Kenya Law

Advocates Act

1. Subject to section 46 and whether or not an order is in force under section 44, an advocate and his client may—
   1. before, after or in the course of any contentious business, make an agreement fixing the amount of the advocate’s remuneration in respect thereof;
   2. before, after or in the course of any contentious business in a civil court, make an agreement fixing the amount of the advocate’s instruction fee in respect thereof or his fees for appearing in court or both;
   3. before, after or in the course of any proceedings in a criminal court or a court martial, make an agreement fixing the amount of the advocate’s fee for the conduct thereof, and such agreement shall be valid and binding on the parties provided it is in writing and signed by the client or his agent duly authorized in that behalf.
2. A client may, within six months after the date of any agreement made by virtue of this section, apply by chamber summons to the Court to have the agreement set aside or varied on the grounds that it is harsh and unconscionable, exorbitant or unreasonable, and every such application shall be heard before a judge sitting with two assessors, who shall be advocates of not less than five years' standing appointed by the Registrar after consultation with the chairman of the Society for each application and on any such application the court, whose decision shall be final, shall have power to order—
   1. that the agreement be upheld; or
   2. that the agreement be varied by substituting for the amount of the remuneration fixed by the agreement such amount as the Court may deem just; or
   3. that the agreement be set aside; or
   4. that the costs in question be taxed by the Registrar and that the costs of the application be paid by such party as it thinks fit.
3. An agreement made by virtue of this section, if made in respect of contentious business, shall not affect the amount of, or any rights or remedies for the recovery of, any costs payable by the client to, or to the client by, any person other than the advocate, and that person may, unless he has otherwise agreed, require any such costs to be taxed according to the rules for the time being in force for the taxation thereof: Provided that any such agreement shall be produced on demand to a taxing officer and the client shall not be entitled to recover from any other person, under any order for the payment of any costs to which the agreement relates, more than the amount payable by him to his advocate in respect thereof under the agreement.
4. Where any agreement made by virtue of this section is made by the client as the guardian or committee of, or trustee under deed or will for, any person whose property will be chargeable with the whole or any part of the amount payable under the agreement, the advocate shall, before payment thereunder is accepted or demanded and in any event within six months after its due date, apply by chamber summons to the Court for approval of such agreement, and every such application shall be dealt with in accordance with subsection (2).
5. If, after an advocate has performed part only of the business to which any agreement made by virtue of this section relates, such advocate dies or becomes incapable of acting, or the client changes his advocate as, notwithstanding the agreement, he shall be entitled to do, any party, or the legal personal representatives of any party, to such agreement may apply by chamber summons to the Court to have the agreement set aside or varied, and every such application shall be dealt with in accordance with subsection (2): Provided that, in the case of a client changing his advocate, the Court shall have regard to the circumstances in which the change has taken place and, unless of opinion that there has been default, negligence, improper delay or other conduct on the part of the advocate affording to the client reasonable ground for changing his advocate, shall allow the advocate the full amount of the remuneration agreed to be paid to him.
6. Subject to this section, the costs of an advocate in any case where an agreement has been made by virtue of this section shall not be subject to taxation nor to section 48.

Appellate Jurisdiction Act
Section 3A

1. The overriding objective of this Act and the rules made hereunder is to facilitate the just, expeditious, proportionate and affordable resolution of the appeals governed by the Act.
2. The Court shall, in the exercise of its powers under this Act or the interpretation of any of its provisions, seek to give effect to the overriding objective specified in subsection (1).
3. An advocate in an appeal presented to the Court is under a duty to assist the Court to further the overriding objective and, to that effect, to participate in the processes of the Court and to comply with directions and orders of the Court.

Section 3B

1. For the purpose of furthering the overriding objective specified in section 3A, the Court shall handle all matters presented before it for the purpose of attaining the following aims—
   1. the just determination of the proceedings;
   2. the efficient use of the available judicial and administrative resources;
   3. the timely disposal of the proceedings, and all other proceedings in the Court, at a cost affordable by the respective parties; and
   4. the use of suitable technology.

Civil Procedure Rules
Order 3 rule 9
No suit shall be open to objection on the ground that a merely declaratory judgment or order is sought thereby, and the court may make a binding declaration of right whether any consequential relief is or could be claimed or not.
Order 36

1. In all suits where a plaintiff seeks judgment for—
   1. a liquidated demand with or without interest; or
   2. the recovery of land, with or without a claim for rent or mesne profits, by a landlord from a tenant whose term has expired or been determined by notice to quit or been forfeited for non-payment of rent or for breach of covenant, or against persons claiming under such tenant or against a trespasser,
   where the defendant has appeared but not filed a defence the plaintiff may apply for judgment for the amount claimed, or part thereof, and interest, or for recovery of the land and rent or mesne profits.
2. The application shall be supported by an affidavit either of the plaintiff or of some other person who can swear positively to the facts verifying the cause of action and any amount claimed.
3. Sufficient notice of the application shall be given to the defendant which notice shall in no case be less than seven days.

Held:

1. The Court had jurisdiction to determine the appeal as the proceedings that gave rise to the appeal had not been undertaken by way of a chamber summons directed to and determined by a single High Court Judge sitting with two assessors pursuant to section 45(2) of the Advocates Act. The appeal arose from a determination of an application for summary judgment under order XXXV of the Civil Procedure Rules as it was then. Such decisions were appealable to the Court of Appeal as of right under the provisions of order XLII rule (1) and (2) of the Civil Procedure Rules.
2. The aim of the overriding objective principle was to enable the courts to achieve fair, just, speedy, proportionate, time and cost saving disposal of cases before it. Its application did not operate to uproot established principles and procedures but to embolden the court to be guided by a broad sense of justice and fairness. There was also a mandatory requirement that the Court of Appeal rules of procedure had to also be construed in a manner which facilitated the just, expeditious, proportionate or affordable resolution of appeals. (Deepakc Manlal Kamami and another versus Kenya Anti-Corruption and 3 others Civil Application No. 152 of 2009)
3. A ruling in favour of sustaining the current appeal would therefore be in line with the overriding objective principle because if the appeal was struck out on account of incompetence, the striking out order would not finally determine the issues in controversy as between the parties. It would simply restore the parties to the pre-appeal stage before the alleged offending notice of appeal was filed. The net effect of this restoration would be that the appellant would be at liberty to reinitiate the appellate process a fresh. Such an action was likely to lead to a delay in the disposal of the real issues in controversy as between the appellant and the respondent. There would also be considerable costs to be borne by both parties both for these proceedings and the proceedings to be reinitiated. This would also result in the clogging of the justice system as the reinitiated appeal would have to be re-presented to this same Court based on the same set of facts and as soon as it was presented it would start competing for time for disposal.
4. The lack of inclusion of the memorandum of appearance in the record of appeal could not be used to fault the entire record of appeal considering that entry of appearance or lack of it was not one of the issues in controversy in the High Court nor in the present appeal, as neither the High Court nor the present court was and or had been invited to make a determination on the appellants appearance filed in the High Court. Such an omission could not be held to be so fundamental so as to oust and or override the need to do justice to the parties by disposing off the appeal on its merits.
5. Order III rule 9(1) Civil Procedure Rules did not make provision for penal consequences for noncompliance with that provision. It simply provided in part that where a party intended to act in person in the cause or matter he had to give a notice stating his intention to act in person. The appellant had also not demonstrated any existence of any prejudice or injustice suffered by reason of the said personal representation by the respondent. Neither had he asserted that the learned trial Judge would have arrived at a contrary decision had the respondent been represented by a counsel. There was therefore no fault in the learned trial Judge’s action in allowing the respondent to argue the application in person not withstanding that he had not filed a notice to act in person under the said Rule.
6. An admission to a claim had to be premised on the provisions of order XII rule 6 Civil Procedure Rules as it was then (now order 13 rule 2). The pleadings presented by a party against whom the relief was sought had to be those that did not contain specific denials and no definite refusals to admit allegations; demonstration that there were allegations of facts made by one party and not traversed by the other which were deemed to be admitted; demonstration that there had been implied admission of facts inferred from pleadings in instances where the defendant had specifically failed to deal with allegations of fact in the plaint , the truth of which he did not admit or instances where a defendant had evasively denied an allegation in the plaint; demonstration that there were admission of facts discerned from correspondences or documents which were admitted or that there was an oral admission as the rules used the words “or otherwise”.
7. Although the suit agreement was subject to the Stamp Duty Act and duty was payable on it, failure to comply with the Stamp Duty Act was not fatal to the enforcement of the said agreement. The court was enjoined under section 19(3)(a),(b) and(c) of the said Act not to reject such an agreement in totality, but to receive it and either assess the stamp duty itself and direct that it be paid. Or alternatively the court could impound such an agreement and direct that it be delivered to the stamp duty collector for him to assess the stamp duty payable and demand its payment.
8. It was now trite that an application for summary judgment was available to a claimant seeking a liquidated demand with or without interest. Under sub rule 2 of order 36, the defendant had leave to show either by affidavit or by oral evidence or otherwise that he should have leave to defend the suit, which had to be discerned from the pleadings filed by the parties. In the present appeal the trial judge was right in finding that the suit agreement was validly executed under section 45(2) of the advocates Act and that the same was enforceable. However the trial Judge made an error in awarding interest as prayed in the plaint at the rates of 25% when the same had neither been provided for in the said agreement or justification made for its claim by the respondent both in the plaint filed, affidavit in support of the application for summary Judgment and or oral highlights in court at the time of the respondents request for the said summary Judgment.
9. Section 26 (1) of the Civil procedure Act tended to give trial Judges a wide discretion with regard to the award of interest however the exercise of that judicial discretion was not absolute. It had to be exercised judiciously, not with caprice or whim but with reason.

Orders:

1. Summary Judgment entered in favour of the respondent as against the appellant at the rate of 8% of Kshs.101,955,962.88 total being Kshs.8,156,477.05 less the Kshs.4,000,000.00 earlier paid.
2. The said sum will carry interest at court rates from the date of filing of the suit till payment in full.
3. The respondent entitled to half the costs of the suit in the High Court as the claim has been substantially reduced.
4. The respondent is directed to submit the agreement of 4th March, 1996 to the stamp duty collector for the assessment of the duty payable, which should be paid in the normal manner.
5. The appellant to have half the costs of the appeal.

Constitution of Kenya, 2010

Article 177(1)(b)(c) – any County Assembly consists of –

1. ………..
2. The number of special seat members necessary to ensure that no more than two thirds of the memberships of the assembly are of the same gender.
3. The number of members of marginalized groups, including persons with disabilities and the youth, prescribed by an Act of Parliament.”

Elections Act

Section 34(4) – a political party which nominates a candidate for election under article 177(1)(a) shall submit to the Commission a party list in accordance with article 177(1)(b) and (c) of the Constitution.”

Held:

1. Section 34 of the Elections Act provided that only the political parties were mandated to propose lists for party nominations for special seats to be submitted to the Independent Electoral and Boundaries Commission in order of priority.
2. Such lists were not subject to amendment during the term of parliament or County Assembly. It was not demonstrated that there was any default in the nomination process or that IEBC amended the list submitted to it hence the conclusion that the 2^nd respondent was validly nominated.

Application dismissed. Costs to the respondents.

Held:

1. The application of rule 5(2)(b) of the court of appeal rules was well settled. Whereas the court had unfettered discretion to grant orders sought, there were principles on which such discretion had to be based in order for an applicant to succeed;
   1. He had to establish that he had an arguable appeal i.e one that was not frivolous while bearing in mind that an arguable appeal was not one that had to succeed.
   2. He had to establish that if the orders of stay or injunction were not granted, then in the event his appeal or intended appeal succeeded, the same would have been rendered nugatory or in effective.
2. Rule 33(4) of the Election Petition Rules permitted the courts to order scrutiny in polling stations where the results were disputed. However, sections 80(1)(d) and 82(1) of the Elections Act also allowed the court to order scrutiny and recount of votes suo moto.
3. Several other persons who were not party to the intended appeal had been cleared to contest in the forth coming by elections and they had expended time and other resources preparing for the same. They would have been grossly prejudiced if the said by elections were to be postponed. The balance of convenience therefore tilted heavily against the applicants.

Application dismissed.

Arbitration Act
Section 6 (1) A court before which proceedings are brought in a matter which is the subject of an arbitration agreement shall, if a party so applies not later than the time when that party enters appearance or otherwise acknowledges the claim against which the stay of proceedings is sought, stay the proceedings and refer the parties to arbitration unless it finds

(a)that the arbitration agreement is null and void, inoperative or incapable of being performed; or
(b) that there is not in fact any dispute between the parties with regard to the matters agreed to be referred to arbitration.
(2) …
(3) …

Held:

1. Section 6(1)(b) of the Arbitration Act provided that a court had to ascertain whether there was a dispute between parties and if so, whether such dispute was with regard to matters agreed to be referred to arbitration.
2. If the court came to the conclusion that there was a dispute and that it was one that was within the scope of the arbitration agreement, then the court would have to refer the dispute to arbitration as the agreed forum for resolution of that dispute.
3. If on the other hand the court came to the conclusion that the dispute was not within the scope of the arbitration agreement, then the correct forum for resolution of the dispute was the court.
4. The words “that there is not in fact any dispute between the parties” that appeared in section 6(1)(b) of the Arbitration Act required the court to consider whether there was in fact a genuine dispute when considering an application for stay proceedings, and so the issue was meritorious, and properly before the High Court.

Appeal dismissed.

Held:

1. The original plaint filed was defective on its face. For instance it lumped together all the plaintiffs’ claims and did not distinguish the claims by all the claimants; the particulars of ownership of the suit properties were all put in one paragraph (paragraph six); the subsequent paragraphs also dealt with the cause of action and the damage said to have been suffered in lump sum; and there was no distinction as to what happened to each of the suit plots, their values and whether the Ksh. 12,000,000/= was in respect of all of them together and whether the values of all of them were equal. Even the prayers were similar. The verifying affidavit was also clearly defective as there was no authority from the other deponents allowing the 1st appellant to swear the same on their behalf.
2. The lumping up of the properties together in the same paragraphs and prayers meant that one could not extricate one property or prayer from the other. Therefore, once the first appellant withdrew his suit, all other paragraphs in question were withdrawn. In fact, the issue of the defect in the verifying affidavit in this case was secondary. The entire suit collapsed the moment the 1st appellant withdrew the suit as he could not extricate his claim and leave the others in the same plaint. Indeed, the appellants could have realized the same and that could explain why the intended plaint was differently crafted.
3. Nothing in the original plaint could be salvaged once the 1st appellant withdrew his suit. Allowing the remaining appellants to file a compliant affidavit in respect of an irredeemably defective plaint could not have served any purpose. Notably, the court’s discretion to grant a party leave to file a compliant verifying affidavit after striking out a defective one could only be exercised if and when the plaint sought to be verified was itself sustainable.
4. Once the 1st appellant withdrew his suit, the entire plaint collapsed and not even the claim by the 1st appellant against the third respondent could be left standing.
5. The affidavit itself was defective but even if it were to assume that it was not, it had nothing to verify once the plaint/ suit collapsed. There was basically no suit to salvage.

Appeal dismissed. Costs to the 1st and 3rd respondents.

Held:

1. Section 76 of the repealed Constitution safeguarded the right to privacy and provided protection from arbitrary searches and unauthorized entry into private premises.
2. It was alleged that the raid, in question, was prompted by the suspicion that an offence penalized under section 66 of the Penal Code (Cap 63) was being committed. The section criminalized the publication of alarming matter including false statements, rumours, or reports which were likely to cause fear and alarm in the public or to disturb public peace. Such a possibility could be a legal basis for carrying on a search on premises where such publications were suspected to be kept.
3. The statutory procedure for conducting a search and seizure was provided for in section 118 of the Criminal Procedure Code (Cap 75). Under the provision, for a police officer to lawfully enter and search premises, three requirements would have to be met, namely; first, the officer would need to obtain a search warrant from a judicial officer, after having provided proof on oath as to the existence of reasonable suspicion of the commission of an offence, secondly, the police officer seeking the warrant would bear the burden of establishing that the grant of the search warrant was necessary, and thirdly, the evidentiary material obtained from the search, if the warrant was granted, was to be placed before the court and the court would make determinations on the manner in which such evidence would be disposed.
4. Additionally, section 19 of the Police Act (Cap 84) (Repealed) provided that a police officer, on the basis of any lawful complaint against any person, could make an application before a magistrate for summons, a warrant, a search warrant or such other legal process.
5. A search could be carried on by a police officer without a search warrant pursuant to the provisions of section 20 of the Police Act (Cap 84) (Repealed) where the circumstances were such that an application for a search warrant would create a delay that could prejudice investigations. However, in such a context, the police officer would be required to provide identification in the form of a certification of appointment to persons at the premises to be searched and would be required to produce any object seized in the search before a magistrate, in whose jurisdiction the object was seized.
6. Under section 119 of the Criminal Procedure Code (Cap 75) a search warrant could be issued on any day and executed on any day between the hours of sunrise and sunset but a court could authorize the search to be conducted at any hour.
7. It would be the duty of any resident or person in charge of a building, concerning which a search warrant had been issued, to allow a police officer free entry and exit from the premises and to afford all reasonable facilities for the carrying on of the search.
8. After carrying on the search on the petitioners' premises, the officers involved did not produce the seized objects before a magistrate. It was contended on their behalf, that there was no time-frame for the production of seized objects before a magistrate. Where there was no time-frame fixed for the performance of a legal requirement, it would be expected that such performance would be done without unreasonable delay, as provided for in section 58 of the Interpretation and General Provisions Act (Cap 2).
9. The police officers, contrary to constitutional and statutory requirements, did not apply for a search warrant, did not follow due process in conducting the search and did not produce the material seized in the search before a magistrate, without unreasonable delay. Their activities amounted to a violation of the right to privacy and freedom from arbitrary search.
10. Police officers had a duty to prevent crime but they were also required to abide by the law and there had to be due process in the carrying on of their mandate.
11. It would be required that the manner of carrying on a search and seizure would be such that it would not expose persons to further violations of their rights. The right to privacy would not be absolute but it would be balanced against the intended purpose of intrusion.
12. While it was alleged that during the raid at I & M Bank Tower, some of the petitioners' members of staff were subjected to torture, inhuman and degrading treatment, there was no evidence availed to establish the allegation.
13. Although it was conceded that the police officers carrying on the raid took away some equipment, the evidence concerning the items that were taken away was contested. The petitioners alleged that they were not allowed to take an inventory while the respondents claimed that an inventory was made but the petitioners refused to sign it. Under the circumstances, a finding relating to a violation of the right to property could not be made.
14. The conduct of the state towards the promotion and enforcement of human rights had improved considerably and there was no need to punish the state with exemplary damages or to burden the tax payer with a high award of damages.

Petition partly allowed. (The court found that the respondent's actions amounted to an arbitrary search and seizure in which there were violations of the right to privacy and freedom of expression. On the other hand, the court found that there was insufficient evidence to establish violations of the right to property and freedom torture, inhuman and degrading treatment. Additionally, the petitioners were granted compensatory award of Kshs. 5, 000, 000/=).

Elections Act

section 58 (o) – a person who pretends to be unable to read or write so as to be assisted in voting commits an offence and is liable on conviction, to a fine not exceeding one million shillings or to imprisonment for a term not exceeding six years or to both.

Held:

1. The High Court’s jurisdiction to nullify an election existed under section 83 of the Election Act.
2. Although the petition raised serious constitutional and legal issues relating to elections ranging from intimidation, bribery, proper management of record of votes and free and fair campaigns during electioneering, the evidence offered in proof was mainly if not wholly hearsay. Under section 63 of the Evidence Act, Hearsay was inadmissible save in well-known exceptions under section 33 of the Evidence Act which were not applicable here. Accordingly, much of the petitioner’s case collapsed on the hearsay rule.
3. Under regulation 79 (6) and (7) of the General Regulations, no election could be invalidated for failure of an agent to sign a statutory document for the absence of an agent at the declaration of results.
4. The object of agents signing the Form 35 was to confirm the results contained therein. If it was signed by agents in other elections taking place alongside the particular election, there could not be a valid objection to such over-confirmation unless it was shown to have affected the result adversely in some way.
5. The allegations that persons voted using the Identity cards for dead voters were not proved in evidence and could not stand. There was no direct evidence of the allegation that dead persons were voted for, and the court had to reject the complaint as unproved.
6. Under section 58 of the Elections Act, It was an offence for a person to pretend to be illiterate so that he could be assisted to vote. Accordingly, Petitioner’s Witness No. 2 who pretended to be illiterate so that he could prove that the officers of the electoral commission were directing the illiterate voters to vote for the ODM candidates was guilty of an offence.
7. Under section 9 of the Penal Code it mattered not the good intentions or motive with which a criminal act was committed. The witness clearly committed the offence and having heard the witness before the court admit that she pretended to be an illiterate voter, it was the duty of the High Court to report the election offence to the Director of Public Prosecution with a hope only that the court that finally dealt with the matter would consider the unwitty motivation of the witness to catch the officials who were alleged to be making breaches of the election law.
8. The Petitioner did not produce independent testimony from voters to prove the alleged irregularity of giving more ballot papers and directing voters to vote in a particular way. It was not proved that in certain stations there was over voting with the number of the votes cast exceeding the registered voters.
9. There were no election offences proved. It was not established that there were persons who voted using dead voter’s cards or that the 1st respondent was involved in any such bribery or intimidation. It was also not shown that the irregularities amounted to substantial non-compliance with the election law set out in the Constitution and the Elections Act or that the irregularities would affect the result of the election as required under section 83 of the Election Act.
10. The 1st respondent, Dennitah Ghati was at the general election of 4th March 2013 validly elected as the Women Representative for Migori County.

Petition dismissed; costs on the petitioner and IEBC in equal shares at a sum not exceeding Kenya Shillings Two Million (Ksh.2M); Certificate to issue pursuant to section 86 of the Elections Act to the Independent Electoral and Boundaries Commission and the speaker of the National Assembly; A further certificate to issue pursuant to section 87 (1) of the Elections Act to the Director of Public Prosecutions for his further action in relation to the Petitioner’s Witness No. 2 who admitted that she pretended to be an illiterate voter contrary to section 58 (o) of the Elections Act;

Land Act, Act 6 of 2012

Section 78 – Application of Part to charges

1. This Part applies to all charges on land including any charge made before the coming into effect of this Act and in effect at that time, any other charges of land which are specifically referred to in any section in this Part.
2. References in this Part to “the charged land” shall be taken to mean and include a charged land, a charged lease and sublease and a second or subsequent charge.

Section 90 – Remedies of a chargee

1. If a chargor is in default of any obligation, fails to pay interest or any other periodic payment or any part thereof due under any charge or in the performance or observation of any covenant, express or implied, in any charge, and continues to be default for one month, the chargee may serve on the chargor a notice, in writing, to pay the money owing or to perform and observe the agreement as the case may be.
2. The notice required by subsection (1) shall adequately inform the recipient of the following matters—
   1. the nature and extent of the default by the chargor;
   2. if the default consists of the non-payment of any money due under the charge, the amount that must be paid to rectify the default and the time, being not less than three months, by the end of which the payment in default must have been completed;
   3. if the default consists of the failure to perform or observe any covenant, express or implied, in the charge, the thing the chargor must do or desist from doing so as to rectify the default and the time, being not less than two months, by the end of which the default must have been rectified;
   4. the consequence that if the default is not rectified within the time specified in the notice, the chargee will proceed to exercise any of the remedies referred to in this section in accordance with the procedures provided for in this sub-part; and
   5. the right of the chargor in respect of certain remedies to apply to the court for relief against those remedies.
3. If the chargor does not comply within two months after the date of service of the notice under, subsection (1), the chargee may—
   1. (a) sue the chargor for any money due and owing under the charge;
   2. appoint a receiver of the income of the charged land;
   3. lease the charged land, or if the charge is of a lease, sublease the land;
   4. enter into possession of the charged land; or
   5. sell the charged land;

Land Registration Act, Act 3 of 2012
Section 107 – Savings and transitional provisions with respect to rights, actions, dispositions

1. Unless the contrary is specifically provided for in this Act, any right, interest, title, power, or obligation acquired, accrued, established, coming into force or exercisable before the commencement of this Act shall continue to be governed by the law applicable to it immediately prior to the commencement of this Act.
2. Unless the contrary is specifically provided for in this Act or the circumstances are such that the contrary must be presumed to be the case, where any step has been taken to create, acquire, assign, transfer, or otherwise execute a disposition, any such transaction shall be continued in accordance with the law applicable to it immediately prior to the commencement of this Act.

Held:

1. The savings and transitional provisions with respect to rights, actions, dispositions in relation to land were provided under sections 107 (1) & (2) of the Land Registration Act and sections 106 (1) & (2) of the Land Act of 2012. Both regimes of the law provided that unless the contrary was specifically provided for, any rights, interests, obligations acquired, accrued, or established before the commencement of the Act would continue to be governed by the law applicable. This was the saving transitionary clause for the transition into the new laws with the repeal of all previous land laws. The “contrary provision” aspect that the Land Act provided for was the issue of the matrimonial home.
2. Section 78 (1) and by extension Part VII of the Land Act, were applicable in the circumstances since the applicants had to establish a prima facie case with probability of success on the issue of protection of matrimonial property under sections 90 (1) as read with sub-section (3), and section 107 (1) & (2) of the Land Registration Act and sections 106 (1) & (2) of the Land Act. Court was empowered under section 91 (2) of the Land Act, to stop the commencement of any proceedings, until a chargee had exhausted all remedies available to it, under section 90 (3).
3. Under section 103 (1) (c) of the Land Act an application for interim relief could be made by a spouse of the chargor. It did not state that it was incumbent upon the Court to allow such an application. Section 104 of the Land Act, gave the Court complete discretion as to whether or not to grant an order or any relief against the operation of a chargee’s remedy that the circumstances of the case required.
4. The plaintiffs were not entitled to further interim or status quo orders, despite the suit premises being matrimonial property. The 2nd Plaintiff had all along been aware of the position as regards the property being charged as evidenced in the supporting affidavit to the application.

Application dismissed.

Election Act
Section 83 – No election shall be declared to be void by reason of non-compliance with any written law relating to that election if it appears that the election was conducted in accordance with the principles laid down in the Constitution and in that written law or that the non-compliance did not affect the results of the election.”

Held:

1. Election disputes carried remedies of a public character and had to be decided not only between the parties but also with reference to the wider interest of the electorate. Therefore, to strike out the petition for being un procedurally amended would be a negation of the Constitution and would not be prejudicial to the substratum of the case.
2. Where affidavits had been filed and witnesses failed to attend court for purposes of cross examination, those affidavit evidence remained dead appendages of the record of trial. Therefore, the court could not resort to evidence which had not been tested in cross examination without causing extreme injustice to the parties.
3. In situations where parties filed affidavits with damaging evidence then failed to call the deponent to testify then the only safeguard in law was either that the court did not consider such evidence at all or exercised its discretion under section 80(1) and (2) of the Elections Act and summoned the witnesses to attend court for cross examination.
4. Rule 12 of the Elections Rules was deliberately tailored that affidavits filed in an election petition were by persons whom the petitioner intended to call as witnesses. Election petitions were not interlocutory applications but substantive causes, therefore affidavit evidence had to be tested in cross examination unless the parties consented to the admission of the evidence without calling the maker. Therefore, courts would not consider the evidence of witnesses who were not called to testify.
5. Section 64 of the Elections Act established the offence of bribery. Its material acts were; promise, offering, giving, solicitation, acceptance and receipt of bribe had to be proved. The petitioner did not establish to the required standard of proof that the 1st respondent bribed voters.
6. Every element of bribery had to be established in relation to the use of CDF cheques’ to bribe and influence voters. The intention to bribe and the act of bribery was essential. That was because issuance of cheques was a statutory obligation and mandate of CDF Committee. Discharge of that function could never be illegal per se simply because it was during campaign period declared by IEBC. Without doubt operations of the CDF activities were not affected by the election campaign period. Therefore, the allegation of bribery by use of CDF cheques was not proved.
7. Under section 68 of the Elections Act, a candidate who used public resources for the purposes of campaign in an election committed an election offence and had to be proved beyond reasonable doubt. No formal document was tendered to prove ownership of the alleged public school buses as stated in the petition. Likewise, there was no evidence to show that the buses were used by the 1st respondent for campaign purposes except that the petitioner wrote protest letters and that he saw buses ferrying voters. Those voters were neither identified nor called as witnesses. Therefore, that allegation was not proved beyond reasonable doubt and hence failed.
8. Section 62 of the Elections Act created an offence of treating of voters. That offence required that the petitioner had to prove that the candidate corruptly, for purposes of influencing a voter to vote or refrain from voting for a particular candidate or for any political party at an election, gave or undertook or promised to reward, or provided any food, drinks, refreshment or provision of money etc. to any person for the purpose of influencing that person or any other person to vote or refrain from voting for a particular candidate at the election. The petitioner’s witness testimony of allegedly attending a party did not prove there was a party in the first place let alone any treating of voters as required by law. Corrupt intention to induce and influence voters to vote for a particular candidate or political party was visibly missing in that evidence. The allegation was not proved beyond reasonable doubt and thus failed.
9. No evidence was tendered to identify the particular voter who was issued with two sets of ballot papers.
10. The petitioner did not call any evidence to prove that the agents were denied an opportunity to sign or to record reasons for refusal to sign Form 35.
11. The irregularities which were established by the petitioner in some Form 35 and Form 36 were not widespread or fundamental or shown to be of a nature that would constitute non-compliance with the law which would compel the court to hold that the elections were not conducted in accordance with the principles laid down under electoral laws.

Petition dismissed. Costs to the 1st, 2nd and 3rd respondent – Ksh. 1,500,000/= and 4th Respondent –Ksh. 1,000,000/=

Election (General) Regulations 2012
Regulation 79(6) – the refusal or failure of a candidate or an agent to sign a declaration form under sub-regulation (4) or to record the reasons for their refusal to sign as required under this regulation shall not by itself invalidate the results announced under sub-regulation 2(a).”

Elections Act
Section 83 – No election shall be declared to be void by reason of non-compliance with any written law relating to that election if it appears that the election was conducted in accordance with the principles laid down in the Constitution and in that written law or that non-compliance did not affect the result of the election.”

Held:

1. In an Election Petition, the burden was on the Petitioner to prove, not only non-compliance with the electoral law, but also that the non-compliance affected the results of the election. Accordingly, the Petitioners not only had the burden of proof to establish that there were violations, omissions, malpractices and irregularities in the conduct of the Garissa gubernatorial election, but also had to illustrate to the court that the said violations, omissions, malpractices and irregularities, if any, affected the result of the election. It was after the Petitioners had established the foregoing that the burden shifted to the respondents, to establish that the results were not affected.
2. To invalidate the entire gubernatorial election due to the fact that voting took place in one polling station past the duly gazetted voting day would be misdirecting punishment to voters in Garissa County who had properly exercised their right to vote under article 38 of the Constitution. The voters had stayed in long queues to cast their votes, and had their votes counted, entered into a declaration form and publicly declared.
3. Invalidating the election based on one polling station would only serve to disenfranchise the voters based on an act of omission by an electoral officer, over whose conduct the voters had no control. Further, no cogent evidence was adduced to show that the non-compliance or allowing people to vote a day later was premeditated and carried out by the presiding officers, with the intent of causing prejudice to any particular candidate or change the election’s outcome or to render it uncertain.
4. There was no evidence or allegation made that persons who were not entitled to vote did vote as a result of the extended opening hours or that such opening of the polling station created an opportunity for electoral malpractice. It was the Petitioners burden to establish this fact which they failed to do.
5. Breaking of ballot boxes was a serious offence. However, proving the breakage alone was not enough to establish whether the irregularity affected the results. When such an anomaly was noted, the recommended action was to assess the contents of the ballot box to ascertain whether there was tampering with the contents. This could only be done through a scrutiny.
6. The mere failure to sign the form 35 did not go to the root of the validity of the figures on the form. There had to be more or other accompanying irregularities in addition to such failure, for an election of an unsigned Form 35 by agents to be invalidated.
7. In cases of allegations of election malpractices and other irregularities; the Petitioners were not only required to establish that such electoral malpractices and irregularities actually occurred but that they were of such magnitude that they substantially and materially affected the results of the election. The primary consideration in an election Petition was whether the will of the electorate had been affected by the irregularities.
8. Irregularities and errors alluded to had to be weighed against the entire exercise of elections. The bulk of the Petitioners complaints had been unsuccessful. The Petitioners did not provide credible evidence to show that the irregularities complained of and established were so substantial as to have affected the final results of the election.

Petition dismissed with costs to the Respondents. The costs capped at Kshs.2.5Million. The 1st and 2nd Respondent entitled to a maximum of Kshs.1Million whilst the 3rd Respondent entitled to a maximum of Kshs.1.5Million.