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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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Board Of Trustees Deliverence Church V Musa Torotich Chepkurui

Case Number: E&L 17 OF 2013 Date Delivered: 23 May 2013

Judge: Munyao Sila

Court: Environment and Land Court at Eldoret

Parties: Board Of Trustees Deliverence Church v Musa Torotich Chepkurui

Citation: Board Of Trustees Deliverence Church V Musa Torotich Chepkurui

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Fedensio M’mugambi V County Council Of Meru & Another [2013]eKLR

Case Number: Civil Application 295 of 2011 Date Delivered: 23 May 2013

Judge: James Otieno Odek

Court: Court of Appeal at Nyeri

Parties: Fedensio M’mugambi v County Council of Meru & another

Citation: Fedensio M’mugambi V County Council Of Meru & Another [2013] eKLR

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Grace Wangui Ngenye V Wilfred Kiboro & Another [2013] eKLR

Case Number: HCCC 847 & 1008 of 2005 (Consolidated) Date Delivered: 22 May 2013

Judge: Rose Edwina Atieno Ougo

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Grace Wangui Ngenye V Wilfred Kiboro,Nation Media Group Limited

Citation: Grace Wangui Ngenye V Wilfred Kiboro & Another [2013] eKLR

Scope of Taxing Master in Calculating Instruction Fees

 

Grace Wangui Ngenye V Wilfred Kiboro & another HCCC No. 847 of 2005

(As consolidated with)

 Grace Wangui Ngenye V Wilfred Kiboro & another HCCC No. 1008 of 2005

High Court of Kenya at Nairobi

R.E Ougo, J

May 22nd, 2013

Reported by Mercy Ombima

 

Brief Facts

The Plaintiff had filed two separate bills for taxation after a joint judgment for the sum of Ksh. 3, 500, 000/= had been entered, in relation to two defamation suits that had been consolidated into one suit by consent of parties to the dispute. The taxing master had gone ahead and awarded instruction fees in both cases. The Applicant (the Defendant) sought court orders to set aside the award on the ground that it had been erroneously assessed.  The Applicant also disputed the taxing master’s reasons for enhancing instruction fees whereby the taxing master had considered issues such as the importance of the plaintiff and the threat of the Defendant’s publications to the Plaintiff’s career and livelihood.

 

Taxation of costs - advocate and client costs - application to set aside the tax master’s award of costs - where the taxing master assessed the advocates fees based on two separate suits that had been consolidated into one suit – claim that each suit should not have attracted distinct advocate’s instructions - whether the taxing master exercised his mandate appropriately - Advocates Remuneration Order 2009 Rule 11(2)

Issues

  1. What was the proper procedure of assessing advocates fees for consolidated suits?
  2. What was the scope of a taxing master’s mandate to award getting up fees?

 

Held

  1. Costs of consolidated suits were to be apportioned when it came to instruction fees. The taxing master had awarded instruction fees on the basis of the award of Kshs 3,500,000/= on each suit which in essence amounted to Kshs 7,000,000/= and in so doing, he had paid the plaintiff twice the award given by the judge. That amounted to unjust enrichment bearing in mind that the suits had been consolidated.
  2.  On getting up fees, since counsel had prepared for the hearing for one suit after the consolidation, the item was to be taxed once. The taxing master had gone out of his way in considering extraneous matters in awarding instruction fees. What he had considered were views that should have been expressed during the trial.
  3. The Advocate’s Remuneration Order allowed the taxing master, when considering instruction fees to consider the nature or importance of the matter, the amount or value of the subject matter involved; the interest of the parties, complexity of the matter and all circumstances of the case. In that matter the court had given gave an award of Kshs 3,500,000/= which was the amount to be considered when taxing those bills of costs. The taxing master had therefore misdirected himself in considering the status of the plaintiff to the extent that he did, yet the same had been extensively considered in the judgment.

Application allowed

 

 

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Republic V Industrial Court Of Kenya & 4 Others Ex-Parte British American Tobacco Kenya [2013] eKLR

Case Number: Judicial Review Case 632 of 2008 Date Delivered: 22 May 2013

Judge: Weldon Kipyegon Korir

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Republic v Industrial Court of Kenya & Kenya Union of Commercial Food & Allied Works Ex-Parte British American Tobacco Kenya Limited, Robert Gichohi Machira, Japheth Nyaga Mati & Benson Mwangi Macharia

Citation: Republic V Industrial Court Of Kenya & 4 Others Ex-Parte British American Tobacco Kenya [2013] eKLR

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Chepwogen Langat Maritim V Philip Kiptoo Bett[2013]eKLR

Case Number: E& L 257 OF 2013 Date Delivered: 22 May 2013

Judge: Munyao Sila

Court: High Court at Eldoret

Parties: Chepwogen Langat Maritim v Philip Kiptoo Bett

Citation: Chepwogen Langat Maritim V Philip Kiptoo Bett[2013] eKLR

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Presbyterian Foundation V Attorney General [2013] eKLR

Case Number: Elc 50 of 2013 Date Delivered: 22 May 2013

Judge: Anthony Ombwayo

Court: High Court at Nyeri

Parties: Presbyterian Foundation v Attorney General

Citation: Presbyterian Foundation V Attorney General [2013] eKLR

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Tailors & Textiles Workers Union V Global Apparels Limited [2013] eKLR

Case Number: Cause 1176 of 2010 Date Delivered: 22 May 2013

Judge: Marete D.K. Njagi

Court: Industrial Court at Nairobi

Parties: Tailors & Textiles Workers Union v Global Apparels Limited

Citation: Tailors & Textiles Workers Union V Global Apparels Limited [2013] eKLR

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Johnson Kanyingi Githinji V Margaret Wanjiku Muchiri [2013] eKLR

Case Number: E.L.C.63 of 2013 Date Delivered: 22 May 2013

Judge: Anthony Ombwayo

Court: High Court at Nyeri

Parties: Johnson Kanyingi Githinji v Margaret Wanjiku Muchiri

Citation: Johnson Kanyingi Githinji V Margaret Wanjiku Muchiri [2013] eKLR

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Tom Otieno Ogongo V Instarect Limited [2013] eKLR

Case Number: Cause 232 of 2012 Date Delivered: 22 May 2013

Judge: Marete D.K. Njagi

Court: Industrial Court at Nairobi

Parties: Tom Otieno Ogongo v Instarect Limited

Citation: Tom Otieno Ogongo V Instarect Limited [2013] eKLR

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John Muema Mutuku V Stephen Nzioka Kingooi [2013] eKLR

Case Number: Civil Suit 450 of 2012 Date Delivered: 21 May 2013

Judge: Rose Edwina Atieno Ougo

Court: High Court at Nairobi (Milimani Law Courts)

Parties: John Muema Mutuku v Stephen Nzioka Kingooi

Citation: John Muema Mutuku V Stephen Nzioka Kingooi [2013] eKLR

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Kennedy Mose Nyagwaya V Independent Electoral & Boundaries Commision & 2 Others [2013] eKLR

Case Number: Election Petition 3 Of 2013 Date Delivered: 21 May 2013

Judge: K. Sambu

Court: Election Petition in Magistrate Courts

Parties: Kennedy Mose Nyagwaya v Independent Electoral & Boundaries Commision, Moses Opiyo Ahete & Kennedy Michira Mainya

Citation: Kennedy Mose Nyagwaya V Independent Electoral & Boundaries Commision & 2 Others [2013] eKLR

Electoral Law-election petition-evidence-discretion of the court to call evidence during trial proceedings of election petitions-whether interlocutory application could be allowed before hearing of the main petition

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John Ndung’u Mbachio V Musa Njunguna & Another [2013] eKLR

Case Number: Civil Case 160 of 2011 Date Delivered: 21 May 2013

Judge: Rose Edwina Atieno Ougo

Court: High Court at Nairobi (Milimani Law Courts)

Parties: John Ndung’u Mbachio v Musa Njunguna & Njeri Mwikamba

Citation: John Ndung’u Mbachio V Musa Njunguna & Another [2013] eKLR

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Francis Mangi Kahoro V Independent Electoral & Boundaries Commission & 2 Others [2013] eKLR

Case Number: Petition 1 of 2013 Date Delivered: 21 May 2013

Judge: D. Orimba Ag. SPM

Court: Election Petition in Magistrate Courts

Parties: Francis Mangi Kahoro v Independent Electoral & Boundaries Commission, John Ngutai sued in his capacity as Returning Officer & Anderson Muchemi Waweru

Citation: Francis Mangi Kahoro V Independent Electoral & Boundaries Commission & 2 Others [2013] eKLR

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Patrick Cheruiyot Sang V Republic [2013] eKLR

Case Number: Miscellaneus Criminal Application 125 of 2013 Date Delivered: 20 May 2013

Judge: Lydia Awino Achode

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Patrick Cheruiyot Sang v Republic

Citation: Patrick Cheruiyot Sang V Republic [2013] eKLR

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C. Dormans Limited V Kenya Railways Corporation [2013] eKLR

Case Number: Civil Suit 109 of 2013 Date Delivered: 17 May 2013

Judge: Rose Edwina Atieno Ougo

Court: High Court at Nairobi (Milimani Law Courts)

Parties: C. Dormans Limited v Kenya Railways Corporation

Citation: C. Dormans Limited V Kenya Railways Corporation [2013] eKLR

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ELIZABETH MWIKALI KITHUKA[2013]eKLR

Case Number: Bankruptcy Cause 23 of 2007 Date Delivered: 17 May 2013

Judge: Jonathan Bowen Havelock

Court: High Court at Nairobi (Milimani Law Courts)

Parties: ELIZABETH MWIKALI KITHUKA

Citation: ELIZABETH MWIKALI KITHUKA[2013] eKLR

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Winnie Wanjiku Mwendia V Catherine Wangari Mwendia & Another [2013] eKLR

Case Number: Elc Civil Case 138 of 2011 Date Delivered: 17 May 2013

Judge: Rose Edwina Atieno Ougo

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Winnie Wanjiku Mwendia v Catherine Wangari Mwendia & Geosos Holdings Limited

Citation: Winnie Wanjiku Mwendia V Catherine Wangari Mwendia & Another [2013] eKLR

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Said Mbwana Abdi V Muhambi Koja [2013] eKLR

Case Number: Civil Appeal 31 of 2010 Date Delivered: 17 May 2013

Judge: Christine Wanjiku Meoli

Court: High Court at Malindi

Parties: Said Mbwana Abdi v Muhambi Koja

Citation: Said Mbwana Abdi V Muhambi Koja [2013] eKLR

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ATTORNEY GENERAL OF THE REPUBLIC OF UGANDA V EAST AFRICAN LAW SOCIETY & Another [2013] eKLR

Case Number: Application 1 of 2013 Date Delivered: 17 May 2013

Judge: Isaac Lenaola, Johnston Busingye, John Joseph Mkwawa

Court: East African Court of Justice

Parties: ATTORNEY GENERAL OF THE REPUBLIC OF UGANDA v EAST AFRICAN LAW SOCIETY & another

Citation: ATTORNEY GENERAL OF THE REPUBLIC OF UGANDA V EAST AFRICAN LAW SOCIETY & Another [2013] eKLR

Reported by Linda Awuor

Issues:

1. Whether the application met the requirements for orders of stay of execution

2. Whether a notice of appeal is a sufficient expression of an intention to file an appeal

3. Whether the applicant was exempt from the requirement of payment of security for costs

International Law – rules of procedure for the EACJ –stay of execution – requirements for orders of stay of execution - where the applicant had lodged the notice of appeal – whether this was sufficient expression of an intention to file an appeal – whether the application met the requirements for orders of stay of execution - Rules 54 (2), 110 (1), (2) and (3) of the Rules of Procedure of this Court

International law – rules of procedure for the EACJ – security for costs – requirement for security for costs– whether the Applicant was exempt from the requirement of security for costs - Rule 115 (2) of the Court’s Rules of Procedure

Background to the case

In Application No. 12 of 2012, the East Africa Law Society (EALS) sought the Court’s leave to produce additional evidence in form of documentation and electronic format after the close of pleadings in Reference No. 2 of 2012. At the scheduling conference, the parties had consented that all evidence would be tendered by way of affidavits. Subsequently, EALS obtained evidence which they alleged could not be easily obtained to be used at the Reference as it necessitated “surmounting of diplomatic hurdle and corporate red-tape”. They therefore brought a Notice of Motion dated 2nd September, 2012 under the provisions of Rule 46 (1) of the Rules of the Court seeking for an order that the Court grant them leave to produce additional evidence in form of documentation and electronic format after the close of pleadings. The Court allowed the application stating that the import of Rule 46(1) was to ensure that no evidence is shut out even after pleadings have closed and to enable the Court exercise discretion whenever necessary to do so and to afford an opposing party adequate opportunity to comment on and rebut the new evidence tendered by the other party and if necessary, file fresh evidence to contradict it.

The Attorney General of the Republic of Uganda, being aggrieved, filed the current application for stay of execution on the grounds that he had lodged a Notice of Appeal against the whole Ruling in Application No. 12 of 2012 and accordingly requested for the record of proceedings to enable him file a record of appeal. Further, he submitted that the intended appeal had a high chance of success, and that if the Court did not grant a stay of execution of the orders in Application No. 12 of 2012, it would render the intended appeal nugatory.

Held

1. Courts have established three conditions for determination of applications for stay of execution:-

·                  That the application has been made without unreasonable delay; and

 

<p style="&quot;margin-left:.5in;text-align:justify;text-indent:4.5pt;mso-list:l0" level1="" lfo1"="" class="&quot;MsoNoSpacing&quot;">·                  That security for costs has been given by the Applicant.

The Applicant has satisfied the first requirement because the Court is alive to the fact that if it continues with the hearing of Reference No.2 of 2012, the intended appeal would be rendered nugatory and the Applicant would be prejudiced and suffer loss if that appeal were to succeed.

2. The impugned Ruling was delivered on 13th February 2013 and the Applicant lodged a Notice of Appeal on 4th March and accordingly on the same day requested for the records of proceedings to enable him file a record of appeal. It cannot, therefore, by any stretch of imagination be said that there was a delay on the part of the Applicant. The application was made without unreasonable delay.

3. A notice of appeal is a sufficient expression of an intention to file an appeal. Such an action is sufficient to found the basis for grant of orders of stay in appropriate cases.

4. Pursuant to Rule 1 (2) of the Rules of this Court, the Court has inherent powers to grant the Applicant’s prayers. This rule gives the Court inherent power to: “Make such orders as, may be necessary for the ends of justice”. The main principle to be applied is whether the dictates of justice so demand.

5. Where a Claimant is a Partner State, the Secretary General or any of the institutions of the Community, no security for costs shall be required. The Applicant has been sued for and on behalf of the Republic of Uganda which is a Partner State and therefore exempt from the requirement for payment of security for costs

Orders of the Court

a) The orders issued in Application No.12 of 2012 be stayed pending the determination of an intended appeal by the Applicant, which must be filed strictly in accordance with Rules of this Court.

b) The costs of the application shall abide the outcome the intended Appeal.

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Betty Ihavi Ambundo V Jimmy Mabano Ambundo [2013] eKLR

Case Number: Miscelleaneous 225 of 2010 Date Delivered: 17 May 2013

Judge: Rose Edwina Atieno Ougo

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Betty Ihavi Ambundo v Jimmy Mabano Ambundo

Citation: Betty Ihavi Ambundo V Jimmy Mabano Ambundo [2013] eKLR

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Kenya Railways Corporation V William Ogutu Okoth & 2 Others [2013]eKLR

Case Number: Environmental & Land Case 363 of 2013 Date Delivered: 17 May 2013

Judge: Mary Muthoni Gitumbi

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Kenya Railways Corporation v William Ogutu Okoth, Joyce Lwande Oneko & Human needs Project

Citation: Kenya Railways Corporation V William Ogutu Okoth & 2 Others [2013] eKLR

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Magayu Kiarie Magayu V Elizabeth Wanjiru Njomo [2013] eKLR

Case Number: Civil Suit NO 2795 of 1995 Date Delivered: 17 May 2013

Judge: Rose Edwina Atieno Ougo

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Magayu Kiarie Magayu v Elizabeth Wanjiru Njomo

Citation: Magayu Kiarie Magayu V Elizabeth Wanjiru Njomo [2013] eKLR

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Waribu Chongo V Benson Maina Gathithi [2013] eKLR

Case Number: Civil Application 180 of 2011 Date Delivered: 16 May 2013

Judge: James Otieno Odek

Court: Court of Appeal at Nyeri

Parties: Waribu Chongo v Benson Maina Gathithi

Citation: Waribu Chongo V Benson Maina Gathithi [2013] eKLR

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PETER GIKUNDA MWITI V REPUBLIC[2013]eKLR

Case Number: Miscellaneous Criminal Application 77 of 2012 Date Delivered: 16 May 2013

Judge: Jessie Wanjiku Lessit

Court: High Court at Meru

Parties: PETER GIKUNDA MWITI V REPUBLIC

Citation: PETER GIKUNDA MWITI V REPUBLIC[2013] eKLR

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Jane Wairumu Turanta V Githae John Vickery & 2 Others [2013] eKLR

Case Number: Civil Suit 483 of 2012 Date Delivered: 16 May 2013

Judge: Rose Edwina Atieno Ougo

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Jane Wairumu Turanta v Githae John Vickery, Equity Bank Limited & Munene Don

Citation: Jane Wairumu Turanta V Githae John Vickery & 2 Others [2013] eKLR

Vicarious liability depends not on ownership but on the delegation of tasks

Jane Wairimu Turanta v Githae John Vickery & another

Civil Suit No 483 of 2012

High Court at Nairobi

R Ougo J

 

  1. Whether joint ownership of a motor vehicle logbook by a financier and a borrower could create vicarious liability for the negligence of anyone that was driving the vehicle at the time of a traffic accident.
  2. Whether the court should exercise extreme caution before striking out a suit.

 

Civil practice and procedure – striking out – application to strike out suit on the grounds that no reasonable cause of action was disclosed – duty of the court to exercise caution before striking out a suit – whether in the circumstances it was proper for the High Court to strike out the suit.

Tort – vicarious liability – where there was joint ownership of a motor vehicle logbook by a financier and a borrower – whether ownership by way of logbook was sufficient to create vicarious liability for the negligence of anyone who happened to drive the vehicle at the time of the accident - Traffic Act (Cap 403) section 8 – Civil Procedure Act (Cap 21) sections 3A – Civil Procedure Rules – order 1 rule 10(2.)

 

Held

  1. Striking out a suit is a summary remedy that must be granted in the clearest case with extreme caution since a court of justice should aim at sustaining a suit rather than terminating it by summarily dismissing it.
  2. The applicant had proved on a balance of probability that it was not the owner of the suit motor vehicle as at the time of the accident.
  3. To establish agency relationship it was necessary to show that the driver was using the car at the owners request express or implied or in his instruction and was doing so in the performance of the task or duty thereby delegated to him by the owner. The fact that the applicant was the owner of the vehicle by way of the logbook being in its name, such ownership was not sufficient to create vicarious liability for the negligence of anyone who happened to drive the vehicle at the time of the accident.
  4. The borrower was not the servant of the applicant (financier) within the normally accepted meaning of vicarious liability. Vicarious liability depends not on ownership but on the delegation of tasks or duty.

Application granted.

Cases referred to.

Francis Kamande –vs- Vanguard Electrical Services Ltd (1996).

Osapil –vs- Kaddy [2000]1 EALA 187.

Morgan –vs- Launchbury (1972) 2 All ER 606.

HCM Anyanzwa &2 others –vs-Lugi De Casper &Anor (1981) KLR 10.

 

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In The Matter Of The Estate F Musa Kinyanjui Kuria- (Deceased) [2013] eKLR

Case Number: Succession Cause 286 of 2012 Date Delivered: 16 May 2013

Judge: William Musya Musyoka

Court: High Court at Nairobi (Milimani Law Courts)

Parties: In the matter of the estate f Musa Kinyanjui Kuria- (Deceased)

Citation: In The Matter Of The Estate F Musa Kinyanjui Kuria- (Deceased) [2013] eKLR

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Peter Marwa Mwita V Gulied Ali Mohamed [2013] eKLR

Case Number: Misc.Cause 404 of 2012 (O.S) Date Delivered: 16 May 2013

Judge: Rose Edwina Atieno Ougo

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Peter Marwa Mwita v Gulied Ali Mohamed

Citation: Peter Marwa Mwita V Gulied Ali Mohamed [2013] eKLR

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Martha Ilabonga Kasaya V Dolly Kilani & 2 Others [2013] eKLR

Case Number: Case 1465 of 2012 Date Delivered: 15 May 2013

Judge: Marete D.K. Njagi

Court: Industrial Court at Nairobi

Parties: Martha Ilabonga Kasaya v Dolly Kilani, Jiraq Jodai & Sajanchodai

Citation: Martha Ilabonga Kasaya V Dolly Kilani & 2 Others [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: 15 May 2013

Judge: R. B. Ngetich

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

Electoral Law – election petition – scrutiny & recount - application for scrutiny & recount of votes – Elections (Parliamentary & County Petition) Rules, 2013, Rule 33(2)

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Margaret Rose Wambui V Silvester John Njoroge [2013] eKLR

Case Number: Civil Case 3087 of 1981 Date Delivered: 15 May 2013

Judge: Rose Edwina Atieno Ougo

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Margaret Rose Wambui v Silvester John Njoroge

Citation: Margaret Rose Wambui V Silvester John Njoroge [2013] eKLR

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JACKSON WAHOME NGATIA V AGRIDUT (K) LIMITED & 2 OTHERS[2013]eKLR

Case Number: Civil Case 531 of 2004 Date Delivered: 14 May 2013

Judge: David A Onyancha

Court: High Court at Nairobi (Milimani Law Courts)

Parties: JACKSON WAHOME NGATIA V AGRIDUT (K) LIMITED & 2 OTHERS

Citation: JACKSON WAHOME NGATIA V AGRIDUT (K) LIMITED & 2 OTHERS[2013] eKLR

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JOHNSON DANSON KIBINDA V UNIVERSITY OF NAIROBI[2013]eKLR

Case Number: Civil Case 424 of 2006 Date Delivered: 14 May 2013

Judge: David A Onyancha

Court: High Court at Nairobi (Milimani Law Courts)

Parties: JOHNSON DANSON KIBINDA V UNIVERSITY OF NAIROBI

Citation: JOHNSON DANSON KIBINDA V UNIVERSITY OF NAIROBI[2013] eKLR

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Phylis Jepkorir Kisabei V Joseph Kimaiyo Sirma & Another [2013] eKLR

Case Number: E&L 141 OF 2013 Date Delivered: 14 May 2013

Judge: Munyao Sila

Court: High Court at Eldoret

Parties: Phylis Jepkorir Kisabei V Joseph Kimaiyo Sirma & Another

Citation: Phylis Jepkorir Kisabei V Joseph Kimaiyo Sirma & Another [2013] eKLR

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Heavenly Njeri Gathu V Irene Waluse [2013] eKLR

Case Number: Misc.Civil Application.196 of 2012 Date Delivered: 14 May 2013

Judge: Rose Edwina Atieno Ougo

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Heavenly Njeri Gathu v Irene Waluse

Citation: Heavenly Njeri Gathu V Irene Waluse [2013] eKLR

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JOHN KUNDU KHISA V KENNEDY KHISA KUNDU [2013]eKLR

Case Number: Civil Suit 43 of 2007 Date Delivered: 14 May 2013

Judge: Elija Ogoti Obaga

Court: High Court at Kitale

Parties: JOHN KUNDU KHISA V KENNEDY KHISA KUNDU

Citation: JOHN KUNDU KHISA V KENNEDY KHISA KUNDU [2013] eKLR

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P. J. K V J. K. S & ANOTHER[2013]eKLR

Case Number: Environmental & Land Case 141 of 2013 Date Delivered: 14 May 2013

Judge: Munyao Sila

Court: High Court at Eldoret

Parties: P. J. K V J. K. S & ANOTHER

Citation: P. J. K V J. K. S & ANOTHER[2013] eKLR

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Bakari Hassan Juma V Independent Electoral & Boundaries Commission (IEBC) & 2 Others [2013] eKLR

Case Number: Election Petition 2 of 2013 Date Delivered: 14 May 2013

Judge: N. Shiundu - Ag SPM

Court: Election Petition in Magistrate Courts

Parties: Bakari Hassan Juma v Independent Electoral & Boundaries Commission (IEBC), Hamisi Halfan Tsuma & Mwathethe Admson Kadenge

Citation: Bakari Hassan Juma V Independent Electoral & Boundaries Commission (IEBC) & 2 Others [2013] eKLR

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Susan Mugure Justus & 3 Others V Justus Memeu Mugwika [2013] eKLR

Case Number: Land & Environment 47 of 2013 Date Delivered: 13 May 2013

Judge: Peter Muchoki Njoroge

Court: High Court at Meru

Parties: Susan Mugure Justus, John Kithinji Justus, Murithi K. Memeu & Job Mutua Memeu v Justus Memeu Mugwika

Citation: Susan Mugure Justus & 3 Others V Justus Memeu Mugwika [2013] eKLR

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Tabitha Karimi Munyugi V Joel Munyugi M'imanene & Another [2013]eKLR

Case Number: Civil Suit 60 of 2010 Date Delivered: 13 May 2013

Judge: Peter Muchoki Njoroge

Court: High Court at Meru

Parties: Tabitha Karimi Munyugi v Joel Munyugi M'imanene & another

Citation: Tabitha Karimi Munyugi V Joel Munyugi M'imanene & Another [2013] eKLR

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Peter Mule Muthungu V Kenyatta National Hospital [2013] eKLR

Case Number: Civil Suit 364 of 2007 Date Delivered: 13 May 2013

Judge: Rose Edwina Atieno Ougo

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Peter Mule Muthungu (Suing as Administrator and Personal Representative of Thereafter Estate of Jane Mueningui v Kenyatta National Hospital

Citation: Peter Mule Muthungu V Kenyatta National Hospital [2013] eKLR

 

Right to Information – Doctor Patient Confidentiality

Peter Mule Muthungu (Suing as administrator and personal representative of thereafter estate of Jane Mueningui v Kenyatta National Hospital

High Court at Nairobi

Civil Suit No 364 of 2007

R Ougo, J

May 13, 2013

Reported by Phoebe Ida Ayaya & Derrick Nzioka

Issue:

      i.         Whether the court could order for production of hospital records relating to the deceased’s treatment and management from the defendant.

 

Evidence law – privileged information – the rule of doctor patient confidentiality – where the applicant acting as an administrator made a request for release of the deceased’s medical records for use in prosecuting a claim of medical negligence – where the defendant claimed that the records amounted to privileged information protected under the rule of doctor patient confidentiality – whether the defendant could be compelled to produce the medical records – whether the right to information under the constitution could trump the rule of doctor patient confidentiality – Constitution of Kenya,  2010 article 35(1)(b).

 

Held:

1.     Medical documents were governed in the doctor patient confidentiality rule. A duty of care arose once a doctor or health care professional agreed to diagnose or treat a patient. The plaintiff through its pleadings tried to show the court that the defendant owed him a duty of care and that the duty of care was breached.

2.     Having seen some of the medical documents that were produced by the defendant, the applicant felt that for him to advance his case he needed the documents held by the defendant, as indeed medical documents provided vital evidence of what went wrong.

3.     It was imperative of the defendant to disclose to the plaintiff any document that related to the plaintiffs claim as under article 35(1)(b) of the Constitution of Kenya, 2010, every citizen had the right of access to information held by another person and required for the exercise or protection of any right or fundamental freedom.

Application allowed.

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Director Kenya Medical Research Institute V Agnes Muthoni & 35 Others [2014] eKLR

Case Number: Civil Appeal 15 of 2011 Date Delivered: 10 May 2013

Judge: Roselyn Naliaka Nambuye, Paul Kihara Kariuki, Sankale Ole Kantai

Court: Court of Appeal at Nairobi

Parties: Director Kenya Medical Research Institute v Agnes Muthoni & 35 others

Citation: Director Kenya Medical Research Institute V Agnes Muthoni & 35 Others [2014] eKLR

Reported by Cornelius Lupao & Mercy Ombima

The appellant instituted an appeal in the Court of Appeal against a decision arising from the Industrial Court created by the repealed Constitution of Kenya. The respondent raised a preliminary objection that the appellant be precluded from seeking recourse in the Court of Appeal because the repealed Constitution of Kenya only allowed the Court of Appeal to hear appeals emanating from the High Court and not the Industrial Court, which was not in the same status as the High Court before the promulgation of the Constitution of Kenya 2010.

Issues

1. Whether the Court of Appeal had jurisdiction to entertain the pending appeal from the Industrial Court as constituted under the repealed Constitution of Kenya given that the repealed Constitution mandated the Court of Appeal to hear appeals from the High Court only.

2. Whether the section 27 of the Labour Institutions Act No.12 of 2007 which allowed direct appeals from the Industrial Court to the Court of Appeal was ultra vires section 64 of the repealed Constitution of Kenya which mandated the Court of Appeal to only entertain appeals emanating from the High Court.

Jurisdiction – appellate jurisdiction - jurisdiction of the Court of Appeal – jurisdiction to entertain appeals from the Industrial court constituted under the repealed Constitution of Kenya - claim that the jurisdiction donated by the Labour Institutions Act to allow for direct appeals from the Industrial Court to the Court of Appeal under the repealed Constitution of Kenya was non - existent – whether the Labour Institutions Act allowing for direct appeals from the Industrial Court to the Court of Appeal under the repealed constitution of Kenya contravened constitutional provisions that provided that the Court of Appeal would entertain appeals arising from the High Court only – Constitution of Kenya (repealed) section 64(1), Labour Institutions Act section 12(6) ; 27,  Appellate Jurisdiction Act Section 3(1)

Constitutional Law – conflict of laws - where a conflict existed between the repealed Constitution of Kenya and the Labour Institutions Act – where the Labour Institutions Act allowed for direct appeals from decision of the Industrial Court whereas the repealed Constitution only allowed for appeals emanating from the High Court – where an appellant instituted an appeal in the Court of Appeal against a decision from the Industrial Court as constituted under the repealed Constitution of Kenya – Claim that a direct appeal from the Industrial Court as constituted under the repealed Constitution of Kenya to the Court of Appeal was a right which was void and incapable of being enjoyed – whether the appeal could be entertained - Constitution of Kenya 2010 article 162 (1); 162(2); 164, Interpretation and General Provisions Act cap 2 section 3, Constitution of Kenya (repealed) section 3, 60; 64(1)

Statutes – interpretation of statutes - interpretation of the Labour Institutions Act – where section 27 of the Labour Institutions Act was claimed to be ultra vires the repealed constitution of Kenya - Industrial Court Act No.20 of 2011, Interpretation and General Provisions Act cap 2 section 3, Constitution of Kenya (repealed) section 3, 60; 64(1), Constitution of Kenya (repealed) section 3, 60; 64(1)

Words & Phrases – definition – meaning of the term ‘high court’ and ‘court’

Held

1. Issues of jurisdiction, where they need to be raised, should be raised at the earliest opportunity. The proper party to determine whether jurisdiction is properly vested or not is the same court whose jurisdiction has been challenged;

2. The determining factor as to whether jurisdiction has been properly vested or not is the facts before the court and the application of the relevant law to those facts.

3. The correct position in law as it was at the time the decision giving rise to the appeal was made permitted the appellant to access the Court of Appeal seat of justice directly from the Industrial Court. There was therefore an apparent vesture of jurisdiction in the Court of Appeal on matters emanating from the Industrial Court.

4. A conflict of law existed between the section 64(1) of the repealed Constitution of Kenya and Section 3(1) of the Appellate Jurisdiction Act on the one hand, which provided that the Court of Appeal would handle appeals arising from the High Court, and on the other hand, the Labour Institutions Act No.12 of 2007 whose section 27 allowed for direct appeals from the Industrial Court to the Court of Appeal.

5. The conflict could not be resolved in the manner the court had been approached because in determining whether the Court of Appeal had jurisdiction, the court needed not to look beyond the legal prescriptions enshrining its mandate in both legislative and constitutional matters. Section 3 of the Appellate Jurisdiction Act and section 64 of the repealed Constitution of Kenya limited the appellate jurisdiction of the Court of Appeal to appeals emanating from the High Court.

6. Section 3 of the Interpretation and General Provisions Act Cap 2 defined the High Court as “High Court means the High court established by the constitution…” By ‘the Constitution’, it was meant section 60 of the repealed Constitution. Therefore, the definition of the High Court whose decisions were appealable to the Court of Appeal did not include the Industrial Court.

7. Section 12(6) of the Labour Institutions Act which gave a decision of the Industrial Court the force of law equivalent to that given to a high court decision was limited to enforcement of industrial court decisions. It did not affect the appellate jurisdiction.

8. The Industrial Court as was established at the prevailing time was a creature of the Industrial Court Act No.20 of 2011. There was in place a new legislative mandate elevating the Industrial Court as it was to the status of a High Court. Appeals from the newly established Industrial Court were to be directly appealable to the Court of Appeal. Unlike under the old arrangement, there was clear back up constitutional provision in the current Constitution of Kenya 2010. Under article 162 (1) of the Constitution of Kenya, the Supreme Court, the Court of Appeal, the High Court and other courts were set up. Parliament was mandated, vide article 162 (2) to put in place legislation establishing courts with the status of the High Court to hear and determine disputes relating to employment and labour relations and the environment and the use and  title to land. It was under that enabling provision that the Industrial Court Act No. 20 of 2011 was borne.

9. There was also established the Court of Appeal, vide article 164 of the Constitution of Kenya 2010 with jurisdiction to hear appeals from the High Court and any other court or tribunal as prescribed by an act of parliament. One such court prescribed by an act of parliament and established was the Industrial Court. The net effect of those provisions of law was that there was in place a constitutional mandate enabling an aggrieved party aggrieved by a decision of the industrial court to access the Court of Appeal directly.

10. Both the decision appealed against giving rise to the proceedings before the Court of Appeal as well as the desire to appeal against the said decision was undertaken before the promulgation of the current Constitution of Kenya 2010. The Constitution of Kenya 2010 was silent as to the retroactivity of law to cure an illegitimacy of law. Silence, to the Court of Appeal meant non- existence. There was therefore no jurisdiction, for provisions on direct appeals enshrined in the Constitution of Kenya 2010 to be made to operate retrospectively to cure the alleged illegitimacy of the appeal objected to.

11. In the Interpretation and General Provisions Act, the word “court” meant “any court of Kenya of competent jurisdiction.” Whereas in the Civil Procedure Act Cap 21 laws of Kenya “court” meant “the High court or a subordinate court acting in the exercise of its civil jurisdiction.” The Labour Institutions Act under which the proceedings leading to the appeal was undertaken did not define “a court” but defined “the industrial court,” as “means the industrial court established under section 11 of the said Act.” This was the same court which did not have the status of the High Court then i.e. the court whose decisions vide section 27 of the same act were to go directly to the Court of Appeal.

12. Although the appellant’s arguments were sensible, that by the Court of Appeal declaring section 27 of the Labour Institutions Act ultra vires of the repealed Constitution it would be exceeding its mandate because that was an original jurisdiction vested only in the High Court, the Court of Appeal was still capable of construing section 3 of the repealed Constitution of Kenya competently. When so construed it was evidently clear that by virtue of that provision, the repealed constitution declared both supremacy and primacy over legislative law. 

13. By reason of the aforesaid declaration of supremacy and primacy, section 27 of the Labour Institutions Act fell into the category of a legislative law. It therefore meant that as long as section 3 and 64 of the repealed Constitution and section 3 of the Appellate Jurisdiction Act stood then, and as at the time the appellate process objected to were set in motion, the Court of Appeal had no mandate to receive direct appeals from the Industrial Court as it was then established.

14. The appellant would not be rendered remediless if the Court of Appeal declined to assume jurisdiction because he had the right to judicial review, and if the right to access judicial review had been foreclosed by effluxion of time, then there was the remedy by way of declaratory suit and or by way of petition.

The Court held it did not have jurisdiction to entertain the appeal.

Cases Relied On

1. Mukisa Biscuit Manufacturing Company Limited versus West end Distributors Limited (1969) EA 696

2. Owners of the Motor Vehicle Lillians versus Caltex Oil (Kenya) Limited (1989) KLR1

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Telkom Kenya Limited V Nyamodi Ochieng-Nyamogo [2013] eKLR

Case Number: Civil Application 269 of 2012 Date Delivered: 10 May 2013

Judge: Wanjiru Karanja

Court: Court of Appeal at Nairobi

Parties: Telkom Kenya Limited v Nyamodi Ochieng-Nyamogo

Citation: Telkom Kenya Limited V Nyamodi Ochieng-Nyamogo [2013] eKLR

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Kobil Petroleum Limited V Walter Edwin Ominde T/A Shelter Consult [2013] eKLR

Case Number: Civil Application 7 of 2013 Date Delivered: 10 May 2013

Judge: Festus Azangalala

Court: Court of Appeal at Kisumu

Parties: Kobil Petroleum Limited v Walter Edwin Ominde T/A Shelter Consult

Citation: Kobil Petroleum Limited V Walter Edwin Ominde T/A Shelter Consult [2013] eKLR

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Republic V Chairman Meru Central District Land Disputes Tribunal & 2 Others Ex-parte Ephantus Riungu Magiri [2013] eKLR

Case Number: Environment & Land Case Misc Application 145 of 2006 Date Delivered: 10 May 2013

Judge: Peter Muchoki Njoroge

Court: High Court at Meru

Parties: Republic v Chairman Meru Central District Land Disputes Tribunal & 2 others Ex-parte Ephantus Riungu Magiri

Citation: Republic V Chairman Meru Central District Land Disputes Tribunal & 2 Others Ex-parte Ephantus Riungu Magiri [2013] eKLR

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Printing Industries Limited & Another V Bank Of Baroda Kenya Limited [2013] eKLR

Case Number: Civil Application 40 of 2013 Date Delivered: 10 May 2013

Judge: Wanjiru Karanja

Court: Court of Appeal at Nairobi

Parties: Printing Industries Limited & Multiple Industries Limited v Bank of Baroda Kenya Limited

Citation: Printing Industries Limited & Another V Bank Of Baroda Kenya Limited [2013] eKLR

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