and unjust for the plaintiffs to turn around and refuse to participate in the arbitral proceedings.
  4. In a previous ruling, the Court of Appeal found that the High Court never stated in its ruling that it was the only court that was to rule on the issue of validity or otherwise of the contract. The Court of Appeal bench reiterated that under section 17 of the Arbitration Act an arbitrator had power to rule on the issue of his own jurisdiction and on the validity or otherwise of the agreement, the subject of the arbitration and could even rule that the contract was null and void. This finding amounted to a further change in the circumstances, in that the Court of Appeal allowed for the parties to proceed in having the issue of validity of the contract determined by the arbitrator.
  5. Following the decision by the plaintiffs to refuse to participate in the arbitration proceedings, the applicant had two options to which to pursue the matter further: either make an application for setting aside the order of the High Court, as provided for under order 40 rule 7 of the Civil Procedure Rules, or file an appeal against the decision of pursuant to order 43 rule 1(u) of the same rules.
  6. The applicant decided to pursue both alternatives and in as much as the court had an unfettered discretion to set aside its own orders, such discretion was not to be abused. The applicant should have been realistic enough to follow the rules of law, and procedure, especially as set out under section 1A (3) of the Civil Procedure Act, to allow for the expeditious, proportionate and affordable resolution of the matter. By filing the instant application, pending the hearing and determination of the appeal, the applicant would be abusing the process of the court, by pursuing the same remedy in two parallel and competent courts.

Application dismissed.

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Stairs Enterprises V National Water Conservation & Pipeline Corporaton [2013] eKLR

Case Number: Civil Case 68 of 2012 Date Delivered: 28 Jun 2013

Judge: Jonathan Bowen Havelock

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

Parties: Stairs Enterprises v National Water Conservation & Pipeline Corporaton

Citation: Stairs Enterprises V National Water Conservation & Pipeline Corporaton [2013] eKLR

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In Re The Matter Of Baby A M (Minor) [2013] eKLR

Case Number: Adoption Cause 15 of 2013 (OS) Date Delivered: 28 Jun 2013

Judge: William Musya Musyoka

Court: High Court at Nairobi (Milimani Law Courts)

Parties: In Re the Matter of Baby A M (Minor)

Citation: In Re The Matter Of Baby A M (Minor) [2013] eKLR

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Wanjiru Thimba V Placid View Properties Limited [2013] eKLR

Case Number: Cause 433 0f 2012 Date Delivered: 28 Jun 2013

Judge: James Rika

Court: Industrial Court at Nairobi

Parties: Wanjiru Thimba v Placid View Properties Limited

Citation: Wanjiru Thimba V Placid View Properties Limited [2013] eKLR

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Benter Akinyi Opande V Kenya Union Of Post Primary Education Teachers & 2 Others [2013] eKLR

Case Number: Cause 842 of 2012 Date Delivered: 28 Jun 2013

Judge: James Rika

Court: Industrial Court at Nairobi

Parties: Benter Akinyi Opande v Kenya Union of Post Primary Education Teachers,Akelo Misori, Secretary General,Wicks Mwethi Njenga

Citation: Benter Akinyi Opande V Kenya Union Of Post Primary Education Teachers & 2 Others [2013] eKLR

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Abdul Aziz Gachau V Mary Wanjiru Majid & 6 Others [2013] eKLR

Case Number: Civil Case 49 of 2012 Date Delivered: 28 Jun 2013

Judge: Anthony Ombwayo

Court: High Court at Nyeri

Parties: Abdul Aziz Gachau v Mary Wanjiru Majid & 6 Others [ 2013] eKLR

Citation: Abdul Aziz Gachau V Mary Wanjiru Majid & 6 Others [2013] eKLR

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R.R.C V J.T.T [2013] eKLR

Case Number: E&L 283 of 2013 Date Delivered: 28 Jun 2013

Judge: Munyao Sila

Court: Environment and Land Court at Eldoret

Parties: R.R.C v J.T.T

Citation: R.R.C V J.T.T [2013] eKLR

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Mumwe Investments Limited & 2 Others V Kenya National Capital Corporation Ltd & Another [2013] eKLR

Case Number: Civil Case 5245 of 1992 Date Delivered: 28 Jun 2013

Judge: Alfred Mabeya

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Mumwe Investments Limited, E. Kariuki & Mary Kanyi Kimani v Kenya National Capital Corporation Ltd & Industrial Development Bank Limited

Citation: Mumwe Investments Limited & 2 Others V Kenya National Capital Corporation Ltd & Another [2013] eKLR

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Chuma Fabricators Limited V Alcon Holdings Limited [2013] eKLR

Case Number: ELC. Case 1141 of 2007 Date Delivered: 28 Jun 2013

Judge: Mary Muthoni Gitumbi

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Chuma Fabricators Limited v Alcon Holdings Limited

Citation: Chuma Fabricators Limited V Alcon Holdings Limited [2013] eKLR

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Joseph Mwai Kamurwa V Joseph Gachiri & 3 Others [2013] eKLR

Case Number: Civil Case 166 of 2011 Date Delivered: 28 Jun 2013

Judge: Anthony Ombwayo

Court: High Court at Nyeri

Parties: Joseph Mwai Kamurwa v Joseph Gachiri & 3 others

Citation: Joseph Mwai Kamurwa V Joseph Gachiri & 3 Others [2013] eKLR

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Thomas M. Mulwa & Another V Ndulu Nduvu Muasya & 18 Others [2013] eKLR

Case Number: ELC. Case 37 of 2013 Date Delivered: 28 Jun 2013

Judge: Mary Muthoni Gitumbi

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Thomas M. Mulwa & Janet N. Mulwa v Ndulu Nduvu Muasya, Mutile Kiio, Mbatha Joel, Mutua Joel, Martha Nzioka Alias Kinyelele, Kasee Muasya, Muthiani Kiio, Kioko Mutua, Peter Kioko, Nzisa Joel, Kimani Kiio, Nduva Makau, Masai Muasya, Ndungwa Kamende, Muthama Kamende, Msasila Musyimi, Antony Masilia, Musyimi Masilia & Katunge Nduvu Makau

Citation: Thomas M. Mulwa & Another V Ndulu Nduvu Muasya & 18 Others [2013] eKLR

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Harrison M. Kariuki & 17 Others V Kenya Farmers Association [2013] eKLR

Case Number: Civil Case 128 of 2001 Date Delivered: 28 Jun 2013

Judge: Roseline Pauline Vunoro Wendoh

Court: High Court at Nakuru

Parties: Harrison M. Kariuki, Joseph K. Ngugi, John M. Njenga, Eunice N. Nyambati, William K. Kariuki, Hezekiah T. Daniel, Peter K. Gachuru, Ben N. Murunga, Lawrence K. Njihia, Joseph K. Mwangi, Maina Wachira, Peggy I. Nyarita, Sebastian O. Madiang’, Josiah Eyameti, James L. Kanyingi, Kibera Mosoba, Josephat Ayadi Imbyoga (Suing as the Administrator of the Estate of Janet Khavele Joshua (Deceased)) & John Wambua Musyoki v Kenya Farmers Association

Citation: Harrison M. Kariuki & 17 Others V Kenya Farmers Association [2013] eKLR

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Stephen Mwebia Marete V Silas Mwiti Munyua & Another [2013] eKLR

Case Number: Elc 125 of 2013 Date Delivered: 28 Jun 2013

Judge: Peter Muchoki Njoroge

Court: High Court at Meru

Parties: Stephen Mwebia Marete v Silas Mwiti Munyua & Isaack Kinyua Kiara

Citation: Stephen Mwebia Marete V Silas Mwiti Munyua & Another [2013] eKLR

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Fresco Bushlands (K) Ltd V Agricultural Development Corporation [2013] eKLR

Case Number: Civil Suit 169 of 2013 Date Delivered: 28 Jun 2013

Judge: Hatari Peter George Waweru

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Fresco Bushlands (K) Ltd v Agricultural Development Corporation

Citation: Fresco Bushlands (K) Ltd V Agricultural Development Corporation [2013] eKLR

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South Shore International Limited V Talewa Road Contractors Limited [2013] eKLR

Case Number: Civil Suit 73 of 2013 Date Delivered: 28 Jun 2013

Judge: Martin Muya

Court: High Court at Mombasa

Parties: South Shore International Limited v Talewa Road Contractors Limited

Citation: South Shore International Limited V Talewa Road Contractors Limited [2013] eKLR

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Vincent Juma Awori V Prisca Anyango Kubadi [2013] eKLR

Case Number: Succession Cause 167 of 2012 Date Delivered: 27 Jun 2013

Judge: Luka Kiprotich Kimaru

Court: High Court at Busia

Parties: Vincent Juma Awori v Prisca Anyango Kubadi

Citation: Vincent Juma Awori V Prisca Anyango Kubadi [2013] eKLR

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Republic V Joseph Manyanki Mwita & Another [2013] eKLR

Case Number: Criminal Case 30 Of 2013 Date Delivered: 27 Jun 2013

Judge: Edward Muthoga Muriithi

Court: High Court at Kisii

Parties: Republic v Joseph Manyanki Mwita & Roselyne Robi Mwita

Citation: Republic V Joseph Manyanki Mwita & Another [2013] eKLR

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Patrick A. Mondoh Mcrymboh V Municipal Council Of Kisumu [2013] eKLR

Case Number: Land & Environment 55 of 2012 Date Delivered: 27 Jun 2013

Judge: Anthony Kaniaru

Court: High Court at Kisumu

Parties: Patrick A. Mondoh Mcrymboh v Municipal Council of Kisumu

Citation: Patrick A. Mondoh Mcrymboh V Municipal Council Of Kisumu [2013] eKLR

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Dickson Opola Okumu V Tom Odhiambo Odari & Another [2013] eKLR

Case Number: HCC 183 of 2011 Date Delivered: 27 Jun 2013

Judge: Anthony Kaniaru

Court: High Court at Kisumu

Parties: Dickson Opola Okumu v Tom Odhiambo Odari,John Owiro Odari

Citation: Dickson Opola Okumu V Tom Odhiambo Odari & Another [2013] eKLR

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Leonard Mugambi V Erustus Keneth Mungania [2013] eKLR

Case Number: Environment And Land Case 29 of 2013 Date Delivered: 27 Jun 2013

Judge: Peter Muchoki Njoroge

Court: High Court at Meru

Parties: Leonard Mugambi v Erustus Keneth Mungania

Citation: Leonard Mugambi V Erustus Keneth Mungania [2013] eKLR

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Anita Wamboi Julius V Stephen Mwaura Tahachie & 2 Others [2013] eKLR

Case Number: Civil Case 59 of 2013 Date Delivered: 27 Jun 2013

Judge: Oscar Angote

Court: High Court at Malindi

Parties: Anita Wamboi Julius v Stephen Mwaura Tahachie,Isaac Mkalimani Mwangu & Lilian Wanjiru Maribii

Citation: Anita Wamboi Julius V Stephen Mwaura Tahachie & 2 Others [2013] eKLR

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Tasmac Limited V Roberto Marci & 2 Others [2013] eKLR

Case Number: Miscelleanous Application 5 of 2013 Date Delivered: 27 Jun 2013

Judge: Oscar Angote

Court: High Court at Malindi

Parties: Tasmac Limited v Roberto Marci, Reuggero Sciommeri & Shalin Chitranjan Gor

Citation: Tasmac Limited V Roberto Marci & 2 Others [2013] eKLR

Tasmac Limited v Shalin Chitranjan Gor

Miscellaneous Application No. 5 of 2013

High Court of Kenya at Malindi

Environment & Land Court

O. A. Angote, J.

June 27, 2013

Reported by Beryl A. Ikamari

Issue

  1. Whether the Environment & Land Court had jurisdiction to determine a suit, brought by a shareholder, in which the appointment of an inspector to look into the affairs of a company, which owned land from which proceeds were being generated by a hospitality business, was sought.

 

Jurisdiction-jurisdiction of the Environment & Land Court-jurisdiction in a claim that concerned proceeds from the use of land and company law matters such as directorship and shareholding-whether the Environment & Land Court would have jurisdiction in a claim dealing with a mixture of issues which extended beyond land and environment matters.

 

Held:

  1. The jurisdiction of the Environment and Land Court concerned the determination of disputes relating to the environment and the use, occupation and ownership of land.
  2. The subject matter of the dispute disclosed civil or commercial matters, touching on company law and delving into the directorship and shareholding of a company, but it also concerned the issue of the ownership of land by a company and the management of the proceeds obtained from activities carried on in the land.
  3. Where a dispute raised matters which fell within the jurisdiction of both the High Court and the Environment and Land Court, any of the two courts would be able to adjudicate upon it and make a determination.
  4. A suit could not be “dismembered” by a party so that one limb would get heard by the Environment and Land Court and another limb by the High Court. That would amount to an absurdity and miscarriage of justice and was not intended by the Constitution.

 

Jurisdiction assumed by the Environment and Land Court.

 

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M A V R O O [2013] eKLR

Case Number: H.C. Civil Appeal 21 of 2009 Date Delivered: 27 Jun 2013

Judge: Luka Kiprotich Kimaru, Francis Tuiyott

Court: High Court at Busia

Parties: M A v R O O

Citation: M A V R O O [2013] eKLR

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Paulina Wanjiku Ngugi V Peter Mbiyu Gachiri & Another [2013] eKLR

Case Number: Elc Case. 494 Of 2012 Date Delivered: 27 Jun 2013

Judge: Onesmus Kimweli Mutungi

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Paulina Wanjiku Ngugi v Peter Mbiyu Gachiri & City Council Of Nairobi

Citation: Paulina Wanjiku Ngugi V Peter Mbiyu Gachiri & Another [2013] eKLR

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Kenya Re-Insurance Corporation Ltd V Jane Njagi (t/a Njagi Nyaboke & Co. Advocates) [2013] eKLR

Case Number: Civil Suit. 1581 Of 2001 (Os) Date Delivered: 27 Jun 2013

Judge: Hatari Peter George Waweru

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Kenya Re-Insurance Corporation Ltd v Jane Njagi (t/a Njagi Nyaboke & Co. Advocates)

Citation: Kenya Re-Insurance Corporation Ltd V Jane Njagi (t/a Njagi Nyaboke & Co. Advocates) [2013] eKLR

A professional undertaking is still enforceable where the amount payable has been understated

 

Kenya Re-insurance Corporation Ltd vs. Jane Njagi (t/a Njagi Nyaboke & Co. Advocates)

Civil Suit No. 1581 of 2001 (OS)

High Court at Nairobi

Civil Division

H. P. G. Waweru J,

On June 27, 2013

Reported by Emma Kinya Mwobobia and Obura Paul Michael

 

Brief facts:

The applicant was given a professional undertaking by the respondent via a letter to pay a certain sum of money owed in redemption to the applicant, against release to her, of the original title documents of a house in Buruburu phase 4 belonging to her client, together with a discharge of the charge. The respondent paid the amount demanded. However the applicant informed her that the amount had been understated and demanded the balance.

Issues:

  1. Whether the court had jurisdiction to deal with matters of professional undertaking.
  2. Whether there was a proper professional undertaking in law capable of being enforced.
  3. Whether the respondent’s undertaking was capable of enforcement.

 

Civil practice and procedure- professional undertaking- enforcement of a professional undertaking by an advocate- where the respondent undertook to pay a certain sum of money on behalf of her client at the applicant’s direction- a claim by the applicant that it had understated the amount payable in redemption and demanded the balance from the respondent- whether the respondent’s professional undertaking was capable of enforcement in the circumstance

Held:

  1. The jurisdiction of the court in an application for enforcement of a professional undertaking was a summary jurisdiction over advocates which should be exercised only in a clear case.  It was an inherent jurisdiction which the court had over advocates who were officials of the court.  It was a jurisdiction exercised, not for purposes of enforcing legal rights, but for purposes of enforcing honorable conduct on the part of the court’s own officials.  The court had to be satisfied that there had been a breach of an undertaking given by an advocate acting professionally. (Patel vs. Kairu [1999] 2 EA 279)
  2. The following were conditions in law the court considered with regard to an advocate’s professional undertaking:
  1. The undertaking must be unambiguous, unequivocal and binding on the advocate.
  2. The undertaking must be capable of being enforced. (Kenya Reinsurance Corporation Ltd vs. Muriu [1995–1998] 1 EA 107)
  1. The undertaking was binding upon the respondent and capable of enforcement since by it, she had bound herself to pay a certain amount of money on behalf of her client. She had fully discharged her professional undertaking to the applicant.

Application dismissed with costs to the respondent.

Cases

East Africa

1.Kenya Reinsurance Corporation Ltd v Muriu [1995–1998] 1 EA 107 –(Explained)

2.Patel v Kairu [1999] 2 EA 279 –(Explained)

Statutes

None referred to

Advocates

None mentioned

 

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Kenya African National Traders & Farmers Union (Suing Thro’ Its Office Bearer Kimani Wanyoike Chairman Peter Mugeka Maina Secretary & Ibrahim Wanene Treasurer V Zephania Kilungu Kilonzo [2013] eKLR

Case Number: Elc Hcc 747 of 2012 Date Delivered: 27 Jun 2013

Judge: John Mutungi

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Kenya African National Traders & Farmers Union (Suing thro’ its Office Bearer Kimani Wanyoike Chairman, Peter Mugeka Maina Secretary & Ibrahim Wanene Treasurer v Zephania Kilungu Kilonzo

Citation: Kenya African National Traders & Farmers Union (Suing Thro’ Its Office Bearer Kimani Wanyoike Chairman Peter Mugeka Maina Secretary & Ibrahim Wanene Treasurer V Zephania Kilungu Kilonzo [2013] eKLR

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Isabella G. Motari V Stephen G. Ndia [2013] eKLR

Case Number: Civil Case. 553 Of 2012 Date Delivered: 27 Jun 2013

Judge: Edward Muthoga Muriithi

Court: High Court at Kisii

Parties: Isabella G. Motari v Stephen G. Ndia

Citation: Isabella G. Motari V Stephen G. Ndia [2013] eKLR

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Helida Asiko V Maselina Odawa [2013] eKLR

Case Number: Civil Case.333 Of 2001 Date Delivered: 27 Jun 2013

Judge: Anthony Kaniaru

Court: High Court at Kisumu

Parties: Helida Asiko v Maselina Odawa

Citation: Helida Asiko V Maselina Odawa [2013] eKLR

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Francis E K Hinga V Balozi Housing Co-Op Society Ltd & Another [2013] eKLR

Case Number: Civil Appeal 496 of 2012 Date Delivered: 27 Jun 2013

Judge: David A Onyancha

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Francis E K Hinga v Balozi Housing Co-Op Society Ltd & Patrick Mwangi Munjuga & 51 others

Citation: Francis E K Hinga V Balozi Housing Co-Op Society Ltd & Another [2013] eKLR

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In Re Estate Of Eunice Wangui Ndungi (Deceased) [2013] eKLR

Case Number: Succession Cause 450 of 2010 Date Delivered: 27 Jun 2013

Judge: William Musya Musyoka

Court: High Court at Nairobi (Milimani Law Courts)

Parties: In Re Estate of Eunice Wangui Ndungi (Deceased)

Citation: In Re Estate Of Eunice Wangui Ndungi (Deceased) [2013] eKLR

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In Re Matter Of The Estate Of Gibson Kimani Gichuri (Deceased) [2013] eKLR

Case Number: Succession Cause 2503 ofOF 2001 Date Delivered: 27 Jun 2013

Judge: William Musya Musyoka

Court: High Court at Nairobi (Milimani Law Courts)

Parties: In Re Matter of the Estate of Gibson Kimani Gichuri (Deceased)

Citation: In Re Matter Of The Estate Of Gibson Kimani Gichuri (Deceased) [2013] eKLR

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Michael Mungai V Ford Kenya Elections & Nominations Board & Others & 2 Others [2013] eKLR

Case Number: Jr Misc. Application 53 of 2013 Date Delivered: 27 Jun 2013

Judge: Isaac Lenaola, David Shikomera Majanja, Mumbi Ngugi, Pauline Nyamweya, Weldon Kipyegon Korir

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Michael Mungai v Ford Kenya Elections & Nominations Board,Independent Electoral & Boundaries Commission& Jefrey M Maloba

Citation: Michael Mungai V Ford Kenya Elections & Nominations Board & Others & 2 Others [2013] eKLR

 

Scope for review of a court decree or order

Michael Mungai v Ford Kenya Elections & Nominations Board Others & 2 Others

JR Misc. Application No 53 of 2013

High Court at Nairobi

I Lenaola, Mumbi Ngugi, P Nyamweya, D S Majanja, W K Korir. JJ

June 27,2013

 

Brief Facts

The applicant brought an application before the high court seeking orders for review of an earlier high court decision composed of three judges. The Chief Justice specifically empanelled a bench of five to hear the application.

The jist of the applicant’s application was that the High Court’s ruling had errors, mistakes and omissions and that it did not address the applicants complaint namely that the respondents and their agents were careless and negligent by allowing the interested party to conduct a political party meeting without following the Constitution, statute , rules, regulations and proper procedures.

Issues

  1. Whether the scope for review of a decree or order was limited to discovery of new and important evidence and where there was a mistake or error apparent on the face of the record or for any other sufficient reason
  2. Whether in an application for review the court could deal with new prayers which were not part of the applicant’s original application.

Civil practice and procedure - review – application for review – scope for review of a decree or order - Whether in an application for review the court could deal with new prayers which were not part of the applicant’s original application- whether the applicant had met all or any of the grounds for allowing a review of an order – Civil Procedure Rules order 45 rule 1(1)

Held

  1. The High Court was not sitting on appeal over its earlier ruling. The court’s mandate was to only determine if the applicant had established grounds for the review of its earlier decision.
  2. The applicant’s prayer for compensation was not in his original motion, therefore the High Court could not deal with new prayers since they did not form part of the decision which the applicant was asking the it to review.
  3. The scope for review of a decree or order was limited to a situation where an applicant had discovered new and important evidence which was not available at the time the decree was passed or where there was a mistake or error apparent on the face of the record or for any other sufficient reason
  4. The applicant had not argued that he had discovered new and important evidence which was not available to him at the time he had filed his initial application. He had not placed before court anything to support a review of the decision on that ground.
  5. For one to succeed in having an order reviewed for mistake or error apparent on the record, he had to demonstrate that the order contained a mistake that was there for the whole world to see. It was not enough for an applicant to say that he was dissatisfied with the decision or that the same was wrong, such opinions ought to be subject of an appeal.
  6. The applicant had not established that there was an error or mistake in the decision that he had asked the High Court to review. He had not even pointed out what in his opinion was the error or mistake in that decision, he had just told the court to review its earlier decision. That was not good enough.
  7. A decree or order could also be reviewed for any sufficient reason. Sufficient reason could only be deduced from the facts and circumstances of a particular case before the court. For example, in the case of Ngororo v Ndutha & another (1994) KLR 402 the Court of Appeal held that any person though not party to the suit whose direct interest was affected by a judgment was entitled to apply for review. Such a reason could be “sufficient reason” for the purposes of order 45 rule 1(1) for reviewing a decree or an order. An applicant had to place convincing evidence before a court for the court to be satisfied that there was sufficient reason to review its decision. The applicant in the case had not given any reason to warrant the review of the impugned decision on the ground of “sufficient reason”

Application dismissed, no order as to costs

 

 

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Kulwant Singh Sihra & Another V Jagjeet Singh Sihra & Another [2013] eKLR

Case Number: Elc Civil Suit 216 of 2013 Date Delivered: 27 Jun 2013

Judge: Onesmus Kimweli Mutungi

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Kulwant Singh Sihra & Sihra Engineering Ltd v Jagjeet Singh Sihra & Gurdial Kaur Sihra

Citation: Kulwant Singh Sihra & Another V Jagjeet Singh Sihra & Another [2013] eKLR

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Kulwant Singh Sihra & Another V Jagjeet Singh Sihra & Another [2013] eKLR

Case Number: Elc Civil Suit 216 of 2013 Date Delivered: 27 Jun 2013

Judge: Onesmus Kimweli Mutungi

Court: High Court at Nairobi (Milimani Law Courts)

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Citation: Kenya Union Of Entertainment And Music Industry Employees V Sports Stadia Management Board [2013] eKLR

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Case Number: Divorce Cause 37 of 2012 Date Delivered: 27 Jun 2013

Judge: William Musya Musyoka

Court: High Court at Nairobi (Milimani Law Courts)

Parties: E W M v P M

Citation: E W M V P M [2013] eKLR

E W M v DR. P M

Divorce Cause No. 37 of 2012

High Court of Kenya at Milimani

W. M. Musyoka, J.

June 27, 2013

Reported by Beryl A. Ikamari

 

Issues

  1. Whether the High Court had jurisdiction to hear and determine petitions which concerned marriages contracted under the African Christian Marriage and Divorce Act (Cap. 151).
  2. Whether a subordinate court, pursuant to the provisions of the African Christian Marriage and Divorce Act (Cap. 151) and the Matrimonial Causes Act (Cap. 152), had jurisdiction to grant reliefs relating to co-ownership of matrimonial property.
  3. Whether pecuniary considerations could oust the jurisdiction of a subordinate court to hear and determine petitions which concerned marriages contracted under the African Christian Marriage and Divorce Act (Cap. 151).

 

Family Law-jurisdiction-jurisdiction of the High Court-separation-petition for separation for a marriage contracted under the African Christian Marriage and Divorce Act-whether the High Court had original jurisdiction to grant orders of separation in relation to a marriage contracted under the African Christian Marriage and Divorce Act-African Christian Marriage and Divorce Act (Cap. 151); section 14, and the Matrimonial Causes Act (Cap. 152); section 3.

Family Law-jurisdiction-jurisdiction of subordinate courts-petition for separation-petition for separation for a marriage contracted under the African Christian Marriage and Divorce Act-whether pecuniary limits, based on the value of matrimonial property, could oust the jurisdiction of a subordinate court to hear and determine a suit for separation with respect to a marriage contracted under the African Christian Marriage and Divorce Act-Civil Procedure Act (Cap. 21); section 11.

Family Law-jurisdiction-jurisdiction of subordinate courts-matrimonial property-division of matrimonial property-prayer for the remedy of joint ownership of property-whether a subordinate court could grant relief entailing joint ownership of matrimonial property with respect to the dissolution of a marriage contracted under the African Christian Marriage and Divorce Act-Matrimonial Causes Act (Cap. 152); section 27 & 28, and Married Women's Property Act, 1882; section 17.

 

Held:

  1. Pursuant to section 14 of the African Christian Marriage and Divorce Act (Cap. 151) as read with section 3 of the Matrimonial Causes Act (Cap. 152), jurisdiction as concerned petitions for marriages contracted under the African Christian Marriage and Divorce Act (Cap. 151) was vested in the subordinate court of the first class.
  2. The High Court had appellate jurisdiction over petitions related to marriages contracted under the African Christian Marriage and Divorce Act (Cap. 151) but it did not have original jurisdiction to hear such petitions.
  3. Sections 27 and 28 of the Matrimonial Causes Act (Cap. 152) did not provide for the grant of reliefs relating the co-ownership of matrimonial property by a subordinate court. For such purposes, proceedings under section 17 of the Married Women's Property Act, 1882 would have to be brought.
  4. Pecuniary limits, based on the value of the subject matter, would not apply where a suit took the form of a matrimonial cause as opposed to a civil suit. Matrimonial causes were governed by the provisions of special legislation and therefore, the Civil Procedure Act (Cap. 21) and the Civil Procedure Rules, 2010, and particularly section 11 of the Civil Procedure Act (Cap. 21), would not apply to such causes.

 

Preliminary objection upheld; petition struck out.

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