Newsletter on 06/01/2013

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Sunday 6th January

Issue 1/2013

CASE OF THE WEEK

 

Why Application for Referendum for Secession by the Mombasa Republican Council (MRC) was thrown out.

By Cornelius W Lupao.

Randu  Nzai  Ruwa & 2 others v Secretary, Independent Electoral and Boundaries Commission & 9 others [2012]eKLR.
Constitutional Application Number 6 Of 2012
High Court, at Mombasa.
J.W. Mwera, E.M. Muriithi, G.N. Nzioka, F. Tuiyott & R.M. Mwongo JJ .
December 20, 2012.

The Applicants, on behalf of a body known as the Mombasa Republican Council ("MRC"), filed a petition seeking the court's determination that the political and socio-economic rights of the people in the six counties of Mombasa, Kwale, Kilifi, Tana River, Lamu and Taita Taveta , had been infringed upon,  in various ways by the Respondents. They sought the court's intervention by praying for multifarious reliefs of declaration and injunction, key among them,a mandatory injunction compelling the Secretary, Independent  Electoral and Boundaries Commission, the Independent Electoral and Boundaries Commission,  the 1st and 2nd respondents respectively, to facilitate the them (the applicants) exercise their political rights under Article 38 of the Constitution of Kenya ,2010, by conducting a referendum on the question of the proposed self determination of the indigenous peoples resident in the Coast Province of the Republic of Kenya

Before the determination of the main petition, the applicants also sought interlocutory orders, chief among them, that pending the determination of the main application., the 1st and 2nd respondents be injuncted  from: initiating, proceeding with, concluding and/or taking any further steps or procedures respecting the presidential and/or senatorial, national parliamentary, county gubernatorial and/or Country Assembly elections for all elective seats situate within Mombasa, Kwale, Kilifi, TanaRiver, Lamu and Taita Taveta Counties; publishing in the Gazette and or in the electronic and print media of national circulation any notice of the holding of presidential and/or senatorial, national parliamentary, Country gubernatorial and/or County Assembly elections for all elective seats situate within Mombasa, Kwale, Kilifi, Tana River, Lamu  and Taita Taveta Counties; and receiving from any and all political parties nominations of candidates for the holding of presidential and/or senatorial, national parliamentary, County gubernatorial and/or County Assembly elections for all elective seats situate within Mombasa, Kwale, Kilifi, Tana River, Lamu and Taita Taveta Counties; holding and or proceeding to hold presidential and/or senatorial, national parliamentary, County gubernatorial and/or Country Assembly elections for any or all elective seats situate within Mombasa, Kwale, Kilifi, Tana River, Lamu and Taita Taveta Counties  until the hearing and determination  of the main petition  inter partes;

On the other hand, the respondents objected to the applications on the grounds that  the application had been made by persons who were members of and representing the proscribed organization known as  the Mombasa Republican Council and as such they lacked capacity to institute the suit, the MRC being  an outlawed organization.

Counsel for all Respondents made submissions to the effect that MRC was an unlawful body, that neither it nor its members could show any prejudice that they would suffer over and above the rest of the public; that the rights sought to be protected by the applicants could not be sought by the MRC as a group on a collective basis, being an unrecognized legal entity; that the application raised various causes of action which could not be heard in one application; that some of the issues raised in the Notice of Originating Motion were res judicata yet others are sub-judice and that the application was scandalous, frivolous and vexatious and an abuse of the court."

The main issues for determination arising from the pleadings and submissions were;

1. Whether the applicants had the capacity and legal standing to bring their Motions before the court, i.e, whether the MRC is an association acting in the interest of one or more of its members in accordance with Article 22(2) (d) of the Constitution of Kenya, 2010, 

2. Whether the protection of Constitutional rights is available only to individuals and not to groups on a collective basis.

3. Whether the Respondents' motions were irregular and incompetent

4. Whether the Applicants' motions were frivolous, vexatious and an abuse of the process of the court.

5. Whether the Applicants' motions were incompetent on account of their multifarious breadth and nature of the causes of action underlying them in that;

a. Some disputes sought remedies that were not constitutional,

b. Some reliefs were in relation to disputes of a statutory nature,

c. Some reliefs were not limited to those envisioned under Article 89 of the Constitution of Kenya, 2010,

d. Some parties were unconnected to some of the causes of action. 

 

Held:

1. The Mombasa Republican Council (MRC) not being a registered organization, or not pursuing the process of registration or exemption from registration, lacked legal capacity to make institute the petition as well as make the application. As such, it had brought the motions before court prematurely and without the legal capacity to do so.

2. The MRC, being a body that is evidently or admittedly neither a legal entity nor registered nor recognized under any law of the land and its inherent fundamental essence, purpose, and object being  the purveyance or promotion of an agenda that is expressly unconstitutional albeit clothed in the guise of socio-political, economic, or fundamental rights and freedoms are not entitled to constitutional protections under the Constitution 2010.

3. Neither the Applicants as individuals acting on behalf of MRC, nor the MRC as an unregistered, amorphous body espousing an unconstitutional agenda, had neither the locus standi  nor the legal competency to bring the Originating Motion or the Interlocutory Motion, or to be entitled to pursue the reliefs sought.

4. The MRC, not being an entity known to law, and having evinced its intention to be a registered body, but having failed to do so, and having expressly been established to tread an unconstitutional journey evidenced in its intrinsic constitutional character, had no locus or competency to bring the application for constitutional protection,

5. From the documentation availed, the applicants did not fit into the category in Article 22(2) (a) as a person or persons "acting on behalf of another person who could not act in their own name". The applicants had not so stated or shown that there were persons on whose behalf they acted who, on the other hand, could not act in their own name or names. 

6. The Applicants' motions did not allege any discrimination under Article 27(4) of the Constitution of Kenya, 2010 in relation to marginalized groups. They had not described themselves as a marginalized group. They did not assert or identify the laws or practices because of which they became disadvantaged by discrimination on any of the grounds in Article 27(4) of the Constitution

7. The Respondents' counsel did not demonstrate how the matters raised in the Originating Motion and the Interlocutory Motion were frivolous i.e. without substance and fanciful;  vexatious i.e. lacking bona fides  and hopeless or offensive; and an abuse of court process i.e. embarrasses or delays a fair trial or misuse the court process.

8. The mere fact that a constitutional application may be rendered somewhat convoluted by invocation of multifarious causes of action and branches of anticipated remedies, although it may lead to some level of discombobulation in the approach to its determination, should not ordinarily result in striking out peremptorily at an interlocutory stage. The causes of action alleged to give rise to the alleged violations may be numerous with multifarious facets. They may not fall into neat categories or may be inelegantly drafted. The real question, the court must determine is whether they are fashioned in such a manner as to give adequate notice to the Respondents about the nature of the claims made to enable a clear response.

Application dismissed.

 

SELECTED NOTICES FROM THE KENYA GAZETTE

 

Kenya Gazette Vol CXV – No 1 Dated January 4, 2013

–––––––––
SUPPLEMENT Nos. 206, 207, 208 and 209
Bills, 2012
The Division of Revenue Bill, 2012.
The County Allocation of Revenue Bill, 2012.
The Transition County Allocation of Revenue Bill, 2012.
The Transition County Appropriation Bill, 2012.
–––––––––
SUPPLEMENT No. 210
Legislative Supplement
LEGAL NOTICE NO.
146 - The Breast Milk Substitutes (Regulation and Control) Act - Commencement.
147 - The Traffic Act - Exemption.
148 - The Government Financial Management (The Livestock Restocking and Enterprises Development Fund (Amendment) Regulations, 2012.
149 - The Export Processing Zones Act - Declaration of Export Processing Zone.
150 - The National Flag, Emblems and Names Act - Grant of Permission.

 

 

GAZETTE NOTICE NO. 1
THE STATE CORPORATIONS ACT
(Cap. 446)
THE NATIONAL OIL CORPORATION OF KENYA
APPOINTMENT

IN EXERCISE of the powers conferred by section 6 (1) (e) of the State Corporations Act, the Minister for Energy appoints -

JAAFAR MOHAMMED SHEIKH

to be a member of the Board of Directors of the National Oil Corporation of Kenya, for a period of three (3) years, with effect from the 18th December, 2012.

Dated the 17th December, 2012.

KIRAITU MURUNGI,
Minister for Energy.

GAZETTE NOTICE NO. 2
THE STATE CORPORATIONS ACT
(Cap. 446)
THE KENYA ELECTRICITY TRANSMISSION COMPANY
APPOINTMENT

IN EXERCISE of the powers conferred by section 6 (1) (e) of the State Corporations Act, the Minister for Energy appoints -

FIDESIUS MUCHIRA NYAGA

to be a member of the Board of Directors of the Kenya Electricity Transmission Company, for a period of three (3) years, with effect from the 18th December, 2012. The appointment* of Jaafar Mohammed Sheikh, is revoked.

Dated the 17th December, 2012.

KIRAITU MURUNGI,
Minister for Energy.
*G.N. 1609/2012.

GAZETTE NOTICE NO. 3
THE STATE CORPORATIONS ACT
(Cap. 446)
THE INDUSTRIAL DEVELOPMENT BANK CAPITAL
APPOINTMENT

IN EXERCISE of the powers conferred by section 6 (1) (e) of the State Corporations Act, the Minister for Industrialization appoints -

MUAD MOHAMED KHALIF

to be a Board member of the Industrial Development Bank, for a period of three (3) years, with effect from 24th December, 2012.

Dated the 2nd January, 2013.

HENRY K. KOSGEY,
Minister for Industrialization.

GAZETTE NOTICE NO. 4
THE STANDARDS ACT
(Cap. 496)
THE STANDARDS TRIBUNAL
APPOINTMENT

IN EXERCISE of the powers conferred by section 16A of the Standards Act, the Minister for Industrialization appoints -

Benjamin Mwikya Musyoki,
Susan Wangeci Mwangi,
Julius Kolil,
Irene Magut,

to be members of the Standards Tribunal, for a period of three (3) years, with effect from 7th September, 2012.

Dated the 2nd January, 2013.

HENRY K. KOSGEY,
Minister for Industrialization.

GAZETTE NOTICE NO. 5
THE ANTI-COUTERFEIT ACT
(No. 13 of 2008)
RE-APPOINTMENT

IN EXERCISE of the powers conferred by section 6 (1) of the Anti-Counterfeit Act, 2008, the Minister for Industrialization reappoints -

ALLAN GEORGE NJOGU KAMAU

as the Chairman of the Board of Directors of the Anti-Counterfeit Agency, for a period of three (3) years, with effect from 11th February, 2013.

Dated the 2nd January, 2013.

HENRY K. KOSGEY,
Minister for Industrialization

GAZETTE NOTICE NO. 6
THE KENYA INFORMATION AND COMMUNICATIONS ACT
(Cap. 411A)
APPOINTMENT

IN EXERCISE of the powers conferred by section 6 (f) of the Kenya Information and Communications Act, the Minister for Information and Communications appoints -

KAMARKOR SAMWEL RUTTO

to be a member of the Board of Directors of the Communications Commission of Kenya, for a period of three (3) years, with effect from the 5th December, 2012.

Dated the 18th December, 2012.

SAMUEL POGHISIO,
Minister for Information and Communications.

GAZETTE NOTICE NO. 7
THE WATER ACT
(No. 8 of 2002)
ATHI WATER SERVICES BOARD
APPOINTMENT

IN EXERCISE of the powers conferred by section 51 of the Water Act, the Minister for Water and Irrigation appoints -

Permanent Secretary, Ministry of Finance,
Permanent Secretary, Ministry of Local Government,
Director of Water Services, Ministry of Water and Irrigation
to be members of the Board of Directors Athi Water Services Board, for a period of three (3) years, with effect from the 21st December, 2012.

Dated the 21st December, 2012.

C. K. NGILU,
Minister for Water and Irrigation.

GAZETTE NOTICE NO. 8
THE NATIONAL MUSEUMS AND HERITAGE ACT
(No. 6 of 2006)
DECLARATION OF MONUMENTS

IN EXERCISE of the powers conferred by section 25 (1) (b) and (e) of the National Museums and Heritage Act, the Minister of State for National Heritage and Culture in consultation with the National Museums, declares the buildings specified in the Schedule, which he considers to be of historical interest to be monuments within the meanings of the Act.

Any objection to the declaration shall be lodged with the Minister within two (2) months from the date of publication of this notice.

SCHEDULE
ITALIAN PRISONERS OF WAR BRICK MANUFACTURING
PLANT

All that building known as the Thika Italian Prisoners of war Brick Manufacturing plant within Thika Prisons on an area of about 0.5 acres, on geographic co-ordinates 01o02.422 S and 037o04.370 E in Thika Twon, Kiambu County.

HISTORIC TRAVELLERS’ CAMP SITE (TIGITHI MUIRU)

All that area known as Tigithi Muiru campsite by the gate to the Mountain Rock Hotel and adjacent to the Burguret River Naromoru measuring approximately one acre in geographic co-ordinates: 00o06.397 S, and 037o 02.184 E within Gakawa Sub-location, Naromoru Location, Naromoru division, Nyeri County.

NAROMORU ST. PHILIPS ACK CHURCH
All that building known as the Naromoru St. Philips ACK Church measuring approximately 50 feet by 40 feet and in geographic coordinates: 00o09.535 S, and 037o01.324 E within Gakawa Sub Location Naromoru Location, Naromoru Division, Nyeri County.

OLD PROVINCIAL COMMISSIONER’S OFFICE, FORT HALL
All that building known as the KWS office building in Murang’a Twon, formerly the Colonial Provincial Commissioners Office on a piece of land measuring approximately one acre on geographic coordinates: 00o42.841 S and 037o 09.945 E on Murang’a Kiriaini Road, in Murang’a County.

LAIKIPIA SAMBURU WAR MEMORIAL GARDEN
All that area known as the Laikipia War Memorial approximately decimal zero five acres (0.5 acre) in geographic co-ordinates: 00o 02.206 S and 036o 21.788 E and adjacent to the Nyahururu Municipal Council Offices within Nyahururu Town, in Nyandarua County.

OLD TULAGA COLONIAL COURT (KINYAHWE)
All that area building known as the Kingsway Colonial Court (Kinyahwe) measuring approximately 100 feet by 100 feet in geographic co-ordinates: 00o38.348 S and 037o 37.013 E in Tulaga sub-location, Njabini Location South Kinangop Division in Nyandarua.

Dated the 10th December, 2012.

WILLIAM OLE NTIMAMA,
Minister of State for National Heritage and Culture.

GAZETTE NOTICE NO. 9
COMMITTEE ON PREPARATION OF REGULATIONS AS
REQUIRED BY THE LAND ACT, 2012 AND THE LAND
REGISTRATION ACT, 2012
EXTENSION OF TIME

IT IS notified for general information that the period of appointment of the Committee on preparation of regulations as required by the Land Act, 2012 and the Land Registration Act, 2012, contained in Gazette Notice No. 10604 has been extended to 30th June, 2013.

Dated the 24th December, 2012.

JAMES ORENGO,
Minister for Lands.

GAZETTE NOTICE NO. 11
THE LAND ACT
(No. 6 of 2012)
MURUNY (SIYOI) DAM PROJECT
ADDENDUM

IN PURSUANCE of section 162 (2) of the Land Act, 2012 and the Land Acquisition Act (Cap. 295 repealed) and further to Gazette Notice Nos. 686 and 687 of 2012 add the following affected area.

Percel No

Registered Owner

Area Acquired (ha.)

West Pokot/Kapsangar/16

Pewot Kolisa, Amos
Limakori, Philimon
Limakori and Nicholas P.
Kanyagoo

0.45

West
Pokot/Kapsangar/1432

Onesmas Lochyo

0.52

West Pokot/
Kapsangar/1756

Joshua Pkemei Nguriareng

0.49

West
Pokot/Kapsangar/1757

Samuel Krop Nguriareng

0.10

West Pokot/Kapsait/1

William Yarangiro

0.41

West Pokot/Kapsait/16

Lemkou Longor

4.70


Plans of the affected land may be inspected during office hours at the office of Commissioner of Lands, Ardhi House, Room 305, 1st Ngong Avenue, Nairobi or Kitale Lands Office Registry
.
Dated the 29th November, 2012.

Z. A. MABEA,
Commissioner of Lands.
MR/1485185

GAZETTE NOTICE NO. 12
THE LAND ACT
(No. 6 of 2012)
MAU SUMMIT KERICHO–KISUMU (A1/(B) ROAD
ADDENDA

IN PURSUANCE of section 162 (2) of the Land Act, 2012 and the Land Acquisition Act (Cap. 295 repealed) and further to Gazette Notice Nos. 8753 and 8754 of 2010 correct the areas acquired to read as shown below:

On Wednesday, 14th February, 2013 at DC’s Office, Kisumu

 

Parcel No

Registered Owner

Area Acquired (ha.)

Kisumu Municipality
Block 9/137

Nyando Millers Limited

0.2546

Kisumu Municipality
Block 9/130

Jeconia Kisera Awino

0.5965

Kisumu Municipality

Joyland Secondary School

0.8235

Kisumu Municipality
Block 9/47

Joyland Secondary School

0.4996

Kisumu Municipality
Block 9/146

Joyland Secondary School

0.4706

Kisumu Municipality
Block 9/104

Joyland Secondary School

0.7760

Kisumu Kanyakwar
“A”/1060

Carmeline Nchioki Tado

0.05

On Thursday, 15th February, 2013 at DC’s office, Kisumu.

Parcel No

Registered Owner

Area Acquired
(ha.)

Kisumu Kanyakwar
“A”/165

Christine Odongo

0.0764

Kisumu/Kogony/3939

Fredrick Muzembi
Mulinya

0.0045

Kisumu/Kogony/2099

Washington Benson
Mukasa

0.0178

Kisumu/Kogony/2098

Charles Akinu Gathirwa

0.1165

Kisumu/Kogony/2115

Ashwin Amlandi

0.2235

Kisumu/Kogony/2103

Francis Oloo Jobit

0.0104

Kisumu/Kogony/2104

Malach Nyindodo Olende

0.2919

Kisumu/Kogony/2095

Osuga Nyakaru

0.2919

Kisumu/Kogony/2102

Anil Pragji Tanna

0.2496

Kisumu Municipality
Block 2/16

Nyanza Club Trustees

0.2019

Inquiries for hearing of claims to compansation by people interested in the above land being acquired will be held on 16th and 17th January, 2013 at the District Commissioner’s office, Kisumu.

Dated the 22nd November, 2012.

Z. A. MABEA,
Commissioner of Lands.
MR/1209704

GAZETTE NOTICE NO. 13
THE TRUST LAND ACT
(Cap. 288)
SETTING APART OF LAND

NOTICE is given that the land described on the schedule hereto has been duly set apart in accordance with the provisions of part IV of the Trust Land Act, for the purposes specified in the said schedule.

Place. - Saka, Tana River.
Purpose. - Agricultural.
Area. - 120.37 hectares approximately.

The land is situated approximately 30 kilometres to the north of Madogo Township. The boundaries are demarcated on the ground and are described as follows:

Starting from point WED1 which is a iron pin on cocrete from which spotheight SKT9 and astronomical point 89/A/87 are 170 kilometres and 82 kilometres on bearing on of 2600 00' 00" and 1090 30' 00", respectively.

Thence for 245.44 m on a bearing of 2990 51' 27" to point WED2 and A.I.C.; thence for a distance of 55.65 metres on a bearing of 2890 36' 49" to point WED2X an A.I.C.; thence for a distance of 4782.86 metres on a bearing of 310 51' 58" to point WED3X an A.I.C.; thence for a distance of 232.074 metres on a bearing of 940 37' 10" to point WED3 an A.I.C.; thence for a distance of 149.63 metres on a bearing of 1150 23' 05" to point WED4 an A.I.C.; thence for a distance of 792.11 metres on a bearing of 2100 42' 40" to point WED1 starting point.

All bearing given above are magnetic.

A plan of the area may be inspected at the office of the District Commissioner.

Dated the 17th December, 2012.

Z. A. MABEA,
Commissioner of Lands.
MR/1485025

GAZETTE NOTICE NO. 171
THE ENVIRONMENTAL MANAGEMENT AND
CO-ORDINATION ACT
(No. 8 of 1999)
THE NATIONAL ENVIRONMENT MANAGEMENT
AUTHORITY
ENVIRONMENTAL IMPACT ASSESSMENT STUDY REPORT
FOR THE PROPOSED PETROL SERVICE STATION ON LR NO.
KAJIADO/KAPUTIEI NORTH/ 30605 IN KAJIADO COUNTY
INVITATION OF PUBLIC COMMENTS

PURSUANT to regulation 21 of Environmental (Impact Assessment and Audit) Regulations, the National Environmental Management Authority (NEMA) has received an Environmental Impact Assessment Study Report for the implementation of the proposed petrol station on L.R. No. Kajiado/Kaputiei North/ 30605 in Kajiado County.

The Proponent (Gulf Energy Limited) of the Proposed Petrol Service Station is proposing to provide petroleum and motor vehicle service in the area i.e. along Kitengela, Kenya and our Regional Presence.

The anticipated impacts and proposed mitigation measures are set out in the gazette.

The full report of the proposed project is available for inspection during working hours at:

(a) Director-General, NEMA, Popo Road, off Mombasa Road, P.O. Box 67839–00200, Nairobi.
(b) Permanent Secretary, Ministry of Environment and Mineral Resources, NHIF Building, Community, P.O. Box 30521, Nairobi.
(c) County Director of Environment, Kajiado County.

The National Environment Management Authority invites members of the public to submit oral or written comments within thirty (30) days from the date of publication of this notice to the Director-General, NEMA, to assist the Authority in the decision making process of the plan.

B. M. LANGWEN,
for Director-General,
National Environment Management Authority.
MR/1485020

GAZETTE NOTICE NO. 172
THE ENVIRONMENTAL MANAGEMENT AND
CO-ORDINATION ACT
(No. 8 of 1999)
THE NATIONAL ENVIRONMENT MANAGEMENT
AUTHORITY
ENVIRONMENTAL IMPACT ASSESSMENT STUDY REPORT
FOR THE PROPOSED APARTMENT DEVELOPMENT ON L.R.
NO. 209/13295 OFF LIKONI ROAD, NAIROBI COUNTY
INVITATION OF PUBLIC COMMENTS

PURSUANT to regulation 21 of Environmental (Impact Assessment and Audit) Regulations, the National Environmental Management Authority (NEMA) has received an Environmental Impact Assessment Study Report for the implementation of the proposed apartment development on L.R. No. 209/13295 off Likoni road, Nairobi County.

The Proponent (Executive Properties Limited) of the proposed project is proposing to carry on construction of residential apartments.

The apartments will of 176 units of residential housing masionettes and 72 units of residential apartments The following are the anticipated impacts and proposed mitigation measures:

The full report of the proposed project is available for inspection during working hours at:

(a) Director-General, NEMA, Popo Road, off Mombasa Road, P.O. Box 67839–00200, Nairobi.
(b) Permanent Secretary, Ministry of Environment and Mineral Resources, NHIF Building, Community, P.O. Box 30521, Nairobi.
(c) County Director of Environment, Nairobi County.

The National Environment Management Authority invites members of the public to submit oral or written comments within thirty (30) days from the date of publication of this notice to the Director-General, NEMA, to assist the Authority in the decision making process of the plan.

B. M. LANGWEN,
for Director-General,
National Environment Management Authority.
MR/1485148

National Council for Law Reporting
Milimani Commercial Courts Building,
Ground Floor
P.O Box 10443 - 00100, Nairobi Kenya.
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