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Karangi Coftea Ltd V Philomena Ndanga & Another [2015] eKLR

Case Number: Civil Case 570 of 2014 Date Delivered: 16 Feb 2015

Judge: Farah Amin Shaikh Mohamed

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Karangi Coftea Ltd v Philomena Ndanga & Ndanga Hotel Ltd

Citation: Karangi Coftea Ltd V Philomena Ndanga & Another [2015] eKLR

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Rachel Chepkorir Maru & Another V Board Of Governors Rift Valley Adventist Secondary School [2015] eKLR

Case Number: Cause 34 of 2011 Date Delivered: 16 Feb 2015

Judge: Nzioki wa Makau

Court: Employment and Labour Relations Court at Nairobi

Parties: Rachel Chepkorir Maru & Kenya Union of Employees of Voluntary & Charitable Organisations v Board of Governors Rift Valley Adventist Secondary School

Citation: Rachel Chepkorir Maru & Another V Board Of Governors Rift Valley Adventist Secondary School [2015] eKLR

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Maloba Total Petrol Station Co Ltd V Total Kenya Ltd & 3 Others [2015] eKLR

Case Number: Environment & Land Case 345 of 2013 Date Delivered: 16 Feb 2015

Judge: Enock Chacha Mwita

Court: High Court at Kakamega

Parties: Maloba Total Petrol Station Co Ltd v Total Kenya Ltd, Vivo Energy Kenya Limited, Bukhungu Petroleum Limited & Timothy Asomba Maloba

Citation: Maloba Total Petrol Station Co Ltd V Total Kenya Ltd & 3 Others [2015] eKLR

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In Re Estate Of Wanjiku Karunguru (Deceased) [2015] eKLR

Case Number: Succession Cause 2111 of 2001 Date Delivered: 16 Feb 2015

Judge: George Benedict Maina Kariuki

Court: High Court at Nairobi (Milimani Law Courts)

Parties: In re Estate of Wanjiku Karunguru (Deceased)

Citation: In Re Estate Of Wanjiku Karunguru (Deceased) [2015] eKLR

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Benjamin Odiara Ahinda V Kenya Women Finance Trust (KWFT) Kakamega Regional Office [2015] eKLR

Case Number: Civil Appeal 117 of 2014 Date Delivered: 13 Feb 2015

Judge: Mrima Antony Charo

Court: High Court at Kakamega

Parties: Benjamin Odiara Ahinda v Kenya Women Finance Trust (KWFT) Kakamega Regional Office

Citation: Benjamin Odiara Ahinda V Kenya Women Finance Trust (KWFT) Kakamega Regional Office [2015] eKLR

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Mayega Chagara V Rai Plywood (Kenya) Limited [2015] eKLR

Case Number: Cause 313 of 2013 Date Delivered: 13 Feb 2015

Judge: Stephen Radido Okiyo

Court: Employment and Labour Relations Court at Nakuru

Parties: Mayega Chagara v Rai Plywood (Kenya) Limited

Citation: Mayega Chagara V Rai Plywood (Kenya) Limited [2015] eKLR

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Transport Workers Union V City General Stores Ltd [2015] eKLR

Case Number: Cause 1904 of 2014 Date Delivered: 13 Feb 2015

Judge: Nelson Jorum Abuodha

Court: Employment and Labour Relations Court at Nairobi

Parties: Transport Workers Union v City General Stores Ltd

Citation: Transport Workers Union V City General Stores Ltd [2015] eKLR

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Elvis Kipchumba V M.C. Toet Transporters Limited [2015] eKLR

Case Number: Cause 379 of 2013 Date Delivered: 13 Feb 2015

Judge: Stephen Radido Okiyo

Court: Employment and Labour Relations Court at Nakuru

Parties: Elvis Kipchumba v M.C. Toet Transporters Limited

Citation: Elvis Kipchumba V M.C. Toet Transporters Limited [2015] eKLR

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Technomatic Limited T/a Promopack Company V Kenya Wine Agencies Limited & Another [2015] eKLR

Case Number: Civil Case 398 of 2005 Date Delivered: 13 Feb 2015

Judge: Eric Kennedy Okumu Ogola

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

Parties: Technomatic Limited t/a Promopack Company v Kenya Wine Agencies Limited & Jaswinder S. Obhrai

Citation: Technomatic Limited T/a Promopack Company V Kenya Wine Agencies Limited & Another [2015] eKLR

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Kenya National Union Of Nurses V Public Service Commission & 3 Others [2015] eKLR

Case Number: Cause 642 of 2014 Date Delivered: 13 Feb 2015

Judge: Stephen Radido Okiyo

Court: Employment and Labour Relations Court at Nakuru

Parties: Kenya National Union of Nurses v Public Service Commission, Attorney General, Ministry of Health & Uasin Gishu County Public Service Board

Citation: Kenya National Union Of Nurses V Public Service Commission & 3 Others [2015] eKLR

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Francis Mwelemi Simeon V English Press Ltd [2015] eKLR

Case Number: Cause 1547 of 2011 Date Delivered: 13 Feb 2015

Judge: Mathews Nderi Nduma

Court: Employment and Labour Relations Court at Nairobi

Parties: Francis Mwelemi Simeon v English Press Ltd

Citation: Francis Mwelemi Simeon V English Press Ltd [2015] eKLR

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Benard Mukolwe & 122 Others V Karuturi Limited (In Receivership) & 4 Others

Case Number: Cause 329 of 2014 Date Delivered: 13 Feb 2015

Judge: Stephen Radido Okiyo

Court: Employment and Labour Relations Court at Nakuru

Parties: Benard Mukolwe & 122 others v Karuturi Limited (In receivership), Ian Small-(Joint Receiver Manager Karaturi Ltd), Kieran Day (Joint Receiver Manager Karaturi Ltd), Karaturi Limited &Twiga; Flowers Ltd

Citation: Benard Mukolwe & 122 Others V Karuturi Limited (In Receivership) & 4 Others

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Micheal Akeyo & 3 Others V Telecom Kenya Limited & Another [2015] eKLR

Case Number: Cause 654 of 2014 Date Delivered: 13 Feb 2015

Judge: Mathews Nderi Nduma

Court: Employment and Labour Relations Court at Nairobi

Parties: Micheal Akeyo, Naphutali Kayoro, John Khoyi Ochanda & Joseph Okoth Odongo v Telecom Kenya Limited & Attorney General

Citation: Micheal Akeyo & 3 Others V Telecom Kenya Limited & Another [2015] eKLR

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Benard Amukaka Ludeshi V Kenya National Private Security Workers Union [2015] eKLR

Case Number: Cause 2101 of 2012 Date Delivered: 13 Feb 2015

Judge: Nelson Jorum Abuodha

Court: Employment and Labour Relations Court at Nairobi

Parties: Benard Amukaka Ludeshi v Kenya National Private Security Workers Union

Citation: Benard Amukaka Ludeshi V Kenya National Private Security Workers Union [2015] eKLR

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Kenya Shoe & Leather Workers Union V Crown Industries Limited [2015] eKLR

Case Number: Cause 1372 of 2013 Date Delivered: 13 Feb 2015

Judge: Mathews Nderi Nduma

Court: Employment and Labour Relations Court at Nairobi

Parties: Kenya Shoe & Leather Workers Union v Crown Industries Limited

Citation: Kenya Shoe & Leather Workers Union V Crown Industries Limited [2015] eKLR

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Lucy Nyandia Mwangi V Mathenge & Muchemi Advocates & Another [2015] eKLR

Case Number: Cause 811 of 2012 Date Delivered: 13 Feb 2015

Judge: Mathews Nderi Nduma

Court: Employment and Labour Relations Court at Nairobi

Parties: Lucy Nyandia Mwangi v Mathenge & Muchemi Advocates & Virginia Wangui Mathenge

Citation: Lucy Nyandia Mwangi V Mathenge & Muchemi Advocates & Another [2015] eKLR

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Lawrence Maoni Okeyo V Barongo Okeyo & 6 Others [2015] eKLR

Case Number: Environment & Land Civil Case 272 of 2014 Date Delivered: 13 Feb 2015

Judge: Samson Odhiambo Okong'o

Court: High Court at Kisii

Parties: Lawrence Maoni Okeyo v Barongo Okeyo, Alfred Okioma Makori, Charles Makario Makori, Samuel Okeyo Makori, Patrick Moi Makori, District Surveyor Kisii District & Registrar of Lands Kisii District

Citation: Lawrence Maoni Okeyo V Barongo Okeyo & 6 Others [2015] eKLR

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Walter Ndindi Wambu V Dr J R Wambwa & 2 Others [2015] eKLR

Case Number: Civil Case 232 of 2010 Date Delivered: 13 Feb 2015

Judge: Joseph Kiplagat Sergon

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Walter Ndindi Wambu v Dr J R Wambwa & 2 others

Citation: Walter Ndindi Wambu V Dr J R Wambwa & 2 Others [2015] eKLR

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Guaca Stationers Limited & Another V Inamdar & Inamdar [2015] eKLR

Case Number: Civil Appeal 372 of 2014 Date Delivered: 13 Feb 2015

Judge: Joseph Kiplagat Sergon

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Guaca Stationers Limited & Guaca Converters & Stationers Limited v Inamdar & Inamdar

Citation: Guaca Stationers Limited & Another V Inamdar & Inamdar [2015] eKLR

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Merceline Awuor Abuto V James Omari Nyakundi [2015] eKLR

Case Number: Civil Case 361 of 2014 Date Delivered: 13 Feb 2015

Judge: Samson Odhiambo Okong'o

Court: High Court at Kisii

Parties: Merceline Awuor Abuto v James Omari Nyakundi

Citation: Merceline Awuor Abuto V James Omari Nyakundi [2015] eKLR

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Somoe Fakii V Shida Karisa Gona [2015] eKLR

Case Number: Elc Misc. App. 9 of 2014 Date Delivered: 13 Feb 2015

Judge: Oscar Angote

Court: Environment and Land Court at Malindi

Parties: Somoe Fakii v Shida Karisa Gona

Citation: Somoe Fakii V Shida Karisa Gona [2015] eKLR

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Communications Commission Of Kenya & 5 Others V Royal Media Services Limited & 5 Others [2015] eKLR

Case Number: Petition Nos 14, 14a, 14b & 14c of 2014 (Consolidated) Date Delivered: 13 Feb 2015

Judge: Philip Kiptoo Tunoi, Kalpana Hasmukhrai Rawal, Jackton Boma Ojwang, Mohammed Khadhar Ibrahim, Willy Munywoki Mutunga, Smokin C Wanjala, Susanna Njoki Ndung'u

Court: Supreme Court of Kenya

Parties: Communications Commission of Kenya, Attorney General, Ministry of Information Communications &Technology;, Signet Kenya Limited, Pan African Network Group Kenya Limited & Startimes Media Limited v Royal Media Services Limited, Nation Media Services Limited, Standard Media Group Limited, Consumer Federation of Kenya (COFEK), Gotv Kenya Limited & West Media Limited

Citation: Communications Commission Of Kenya & 5 Others V Royal Media Services Limited & 5 Others [2015] eKLR

17th June 2015 is the international switch off date from analogue to digital platform, Supreme Court affirms

 

Communications Commission of Kenya & 5 others v Royal Media Services Ltd & 4 others

Supreme Court at Nairobi

Petition No 14 of 2014

Mutunga CJ, P Rawal DCJ, Tunoi, Ibrahim, Ojwang, Wanjala and Njoki, SCJJ

February 13, 2015

Reported by Andrew Halonyere

 

 

The object of the mention before the Supreme Court was to determine whether and to what extent its orders had been complied with.

On September 29,2014 the Supreme Court had inter-alia issued the following  orders;

  1. That the 1st appellant ( Communications Commission of Kenya) in exercise of its statutory authority, shall, in consultation with all the parties to the suit, set the time-lines for the digital migration, pending the international Analogue Switch-off Date of 17th June, 2015.
  2. That the 1st appellant ( Communications Commission of Kenya) shall, in exercise of its statutory powers, and within 90 days consider the merits of applications for a BSD licence by the 1st, 2nd and 3rd respondents, and of any other local private sector actors in the broadcast industry, whether singularly or jointly.

 

Issues

  1. Whether the orders of the Supreme Court had been complied with.
  2. What amounts to consultation as envisaged in the Constitution of Kenya 2010?

Constitutional law – Consultation - what amounts to consultation as envisaged in the Constitution of Kenya 2010 – whether there was consultation between the parties with a view of setting the time-lines for digital migration, pending the International Analogue date

Held

  1. 1st appellant (Communications Commission of Kenya) did consider the merits of the applications for a BSD licence by the 1st, 2nd, and 3rd respondents, and other local private-sector actors. That action by the1st appellant culminated in the issuance of temporary authorization for self-provisioning digital signal distribution to the three respondents.
  2. The three respondents were issued with one digital frequency, to enable them to commence operations within Nairobi and its environs. In addition, they were issued with 20 more digital frequencies to enable them to commence operations in all other areas outside Nairobi, where they had been transmitting on the analogue platform.
  3. The Supreme Court could not determine the adequacy or otherwise of the digital frequencies issued to the three respondents. By being granted a temporary authorization for self-provisioning digital signal distribution, pursuant to the orders of the Court, the respondents had beenplaced in an advantaged and a realistic position to enter upon competition with other players in the digital-transmission sector.
  4. The 1st, 2nd and 3rd respondents act of commencing a scheme of public advertisements which led to retaliatory actions (namely, cancellation of the temporary authorization and  withdrawal  of  digital frequencies) by the 1st appellant was like they had never submitted their long-running dispute to the Supreme  Court for final resolution, the two sides ( i.e., the 1st appellant on the one hand, and the 1st, 2nd, and 3rd respondents on the other hand) had engaged in conduct the effect of which was to undermine the integrity of the Court’s Judgment. As the Court had determined the dispute, and issued Orders with which the parties were to comply within a specified period, it behoved the parties to not only comply, but to desist from any actions such as would tend to undermine the authority of the Court. Thus, the parties should have dutifully awaited their turn to address the Court, regarding their compliance with its Orders.
  5. 1st appellant (Communications Commission of Kenya) had taken notable steps to ensure that the transmission licence issued to the 5th appellant (Startimes Media Ltd) was duly aligned to relevant constitutional and statutory requirements.
  6. The Constitution placed a duty to consult upon specified public agencies, where certain appointments to public office were being made. consultation entailed a consideration of the advice, opinion or concerns of the person or persons to be consulted, before a decision was made. Consultation is a process with no prescribed order. It might be oral, or in writing. While consultation did not necessarily mean concurrence with the person consulted, it entailed a genuine, honest, and serious communication between the parties, with opinions sought, and opinions accorded serious consideration, before a decision was made.
  7. A number of consultations had taken place between the 1st appellant and the several parties in the matter, with a view to setting the time-lines for digital migration, pending the International Analogue date.
  8. The stage was properly set for migration from the analogue to the digital platform in broadcast transmissions, and there was a new national and international reality in that regard, to be adopted and internalized by all parties who have come before the Supreme Court.

All interim orders discharged.

The 1st appellant to restore the authorization for self-provisioning Digital Signal Distribution and the several digital frequencies it had granted to the said respondents if it had not already done so.

The general switch-off dates from the analogue to the digital platform to remain as scheduled by the 1st appellant.

Cases

East Africa

None Referred to

South Africa

1.      Maqoma v Sebe & another 1987 (1) SA 483 – (Mentioned) 

United Kingdom

1.     Agricultural, Horticultural and Forestry Training Board v Ayelsbury Mushrooms Ltd [ 1972] 1 All ER 280 at 284 – (Mentioned)

2.      Sinfield and others v London Transport Executive [ 1970] 2 All ER 264 – (Mentioned)

Statutes

East Africa

None Referred to

Advocates

1.     Mr Kilonzo for the 1st Appellant

2.     Mr Muite for the 1st, 2nd and 3rd Respondents

 

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Waterfront Outlets Limited V Njeka Ochunyi & Another [2015] eKLR

Case Number: Elc 270 of 2013 Date Delivered: 13 Feb 2015

Judge: Lucy Nyambura Gacheru

Court: Environment and Land Court at Nairobi

Parties: Waterfront Outlets Limited v Njeka Ochunyi & Willis Agwata

Citation: Waterfront Outlets Limited V Njeka Ochunyi & Another [2015] eKLR

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New Kenya Co-operative Creameries Ltd V Olga Ouma Adede [2015] eKLR

Case Number: Civil Application 316 of 2014 (UR 238/2014) Date Delivered: 13 Feb 2015

Judge: George Benedict Maina Kariuki

Court: Court of Appeal at Nairobi

Parties: New Kenya Co-operative Creameries Ltd v Olga Ouma Adede

Citation: New Kenya Co-operative Creameries Ltd V Olga Ouma Adede [2015] eKLR

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J.B. Maina & Company Ltd V Peter M. Muoki [2015] eKLR

Case Number: Miscellaneous Application 15 of 2014 Date Delivered: 13 Feb 2015

Judge: Onesmus Ndambuthi Makau

Court: Employment and Labour Relations Court at Mombasa

Parties: J.B. Maina & Company Ltd v Peter M. Muoki

Citation: J.B. Maina & Company Ltd V Peter M. Muoki [2015] eKLR

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M W M V M F S [2015] eKLR

Case Number: Cause 268 of 2013 Date Delivered: 13 Feb 2015

Judge: Onesmus Ndambuthi Makau

Court: Employment and Labour Relations Court at Mombasa

Parties: M W M v M F S

Citation: M W M V M F S [2015] eKLR

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Republic V Industrial Property Tribunal & Another Ex-Parte Chemserve Cleaning Services Limited [2015] eKLR

Case Number: Jr Case 661 of 2009 Date Delivered: 13 Feb 2015

Judge: Weldon Kipyegon Korir

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Republic v Industrial Property Tribunal & Sanitam Service (E.A) Limited Ex-Parte Chemserve Cleaning Services Limited

Citation: Republic V Industrial Property Tribunal & Another Ex-Parte Chemserve Cleaning Services Limited [2015] eKLR

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George Mademu Munga & 3 Others V Rodgers Chiriba Nyambu & Another V[2015] eKLR

Case Number: Elc Civil Case 169 of 2014 Date Delivered: 13 Feb 2015

Judge: Oscar Angote

Court: Environment and Land Court at Malindi

Parties: George Mademu Munga ,Davis Mkoka Munga , Johana Bandera Munga & Franckline Shida Munga v Rodgers Chiriba Nyambu & George Barua

Citation: George Mademu Munga & 3 Others V Rodgers Chiriba Nyambu & Another V[2015] eKLR

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Patrick Michuki V Independent Electoral And Boundaries Commission(IEBC) & 4 Others [2015] eKLR

Case Number: Petition 408 of 2014 Date Delivered: 13 Feb 2015

Judge: Isaac Lenaola

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Patrick Michuki v Independent Electoral and Boundaries Commission(IEBC), Ethics and Anti-Corruption Commission, Moses Kuria, Joachim Kiarie Kamere & Attorney General

Citation: Patrick Michuki V Independent Electoral And Boundaries Commission(IEBC) & 4 Others [2015] eKLR

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E H K ( Minor Suing Through Next Of Kin M M K V Attorney General & Another [2015] eKLR

Case Number: ELC Constitution Petition 8 of 2014 Date Delivered: 13 Feb 2015

Judge: Oscar Angote

Court: High Court at Malindi

Parties: E H K ( Minor suing through next of kin M M K v Attorney General & Abdulrazak Muhsin Sheriff

Citation: E H K ( Minor Suing Through Next Of Kin M M K V Attorney General & Another [2015] eKLR

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Kenya Union Of Domestic, Hotels, Educational Institution & Allied Workers V B.O.G. Moi High School Kasigau [2015] eKLR

Case Number: Cause 328 of 2013 Date Delivered: 13 Feb 2015

Judge: Onesmus Ndambuthi Makau

Court: Employment and Labour Relations Court at Mombasa

Parties: Kenya Union of Domestic, Hotels, Educational Institution & Allied Workers v B.O.G. Moi High School Kasigau

Citation: Kenya Union Of Domestic, Hotels, Educational Institution & Allied Workers V B.O.G. Moi High School Kasigau [2015] eKLR

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A K M & Another V A K A [2015] eKLR

Case Number: Succession Cause 201 of 2011 Date Delivered: 13 Feb 2015

Judge: Mrima Antony Charo

Court: High Court at Kakamega

Parties: A K M & E E M M v A K A

Citation: A K M & Another V A K A [2015] eKLR

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Deborah Achieng Aduda & Another V Florence Seyanoi Kibera A.k.a. Dorothy Seyano Moschion [2015] eKLR

Case Number: ELC Case 1047 of 2013 Date Delivered: 13 Feb 2015

Judge: Mary Muthoni Gitumbi

Court: Environment and Land Court at Nairobi

Parties: Deborah Achieng Aduda & another v Florence Seyanoi Kibera a.k.a. Dorothy Seyano Moschion

Citation: Deborah Achieng Aduda & Another V Florence Seyanoi Kibera A.k.a. Dorothy Seyano Moschion [2015] eKLR

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Paul Machuku Muriuki V Joreth Limited & 2 Others [2015] eKLR

Case Number: Civil Case 523 of 2014 (O.S) Date Delivered: 13 Feb 2015

Judge: Lucy Nyambura Gacheru

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Paul Machuku Muriuki v Joreth Limited, George Muriithi Githinji & Purity Wanjiru Muriithi

Citation: Paul Machuku Muriuki V Joreth Limited & 2 Others [2015] eKLR

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Cascade Company Limited V Kenya Association Of Music Production (KAMP) & 3 Others [2015] eKLR

Case Number: Petition 7 of 2014 Date Delivered: 13 Feb 2015

Judge: Jairus Ngaah

Court: High Court at Murang'a

Parties: Cascade Company Limited v Kenya Association of Music Production (KAMP), Performance Right Society of Kenya (PRISK), Officer in Charge Thika Police Station & Attorney General

Citation: Cascade Company Limited V Kenya Association Of Music Production (KAMP) & 3 Others [2015] eKLR

COURT DECLINES TO GRANT CONSERVATORY ORDERS

Cascade Company  V Kenya Association Of  Music Production (Kamp) & 3 Others

High Court at Murang’a

Petition No. 7 Of 2014

Ngaah Jairus J.

November 17, 2014

Reported by Emma Kinya Mwobobia

 

Brief facts

The petitioner sought several declarations and damages against the respondents on the basis that its constitutional rights had been violated. Alongside the petition, the applicant also filed a chamber summons under rules 20 and 21 of the Constitution of Kenya (Supervisory Jurisdiction and Protection of Fundamental Rights and Freedoms of the Individual) High Court Practice and Procedure Rules, 2006 in which he sought for conservatory orders pending the hearing and determination of the main petition.

The applicant has complained that its business had been interrupted on several occasions by the respondents’ officers who demanded what the applicant described as non-existent licences. The employees, according to the applicant, do not carry any identification documents. They are alleged to demand bribes from the applicant’s employees and whenever these demands were not met, they resorted to confiscating the applicant’s television sets and arresting its employees. It was the applicant’s case that the respondents’ conduct had led to the applicant’s business losses.

 The respondent however deposed that it was mandated under section 30A of the Copyright Act to protect the rights of producers of sound-recordings through licensing. It was her position that the applicant had neglected and/or refused to comply with the licensing requirements and thereby infringed the rights of producers. It was the respondent’s case that the applicant was in breach of section 42 the Copyright Act and Articles 11(c) and 40 (5) of the Constitution of Kenya, 2010 which upheld and protected intellectual property rights.

 In order to ensure compliance and enforcement of these provisions of the law, the 1st respondent made a formal complaint to the police who duly acted on the complaint and commenced criminal proceedings against the accused person.

 

Issues:

  1. Whether in considering the “inherent merit of a case” when granting conservatory orders the court would be delving into the merits of the case at an interlocutory stage and thereby pre-judging it before it is heard on merit.
  2. whether the petitioner had made out a case for conservatory orders

 

Constitutional Law – conservatory orders – court considerations governing the grant of conservatory orders – inherent merit of a case – meaning of inherent merit of a case – whether there was a difference between the “inherent merit of a case” and “a high probability of success” in a case – whether the conservatory orders could issue in the matter

 

Intellectual Property Law - copyright – right to equitable remuneration for use of sound recordings – requirement for a licence for the commercial use of the recording or production – petitioner’s claims that the respondents kept dirupting his business demanding non existent licences - whether the petitioners actions were lawful – Constitution of Kenya. 2010 article 11(2), 40(5); Copyright Act section30(A)(1) and (2)

 

Copyright Act 2001

Section 30(A) (1) and (2) as read with section 38(2) and 38(7) of the Section 30(A) (1) and (2) of that Act reads as follows:-

 30A. Right to equitable remuneration for use of sound recordings and audio visual works

 (1) If a sound recording is published for commercial purposes or a reproduction of such recording is used directly for broadcasting or other communication to the public, or is publicly performed, a single equitable remuneration for the performer and the producer of the sound recording shall be paid by the user through the respective collective management organisation, and the remuneration shall be shared equally between the producer of the sound recording and the performer.

 (2) If fixation of a performance is published for commercial purposes or a reproduction of a fixation of a performance is used for broadcasting or other communication to the public, or is publicly performed, a single equitable remuneration for the performer shall be paid by the user to the collective management organisation.

 Section 38(2) and (7) thereof reads:-

 38. Offence and penalties for infringement

 (1) Any person who, at a time when copyright or the right of a performer subsists in a work-

 (a) makes for sale or hire any infringing copy; or

 (b) sells or lets for hire or by way of trade exposes or offers for sale any infringing copy; or

 (c) distributes infringing copies; or

 (d) possess otherwise than for his private and domestic use, any infringing copy; or

 (e) imports into Kenya otherwise than for his private and domestic use any infringing copy; or

 (f) makes or has in his possession any contrivance used or intended to be used for the purpose of making infringing copies

 Shall, unless he is able to prove that he had acted in good faith and had no reasonable grounds for supposing that that copyright or the right of a performer would or might thereby be infringed, be guilty of an offence.

 (3) any person who causes a literary or musical work, an audio-visual work or a sound recording to be performed in public at a time when copyright subsists in such work or sound recording and where such performance is an infringement of that copyright shall be guilty of an offence unless he is able to prove that he had acted in good faith and had no reasonable grounds for supposing that copyright would or might be infringed.

Constitution of Kenya, 2010

Article 11(2) (c) states:-

 The state shall-

 (a)…

 (b)…

 (c) promote the intellectual property rights of the people of Kenya.

 Article 40(5) states:-

 “The state shall support, promote and protect the intellectual property rights of the people of Kenya.”

Held:

  1. “Inherent merit” was a case which, on the face of it, was meritorious and therefore,a likely to succeed. While the interpretation may be consistent with the concept of a case with a high probability of success which the Supreme Court had discouraged as the applicable test in granting or rejecting conservatory orders, there was no other meaning that could be ascribed to the phrase “the inherent merit of a case.”
  2. The alternative interpretation would be that “the inherent merit of a case” meant that the case “would succeed” rather than “it was likely to succeed”. However, if the court adopted the alternative interpretation, it would thereby imply that the case could as well have been decided on an interlocutory application. It was doubtful that could have been what the Supreme Court had in mind.
  3. Amongst the orders the court could have granted in any proceedings under article 22 of the Constitution was an order for Judicial Review regardless of whether they were proceedings of the main petition or  proceedings in an interlocutory application such as in the instant application.
  4. The order for prohibition in the circumstances was not the appropriate prayer to seek for. If in the applicant’s view the arrest and the subsequent prosecution of its employees were unjustified in one way or the other, then the appropriate order for judicial review would have been an order for certiorari to quash the charges and the proceedings against these employees. The judicial review order of prohibition like other prerogative orders were available against public bodies and not private corporates.
  5. Even if the first two respondents were public bodies and therefore amenable to judicial review orders, it would be out of order for judicial review orders to issue against them in the context of an interlocutory application. In appropriate cases, judicial review orders would only issue at the final determination of a case and they were not available in any other shape or description whether as interim or as conservatory orders.
  6. Considering the Constitutional and Copyright Act provisions, it was apparent that the charges against the applicant’s employees had a statutory backing. They were not non-existent charges or offences.
  7. The role of the 3rd and the 4th respondents was expressly provided for under section 42 of the Copyright Act which had empowered the police to arrest without a warrant any person suspected of having committed an offence under the Act. The 3rd respondent had also been authorised under section 43(1) of the Act to appoint public prosecutors for purposes of prosecuting cases covered under the Act. That certainly included prosecution of offences for which the applicant’s employees had been charged with. The role of prosecution having been given to the Director of Public Prosecution under the Constitution of Kenya 2010, should have taken over the task.
  8. The constitutionality of the Copyright Act, 2001 or any provisions thereof including the provisions under which the applicant’s employees had been charged had not been questioned in the petition. Any suggestion to question the Act would have been a long shot considering that the Constitution itself recognised the intellectual property rights whose details were encapsulated in the Act.
  9. While the Constitution broadly provided the framework for the intellectual property rights, legislation such as the Copyright Act, 2001 provided the details of those rights. That being the case, it was difficult to appreciate the applicant’s argument which in essence implied that the respondents’ action in enforcement of certain provisions of the Copyright Act, was unconstitutional.  As long as the enabling legislation was constitutional, the respondents’ actions ensuing therefrom were lawful unless, of course, it could be demonstrated that the respondents had, in their actions, breached those very provisions or had acted ultra vires the Act. The respondents should not have been inhibited unnecessarily from exercising their constitutional and statutory mandates.
  10. The applicant’s chamber summons was deficient of any inherent merit and the public interest would not have been best served by halting the trial. There was nothing to indicate that their arrest, prosecution and generally, the criminal process contravened any of the constitutional values or was inversely proportional to their rights to a fair trial. The applicant did not deserve the conservatory orders sought.

Application dismissed. Costs to abide in the outcome of the petition.

 

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Itrade Company Limited V Jane Mukami Mwangi & Another [2015] eKLR

Case Number: Miscellaneous Case 225 of 2014 Date Delivered: 13 Feb 2015

Judge: Mary Muthoni Gitumbi

Court: Environment and Land Court at Nairobi

Parties: Itrade Company Limited v Jane Mukami Mwangi & Land Registrar Thika Land Registry

Citation: Itrade Company Limited V Jane Mukami Mwangi & Another [2015] eKLR

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Zambezi Nayayiai Ritei V Kajiado Land Disputes Tribunal & 3 Others [2015] eKLR

Case Number: Elc Case 45 of 2012 Date Delivered: 13 Feb 2015

Judge: Mutungi Charles Kariuki

Court: High Court at Machakos

Parties: Zambezi Nayayiai Ritei v Kajiado Land Disputes Tribunal , Senior Resident Magistrate’s Court At Kajiado, Kajiado Central District Land Registrar, General & Faith Kipuyan Ritey

Citation: Zambezi Nayayiai Ritei V Kajiado Land Disputes Tribunal & 3 Others [2015] eKLR

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Elvis Isangi Mwandembo V Steel Makers Ltd [2015] eKLR

Case Number: Cause 434 of 2013 Date Delivered: 13 Feb 2015

Judge: Onesmus Ndambuthi Makau

Court: Employment and Labour Relations Court at Mombasa

Parties: Elvis Isangi Mwandembo v Steel Makers Ltd

Citation: Elvis Isangi Mwandembo V Steel Makers Ltd [2015] eKLR

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Cereal Growers Association & Another V County Government Of Narok & 10 Others [2015] eKLR

Case Number: Petition 385 of 2013 Date Delivered: 13 Feb 2015

Judge: Isaac Lenaola

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Cereal Growers Association & Hugo Wood v County Government Of Narok, County Government Of Nairobi, County Government Of Nyeri, County Government Of Murang’a, County Government Of Trans Nzoia, County Government Of Uasin Gishu, County Government Of Nandi, County Government Of Nakuru, Ministry Of Agriculture, Livestock & Fisheries, Ministry Of Devolution And Planning & National Treasury

Citation: Cereal Growers Association & Another V County Government Of Narok & 10 Others [2015] eKLR

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Angeline Okweya Nandwa &Jane; Arimi (Suing On Behalf Of Single Mothers Association Of Kenya) V Nairobi County Government [2015] eKLR

Case Number: Elc. Case 958 of 2014 Date Delivered: 13 Feb 2015

Judge: Mary Muthoni Gitumbi

Court: Environment and Land Court at Nairobi

Parties: Angeline Okweya Nandwa &Jane; Arimi (Suing On Behalf Of Single Mothers Association Of Kenya) v Nairobi County Government

Citation: Angeline Okweya Nandwa &Jane; Arimi (Suing On Behalf Of Single Mothers Association Of Kenya) V Nairobi County Government [2015] eKLR

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In Re Estate Of Paul Kamau Job Wanderi (Deceased)) [2015] eKLR

Case Number: P&A Cause 1062 of 2013 Date Delivered: 13 Feb 2015

Judge: Jairus Ngaah

Court: High Court at Murang'a

Parties: In Re Estate of Paul Kamau Job Wanderi (Deceased))

Citation: In Re Estate Of Paul Kamau Job Wanderi (Deceased)) [2015] eKLR

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Moses Karani & Another V Republic [2015] eKLR

Case Number: Criminal Case 30 of 2012 Date Delivered: 13 Feb 2015

Judge: Jairus Ngaah

Court: High Court at Nyeri

Parties: Moses Karani & Douglas Kuria Kariuki v Republic

Citation: Moses Karani & Another V Republic [2015] eKLR

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N O B V A A O [2015] eKLR

Case Number: Civil Appeal 48 of 2010 Date Delivered: 13 Feb 2015

Judge: William Musya Musyoka

Court: High Court at Nairobi (Milimani Law Courts)

Parties: N O B v A A O

Citation: N O B V A A O [2015] eKLR

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J W B V R N K [2015] eKLR

Case Number: Civil Appeal 23 of 2014 Date Delivered: 13 Feb 2015

Judge: William Musya Musyoka

Court: High Court at Nairobi (Milimani Law Courts)

Parties: J W B v R N K

Citation: J W B V R N K [2015] eKLR

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Peter Tomito Korinko & 2 Others V Korinko N Nkoliai & 12 Others [2015] eKLR

Case Number: Environment and Land Civil Case 249 of 2013 Date Delivered: 13 Feb 2015

Judge: Samson Odhiambo Okong'o

Court: High Court at Kisii

Parties: Peter Tomito Korinko, Jospeh S Ketere & Michael O Kirusua v Korinko N Nkoliai, Jonathan K Ketere, Benard Ketere, Stephen M Ololtulet, David Kirionki, Samson Limpai, Ole Nanyukie Kitiapi, Leshan Kukuu, Samson Kalamayo, Oloeleboi Kaikai, Olomismis Group Ranch, District Land Registrar, Transmara & National Land Commission

Citation: Peter Tomito Korinko & 2 Others V Korinko N Nkoliai & 12 Others [2015] eKLR

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Samwel Naiduya Meitoi V Olenkarie Simon [2015] eKLR

Case Number: Environment and Land Civil Case 289 of 2013 Date Delivered: 13 Feb 2015

Judge: Samson Odhiambo Okong'o

Court: Environment and Land Court at Kisii

Parties: Samwel Naiduya Meitoi v Olenkarie Simon

Citation: Samwel Naiduya Meitoi V Olenkarie Simon [2015] eKLR

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Kiambu County Council V Coffee Board Of Kenya & Another [2015] eKLR

Case Number: Civil Suit 186 of 2000 Date Delivered: 13 Feb 2015

Judge: Joseph Kiplagat Sergon

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Kiambu County Council v Coffee Board of Kenya & Samuel Mbugua Kibathi - Chairman, Kiambu Coffee Cess

Citation: Kiambu County Council V Coffee Board Of Kenya & Another [2015] eKLR

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Desai Sarvia & Pallan Advocates V Tausi Assurance Company Limited [2015] eKLR

Case Number: Miscellenous Civil Case 920 of 2013 Date Delivered: 13 Feb 2015

Judge: Joseph Kiplagat Sergon

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Desai Sarvia & Pallan Advocates v Tausi Assurance Company Limited

Citation: Desai Sarvia & Pallan Advocates V Tausi Assurance Company Limited [2015] eKLR

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Registered Trustees International Glorious Victory Church V County Engineer, Kisii County Government & Another [2015] eKLR

Case Number: Environment and Land Civil Case 172 of 2014 Date Delivered: 13 Feb 2015

Judge: Samson Odhiambo Okong'o

Court: Environment and Land Court at Kisii

Parties: Registered Trustees International Glorious Victory Church v County Engineer, Kisii County Government & Kisii County Government

Citation: Registered Trustees International Glorious Victory Church V County Engineer, Kisii County Government & Another [2015] eKLR

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Morgan Z Mwita V Johnes Mwita Maswi & 5 Others [2015] eKLR

Case Number: Environment and Land Civil Case 340 of 2013 Date Delivered: 13 Feb 2015

Judge: Samson Odhiambo Okong'o

Court: Environment and Land Court at Kisii

Parties: Morgan Z Mwita v Johnes Mwita Maswi & 5 others

Citation: Morgan Z Mwita V Johnes Mwita Maswi & 5 Others [2015] eKLR

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