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Case Type: Civil Case


JAMES MUNGAI MAGARI V HOUSING FINANCE COMPANY OF LIMITED [2013] eKLR

Case Number: Civil Case 376 of 2007 Date Delivered: 08 Mar 2013

Judge: A. Mabeya

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

Parties: JAMES MUNGAI MAGARI v HOUSING FINANCE COMPANY OF LIMITED

Citation: JAMES MUNGAI MAGARI V HOUSING FINANCE COMPANY OF LIMITED [2013] eKLR

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Fina Bank Ltd V Dinesh Kumar Zaverchand Jetha [2013] eKLR

Case Number: Civil Case 643 of 2005 Date Delivered: 08 Mar 2013

Judge: Jonathan Bowen Havelock

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

Parties: Fina Bank Ltd v Dinesh Kumar Zaverchand Jetha

Citation: Fina Bank Ltd V Dinesh Kumar Zaverchand Jetha [2013] eKLR

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Ngara Mucokaniriria Company Limited & 11 Others V Francis Kinyanjui Mwangi & 7 Others [2013] eKLR

Case Number: Civil Case 170 of 2012 Date Delivered: 08 Mar 2013

Judge: Alfred Mabeya

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

Parties: Ngara Mucokaniriria Company Limited,Agnes Njeri Jacob,Peter Wambugu Macharia, James C.N Njoroge, Rebecca Wanjiru Ndungu, Lucy Wangui Ngura, Cyrus N. K. Mwaniki,Charles John Muraguri, Sarafina Wanjiru Ikahu,Smauel Njoroge Ndungu & Francis Gachigua Mbugua v Francis Kinyanjui Mwangi, Francis Muriu Njoroge, James Nderitu Njoroge , James Nderitu Njuguna,Lucy Njeri Nganga,Alexander Meeme Kajoi ,Perpetual Muthoni Kariuki & Registrar Of Companies

Citation: Ngara Mucokaniriria Company Limited & 11 Others V Francis Kinyanjui Mwangi & 7 Others [2013] eKLR

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JIMMY WAFULA SIMIYU V FIDELITY COMMERCIAL BANK LIMITED[2013]eKLR

Case Number: Civil Case 658 of 2012 Date Delivered: 08 Mar 2013

Judge: A. MABEYA

Court: High Court at Nairobi (Milimani Law Courts)

Parties: JIMMY WAFULA SIMIYU V FIDELITY COMMERCIAL BANK LIMITED

Citation: JIMMY WAFULA SIMIYU V FIDELITY COMMERCIAL BANK LIMITED[2013] eKLR

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KWANZA ESTATES LTD V KENYA WILDLIFE SERVICES [2013] eKLR

Case Number: Civil Case 133 of 2012 Date Delivered: 08 Mar 2013

Judge: Oscar Angote

Court: High Court at Malindi

Parties: KWANZA ESTATES LTD v KENYA WILDLIFE SERVICES

Citation: KWANZA ESTATES LTD V KENYA WILDLIFE SERVICES [2013] eKLR

IMPORTANCE OF AN ENVIRONMENTAL IMPACT ASSESSMENT IN ENVIRONMENTAL MATTERS IN ENHANCING SUSTAINABLE DEVELOPMENT

Reported by Emma Kinya Mwobobia & Obura Michael

 

Issues

  1. Whether the Environmental Impact Assessment (EIA) in environmental matters was a mandatory requirement essential in decision making.
  2. Whether the construction of public toilets next to a beach resort without conducting an Environmental Impact Assessment was a contravention of the principles of sustainable development.

Civil Practice and Procedure - injunction- temporary injunction- application to restrain the defendant from continuing with the construction of public toilets next to beach resort-grounds that the defendants were causing environmental degradation- claim by the defendants that they had all the necessary authority to utilize the grounds - proof of - factors the court considers in such circumstance s-whether the plaintiffs established a prima facie case with a probability of success – whether the injunctive orders could be granted in the circumstances

Environmental Law -Environmental Impact Assessment-need for an Environmental Impact Assessment report for a proposed project- sustainable development- principles of sustainable development- public participation- need to seek public participation before continuing with a project- whether there was public participation before the construction of the public toilets- Constitution of Kenya, 2010 Articles 42, 69, 70; The Environmental Management and Co-ordination Act (EMCA), 1999 section 3. Read More...

Held:

  1. There was no document to show an Environmental Impact Assessment Report was ever prepared before the construction of the public toilet or whether the National Environmental Management Authority (NEMA) had licensed the construction of the said public toilet.

 

  1. The Environmental Management and Co-ordination Act, 1999 (EMCA) had provided novel provisions for the implementation of the general principles by stipulating that in exercising the jurisdiction conferred upon the court under Section 3 of the Act, the court would be guided by the principles of sustainable development such as public participation amongst others.

 

  1. The protection of the environment for the benefit of the present and future generations is supposed to be done in a structured and the legal framework that governs the protection of the Environmentin the Environment Management & Co-ordination Act (EMCA)1999.

 

  1. The Essential Principle of Public participation while clearly with the sustainable Management of the Environment was also provided for in Article 69(10 (d) of the Constitution. Public Participation was one of the principles that informed the requirement that before one financed and commenced the carrying out of any undertaking specified in the second schedule of the EMCA, he had to apply to the National Environmental Management Authority for an Environmental Impact Assessment Report.

 

  1. Environment Impact Assessment (EIA) was a tool that helped those involved in decision making concerning development programs or projects to make their decisions based on knowledge of the likely impacts that would be caused on the environment. Where the impacts were negative and likely to result in significant harm, decision makers would be able to decide what kind of mitigating measures should be taken to eliminate or minimize the harm.

 

  1. The projects that were potentially subject to EIA were specified in the second schedule of EMCA and they included an activity out of character with its surrounding, any structure of a scale not in keeping with its surrounding and change in land use.

 

  1. The importance of public participation in decision making in environmental matters was highlighted by the requirement that EIA study report be published for two successive weeks in the Gazette and in a newspaper circulating in the area of the project and the public to be given a maximum of sixty days for submissions of oral or written comments. EIA process gave the plaintiff a voice on issues that would bear directly on their health and welfare and entitlement to a clean and healthy environment.

Injunction granted.

 

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MILCAH JERUTO TALLAM T/A MILCAH FAITH ENTERPRISES V FINA BANK LTD & Another [2013] eKLR

Case Number: Civil Case 332 of 2012 Date Delivered: 07 Mar 2013

Judge: J. Kamau

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

Parties: MILCAH JERUTO TALLAM T/A MILCAH FAITH ENTERPRISES v FINA BANK LTD & another

Citation: MILCAH JERUTO TALLAM T/A MILCAH FAITH ENTERPRISES V FINA BANK LTD & Another [2013] eKLR

Reported by Beryl A. Ikamari

Issues:-

1. Whether a stay of execution could be issued against a negative order dismissing an application for an injunction; and,

 

2. Whether an applicant could rely on constitutional provisions, for the enforcement of fundamental rights and freedoms, to obtain conservatory orders as a remedy against a court order which dismissed an application for an injunction.

Civil Practice and Procedure-execution-stay of execution-circumstances in which the court would grant a stay of execution-the nature of orders against which a stay of execution could issue-whether a stay of execution could issue against a negative order dismissing an application for injunctive relief-Civil Procedure Act (Cap. 21,) section 2 and Civil Procedure Rules, order 42 rule 6.

Constitutional Law-fundamental rights and freedoms-enforcement of fundamental rights and freedoms-availability of conservatory orders as a form of relief under constitutional provisions-whether conservatory orders could be availed as a remedy in a claim which arose pursuant to a commercial transaction and in which no violation of fundamental rights and freedoms had been alleged-Constitution of Kenya, 2010, articles 22 and 23(3)(c).

Held:-

1.  Section 2 of the Civil Procedure Act, (Cap. 21) indicated that some orders were capable of execution while others were not.

 

2.The order against which the applicant sought a stay of execution was not an order for any party to do anything or abstain from doing anything or to pay any money. It was a negative order incapable of execution.

 

3. The Civil Procedure Rules, 2010, would not allow the High Court to grant a stay against orders emanating from the dismissal of an application that had sought injunctive relief at the same High Court.

 

4. A conservatory order could only be issued under article 23(3)(c) of the Constitution of Kenya, 2010, where a person had instituted court proceedings claiming that a right or fundamental freedom in the bill of rights had been denied, violated, infringed or was threatened. The transaction at issue was commercial in nature and accordingly, the applicant could not rely on such a conservatory order as a remedy.

 

5. The High Court could not sit on an appeal in a matter that had been handled by a court of similar and competent jurisdiction and give the same orders that such a court had refused to grant, and especially, in a situation where the law did not provide for the grant of such orders.

Application dismissed.

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LAWRENCE M. GATERE V KABARE FARMERS CO-OP SOCIETY[2013]e KLR

Case Number: Civil Case 46 of 2006 Date Delivered: 07 Mar 2013

Judge: H.I. ONG'UDI

Court: High Court at Embu

Parties: LAWRENCE M. GATERE V KABARE FARMERS CO-OP SOCIETY

Citation: LAWRENCE M. GATERE V KABARE FARMERS CO-OP SOCIETY[2013]e KLR

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MOHAMED BASHIR V SHAUQAT FAROOQ SHEIKH[2013]eKLR

Case Number: Civil Case 248 of 2008 Date Delivered: 07 Mar 2013

Judge: E.K.O OGOLA

Court: High Court at Nairobi (Milimani Law Courts)

Parties: MOHAMED BASHIR V SHAUQAT FAROOQ SHEIKH

Citation: MOHAMED BASHIR V SHAUQAT FAROOQ SHEIKH[2013] eKLR

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MILCAH JERUTO TALLAM T/A MILCAH FAITH ENTERPRISES V FINA BANK LTD& ANOTHER[2013]eKLR

Case Number: Civil Case 332 of 2012 Date Delivered: 07 Mar 2013

Judge: Jacqueline Kamau

Court: High Court at Nairobi (Milimani Law Courts)

Parties: MILCAH JERUTO TALLAM T/A MILCAH FAITH ENTERPRISES V FINA BANK LTD& ANOTHER

Citation: MILCAH JERUTO TALLAM T/A MILCAH FAITH ENTERPRISES V FINA BANK LTD& ANOTHER[2013] eKLR

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KAMLESH MANUKHLAL PATTNI V CENTRAL BANK OF KENYA & ANOTHER[2013]eKLR

Case Number: Civil Case 642 of 1998 Date Delivered: 07 Mar 2013

Judge: J .KAMAU

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

Parties: KAMLESH MANUKHLAL PATTNI V CENTRAL BANK OF KENYA & ANOTHER

Citation: KAMLESH MANUKHLAL PATTNI V CENTRAL BANK OF KENYA & ANOTHER[2013] eKLR

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MWAMBEJA RANCHING COMPANY LTD V KENYA NATIONAL CAPITAL CORPORATION LTD[2013]eKLR

Case Number: Civil Case 468 of 2011 Date Delivered: 07 Mar 2013

Judge: E.K.O OGOLA

Court: High Court at Nairobi (Milimani Law Courts)

Parties: MWAMBEJA RANCHING COMPANY LTD V KENYA NATIONAL CAPITAL CORPORATION LTD

Citation: MWAMBEJA RANCHING COMPANY LTD V KENYA NATIONAL CAPITAL CORPORATION LTD[2013] eKLR

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PETER MIRING\'U KAGWI V EMBAKASI RANCHING COMPANY LIMITED[2013]eKLR

Case Number: Civil Case 640 of 2012 Date Delivered: 06 Mar 2013

Judge: R. OUGO

Court: High Court at Nairobi (Milimani Law Courts)

Parties: PETER MIRING\'U KAGWI V EMBAKASI RANCHING COMPANY LIMITED

Citation: PETER MIRING\'U KAGWI V EMBAKASI RANCHING COMPANY LIMITED[2013] eKLR

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STATUTORY MANAGER UNITED INSURANCE CO. LIMITED V KENNETH NGANGA MUNGAI P/A MUNGAI AND GAKURU ADVOCATES[2013]eKLR

Case Number: Civil Case 551-575 of 2012 Date Delivered: 01 Mar 2013

Judge: A. MABEYA

Court: High Court at Nairobi (Milimani Law Courts)

Parties: STATUTORY MANAGER UNITED INSURANCE CO. LIMITED V KENNETH NGANGA MUNGAI P/A MUNGAI AND GAKURU ADVOCATES

Citation: STATUTORY MANAGER UNITED INSURANCE CO. LIMITED V KENNETH NGANGA MUNGAI P/A MUNGAI AND GAKURU ADVOCATES[2013] eKLR

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JAN BOLDEN NIELSEN V HERMAN PHILIPUS STEYN & 2 OTHERS[2013]eKLR

Case Number: Civil Case 332 of 2010 Date Delivered: 01 Mar 2013

Judge: Alfred Mabeya

Court: High Court at Nairobi (Milimani Law Courts)

Parties: JAN BOLDEN NIELSEN V HERMAN PHILIPUS STEYN & 2 OTHERS

Citation: JAN BOLDEN NIELSEN V HERMAN PHILIPUS STEYN & 2 OTHERS[2013] eKLR

WHETHER A RULING AS OPPOSED TO AN ORDER OR DECREE MAY BE REVIEWED

Reported by Beryl A. Ikamari

 

In this case, the court was asked to review a ruling it had previously made pursuant to an application seeking a variation of orders that had been made by the High Court. An injuction had been issued to preserve the plaintiff's proprietary rights and rights of occupancy over the suit property. However, the defendant's sought relief in the form of the injunction orders to the extent of the plaintiff's proprietary rights and rights of occupation to a smaller area in the suit property.

A contradiction therefore arose in the court's ruling as the order issued had the effect of varying the earlier orders.

Issues

  1. Whether the remedy of review was available where an order had not been extracted from a ruling, concerning which review was sought; and,
  2. Whether the grant of prayers embodying some degree of contradiction and the grant of reliefs extending beyond what the parties have sought from the court, were matters falling within the purview of review and were not issues to be determined via an appeal
  3.  

The Civil Procedure Act, 2010, Section 80:-

"80. Any person who considers himself aggrieved -

(a) by a decree or order from which an appeal is allowed by this Act, but from which no appeal has been preferred; or

(b) by a decree or order from which no appeal is allowed by this Act, may apply for a review of judgment to the court which passed the decree or made the order, and the court may make such order thereon as it thinks fit."

Civil Procedure Rules, 2010, Order 45 Rule 1: -

"(1) Any person considering himself aggrieved— 

(a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred; or

(b) by a decree or order from which no appeal is hereby allowed,

and who from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or the order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree or order, may apply for a review of judgment to the court which passed the decree or made the order without unreasonable delay."

Civil Practice and Procedure - review-whether the remedy of review is only available where either a decree or order has been extracted from a judgment or ruling of the court-whether a ruling from which no order has been extracted can be the subject of review proceedings-the nature of matters that may properly be brought for review as opposed to matters that are the proper subject of an appeal-the Civil Procedure Act, 2010, Section 80 and the Civil Procedure Rules, 2010, Order 45 Rule 1

Held:

  1. Section 80 of the Civil Procedure Act, 2010 and Order 45(1) of the Civil Procedure Rules, 2010 allowed a court in an appropriate application to review a judgment or ruling.

 

  1. What is to be reviewed is the judgment or ruling from which the decree or order is extracted, and concerning which the applicant finds that there is reason to seek review. The extraction and exhibition of a decree or order in an application for review is but only a procedural step which enables the court to identify the particular decision in question and the aggrieved party.

 

  1. In granting the prayers whose effect was to vary the previous High Court orders, but at the same time stating that the orders were not varied, gave a contradiction in the ruling that the court had been asked to review amounting to an error in the face of the record.

 

  1. The proviso contained in the ruling which review orders were sought, concerns orders which none of the parties sought from the court and the parties were not heard on the merits pertaining to the grant of the orders. Although a court has discretion to give an injunction on certain terms, such terms should not extend to affect the existing rights of the parties without such parties being called upon to address the court on the matter.

 

  1. The inconsistency between the court’s intention to protect the defendant’s constitutional right of ownership of the suit property and the proviso in paragraph 47 of the ruling was an error that is subject to review. The proviso given by the court in paragraph 47 of the ruling of December 10, 2012 was made in error and it is an issue subject to review and not one that may only be determined on appeal.

Application allowed.

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John Kipkemboi Kilel V Wilfred Riitho Njeru Interim Liquidator Of Lakestar Insurance Company Limited (In Liquidation [2013] eKLR

Case Number: Civil Case 363 of 2008 Date Delivered: 01 Mar 2013

Judge: Alfred Mabeya

Court: High Court at Nairobi (Milimani Law Courts)

Parties: John Kipkemboi Kilel v Wilfred Riitho Njeru Interim Liquidator of Lakestar Insurance Company Limited (In Liquidation)

Citation: John Kipkemboi Kilel V Wilfred Riitho Njeru Interim Liquidator Of Lakestar Insurance Company Limited (In Liquidation [2013] eKLR

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FIDELITY COMMERCIAL BANK LIMITED V ONESMUS GITHINJI & CO. ADVOCATES[2013]eKLR

Case Number: Civil Case 209 of 2012 Date Delivered: 28 Feb 2013

Judge: J. B.HAVELOCK

Court: High Court at Nairobi (Milimani Law Courts)

Parties: FIDELITY COMMERCIAL BANK LIMITED V ONESMUS GITHINJI & CO. ADVOCATES

Citation: FIDELITY COMMERCIAL BANK LIMITED V ONESMUS GITHINJI & CO. ADVOCATES[2013] eKLR

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MAURICE CLEMENT SHILULI V JOHN MBALASI MUGUMBA [2013]eKLR

Case Number: Civil Case 26\\\\\\\'A\\\\\\\' of 2003 Date Delivered: 27 Feb 2013

Judge: SAID J,CHITEMBWE

Court: High Court at Kakamega

Parties: MAURICE CLEMENT SHILULI v JOHN MBALASI MUGUMBA

Citation: MAURICE CLEMENT SHILULI V JOHN MBALASI MUGUMBA [2013] eKLR

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JOSEPHINE KADI ASAMBA V EUGINE JAMWALA OKUDE [2013]eKLR

Case Number: Civil Case 18 of 2009 Date Delivered: 27 Feb 2013

Judge: SAID J. CHITEMBWE

Court: High Court at Kakamega

Parties: JOSEPHINE KADI ASAMBA v EUGINE JAMWALA OKUDE

Citation: JOSEPHINE KADI ASAMBA V EUGINE JAMWALA OKUDE [2013] eKLR

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Peter Kamau Ikigu V Barclays Bank Of Kenya Ltd & Another [2013] eKLR

Case Number: Civil Case 719 of 2003 Date Delivered: 27 Feb 2013

Judge: George Vincent Odunga

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

Parties: Peter Kamau Ikigu v Barclays Bank of Kenya Ltd & Peterson Ogino Ongaro

Citation: Peter Kamau Ikigu V Barclays Bank Of Kenya Ltd & Another [2013] eKLR

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MAURICE CLEMENT SHILULI V JOHN MBALASI MUGUMBA [2013]eKLR

Case Number: Civil Case 26\\\'A\\of 2003 Date Delivered: 27 Feb 2013

Judge: SAID J. CHITEMBWE

Court: High Court at Kakamega

Parties: MAURICE CLEMENT SHILULI V JOHN MBALASI MUGUMBA

Citation: MAURICE CLEMENT SHILULI V JOHN MBALASI MUGUMBA [2013] eKLR

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MAURICE CLEMENT SHILULI V JOHN MBALASI MUGUMBA [2012] eKLR

Case Number: Civil Case 26 ‘A’ of 2003 Date Delivered: 27 Feb 2013

Judge: SAID J. CHITEMBWE

Court: High Court at Kakamega

Parties: MAURICE CLEMENT SHILULI v JOHN MBALASI MUGUMBA

Citation: MAURICE CLEMENT SHILULI V JOHN MBALASI MUGUMBA [2012] eKLR

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MAURICE CLEMENT SHILULI V JOHN MBALASI MUGUMBA [2013]eKLR

Case Number: Civil Case 26\\\\\\\\A\\\\\\\\ of 2003 Date Delivered: 27 Feb 2013

Judge: SAID J. CHITEMBWE

Court: High Court at Kakamega

Parties: MAURICE CLEMENT SHILULI V JOHN MBALASI MUGUMBA

Citation: MAURICE CLEMENT SHILULI V JOHN MBALASI MUGUMBA [2013] eKLR

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ROSKY TRADERS LIMITED V GETRUDE CHAO WAITA & 2 OTHERS[2013]eKLR

Case Number: Civil Case 361 of 2010 Date Delivered: 27 Feb 2013

Judge: F. TUIYOTT

Court: High Court at Mombasa

Parties: ROSKY TRADERS LIMITED V GETRUDE CHAO WAITA & 2 OTHERS

Citation: ROSKY TRADERS LIMITED V GETRUDE CHAO WAITA & 2 OTHERS[2013] eKLR

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SAMSON NGUGI ICHUNG’WA T/A GRENAIR V NATIONAL INDUSTRIAL CREDIT BANL LTD & 2 Others [2013] eKLR

Case Number: Civil Case 86 of 2010 Date Delivered: 27 Feb 2013

Judge: J.B. Havelock

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

Parties: SAMSON NGUGI ICHUNG’WA T/A GRENAIR v NATIONAL INDUSTRIAL CREDIT BANL LTD & 2 others

Citation: SAMSON NGUGI ICHUNG’WA T/A GRENAIR V NATIONAL INDUSTRIAL CREDIT BANL LTD & 2 Others [2013] eKLR

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MAURICE CLEMENT SHILULI V JOHN MBALASI MUGUMBA [2013] eKLR

Case Number: Civil Case 26\'A\' of 2003 Date Delivered: 27 Feb 2013

Judge: Said J. Chitembwe

Court: High Court at Kakamega

Parties: MAURICE CLEMENT SHILULI v JOHN MBALASI MUGUMBA

Citation: MAURICE CLEMENT SHILULI V JOHN MBALASI MUGUMBA [2013] eKLR

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WILLIAM WAGURA MAIGUA V ELBUR FLORA LIMITED[2013]eKLR

Case Number: Civil Case 248 of 2011 Date Delivered: 27 Feb 2013

Judge: M. J. ANYARA EMUKULE

Court: High Court at Nakuru

Parties: WILLIAM WAGURA MAIGUA V ELBUR FLORA LIMITED

Citation: WILLIAM WAGURA MAIGUA V ELBUR FLORA LIMITED[2013] eKLR

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WAMBUGU KARIUKI & ASSOCIATES ADVOCATES V ONDIEKI & ONDIEKI ADVOCATES[2013]eKLR

Case Number: Civil Case 854 of 2010 Date Delivered: 27 Feb 2013

Judge: J. B.HAVELOCK

Court: High Court at Nairobi (Milimani Law Courts)

Parties: WAMBUGU KARIUKI & ASSOCIATES ADVOCATES V ONDIEKI & ONDIEKI ADVOCATES

Citation: WAMBUGU KARIUKI & ASSOCIATES ADVOCATES V ONDIEKI & ONDIEKI ADVOCATES[2013] eKLR

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KENYA CANVAS LIMITED V TOURISM PROMOTION SERVICES (KENYA) LIMITED[2013]eKLR

Case Number: Civil Case 907 of 2009 Date Delivered: 27 Feb 2013

Judge: J. B.HAVELOCK

Court: High Court at Nairobi (Milimani Law Courts)

Parties: KENYA CANVAS LIMITED V TOURISM PROMOTION SERVICES (KENYA) LIMITED

Citation: KENYA CANVAS LIMITED V TOURISM PROMOTION SERVICES (KENYA) LIMITED[2013] eKLR

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HAMADI BAKARI KALAMU V JOSEPH MUTUA MAKAU[2013]eKLR

Case Number: Civil Case 515 of 2011 Date Delivered: 27 Feb 2013

Judge: F. TUIYOTT

Court: High Court at Mombasa

Parties: HAMADI BAKARI KALAMU V JOSEPH MUTUA MAKAU

Citation: HAMADI BAKARI KALAMU V JOSEPH MUTUA MAKAU[2013] eKLR

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MAURICE CLEMENT SHILULI V JOHN MBALASI MUGUMBA[2013]eKLR

Case Number: Civil Case 26A of 2003 Date Delivered: 27 Feb 2013

Judge: SAID J. CHITEMBWE

Court: High Court at Kakamega

Parties: MAURICE CLEMENT SHILULI V JOHN MBALASI MUGUMBA

Citation: MAURICE CLEMENT SHILULI V JOHN MBALASI MUGUMBA[2013] eKLR

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KIARIE NJOROGE WAINAINA & ANOTHER V MUNGAI NJOROGE & ANOTHER[2013]eKLR

Case Number: Civil Case 92 of 1991 Date Delivered: 27 Feb 2013

Judge: J. M. MUTUNGI

Court: High Court at Nairobi (Milimani Law Courts)

Parties: KIARIE NJOROGE WAINAINA & ANOTHER V MUNGAI NJOROGE & ANOTHER

Citation: KIARIE NJOROGE WAINAINA & ANOTHER V MUNGAI NJOROGE & ANOTHER[2013] eKLR

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MAURICE CLEMENT SHILULI V JOHN MBALASI MUGUMBA[2013]eKLR

Case Number: Civil Case 23\\\\\\\'A\\\\\\\' of 2003 Date Delivered: 27 Feb 2013

Judge: SAID J,CHITEMBWE

Court: High Court at Kakamega

Parties: MAURICE CLEMENT SHILULI v JOHN MBALASI MUGUMBA

Citation: MAURICE CLEMENT SHILULI V JOHN MBALASI MUGUMBA[2013] eKLR

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FRANCIS THUKU GAKUMO & ANOTHER V JOSEPH GITAU NJOKI & 3 OTHERS[2013]eKLR

Case Number: Civil Case 152 of 2012 Date Delivered: 26 Feb 2013

Judge: GACHERU

Court: High Court at Nairobi (Milimani Law Courts)

Parties: FRANCIS THUKU GAKUMO & ANOTHER V JOSEPH GITAU NJOKI & 3 OTHERS

Citation: FRANCIS THUKU GAKUMO & ANOTHER V JOSEPH GITAU NJOKI & 3 OTHERS[2013] eKLR

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CALEDONIA SUPERMARKET LIMITED V THE KENYA NATIONAL EXAMINAITONS COUNCIL [2013] eKLR

Case Number: Civil Case 447 of 1998 Date Delivered: 26 Feb 2013

Judge: E.K.O. Ogola

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

Parties: CALEDONIA SUPERMARKET LIMITED v THE KENYA NATIONAL EXAMINAITONS COUNCIL

Citation: CALEDONIA SUPERMARKET LIMITED V THE KENYA NATIONAL EXAMINAITONS COUNCIL [2013] eKLR

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JOHN KIMANI NGURE T/A KEYLINK DISTRIBUTORS V SIMBA MERCHANDISING CO. (K) LIMITED[2013]eKLR

Case Number: Civil Case 691 of 2012 Date Delivered: 26 Feb 2013

Judge: E. K. O. OGOLA

Court: High Court at Nairobi (Milimani Law Courts)

Parties: JOHN KIMANI NGURE T/A KEYLINK DISTRIBUTORS V SIMBA MERCHANDISING CO. (K) LIMITED

Citation: JOHN KIMANI NGURE T/A KEYLINK DISTRIBUTORS V SIMBA MERCHANDISING CO. (K) LIMITED[2013] eKLR

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JOHN KIBII KOSKEI V SHABAN SIFUNA[2013]eKLR

Case Number: Civil Case 37 of 2007 Date Delivered: 26 Feb 2013

Judge: J.R. KARANJA.

Court: High Court at Kitale

Parties: JOHN KIBII KOSKEI V SHABAN SIFUNA

Citation: JOHN KIBII KOSKEI V SHABAN SIFUNA[2013] eKLR

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DANIEL MAINA KARANJA V NICERATA MUTHONI NJAGI[2013]eKLR

Case Number: Civil Case 27 of 2012 Date Delivered: 25 Feb 2013

Judge: R. OUGO

Court: High Court at Nairobi (Milimani Law Courts)

Parties: DANIEL MAINA KARANJA V NICERATA MUTHONI NJAGI

Citation: DANIEL MAINA KARANJA V NICERATA MUTHONI NJAGI[2013] eKLR

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GATTO ESTATES LIMITED V ROSE VAM DYKE COMPANY LIMITED[2013]eKLR

Case Number: Civil Case 57 of 2013 Date Delivered: 25 Feb 2013

Judge: A. MABEYA

Court: High Court at Nairobi (Milimani Law Courts)

Parties: GATTO ESTATES LIMITED V ROSE VAM DYKE COMPANY LIMITED

Citation: GATTO ESTATES LIMITED V ROSE VAM DYKE COMPANY LIMITED[2013] eKLR

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FRANCIS OKELLO NDEGE V ALEXANDER OCHWO ALELA[2013]eKLR

Case Number: Civil Case 478 of 2012 Date Delivered: 22 Feb 2013

Judge: R. OUGO

Court: High Court at Nairobi (Milimani Law Courts)

Parties: FRANCIS OKELLO NDEGE V ALEXANDER OCHWO ALELA

Citation: FRANCIS OKELLO NDEGE V ALEXANDER OCHWO ALELA[2013] eKLR

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LOCHAB BROS. LIMITED V PETER KALUMA T/A LUMUMBA MUMMA & KALUMA ADVOCATES & 2 OTHERS[2013]eKLR

Case Number: Civil Case 708 of 2012 Date Delivered: 22 Feb 2013

Judge: A. MABEYA

Court: High Court at Nairobi (Milimani Law Courts)

Parties: LOCHAB BROS. LIMITED V PETER KALUMA T/A LUMUMBA MUMMA & KALUMA ADVOCATES & 2 OTHERS

Citation: LOCHAB BROS. LIMITED V PETER KALUMA T/A LUMUMBA MUMMA & KALUMA ADVOCATES & 2 OTHERS[2013] eKLR

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Case Number: Civil Case 446 of 2007 Date Delivered: 22 Feb 2013

Judge: A. Mabeya

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

Parties: BARCLAYS BANK OF KENYA LIMITED v MARTHA KARWIRA ANTHONY

Citation: BARCLAYS BANK OF KENYA LIMITED V MARTHA KARWIRA ANTHONY [2013] eKLR

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Case Number: Civil Case 4 of 2013 Date Delivered: 22 Feb 2013

Judge: H.P.G. WAWERU

Court: High Court at Nairobi (Milimani Law Courts)

Parties: SAMUEL KIMANI MWAI V PATRICK PETER NJOGU KAMAU

Citation: SAMUEL KIMANI MWAI V PATRICK PETER NJOGU KAMAU[2013] eKLR

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Judge: H.P.G. WAWERU

Court: High Court at Nairobi (Milimani Law Courts)

Parties: JOSEPH THIONGO WAWERU & ANOTHER V KIHIUMWIRI FARMERS COMPANY LTD & OTHERS

Citation: JOSEPH THIONGO WAWERU & ANOTHER V KIHIUMWIRI FARMERS COMPANY LTD & OTHERS[2013] eKLR

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Case Number: Civil Case 568 of 2012 Date Delivered: 21 Feb 2013

Judge: R. OUGO

Court: High Court at Nairobi (Milimani Law Courts)

Parties: LAWRENCE GEORGE MWEBI V MARGRET WANJIKU & 2 OTHERS

Citation: LAWRENCE GEORGE MWEBI V MARGRET WANJIKU & 2 OTHERS[2013] eKLR

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REPUBLIC V LUCY NJERI WAWERU & 3 Others [2013] eKLR

Case Number: Civil Case 6 of 2013 Date Delivered: 21 Feb 2013

Judge: Florence Nyaguthii Muchemi

Court: High Court at Nairobi (Milimani Law Courts)

Parties: REPUBLIC v LUCY NJERI WAWERU & 3 others

Citation: REPUBLIC V LUCY NJERI WAWERU & 3 Others [2013] eKLR

THE NATURE OF THE CONSTITUTIONAL RIGHT TO BAIL

By Beryl A. Ikamari

 

Issue

  1. The circumstances under which bail would be available for persons charged with capital offences

The Constitution of Kenya, 2010,under Article 49(1)(h) provides that an arrested person has the right to be released on bond or bail, or reasonable conditions pending a charge or trial unless there are compelling reasons against the release of such a person.

 

The Criminal Procedure Code, Cap 75,under Section 123(1) is to the effect that persons charged with murder, treason, robbery with violence, and any related offence where the death sentence applies are not entitled to bail

 

Constitutional Law-constitutional rights and freedoms-the rights of arrested persons-the right to bail-circumstances under which bail would be granted as concerns capital offences-the effect of the constitutional right to bail on statutory provisions concerning bail, especially as concerns offences for which the death sentence is applicable-the right to bail in circumstances where the accused person is likely to interfere with witnesses and risks harm from the close relatives of the decease-the Constitution of Kenya, 2010, Article 49(1)(h) and the Criminal Procedure Code, Cap 75, Section 123(1).

 

Criminal Practice and Procedure-the rights of accused persons-the right to bail-the right to bail as concerns offences for which the death penalty is applicable-the effect of the constitutional right to bail on the right to bail in criminal proceedings concerning capital offences-the right to bail in a murder trial where the accused is likely to interfere with witnesses and risks harm from the close relatives of the deceased-the Constitution of Kenya, 2010, Article 49(1)(h) and the Criminal Procedure Code, Cap 75, Section 123(1). Read More...

Held:

  1. Bail is an accused person's constitutional right. However, the right to bail is not absolute and may be denied where the state has compelling reasons for the refusal of bail. The grant of bail is therefore left to the discretion of the court.

 

  1. Bail is available at the discretion of the court even where the accused is charged with an offence for which the death sentence is applicable.

 

  1. In considering whether the court would grant bail, the established principles applicable are the following:
    1. Whether the accused persons were likely to turn up for trial should they be granted bail;
    2. Whether the accused persons were likely to interfere with witnesses;
    3. The nature of the charges;
    4. The severity of the sentence;
    5. The security of the accused if released on bond;
    6. In case of illness of the accused, the nature and severity of the illness; and,
    7. Whether the accused persons have a fixed abode within the jurisdiction of the court.
  2. The prosecution established that the four accused persons were likely to interfere, influence and intimidate the key witnesses and were also at risk of harm from close family members of the deceased if bail was granted.

Application dismissed.

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Case Number: Civil Case 117 of 2007 Date Delivered: 21 Feb 2013

Judge: RUTH NEKOYE SITATI

Court: High Court at Kisii

Parties: WALTER ODHIAMBO ODONGO V ABNER NYAGUCHA NYAKUNDI & ANOTHER

Citation: WALTER ODHIAMBO ODONGO V ABNER NYAGUCHA NYAKUNDI & ANOTHER[2013] eKLR

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Judge: RUTH NEKOYE SITATI

Court: High Court at Kisii

Parties: JULIUS TABARAI OLE MAITO TAMPUSHI V WILLIAM LERIKAN KONCHELLAH & ANOTHER

Citation: JULIUS TABARAI OLE MAITO TAMPUSHI V WILLIAM LERIKAN KONCHELLAH & ANOTHER[2013] eKLR

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Judge: W. OUKO

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Parties: LEAH THENYA KAMARA V MICHAEL KAMAU MWAURA & 2 OTHERS

Citation: LEAH THENYA KAMARA V MICHAEL KAMAU MWAURA & 2 OTHERS[2013] eKLR

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Case Number: Civil Case 63 of 2011 Date Delivered: 19 Feb 2013

Judge: RUTH NEKOYE SITATI

Court: High Court at Kisii

Parties: ROSA MORAA ONSARIGO CHAIRMAN, SCHOOL COMMITTEENYANGWETA D.O.K. PRIMARY SCHOOL & ANOTHER

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OFFICIAL RECEIVER & LIQUIDITOR OF RURAL URBAN CREDIT FINANCE V SIMON KANARIO KARIUKI & 2 OTHERS[2013]eKLR

Case Number: Civil Case 70 of 2012 Date Delivered: 19 Feb 2013

Judge: P. M. NJOROGE

Court: High Court at Meru

Parties: OFFICIAL RECEIVER & LIQUIDITOR OF RURAL URBAN CREDIT FINANCE V SIMON KANARIO KARIUKI & 2 OTHERS

Citation: OFFICIAL RECEIVER & LIQUIDITOR OF RURAL URBAN CREDIT FINANCE V SIMON KANARIO KARIUKI & 2 OTHERS[2013] eKLR

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