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75d7aff671f8-0 | IN THE HIGH COUR T AT NAIROBI MILIMANI LA W COUR T CIVIL DIVISION (APPELLA TE SIDE) CIVIL
APPEAL NO. 154 OF 2019 BETWEEN KW ACHA GROUP OF COMP ANIES
.…………..…..…………….……………... APPELLANT AND VENDING SER VICES
…………………..…………..…………………..………….. RESPONDENT (Being an appeal from the Ruling and Order
of Hon. E. K. Usui, SPM dated 25th February 2019 at the Magistrates Court at Nairobi, Milimani in Civil Case No. 6314
of 2018) JUDGMENT This is an appeal from the ruling dated 25.02.2019 in which the trial magistrate allowed the
Respondent’ s application to strike out the defence under Order 2 Rule 15(1) (a) and (c) of the Civil Procedure Rules. The
trial magistrate after setting out the principles for striking out in Tom Odhiambo Achilla t/a Achilla T.O. and Co.
Advocates v Kenneth Wachira Akide t/a Akide and Co. Advocates and Others [2015]eKLR stated as follows: I have read
out the Plaint and the Defence filed in court. I have also read the counter -claim between the parties prior to filing the suit.
I am satisfied that the defendant’ s defence is confused of mere denial circuses to triable issues. The application has merit.
It is allowed as prayed. The thrust of the Appellant’ s Memorandum of Appeal dated 21.05.2019, is that the Ruling is
devoid of substance, does not set the legal and factual basis and the analysis leading to the decision this resulting in a
miscarriage of justice. The parties have filed written submissions in the matter which I have considered. It is not in
dispute that power to strike out a claim is drastic and must be exercised with great circumspection. This is the Court of
Appeal has stated many times. In D.T . Dobie & Company (Kenya) Ltd v Muchina [1982] KLR 1 it expressed the view
that: No suit ought to be summarily dismissed unless it appears so hopeless that it plainly and obviously discloses no
reasonable cause of action and is so weak as to be beyond redemption and incurable by amendment. If a suit shows a
mere semblance of a cause of action, provided it can be injected with real life by amendment, it ought to be allowed to go
forward for a court of justice ought not to act in darkness without the full facts of a case before it. In deciding whether to
strike out the suit, the Court is required to examine the pleadings; the Plaint and Defence together with depositions in
support of and in opposition to the application to strike out in order to determine whether there is a triable issue. In this
case, it is not apparent from the Ruling that the trial magistrate considered the Respondent’ s claim and the Appellant’ s
statement of defence. A perusal of the plaint dated 02.07.2018 shows that the Respondent’ s claim was for goods sold and
delivered. The Respondent claimed Kshs. 520,026.00 with interest at commercial rates. In the defence dated 17.08.2018,
the Appellant denied that it owed Kshs. 520,026.00. It averred that the services and goods were neither rendered nor
delivered and that there was no factual basis for the claim. The Respondent lodged the Notice of Motion dated
05.09.2018 seeking to strike out the defence. The application was supported by the af fidavit of Neel Shah sworn on
02.07.2018 comprising statements of account, credit application form and emails. The Appellant filed grounds of
opposition dated 08.01.2018 stating that the defence had triable issues. Unfortunately , the trial magistrate failed to
engage with the pleadings and documents as it is dif ficult to know how the court came to the conclusion that those were
not triable issues. The fundamental rule governing decisions of any trial is that the ultimate decisions must set out
reasons for the conclusion. The trial magistrate failed to explain why she came to the conclusion that the defence is
comprised of mere denials and raises no triable issues. The duty to provide reasons is not only a function of due process
but also abides by the rules of natural justice, particularly the right to a fair hearing which demands that parties know
without any doubt why they won or lost, as without any reasons a losing party will not be able to know whether the court
has misdirected itself and make a decision on whether they have a chance on appeal (see Flanner v Halifax Estate
Agencies Ltd (200) ALL ER 27, Mufrank Builders Limited v Kiriti Women Transport And Housing Co-Operative
Society [2015] eKLR and Hellen Wangari Wangechi v Carumera Muthoni Gathua [2015] eKLR). The duty to provide
reasons is found in Order 21 Rule 4 of the Civil Procedure Rules which expressly provides that judgments “shall contain
a concise statement of the case, the points for determination, the decision thereon, and the reasons for such decision.”
This position was af firmed by the Court of Appeal in Judicial Service Commission v Ndururi [2021] KECA 365 (KLR).
The Ruling appealed from was devoid of any reasons for the conclusion reached by the trial magistrate. In the
circumstances, I allow the Appeal and order as follows: The Ruling and Order dated 25.02.2019 is set aside and
substituted with an order dismissing the Respondent’ s application dated 05.09.2018. The Respondent shall bear the costs
of this Appeal assessed as Ksh. 20,000.00. The suit, Milimani CMCC No. 6314 of 2018, be and is hereby transferred to
the Milimani Small Claims Court for hearing and determination. DA TED and DELIVERED at NAIROBI this 17th day
of NOVEMBER 2023. D.S. MAJANJA JUDGE Mr Osiemo instructed by Osiemo Wanyonyi and Company Advocates
for the Appellant. Ms Letuya instructed by Conrad Maloba and Associates Advocates for the Respondent. | https://augmentin.io/casetext/case/Kwacha_Group_of_Companies_v_Vending_Services__Civil_Appeal_154_of_2019__[2023]_KEHC_25377__KLR___Civ___17_November_2023___Judgment_.docx.pdf |
dc598d858252-0 | REPUBLIC OF KENY A IN THE EMPLOYMENT & LABOUR RELA TIONS COUR T AT MOMBASA APPEAL NO.
E048 OF 2021 EUCABETH KERUBO NY ANDIKA……………………………………..APPELLANT VERSUS
INTER SECURITY SER VICES……………………………………….RESPONDENT (Being an Appeal on the whole
Judgment of Hon. F . N. Kyambia – CM at Mombasa delivered on 23rd July 2021 in CM ELRC 933 of 2019) J U D G M
E N T The Appellant was the Claimant in Mombasa CM ELR Case No. 933 of 2019 whereby she had sued the
Respondent herein vide a memorandum of claim dated 29/10/2019 and filed in Court on 30/10/2019. The Appellant
sought the following orders:- a declaration that termination of the Appellant’ s employment was unfair , unjust and
wrongful. compensation for unfair termination of employment (15,141.95 X 12) ……………………………..ksh.
181,703.40 one month salary in lieu of notice………ksh. 15,141.95 severance pay (726.55X 15 days) X10 years ..ksh.
108,982.50 unremitted deductions (ksh. 400X1 1 months)….ksh. 4,400 underpayment
…………………………………….ksh. 706,804.04 house allowance (1.006x12 months) x10 years +ksh. 4,024 unpaid
leave days earned……………………….ksh. 1 17,587.4 unpaid holidays ………………………………….ksh. 173,769.
costs of the suit and interest. The Appellant had pleaded that she had been employed by the Respondent in 2007 and was
earning ksh. 9000 per month at the time of termination on 30/8/2018. That the termination was without justifiable cause,
and was ef fected unfairly without following due process laid down in law , and without paying the Appellant’ s dues.
Documents filed by the Appellant together with the memorandum of claim included the Appellant’ s NSSF statement
covering the period 2008 upto August 2018, employment identification card, a demand letter , response to the demand and
the Appellant’ s bank statements. The Respondent defended the suit vide a memorandum of response dated 30/1/2020 and
filed in Court on 3/2/2020. The Respondent denied the Appellant’ s claim and pleaded that the Appellant had been
employed by the Respondent as a day security guard and was deployed at various duty stations, the last one having been
National Museums of Kenya Mombasa, whose contract with the Respondent expired on 31/7/2018. That the Respondent
issued the Claimant with a termination notice on 29/6/2018. The Respondent further pleaded that it separated with the
Appellant lawfully and paid her dues; including her salary for July 2018. The Respondent further pleaded that the
Appellant’ s salary included an element for accommodation, that the Appellant was paid in lieu of leave and public
holidays. The Respondent further pleaded that it separated with the Appellant on 31/7/2018, and she instituted suit in the
trial Court on 30/10/2019; and that accordingly; the Appellant’ s claim for continuing injury (namely underpayment,
house allowance, unpaid leave days, unpaid holidays and payments of deductions) are statutorily time barred. Documents
filed by the Respondent together with the Memorandum of Response included a notice of termination dated 29/6/2018,
termination letter dated 29/6/2018 and response letter dated 26/8/2018. At the trial, the Appellant testified that she
worked for the Respondent for 10 years, working from 6.00am to 6.00pm, working on holidays, without leave and
without overtime payment. That after work on 31/8/2018, she received a call from her boss who told her not to go to
work. That she nevertheless went to work on 1/9/2018 and found another person. That she was not given either a
termination notice or letter and that she has not received the letters shown to be dated 29/6/2018. The Appellant adopted
her filed witness statement as her testimony . Cross-examined, the Appellant testified that she was not given a contract
during the 10 years she worked, that she had not seen the letters dated 29/6/2018 and 26/8/2018 respectively; and that she
was not privy to any contract between the Respondent and National Museums of Kenya. The Respondent on the other
hand called one witness (R W-1) who adopted his filed witness statement as his testimony and produced in evidence
documents filed by the Respondents. R W-1 further testified that the Appellant worked with the Respondent as a day
security guard from 2008 to 2018, was issued with a termination notice, and that her salary , which she had agreed to,
included house allowance. The Respondent denied the Appellant’ s assertion that she never took leave and testified that
the Appellant was duly compensated for holidays worked, and that NSSF and NHIF dues were duly submitted. That the
Appellant was fairly terminated. Cross-examined, the Respodnent (R W-1) admitted that the Respondent had not
produced in Court the Appellant’ s contract, and had also not produced any leave application forms and had not produced
payslips to show that the Appellant had been paid for holidays worked. R W-1 further admitted that the letters produced
by the Respondent in evidence had nothing to show that they had been received by the Appellant. The trial Court
delivered its judgment on 23/7/2021 and returned a finding that the Appellant had been fairly terminated upon being
given a termination notice and notice of impending termination following the expiry of a contract between the
Respondent and National Museums of Kenya. The trial Court further made a finding that the Appellant had failed to
prove her claim against the Respondent, and dismissed the same in its entirety with costs to the Respondent. Aggrieved
by the said judgment, the Appellant preferred the present appeal and set forth the following grounds of appeal:- the
Learned Magistrate erred in law and in fact in dismissing the Appellant’ s appeal. the Learned Magistrate erred in law and
in fact in not considering the oral evidence by the Appellant and the Respondent adduced in Court regarding the claim in
question. the Learned Magistrate erred in law and in fact in failing to consider evidence and submissions presented by the
Appellant in considering the claim in question. the Learned Magistrate’ s judgment was against the weight of the need to
dispense justice with fairness, and thus bad in law . The Appellant is seeking the following reliefs:- that the appeal be
allowed with costs. that the trial Court’ s judgment in CM ELR Cause no. 933 of 2019 delivered on 23/7/2021 by Hon. | https://augmentin.io/casetext/case/Nyandika_v_Inter_Security_Services__Appeal_E048_of_2021__[2023]_KEELRC_2950__KLR___16_November_2023___Judgment_.docx.pdf |
dc598d858252-1 | dispense justice with fairness, and thus bad in law . The Appellant is seeking the following reliefs:- that the appeal be
allowed with costs. that the trial Court’ s judgment in CM ELR Cause no. 933 of 2019 delivered on 23/7/2021 by Hon.
F.N. Kyambia (MR) Chief Magistrate be set aside. that an award be entered in favour of the Appellant. that costs of the
appeal be awarded to the Appellant. This is a first appeal. The entire case as presented before the trial Court is open to
fresh consideration. A first Appellate Court is empowered to subject the whole of the evidence adduced in the trial Court
to fresh and exhaustive scrutiny and to make conclusions about it; bearing in mind that it did not have the opportunity of
seeing and hearing the witnesses first hand. This duty was stated in SELLE & ANT OEHR -VS- ASSOCIA TED MOT OR
BOA T CO. L TD & OTHERS [1968] EA 123. Upon considering the pleadings filed and evidence presented in the trial | https://augmentin.io/casetext/case/Nyandika_v_Inter_Security_Services__Appeal_E048_of_2021__[2023]_KEELRC_2950__KLR___16_November_2023___Judgment_.docx.pdf |
5772fce51395-0 | Court, issues that present for determination, in my view , are:- whether termination of the Appellant’ s employment was
unfair . whether the Appellant is entitled to the reliefs sought in the trial Court. On the first issue, it was a common ground
that the Appellant was employed by the Respondent as a day security guard in 2008, and worked for ten years (until
2018) and that she was earning ksh. 9,000 per month at the time of termination of her employment. The Appellant
testified that she was not given a contract, that she worked until 31/8/2018 and that while at home, she was called by her
boss and told not to go to work. That she nevertheless went to work on 1/9/2018 but found another person. That she was
not served with a termination notice or a termination letter; and had not been notified of any impending termination. That
she had not seen the letters dated 29/6/2018 and 26/8/2018 which the Respondent produced in Court. The Respondent, on
the other part, admitted that there was nothing on record to show that the letters (notices) dated 29/6/2018 on termination
of the Appellant’ s employment and termination of the Respondent’ s contract with National Museums of Kenya had been
served on the Appellant. The Respondent did not, therefore, rebut the Appellant’ s evidence that she was not informed of
any impending termination of employment, and was not issued with a termination notice. Failure by an employer to issue
a termination notice under Section 35(1) (c) of the Employment Act renders termination of an employee’ s employment
unlawful, and therefore unfair . On this account, I find and hold that termination of the Appellant’ s employment was
unfair , and I so declare. The trial Court fell into error by holding that the Appellant had been given a termination notice
when the alleged termination notice was not shown to have been received by and/or served on the Appellant, and when
even the Respondent’ s witness admitted in evidence that the Respodnent had nothing to show that the alleged notice had
been received by the Appellant. On the second issue, and having made a finding that termination of the Appellant’ s
employment was unfair , and taking into consideration the circumstances in which the Appellant’ s employment was
terminated, I award the Appellant the equivalent of ten months’ salary in compensation for unfair termination of
employment; that is ksh. 9000x10 = ksh. 90,000. The claim for one month salary in lieu of notice is allowed at ksh. 9,000
as the Appellant never demonstrated that she was entitled to salary at a higher rate. She never pleaded with particulars the
relevant minimum wage guidelines for any particular periods of time during the employment period. the Court cannot act
on general allegations. Further , no evidence was adduced by the Appellant to demonstrate entitlement to a higher rate of
salary . Further , and as correctly pleaded by the Respondent, the claims for salary underpayment, unpaid house allowance,
unpaid leave and unpaid holidays are in the nature of continuing injury as contemplated in Section 90 of the Employment
Act. Action on such claims should be brought within twelve months upon ceasation thereof. In the present case, the
ceasation date was the date of termination of the Appellant’ s employment, which was 31/8/2018 according to the
Appellant’ s pleadings and evidence. The Appellant’ s suit in the trial Court was filed on 30/10/2019, over twelve months
from the date of ceassation/termination. Whether proved at trial or not, such claims were/are statute bared, and cannot be
considered by this Court. I uphold the trial Court’ s dismissal of the same, though for dif ferent reasons. The claim for
severance pay cannot be allowed as termination of the Appellant’ s employment did not result from redundancy . The
claim for unremitted deductions was not proved, and cannot be granted. I have severally stated, and I repeat it here, that
once statutory deductions are made from an employee’ s salary by an employer , such deductions cease to be the property
of the employee. The deductions become the property and right of the statutory bodies on whose account the deductions
are made. Such statutory bodies i.e NSSF and NHIF , have statutory mechanisms on how to pursue employers for
remittance of any withheld deductions. An employee cannot lawfully seek to be refunded such deductions, unless it is
demonstrated that the employer was not authorized in law to make such deductions. The appeal herein partly succeeds.
The trial Court’ s judgment delivered on 23/7/2021 is hereby set aside, and is substituted with a judgment for the
Appellant against the Respondent as follows:- Compensation for unfair termination of
employment……………………………………………….ksh. 90,000 One month salary in lieu of notice
…………………....ksh. 9,000 Total ksh. 99,000 The Appellant is awarded costs of the appeal and costs of the
proceedings in the Court below . Costs of the appeal shall be assessed on the lower scale. The Appellant is also awarded
interest at Court rates, to be calculated from the date of this judgment. DA TED, SIGNED AND DELIVERED AT
MOMBASA THIS 16th NOVEMBER 2023 AGNES KITIKU NZEI JUDGE ORDER This Judgment has been delivered
via Microsoft Teams Online Platform. A signed copy will be availed to each party upon payment of the applicable Court
fees. AGNES KITIKU NZEI JUDGE Appearance: ……………………..Appellant ……………………Respondent | https://augmentin.io/casetext/case/Nyandika_v_Inter_Security_Services__Appeal_E048_of_2021__[2023]_KEELRC_2950__KLR___16_November_2023___Judgment_.docx.pdf |
8e36fdadc636-0 | REPUBLIC OF KENY A IN THE HIGH COUR T OF KENY A AT ELDORET SUCCESSION CAUSE NO. 66 OF 2020
IN THE MA TTER OF THE EST ATE OF JAN CHRIS ESSELINK BILL ESSELINK………………………….1ST
PETITIONER/ADMINISTRA TOR JACKLINE CHEMT AI JOHN………….2ND PETITIONER/ADMINISTRA TOR
NICOLE HENDRICK JE ESSELINK…3RD PETITIONER/ADMINISTRA TOR Coram: Before Justice R. Nyakundi
Gatama & Associates LLP Advocates Terer Kibii & Company Advocates Y. Jerutp & Company Advocates
JUDGEMENT What is pending before this court is the summons for confirmation of grant dated 3rd November 2023.
The grant of letters of administration was issued by this court on 20th September 2023 to the administrators herein. At
the time of his death on 23rd April 2022, the deceased had no spouse and left behind the following beneficiaries; Bill
Esselink – Son Jackline Chemtai John – Daughter Nicle Je Esselink - Daughter The estate of the deceased comprises of
the following properties; Kiuga Farm L.R No. 772/7 50 ACRES Kipkabus Farm - L.R No. 8013/1 20 ACRES Kipkenyo
Land - 2.5 ACRES Illula Farm L.R No. 6101 60 ACRES Bank Account at Stanbic Bank account No. 0100002670733.
Bank Account at Absa Bank No’ s. 0031064889, 2038873302, 2038873299 and 2039285072. Bank Account at DTB
Bank. Motor Vehicle Registration No. KBS 241V . Motor Vehicle Registration No. KSD 139. Shares at Kakuzi,
Kapchorua Tea Kenya PLC, Sasin PLC, Williamson Tea Kenya PLC, NCBA Group PLC, Stanbic Holdings PLC, Cables
Ltd, Kengen PLC, Kenya BOC Kenya Ltd BA T Ltd, Carbacid, C02 Ltd, EABL, Mumias Sugar Company Ltd, Unga Ltd,
Safaricom Ltd. This cause is non contentious as all the parties are in agreement with the distribution of the estate and
have provided proposed modes of distribution. The 1st and 2nd Administrators filed their af fidavit on the proposed mode
of distribution on 1 1th September 2023 whereas the 3rd administrator filed hers on 14th November 2023. Article 27 of
the Constitution of Kenya provides as follows; 27. Equality and freedom from discrimination (1) Every person is equal
before the law and has the right to equal protection and equal benefit of the law . Section 38 of the Law of Succession Act
provides as follows; Where an intestate has left a surviving child or children but no spouse, the net intestate estate shall,
subject to the provisions of sections 41 and 42, devolve upon the surviving child, if there be only one, or shall be equally
divided among the surviving children. Guided by the legal principles espoused in the statutes above and upon
considering the af fidavits on record and the proposed modes of distribution I hereby order that the estate of the deceased
shall be distributed as follows; ITEM NO PROPER TY/SHARES DESCRIPTION SHARE PER BENEFICIAR Y
(DISTRIBUTION) Kiuga Farm L.R No.772/2 Measuring Approximately 50 Acres To be shared equally among the 3
Beneficiaries namely Bill Esselink, Jackline Chemtai John and Nicole Hendrick Je Esselink Kipkabus Farm L.R
No.8013/1 Measuring approximately 20 Acres To be shared equally among the 3 Beneficiaries namely Bill Esselink,
Jackline Chemtai John and Nicole Hendrick Je Esselink Illula Farm L.R No.6101 Measuring approximately 60 Acres To
be shared equally among the 3 Beneficiaries namely Bill Esselink, Jackline Chemtai John and Nicole Hendrick Je
Esselink Kipkenyo Parcel Measuring approximately 2.5 Acres To be shared equally among the 3 Beneficiaries namely
Bill Esselink, Jackline Chemtai John and Nicole Hendrick Je Esselink Bank Account at Stanbic Bank Account
No.0100002670733 To be shared equally among the 3 Beneficiaries namely Bill Esselink, Jackline Chemtai John and
Nicole Hendrick Je Esselink Bank Account at Absa Bank Account No.0031064889. To be shared equally among the 3
Beneficiaries namely Bill Esselink, Jackline Chemtai John and Nicole Hendrick Je Esselink Bank Account at Absa Bank
Account No. 2038873302 To be shared equally among the 3 Beneficiaries namely Bill Esselink, Jackline Chemtai John
and Nicole Hendrick Je Esselink Bank Account at Absa Bank Account No. 2038873299 To be shared equally among the
3 Beneficiaries namely Bill Esselink, Jackline Chemtai John and Nicole Hendrick Je Esselink Bank Account at Absa
Bank Account No. 2039285072. To be shared equally among the 3 Beneficiaries namely Bill Esselink, Jackline Chemtai
John and Nicole Hendrick Je Esselink Money in Deceased’ s Bank account at DTB Bank To be shared equally among the
3 Beneficiaries namely Bill Esselink, Jackline Chemtai John and Nicole Hendrick Je Esselink Motor Vehicle Reg No.
KCT 483T Bill Esselink Absolutely Motor Vehicle Reg No. KBS 241V Jackline Chemtai John Absolutely Motor Vehicle
Reg No. KSD 139 Nicole Hendrick Je Esselink Absolutely All the Farm Implements and Domestic Animals To be shared
equally among the 3 Beneficiaries namely Bill Esselink, Jackline Chemtai John and Nicole Hendrick Je Esselink 18,880
Shares in British American Tobacco 6294 shares -Bill Esselink 6293 shares-Jackline Chemtai John 6293 shares-Nicole
Hendrick Je Esselink 3000 Shares in A. Baumann 1000 shares -Bill Esselink 1000 shares-Jackline Chemtai John 1000
shares-Nicole Hendrick Je Esselink 132,500 Shares in Absa Kenya PEC 44167 shares -Bill Esselink 44167 shares-
Jackline Chemtai John 44166 shares-Nicole Hendrick Je Esselink 3510 Shares in BOC Kenya PEC 1 170 shares -Bill
Esselink 1 170 shares-Jackline Chemtai John 1 170 shares-Nicole Hendrick Je Esselink 422280 Shares in Carbacid
Investment 140760 shares -Bill Esselink 140760 shares-Jackline Chemtai John 140760 shares-Nicole Hendrick Je
Esselink 99450 Shares in East African Breweries Ltd 33150 shares -Bill Esselink 33150 shares-Jackline Chemtai John | https://augmentin.io/casetext/case/In_re_Estate_of_Jan_Chris_Esselink__Deceased___Succession_Cause_66_of_2020__[2023]_KEHC_25439__KLR___20_November_2023___Judgment_.docx.pdf |
8e36fdadc636-1 | Investment 140760 shares -Bill Esselink 140760 shares-Jackline Chemtai John 140760 shares-Nicole Hendrick Je
Esselink 99450 Shares in East African Breweries Ltd 33150 shares -Bill Esselink 33150 shares-Jackline Chemtai John
33150 shares-Nicole Hendrick Je Esselink 6431 Shares in Kengen 2144 shares-Bill Esselink 2144 shares-Jackline
Chemtai John 2144 shares-Nicole Hendrick Je Esselink 57836 Shares in Kenya-re 19279 shares -Bill Esselink 19279
shares-Jackline Chemtai John 19279 shares-Nicole Hendrick Je Esselink 202073 Shares in Kenya Power 67358 shares -
Bill Esselink 67358 shares-Jackline Chemtai John 67358 shares-Nicole Hendrick Je Esselink 16020 Shares in Kapchorua
Tea 5340 shares -Bill Esselink 5340 shares-Jackline Chemtai John 5340 shares-Nicole Hendrick Je Esselink 90841
Shares in KCB Bank 30280 shares -Bill Esselink 30280 shares-Jackline Chemtai John 30281 shares-Nicole Hendrick Je
Esselink 7630 Shares in Liberty Holdings 2543 shares -Bill Esselink 2543 shares-Jackline Chemtai John 2544 shares-
Nicole Hendrick Je Esselink 144461 Shares in NCBA(B01) 48154 shares -Bill Esselink 48154 shares-Jackline Chemtai
John 48154 shares-Nicole Hendrick Je Esselink 4901 1 Shares in NCBA(B18) 16337 shares -Bill Esselink , 16337 shares-
Jackline Chemtai John 16337 shares-Nicole Hendrick Je Esselink 274400 Shares in Mumias 91467 shares -Bill Esselink
91467 shares-Jackline Chemtai John 91466 shares-Nicole Hendrick Je Esselink 30492 Shares in Nation Media Group | https://augmentin.io/casetext/case/In_re_Estate_of_Jan_Chris_Esselink__Deceased___Succession_Cause_66_of_2020__[2023]_KEHC_25439__KLR___20_November_2023___Judgment_.docx.pdf |
0a72ce06c1d4-0 | 10164 shares -Bill Esselink 10164 shares-Jackline Chemtai John 10164 shares-Nicole Hendrick Je Esselink 196310
Shares in Sasini Tea 65437 shares -Bill Esselink 65437 shares-Jackline Chemtai John 65436 shares-Nicole Hendrick Je
Esselink 10400 Shares in Stanbic Holding 3467 shares -Bill Esselink 3467 shares-Jackline Chemtai John 3466 shares-
Nicole Hendrick Je Esselink 22694 Shares in SCBK 7565 shares -Bill Esselink 7565 shares-Jackline Chemtai John 7564
shares-Nicole Hendrick Je Esselink 435500 Shares in Safaricom Ltd 145167 shares -Bill Esselink 145167 shares-
Jackline Chemtai John 145166 shares-Nicole Hendrick Je Esselink 9691 Shares in Standard Group 3230 shares -Bill
Esselink 3230 shares-Jackline Chemtai John 3231 shares-Nicole Hendrick Je Esselink 44740 Shares in Unga Ltd 14914
shares -Bill Esselink 14913 shares-Jackline Chemtai John 14913 shares-Nicole Hendrick Je Esselink 15000 Shares in
Williamson Tea 5000 shares -Bill Esselink 5000 shares-Jackline Chemtai John 5000 shares-Nicole Hendrick Je Esselink
Dividends if any on Shares in Paragraph 15-37 To be shared equally among the 3 Beneficiaries namely Bill Esselink,
Jackline Chemtai John and Nicole Hendrick Je Esselink Kshs. 25,000,000/= held by Henry Kenei Under Kenei &
Associates Advocates LLP To be recovered and shared equally among the 3 Beneficiaries namely Bill Esselink, Jackline
Chemtai John and Nicole Hendrick Je Esselink Whereas the parties have agreed on the distribution, something must be
said about the contentions Kshs. 30,000,000/- that was withdrawn for the purpose of defraying the expenses of the estate
under mysterious circumstances. Section 55 of the Law of Succession Act states as follows; (1) No grant of
representation, whether or not limited in its terms, shall confer power to distribute any capital assets constituting a net
estate, or to make any division of property , unless and until the grant has been confirmed as provided by section 71. (2)
The restriction on distribution under subsection (1) does not apply to the distribution or application before the grant of
representation is confirmed of any income arising from the estate and received after the date of death whether the income
arises in respect of a period wholly or partly before or after the date of death. Further , as the withdrawal was instigated by
one of the administrators, it is imperative that this court emphasize the duties of administrators as was set out in section
83 of the Law of Succession Act as follows; 83. Personal representatives shall have the following duties- (a) to provide
and pay , out of the estate of the deceased, the expenses of a reasonable funeral for him; (b) to get in all free property of
the deceased, including debts owing to him and moneys payable to his personal representatives by reason of his death;
(c) to pay , out of the estate of the deceased, all expenses of obtaining their grant of representation, and all other
reasonable expenses of administration (including estate duty , if any); (d) to ascertain and pay , out of the estate of the
deceased, all his debts; (e) within six months from the date of the grant, to produce to the court a full and accurate
inventory of the assets and liabilities of the deceased and a full and accurate account of all dealings therewith up to the
date of the account; (f) subject to section 55, to distribute or to retain on trust (as the case may require) all assets
remaining after payment of expenses and debts as provided by the preceding paragraphs of this section and the income
therefrom, according to the respective beneficial interests therein under the will or on intestacy , as the case may be; (g)
within six months from the date of confirmation of the grant, or such longer period as the court may allow , to complete
the administration of the estate in respect of all matters other than continuing trusts, and to produce to the court a full and
accurate account of the completed administration. (h) to produce to the court, if required by the court, either of its own
motion or on the application of any interested party in the estate, a full and accurate inventory of the assets and liabilities
of the deceased and a full and accurate account of all dealings therewith up to the date of the account; (i) to complete the
administration of the estate in respect of all matters other than continuing trusts and if required by the court, either of its
own motion or on the application of any interested party in the estate, to produce to the court a full and accurate account
of the completed administration. In this cause there are three administrators and therefore, any decisions made with
regards to the estate must have the input of all three administrators. It is apparent that the withdrawal of funds for the
alleged purpose of defraying the expenses of the estate was at the instruction of one administrator and therefore there was
no concurrence among the administrators. It is my considered view that this was in contravention of section 55 of the
Law of Succession Act. However , I take note that the parties have since reached a resolution on how to settle this
particular issue by distributing the balance of the sums equally amongst themselves upon recovery of the same and
therefore there is no further dispute or contention as to the distribution of the estate. The estate shall be distributed as
stated above and the administrators are to render accounts within six months in order for the cause to be marked as
closed. It is so ordered. DELIVERED, DA TED AND SIGNED AT ELDORET ON THIS 20TH DA Y OF NOVEMBER
2023 In the presence of Mr . Tanui Advocates Mr . Gatama Advocates Mr . Njoroge Advocates All the beneficiaries
……………………………………….. R. NY AKUNDI JUDGE info@gatamalaw .com, tererlaw@gmail.com,
infojerutoadvocates@gmail.com | https://augmentin.io/casetext/case/In_re_Estate_of_Jan_Chris_Esselink__Deceased___Succession_Cause_66_of_2020__[2023]_KEHC_25439__KLR___20_November_2023___Judgment_.docx.pdf |
92356eb7dacc-0 | REPUBLIC OF KENY A IN THE HIGH COUR T OF KENY A AT NAIROBI COMMERCIAL AND TAX DIVISION
INCOME TAX APPEAL NO E01 1 OF 2022 COMMISSIONER OF DOMESTIC TAXES ………………. APPELLANT
VERSUS - LUCAS WAITHAKA GITERE ……………………………. RESPONDENT (Being an appeal from the
judgment of the Tax Appeals Tribunal dated 3rd December 2021 in Tax Appeals Tribunal Number 341 of 2019) J U D G
M E N T The appellant carried out an investigation on the af fairs of the respondent for the years 2016 and 2017. He
noted that the respondent had 34 KPLC meters which, according to the appellant, meant that the respondent had 34 rental
houses. Based on this information, the appellant raised an assessment of Kshs. 803,31 1/- which comprised of principal
tax of Kshs. 644,248.80 and penalties of Kshs 34,212.44. The respondent objected to the assessment on 24/4/2019 which
the appellant rejected vide an objection decision dated 21/6/2019. Aggrieved by the appellant’ s decision, the respondent
lodged an appeal at the Tax Appeals Tribunal which allowed the appeal on 3/12/2021. Aggrieved that decision, the
appellant has lodged this appeal vide a Memorandum of Appeal dated 27/1/2022. The appeal is based on 4 grounds of
appeal which can be summarized into two as follows: - That the Tribunal erred in holding that the objection decision was
issued prematurely without consideration of available information. That the Tribunal erred in in finding that due process
was not followed prior to the objection and setting aside the appellant’ s assessment. In opposition to the appeal, the
respondent filed a statement of facts dated 23/2/2023. He contended that he was a landlord whose sole income emanated
from his two properties situate in Nakuru County . That vide a letter dated 3/3/2015, he wrote to the appellant requesting
to file his returns on annual basis since he had taken out a loan at Equity bank for Kshs 7,305,695/- with a repayment of
Kshs. 241,665/- against a monthly income of Kshs 184,430/-. That the appellant did not respond to his letter and the
respondent therefore assumed that his request had been accepted and continued to submit annual returns. That he filed his
annual returns on 25/03/2017 for the year 2016 and on 24/05/2018 for the year 2017 and paid a total of Kshs. 100.509/-.
Vide a letter dated 3/3/2015, he wrote to the appellant to avoid paying rental income out of his capital investment. The
appeal was canvassed by way of written submissions which have been considered. The appellant submitted that the
respondent failed to declare and char ge tax on the annual rental income earned in 2016. That the respondent’ s notice of
objection was not supported by documents hence failed to dischar ge the burden of proof to show that the assessment was
incorrect. On whether due process was followed prior to issuance of the objection decision, the appellant submitted that
the respondent was given suf ficient time to support his objection. It was further submitted that the Tribunal’ s decision on
this issue was outside the parties’ pleadings since the same had not been raised by the appellant. That section3 and 6 of
the Income Tax Act was clear on the fact that all the profits or gains made by the respondent from rent was char geable to
income tax. The respondent submitted that the appeal was filed outside the 30 days prescribed by law without leave and
ought to be struck of f. According to the respondent, the appellant’ s assessment was based on the assumption that, the
respondent owned 34 rental houses and failed to conduct any investigations on the same. Counsel submitted that the
respondent dischar ged his burden of proof by providing the information required in line with section 56(1) of the Tax
Procedures Act and section 30 of the Tax Appeals Tribunal Act. That the appellant had visited the respondent’ s premises
and established that some houses with meters remained unoccupied. That the application to file annual returns was not
rejected by the appellant. I have considered the record. The main issue for determination is whether the objection
decision was issued prematurely without consideration of the available information. The appellant’ s assessment was
based on the fact that, he had conducted an investigation on the respondent and discovered that the latter had to his name
34 KPLC meters. He therefore concluded that the respondent had 34 rentals houses. The assessment was confirmed
because the respondent failed to provide relevant documentation to support the objection. On his part, the respondent
contended that the assessment for the years 2016 and 2017 was done using the old format and the same had been
communicated to the appellant. That at the objection stage, he had submitted the documents as required under section 59
of the Tax Procedures Act. Section 24 of the Tax Procedures Act (“the TPA”) provides: - “Submission of tax returns (1) A
person required to submit a tax return under a tax law shall submit the return in the approved form and in the manner
prescribed by the Commissioner . (2) The Commissioner shall not be bound by a tax return or information provided by , or
on behalf of, a taxpayer and the Commissioner may assess a taxpayer's tax liability using any information available to the
Commissioner .” Based on section 24 of the TPA, the Commissioner has the authority to issue an assessment based on
any available information. From the record, there is no evidence of the initial assessment that demanded tax of Kshs.
803,31 1/- from the respondent. While it is evident that the assessment was based on the information received on the
KPLC meters, it is not clear how that figure was arrived at. Section 56 of the TPA places the burden of proof in tax cases
on the tax payer . The above section is reinforced by section 30 of the Tax Appeals Tribunal Act. In the present case, it is
evident that in the notice of objection, the tax payer stated that he had paid his taxes and availed the letter dated 3/3/2015
where he had previously informed the appellant of his intention to pay taxes using the previous format. No evidence was
availed by the appellant requesting for additional information. The record shows that the taxpayer paid taxes for the
disputed years and still filed returns for the said years although not in the correct format. In that regard, the burden
shifted to the appellant to demonstrate that the material presented to him by the respondent was either wrong or
insuf ficient. Since no further information or document was requested at this stage, the burden rested on the
Commissioner to prove the assessment. The pendulum of the burden of proof never swung back to the respondent at all.
Section 51(3) of the TPA gives the format for the notice for objection as follows: - “(3) A notice of objection shall be
treated as validly lodged by a taxpayer under subsection (2) if— a) the notice of objection states precisely the grounds of | https://augmentin.io/casetext/case/Commissioner_of_Domestic_Taxes_v_Gitere__Income_Tax_Appeal_E011_of_2022__[2023]_KEHC_25421__KLR___Commercial_and_Tax___20_November_2023___Judgment_.docx.pdf |
92356eb7dacc-1 | Section 51(3) of the TPA gives the format for the notice for objection as follows: - “(3) A notice of objection shall be
treated as validly lodged by a taxpayer under subsection (2) if— a) the notice of objection states precisely the grounds of
objection, the amendments required to be made to correct the decision, and the reasons for the amendments; b) in relation
to an objection to an assessment, the taxpayer has paid the entire amount of tax due under the assessment that is not in
dispute or has applied for an extension of time to pay the tax not in dispute under section 33(1); and c) all the relevant | https://augmentin.io/casetext/case/Commissioner_of_Domestic_Taxes_v_Gitere__Income_Tax_Appeal_E011_of_2022__[2023]_KEHC_25421__KLR___Commercial_and_Tax___20_November_2023___Judgment_.docx.pdf |
6fda0b3c3670-0 | documents relating to the objection have been submitted.” From the for going, a notice of objection can only be said to be
valid when all the relevant documents have been submitted. Sub section 4 places an obligation on the Commissioner to
inform the tax payer in writing that a notice of objection does not meet the required standards. In the present case, this is
not a case of a taxpayer who has refused to pay taxes. It is a case of a willing tax payer who was mistreated by the tax
authority . He had the willingness to comply with the law and wrote to the appellant seeking clarification or direction
which was never provided. The appellant was under an obligation to respond to the respondent’ s inquiry and advise him
whether or not he had approved the letter dated 3/3/2015. This would have informed the respondent the manner in which
to pay taxes. In this case, silence should be taken to have been consent. Based on the foregoing, I find no error on the
Tribunals holding that the objection decision was premature. Accordingly , the Court finds the appeal to be without merit
and the same is dismissed with costs. It is so decreed. DA TED and DELIVERED at Nairobi this 20th day of November ,
2023. MABEY A, FCI Arb JUDGE | https://augmentin.io/casetext/case/Commissioner_of_Domestic_Taxes_v_Gitere__Income_Tax_Appeal_E011_of_2022__[2023]_KEHC_25421__KLR___Commercial_and_Tax___20_November_2023___Judgment_.docx.pdf |
19da6f3b3ecc-0 | REPUBLIC OF KENY A IN THE HIGH COUR T OF KENY A AT ELDORET CIVIL CASE NO. 3 OF 2022
(FORMERL Y KITALE ELC CASE NO. 5 OF 2016 AMIT AGGAR WAL (suing as administrator of the estate of
GURCHARAN DASS AGGAR WAL)…………………………………PLAINTIFF VERSUS NA TIONAL BANK OF
KENY A LIMITED…………………………………..DEFENDANT RULING By the Plaint filed on 14/12/2015, the
Plaintif f, suing as the Administrator of the said deceased, filed this suit. The Plaintif f sought, inter alia, Judgment barring
the Defendant, a bank, from exercising its statutory power of sale over various properties which had secured financial
facilities advanced to the deceased by the Defendant. The Court granted an interlocutory injunction pending
determination of the suit. From the record, I gather that the suit was initially filed before this Court in 2015, then
sometime in 2016 was transferred to the Environment & Land Court at Kitale before being re-transferred in 2022 back to
this Court at Eldoret. In the course of the matter , the Plaintif f filed the Application dated 21/1 1/2016 seeking leave to
deposit the sum of Kshs 7,658,191.40 as security , in exchange for release of the titles held by the Defendant, pending
determination of the suit. The said sum was the amount alleged by the Defendant to be owing, as at that time, from the
deceased. The parties then recorded a consent on terms that, pending determination of the Application, the Plaintif f
would deposit in an interest earning account in the joint names of the Advocates for the parties, a sum of Kshs
9,000,000/- to be held as security pending agreement by the parties and/or upon such orders as shall be made by the
Court. The account was to be opened at the Defendant bank. Upon deposit of the amount as aforesaid, the Defendant
would, not later than 3 days, release to the Plaintif f the Certificate of Lease for the property Eldoret Municipality/Block
6/6 among those held by the Defendant. Also to be released was dischar ge of Char ge for the same one property . Now
before the Court is the Plaintif f’s Application (Notice of Motion) dated 23/08/2022 seeking orders as follows: Spent.
THA T the Honourable Court be pleased to issue an order to review , vary and/or set aside the Consent Order dated 21st
December , 2016 and adopted by the Court on 9th February 2017 to the ef fect that; The Plaintif f/Applicant to deposit in
an interest earning account in the joint names of the advocates for the parties that is M/s. Nyairo and Company ,
Advocates and M/s. Gumbo & Associates, Advocates the sum of Kenya Shillings Nine Million (KShs.9,000,000/=) to be
held pending agreement by the parties and/or upon such orders as shall be made by the Court. The said account to be
opened at National Bank of Kenya Limited, Eldoret Branch. Upon deposit of the amount referred to in paragraph (a)
above the Defendant/Respondent forthwith and in any event not later than three (3) days to release to the
Plaintif f/Applicant's advocate the following documents; • Certificate of Lease over title number Eldoret
Municipality/Block 6/6. • Duly executed dischar ge of char ge in respect of title Eldoret Municipality/Block The amount
of Kenya Shillings Nine Million (KShs.9,000,000/=) held by the Defendant/Respondent in account number
01282130554700 in the joint names of the advocates for the parties herein, that is M/s. Nyairo and Company , Advocates
and M/s. Gumbo and Associates, Advocates be transferred to an independent joint interest earning account to be opened
in the joint names of the advocates for the parties herein stated above. The Defendant/Respondent and/or its Directors be
compelled to provide statements of account for the period between 21st December , 2016 to date. THA T the Court be
pleased to order interest on the said sum of Kenya Shillings nine million (Kshs. 9,000,000/=) for the period between 21st
December , 2016 to date. THA T upon opening and transferring the said funds into an independent joint interest earning
account, there be an order directing the Defendant/Respondent to provide quarterly statements of account to the
Plaintif f/Applicant not later than the 5th day of the next quarter . THA T there be an order compelling the
Defendant/Respondent to release to the Plaintif f Applicant's Advocate the original lease certificate for Eldoret
Municipality/Block 6/6 and a duly executed dischar ge of char ge in respect of the said in line with the Court order
aforesaid. THA T in default of item 7 above, warrants of arrest do issue against the Directors and the Managers of the
Defendants/Respondents bank automatically for disobeying Court orders. THA T costs for the Application be provided
for. The Application is filed through Messrs Nyairo & Co. Advocates and is expressed to be brought under Order 45 Rule
1(b) and Order 51 Rule 1 of the Civil Procedure Rules, Section 1A, 1B, 3, 3A and 63(e) of the Civil Procedure Act and
“all other enabling provisions of the law”. It is premised on the grounds set out thereon and the contents of the
Supporting Affidavit sworn by the Plaintif f, Amit Aggarwal. In the Affidavit, the Plaintif f deponed that upon the said
consent order being adopted as an order of the Court, he paid the sum of Kshs 9,000,000/- to the Defendant which was to
be deposited in a joint interest earning account in the names of the parties’ Advocates herein, upon receiving the funds, in
blatant disregard to the Court order , the Defendant deposited or placed the same in a non-interest earning account, the
Defendant has kept him in the dark as to the account and its performance and has declined or failed to provide him with
statements of account to date, the move by the Defendant to deposit the amount in a non-interest earning account is
against the Court order and only intended to benefit the Defendant, Court orders are not for decorative purposes but must
be specifically adhered to, despite compliance on the Plaintif f’s part, the Defendant has also failed to deliver the
Certificate of Lease and dischar ge of Char ge for the said property . He then reiterated the prayers made in the Application
and added that it is now over 5 years since the amount was placed in a non-interest earning account thus causing him
tremendous loss and that the Defendant does not stand to suf fer any loss if the prayers are granted. Defendant’ s Response
The Defendant opposed the Application vide the Replying Affidavit sworn by one Mar garet Jepkemo and filed on | https://augmentin.io/casetext/case/Aggarwal__Suing_as_Administrator_of_the__Estate_of_Gurcharan_Dass_Aggarwal__v_National_Bank_of_Kenya_Limited__Civil_Case_5_of_2016__[2023]_KEHC_25383__KLR___17_November_2023___Ruling_.docx.pdf |
19da6f3b3ecc-1 | and added that it is now over 5 years since the amount was placed in a non-interest earning account thus causing him
tremendous loss and that the Defendant does not stand to suf fer any loss if the prayers are granted. Defendant’ s Response
The Defendant opposed the Application vide the Replying Affidavit sworn by one Mar garet Jepkemo and filed on
31/10/2022 through Messrs G&A Advocates LLP . She described herself as the Respondent’ s Eldoret Branch Manager
and deponed that in compliance with the consent Court order and after the Advocates had executed the account opening
Forms, a Business Banking Account was consequently operationalized and assigned a number in the joint names of the
Advocates on record, on 19/01/2017 the Plaintif f’s Advocates deposited the Kshs. 9,000,000/- into the account, given the
nature of the account sought being an interest earning account, a Call Deposit Account was opened alongside the
business Banking Account, a Call Deposit Account acts as an ancillary to the main account for the purposes of earning | https://augmentin.io/casetext/case/Aggarwal__Suing_as_Administrator_of_the__Estate_of_Gurcharan_Dass_Aggarwal__v_National_Bank_of_Kenya_Limited__Civil_Case_5_of_2016__[2023]_KEHC_25383__KLR___17_November_2023___Ruling_.docx.pdf |
7f0899f081cb-0 | interest, on 14/09/2017 the Kshs 9,000,000/- was deposited into the Call Deposit Account to enable the account attract
interest as ordered by the Court, as at the date of swearing the Affidavit, the accrued interest stood at Kshs. 2,348,876.71,
the averments that there is non-compliance with the Court order is far -fetched and un-informed, as opposed to filing the
instant Application, the Applicant’ s Counsel would have exercised some diligence by visiting the Defendant and obtained
proper information regarding the status of the account. She deponed further that the Respondent, through its Advocates,
released the Certificate of Lease and duly executed the dischar ge to the Plaintif f’s Advocates vide letters which were duly
received and acknowledged. In conclusion, he deponed that from the foregoing, it is clear that the Defendant has fully
complied with the terms of the Court order . Plaintif f’s Supplementary Affidavit In a rejoinder , the Applicant filed a
Supplementary Affidavit on 2/1 1/2022. He deponed that the Defendant’ s Replying Affidavit is a confirmation that the
Defendant did not comply with the terms of the consent because the funds were to be deposited in a joint interest earning
account in the names of both Advocates, from the bank statement exhibited by the Defendant, it is clear that no interest
has accrued as was contemplated by the parties in the consent, the call deposit account, if indeed it is in existence, is not
an account opened in the names of both Advocates, there is no evidence that either he or his Advocates were notified of
the opening of a Call Deposit Account or signed the account opening forms for the same, this is evidenced by the
statement of account which reveals that only the Defendant’ s Advocates are the Account holders, there is no telling
whether the said account has any relation with the account opened by both Advocates and the consent executed by the
parties, in any event, from the statement exhibited, it is evident that the Call Deposit Account has also not accrued
interest, the fact that the Defendant moved the Kshs 9,000,000/- to a dif ferent account which the Plaintif f has no control
over and without his consent is reason enough to grant the orders sought, he has no control of how the purported Call
Deposit Account is operated, the statement also reveals that the said account was opened on 14/09/2017 yet there is no
account of the interest that accrued from the date the Plaintif f deposited the Kshs. 9,000,000/- on 19/01/2017 to
September 2017 when the purported Call Deposit Account was opened. Hearing of the Application With concurrence of
the parties, I directed that they file written Submissions. Pursuant thereto, the Plaintif f filed Submissions on 26/10/2022
while the Defendant filed on 30/01/2022. Plaintif f’s Submissions Counsel for Applicant submitted that upon the consent
order being adopted, the Plaintif f released the Kshs. 9,000,000/- to the Respondent which amount was to be deposited in
a joint interest earning account in the names of the parties’ Advocates, upon receiving the amount, and in blatant
disregard to the Court order , the Defendant deposited the amount in a non interest earning account no. 01282130554700,
it is the Plaintif f’s fear that the Defendant may have appropriated the funds given that the Defendant has kept the Plaintif f
in the dark, further , the Defendant has also failed to deliver to the Plaintif f the Certificate of Lease over title no. Eldoret
Municipality/Block 6/6 and the duly executed dischar ge of Char ge over the same property in breach of the consent order ,
Order 45 of the Civil Procedure Rules empowers the Court to grant an order for Review where suf ficient grounds are
demonstrated, the Defendant’ s action to continue retaining funds million without any interest accruing is to the detriment
of the Plaintif f and the beneficiaries of the estate of the deceased, whereas the monies have been held at the Defendant’ s
bank since 2016 and the Defendant can trade in it for commercial gain, the Plaintif f has not benefited from the same as
he has not only been denied use of the funds but also denied the interest which would have automatically accrued if the
Defendant had complied with the terms of the consent order , it is because of the Defendant’ s action to defraud the
Plaintif f of the interest on the sum is suf ficient reason to warrant this Court’ s intervention to review the consent order and
allow the prayer to have the money deposited in account no. 01282130554700 transferred in an independent interest
earning account, to order the Defendant to provide the statement of account for the joint account between 21/12/2016 to
date and order the Defendant to account for the interest that ought to have accrued thereon since 2016 on the Kshs
9,000,000/-. She cited the case of Alberto Carnavale v Giovanni Gremmo [2005] eKLR. Counsel submitted further that
the Defendant’ s failure to release the title and dischar ge of Char ge for the property Eldoret Municipality/Block 6/6 which
would have enabled the estate of the deceased to put to good use the said property is suf ficient reason to grant the orders.
Defendant’ s Submissions Counsel for Applicant submitted that upon receipt of the Kshs 9,000,000/- from the Plaintif f,
the Defendant opened a Business Banking Account No. 01282130554700 in the joint names of the Advocates on record,
since the Court directed that the sums ought to incur interest, an ancillary account referred to as Call Deposit Account
No. 01400130554700 was opened for the sole purposes of earning interest, as at 25/10/2022, the interest stood at Kshs
2,348,867.71, in further compliance with the consent order , the Defendant also forwarded the duly executed dischar ge of
Char ge for the property Eldoret Municipality Block 6/6 to the Plaintif f, seemingly unaware of the above transactions,
rather than carrying out due diligence with the Defendant, the Plaintif f filed the present Application. According to
Counsel, the Plaintif f has not laid a foundation with regards to discovery of new and important evidence, or shown any
mistake or error apparent on the face of the record, or any suf ficient reason as to why the order ought to be reviewed. He
cited the case of Alpha Fine Foods Limited v Horeca Kenya Limited & 4 Others [2021] eKLR. He then submitted that
the Plaintif f has also not specified the ground upon which he is seeking review and cited the cases of Wilfred Murungi
Mboroki & 16 Others v Mutua Mugambi M’Rewa & 2 Others [2002] eKLR which, he submitted, quoted the case of
Otieno, Ragot & Company Advocates vs National Bank of Kenya Limited [2020] eKLR. Counsel submitted further that
in reality the Plaintif f seeks variation of the Court order , which cannot be said to be review , he attempts to re-write the | https://augmentin.io/casetext/case/Aggarwal__Suing_as_Administrator_of_the__Estate_of_Gurcharan_Dass_Aggarwal__v_National_Bank_of_Kenya_Limited__Civil_Case_5_of_2016__[2023]_KEHC_25383__KLR___17_November_2023___Ruling_.docx.pdf |
7f0899f081cb-1 | Otieno, Ragot & Company Advocates vs National Bank of Kenya Limited [2020] eKLR. Counsel submitted further that
in reality the Plaintif f seeks variation of the Court order , which cannot be said to be review , he attempts to re-write the
terms of the order rather than correct an error apparent. He cited the case of Hosea Nyandika Mosagwe & 2 Others v
County Government of Nyamira [2002] eKLR. He contended further that at no point has the Applicant ever sought for
the account statement, nothing would have been easier for the Plaintif f than walking to the bank and requesting for one.
Counsel concluded by maintaining that the order was fully complied with and as such all the prayers sought are moot, if
at all the Plaintif f is raising valid and legitimate concerns, then he would have taken the more drastic route of citing the | https://augmentin.io/casetext/case/Aggarwal__Suing_as_Administrator_of_the__Estate_of_Gurcharan_Dass_Aggarwal__v_National_Bank_of_Kenya_Limited__Civil_Case_5_of_2016__[2023]_KEHC_25383__KLR___17_November_2023___Ruling_.docx.pdf |
2d61137e292d-0 | Defendant’ s officers for contempt. Analysis & Determination The issue for determination in this matter is “whether the
Court should review , vary or set aside the consent order dated 21/12/2016 and also grant the consequential orders prayed
for”. It is trite law that any party seeking review of Court orders is bound by the provisions of Order 45 of the Civil
Procedure Rules. In respect thereto, Order 45 provides as follows: 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 suf ficient 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 . In Paul Mwaniki vs. National Hospital
Insurance Fund Board of Management [2020] eKLR, it was said: “… a review may be granted whenever the Court
considers that it is necessary to correct an apparent error or omission on the part of the Court. The error or omission must
be self-evident and should not require an elaborate ar gument to be established. It will not be a suf ficient ground for
review that another Judge could have taken a dif ferent view of the matter . Nor can it be a ground for review that the
Court proceeded on an incorrect exposition of the law and reached an erroneous conclusion of law . Misconstruing a
statute or other provision of law cannot be a ground for review .” It is therefore clear that Order 45 provides for three
circumstances under which an order for review can be made. The first one is where there has been discovery of new and
important matter or evidence. The second is where there has been a mistake or error apparent on the face of the record.
The third ground is “for any other suf ficient reason”. Although the Application does not disclose the ground under which
it has been brought, in the Submissions filed on his behalf, reference has been made to the ground of “for any other
sufficient reason” ground. Further , noting that the order in question was made pursuant to a consent letter signed by the
parties, it is imperative to note the circumstances within which a consent order can be reviewed, varied or set aside. On
this point, the Court of Appeal, in the case of Brooke Bond Liebig v Mallya 1975 E.A 266 held as follows: “A consent
judgment may only be set aside for fraud collusion, or for any reason which would enable the Court to set aside an
agreement.” Again, the Court of Appeal in the case of Kenya Commercial Bank Ltd. v . Specialized Engineering Co. Ltd
(1982) KLR P .485 held that; A consent order entered into by counsel is binding on all parties to the proceedings and
cannot be set aside or varied unless it is proved that it was obtained by fraud or by an agreement contrary to the policy of
the Court or where the consent was given without suf ficient material facts or in misapprehension or ignorance of such
facts in general for a reason which would enable the Court set aside an agreement. Finally , Hancox JA (as he then was),
in the case of Flora Wasike v . Destimo Wamboko (1982 -1988)1 KAR 625 stated as follows: “It is now settled law that a
consent judgement or order has contractual ef fect and can only be set aside on grounds which would justify setting a
contract aside, or if certain conditions remain to be fulfilled, which are not carried out ….. “ From my analysis of the
facts set out in the Application, the Plaintif f’s grievance is in regard to the manner in which the Defendant has chosen to
implement the consent order or the mode of compliance adopted, and not the contents thereof. Applying the above
principles to the matter at hand, I find that the Plaintif f has failed to demonstrate any basis for review , variation or setting
aside of the consent order . Although the Plaintif f has termed the Defendant’ s alleged failure to comply with the consent
order as an act of “fraud”, I do not find any circumstances giving rise to an inference of “fraud” on the part of the
Defendant. I therefore find that none of the recognized grounds for review of a consent order has been demonstrated.
Accordingly , I decline the invitation to review , vary or set aside the consent order dated 21/12/2016. This however is not
the end of the matter . The Plaintif f seeks orders to compel the Defendant to comply with the terms of the consent order .
On its part, the Defendant contends that it has fully complied with the order as directed. To demonstrate that it has so
complied, the Defendant exhibited a copy of the account opening Application Form signed by Advocates for both the
respective parties in respect to account No. 01282130554700 opened at the Defendant bank. Also exhibited is a copy of a
statement of account confirming the deposit of the said amount of Kshs. 9,000,000/- on 19/01/2017 into the account. The
same statement then indicates that subsequently on 14/09/2017, about 8 months later , a Call Deposit transfer of the whole
amount was made. The account therefore reflected a nil balance. There is however no evidence supplied to indicate under
whose instructions the transfer was made. There is also no evidence to confirm that the name of the Plaintif f’s Advocates
appears in the account as joint or co-account holders. There is also no evidence to demonstrate that the Defendant was
consulted or agreed or was even informed of this call deposit transfer . As regards the Call Deposit Account itself, the
Defendant has exhibited a statement bearing the account number 01400130554700 (a dif ferent number) indicating that
indeed the said Kshs 9,000,000/- was transferred thereto. However , the statement only bears the name of the Defendant’ s
Advocates with no reference whatsoever to the Plaintif f’s Advocates as joint holders. The Defendant has then exhibited
what appears to an extract of a further statement indicating that, as at October 2022, the Call Deposit Account had
accrued interest at an amount of Kshs 2,348,876.71/-. From the foregoing, my view is that the money is in safe custody
and available when required. I do not think that the Defendant’ s fears are merited. From my understanding, placing funds
in a Call Deposit for a specified period of time is a normal practice and is mostly adopted to attract higher interest on
dormant funds lying in a bank account. Needless to state however , it is the Account holder , the owner of the funds, not
the bank, who makes a request for such transfer and to whom, in any event, all the interest accrued belongs to, not the
bank. It is therefore very well possible, as I believe, that the transfer of the funds to the Call Deposit Account was done in | https://augmentin.io/casetext/case/Aggarwal__Suing_as_Administrator_of_the__Estate_of_Gurcharan_Dass_Aggarwal__v_National_Bank_of_Kenya_Limited__Civil_Case_5_of_2016__[2023]_KEHC_25383__KLR___17_November_2023___Ruling_.docx.pdf |
2d61137e292d-1 | the bank, who makes a request for such transfer and to whom, in any event, all the interest accrued belongs to, not the
bank. It is therefore very well possible, as I believe, that the transfer of the funds to the Call Deposit Account was done in
utmost good faith and meant, in the long run, to benefit and be advantageous to both parties. As aforesaid, perhaps it
would even fetch a higher interest and perhaps serve as a more convenient tool to the bank in handling the money .
However , being a consent order , the same must be implemented strictly as per its terms. It does not matter how well- | https://augmentin.io/casetext/case/Aggarwal__Suing_as_Administrator_of_the__Estate_of_Gurcharan_Dass_Aggarwal__v_National_Bank_of_Kenya_Limited__Civil_Case_5_of_2016__[2023]_KEHC_25383__KLR___17_November_2023___Ruling_.docx.pdf |
88672dc389cb-0 | intentioned the Defendant could have been when it transferred the funds to the Call Deposit Account. Save with the
concurrence of the Plaintif f, the Defendant had no right to unilaterally , and without consultation, transfer the funds to any
different Account, whether ancillary , associated, connected or related to the main account as ar gued by the Defendant. I
also agree with the Plaintif f’s observation that the Call Deposit Account statement reveals that the same was opened on
14/09/2017, about 8 months after the amount of Kshs 9,000,000/- was deposited by the Plaintif f on 19/01/2017 yet there
is no account or mention of any interest that accrued for that 8 months period as was required under the terms of the
consent order . Further , without evidence that the name of the Plaintif f’s Advocates appears in the Call Deposit Account
as a co-Account holder and without any evidence that the Call Deposit Account is even associated, ancillary , connected
or related to the main account as alleged, the Plaintif f is left with no avenue of assuring himself that his interest over the
account is secured. I therefore find that the Defendant’ s act of transferring the funds to the Call Deposit Account was
irregular , not necessarily in breach of the order , but clearly irregular . Regarding release of the Certificate of Lease for the
property Eldoret Municipality/Block 6/6 and the duly executed dischar ge of Char ge for the same property , the Defendant
has alleged that the same were released to the Plaintif f in January 2017. The Defendant has then exhibited a copy of the
letter dated 20/01/2017 which however only indicates release of the dischar ge of Char ge. Although in the Replying
Affidavit the Defendant has referred to a second letter dated 1 1/01/2017, no such letter appears among the exhibits as
indicated. I however note that the Plaintif f did not in his Supplementary Affidavit, comment on this allegation of release
of the said documents. The Court is therefore not in a position to ascertain whether indeed the said documents were
released in full. Final Orders In the premises, the Plaintif f’s Application dated 23/08/2022 only partially succeeds in the
following terms: The Defendant shall, within seven (7) days from the date hereof, with no deduction or any kind of
penalty levied against the account, re-transfer all the funds, monies or amounts placed in the Call Deposit Account
number 01400130554700 or any other Call Deposit Account, together with all interest accrued thereon from the date that
the account was opened, back into the main Account number 01282130554700 held at the Defendant bank and ensure
that, at all times, the name of the Plaintif f’s Advocates, namely , Nyairo & Co. Advocates appears and/or is included as a
joint or co-holder of the account, together with the Defendant’ s Advocates and also ensure that the account is and
remains, at all times, interest earning. For avoidance of doubt, interest on the amount of Kshs 9,000,000/- paid or
deposited by the Plaintif f into the account number 01282130554700 shall or is required to have accrued as from
19/01/2017, the date when the amount was paid or deposited by the Plaintif f. If by its nature, the main account number
01282130554700 is not capable of attracting interest, then the Defendant must, with the approval and/or concurrence of
the Plaintif f, forthwith open a new interest earning bank account in the joint names of the Advocates on record for the
respective parties and deposit all the funds, including interest accrued to date, into the new account. In whatever case, the
Defendant must still account for and remit the interest that was required to have accrued as from 19/01/2017, the date
when the amount of Kshs 9,000,000/- was paid or deposited by the Plaintif f. The Defendant shall, within fourteen (14)
days from the date hereof, and at no cost to the Plaintif f, supply to the Plaintif f, up to date statement or statements of
account showing the manner in which the amount of Kshs 9,000,000/- deposited and/or paid by the Plaintif f to the
Defendant pursuant to the said consent order dated 21/12/2016 has been handled or applied, as from the date when the
amount was paid and/or deposited, to the present date, including interest accrued thereon. Thereafter , the Defendant shall
continue to provide to the Plaintif f regular quarterly statements of account for each year as from the date hereof, not later
than on the 5th day of the next quarter of each year . Regarding release by the Defendant of the Certificate of Lease for
the property Eldoret Municipality/Block 6/6 and the duly executed dischar ge of Char ge for the same property to the
Plaintif f, in the event that the same have not yet been so released as directed in the consent order dated 21/12/2016, then
the Defendant shall forthwith, and in any event not later than seven (7) days from the date hereof release the same to the
Plaintif f. Costs of the Application is awarded to the Plaintif f. The parties shall now take steps to ensure expeditious
prosecution of this suit. DELIVERED, DA TED AND SIGNED AT ELDORET THIS 17TH DA Y OF NOVEMBER 2023
………………….. WANANDA J. R. ANURO JUDGE | https://augmentin.io/casetext/case/Aggarwal__Suing_as_Administrator_of_the__Estate_of_Gurcharan_Dass_Aggarwal__v_National_Bank_of_Kenya_Limited__Civil_Case_5_of_2016__[2023]_KEHC_25383__KLR___17_November_2023___Ruling_.docx.pdf |
4a798122779d-0 | REPUBLIC OF KENY A IN THE EMPLOYMENT AND LABOUR RELA TIONS COUR T OF KENY A AT NAIROBI
MISCELLANEOUS CAUSE NO. E157 OF 2023 OLIVER THANDI MUNYUA APPLICANT - VERSUS - ABSA
BANK KENY A PLC……………...………RESPONDENT (Before Hon. Justice Byram Ongaya on Friday 17th
November , 2023) RULING The applicant filed the application dated 03.10.2023 through J.A. Guserwa &Company
Advocates. It was under Articles 41 and 47 of the Constitution and Rule 17 of the Employment & Labour Relations
Court (Procedure) Rules 2016 and all other enabling provisions of law . The prayer is for grant to the applicant leave to
file his petition out of time and the annexed petition be admitted by the Court for hearing and determination, and, costs of
the application. The application is based upon the annexed applicant’ s supporting af fidavit and is ur ged as follows: The
applicant was in the lawful employment of the respondent as the Branch Operations Of ficer since 2008. By letter dated
23.03.2018 the respondent terminated the applicant’ s position unlawfully and contrary to his right to fair labour practices.
He applied for a review by his letter dated 29.03.2018 but the appeal against the summary dismissal was upheld by the
respondent’ s letter dated 10.05.2018. The applicant was subjected to criminal proceedings that were determined on the
25.05.2023 long after the time for filing the instant suit had expired. It was a decision upon appeal before the High Court
(Grace L. Nzioka J). The applicant seeks to be compensated by the respondent, his former employer . The respondent
filed the replying af fidavit of Mikah Gachanja, respondent’ s Legal Counsel sworn on 18.10.2023 together with grounds
of opposition both filed through Mboya Wangongu’u & Waiyaki Advocates. The grounds of opposition were as follows:
Section 90 of the Employment Act does not admit of any leave to file a petition out of time of limitation of 3-years for
disputes relating to contracts of employment. Part III of the Limitation of Actions Act Cap 22 does not apply as to permit
leave as prayed for to file the petition. The petitioner has not advanced a good reason for not filing the petition or claim
prior to lapsing of the time of limitation. The application is unduly delayed filed 130 days after the decision in the
criminal appeal delivered on 25.05.2023. The cause of action accrued more than 5-years ago. It is prejudicial to require
the respondent to defend such action but for the applicant’ s indolence. The proposed suit has low chances of success
because the summary dismissal was with due procedure and a fair reason. Further , the Court in the criminal appeal
judgment found the applicant had not conducted due diligence and was negligent. No material is exhibited to support the
proposed petition. Submissions were filed for the parties. The Court has considred the material on record. The only issue
is whether the Court should exercise discretion in favour of the applicant to grant leave for filing of petition belatedly and
the time of limitation under section 90 of the Employment Act, 2007 having lapsed. As ur ged for the respondent there is
no disabling ground established why the applicant failed to file suit prior to lapsing of the time of limitation in section 90
of the Act. It is that a petition to enforce fundamental freedoms and rights can be entertained belatedly despite statutory
time of limitation provided the petitioner establishes the disabling circumstances that may have made it impossible to
move the Court within the prescribed time lines. Such factors have not been established and even if they existed, the
procedure would be to simply file the petition as merited and any objections in that regard established and ur ged in the
petition if objections on time of limitation are raised. The Court considers that where petitions are entertained despite
periods of limitation, it is not that the Court is then granting leave but that in the circumstances the cause of action in the
petition is found valid as ur ged and, in the circumstances, not being ur ged on the basis of leave granted. The Court finds
that no provision of law has been ur ged granting the Court the jurisdiction or pwer to extend time or grant leave as
prayed for . It appears that, as submitted for the respondent, after the summary dismissal and rejection of the
administrative appeal or review , the cause of action crystallised but the applicant of fers no explanation why he failed to
promptly move the Court. The Court has considered all the circumstances including the acquittal in the criminal appeal
and returns no orders on costs. The application is hereby dismissed with no orders on costs. Signed, dated and delivered
by video-link and in court at Nairobi this Friday 17th November , 2023. BYRAM ONGA YA PRINCIP AL JUDGE | https://augmentin.io/casetext/case/Munyua_v_ABSA_Bank_Kenya_PLC__Miscellaneous_Cause_E157_of_2023__[2023]_KEELRC_2941__KLR___17_November_2023___Ruling_.docx.pdf |
b151ffc732ce-0 | REPUBLIC OF KENY A IN THE EMPLOYMENT AND LABOUR RELA TIONS COUR T OF KENY A AT NAIROBI
PETITION NO. E25 OF 2023 (Formerly ELRC Petition No. E009 OF 2021 at Nyeri) MESHACK KHISA PETITIONER
- VERSUS - KENY A PLANT ATION AND AGRICUL TURAL WORKERS UNION RESPONDENT (Before Hon.
Justice Byram Ongaya on Friday 17th November , 2023) RULING The respondent has filed a notice of preliminary
objection on a point of law application dated 24.03.2023 through Aduda & Company Advocates. The petitioner is in
person. The preliminary objection challenges the jurisdiction of the Honourable Court to hear and determine the matter ,
and was made upon the following grounds: That the instant application has been filed in gross violation of the
constitutional principle of avoidance. That the instant petition does not raise any constitutional question(s) for the
determination of this honourable court. That the instant petition is a gross abuse of due process as the exists suf ficient
statutory remedies to invoke That the instant petition is filed in gross abuse of due process as the same has purported to
constutionalize an ordinary employer -employee dispute. That arising from above and as held by the supreme court of
Kenya in the case of Communication Commission of Kenya & 5 others versus Royal Media Services Ltd Supreme Court
of Kenya at Nairobi Petition no. 14 of 2014 this Honourable Court does not have the jurisdiction to hear and determine
this petition and therefore the petition ought to be dismissed with costs. That arising from the above and as was held by
the court of appeal in the case of Francis Gathugu Vs. Kenyatta University Civil Appeal no. 279 of 2013 any willy nilly
attempt at constitutionalizing every common dispute must be discovered, named and rebuf fed. That arising from the
above and as was held in the case of the Owners of motor vessel ‘lilian S’ versus Caltex Oil (Kenya)(1989) [1KLR], a
court without jurisdiction cannot proceed with the proceedings. Further to the above that jurisdiction is everything and
without it a court cannot make one more step. And finally , further to the above, a question as to the jurisdiction of the
court must be heard and determined in priority to any other proceedings. The consequent upon the above, the respondent
will at the hearing of this preliminary objection of law ur ge the honourable court to dismiss this petition with costs. The
petitioner swore a replying af fidavit on 28.04.2023 in response to the respondent’ s notice of preliminary objection, and
stated thus: That the Honourable Court was moved through the notice of motion application dated 08.07.2021
(consolidated with the present petition) under all enabling provisions of the law including all the inherent powers of the
Employment and Labour Relations Court under sections 1A,1B, 3A and 63(c) of the Civil Procedure Act, 2010, Order 51
rule 1 of the Civil Procedure Rules 2010 as read together with the Employment & Labour Relations Court (Procedure)
Rules, 2016. That the petition raises triable issues to the Honourable Court over the manner and style which the
respondent repudiated or breached the petitioner ’s contract of employment, a matter that falls within the purview of the
provisions of section 12 (1)(a) of the employment & labour relations court act, laws of Kenya. That the petition is a
formal application which falls within the purview of the provisions of section 12 (2) of the Employment & Labour
Relations Court Act, as read together in the cited rules set out in rule 2 of the interpretation of legal notice no 146 of 2016
of the Employment & Labour Relations Court (Procedure) Rules 2016 where it is interpreted in the rules unless the
context so requires. That the petitioner has moved the Honourable Court in the present application, claim or complaint in
the form of a petition which is a formal application made to the Court in accordance with the provisions of section 12(2)
of the Employment & Labour Relations Court Act laws of Kenya seeking jurisdictional action against the respondent
action for breach of his employment contract. That the decision in Communication Commission of Kenya & 5 others
versus Royal Media Services Ltd Supreme Court of Kenya at Nairobi Petition no. 14 of 2014 together with the cited case
of Francis Gathugu Vs. Kenyatta University Civil Appeal no. 279 of 2013 are all distinguishable from the present case in
that the principle of avoidance was applicable in cited case laws. That the cited authorities are inapplicable in the instant
case and the right case law applicable to this matter is United States International University Vs. Attorney General & 2
others (2012) eKLR equally Karisa Chengo & 2 others Vs. Republic Civil Appeal No. 44, 45 & 76 of 2014 (2015) eKLR
and as held in the case of Owners of motor vessel ‘Lilian S’ v. Caltex Oil Kenya (1989) 1KLR1. That as a result of the
authorities aforesaid, it is clear that the petition is sustainable against the respondent for breach of both the petitioner ’s
contractual and constitutional right to fair hearing and fair administrative action contemplated under Article 50(1) and
(2). Article 47 of the constitution of Kenya as read together with the provisions of Rule 8(g), (h), (i) and (ii) of the
respondent union constitution which raises triable issues that require the Court to probe and analyse facts of the case
against each and every breach of right and fundamental freedom raised in the petition thereafter make a finding on the
basis of its merit. That these are constitutional questions which the Court is seized with through the petition. The Court
has jurisdictional authority to interpret and apply the constitutional issues raised in the present employment dispute and
provide redress to violations of his constitutional rights in matters falling under its jurisdiction in line with the present
case. That the preliminary objection filed is not on a point of law but raises a procedural technicality , an objection on the
form used by the petitioner to approach the Court on a dispute of right to fair hearing, fair trial and right to due process of
the law as opposed to the principle objective that established this court to ef fect substantive justice by facilitating the just,
expeditious, ef ficient and proportionate resolution of disputes in line with section 3 of the Employment & Labour
Relations Court Act. That under Article 159 of the Constitution of Kenya the Court is bound by mandatory terms to
exercise its judicial authority without undue regard to procedural technicality such as the one raised in the preliminary
objection filed by the respondent. The preliminary objection does not meet the threshold of what a preliminary objection
is as outlined in the case of Mukisa Biscuits Co. Ltd Vs. West- end distributors ltd (1966) EA 696 and also as set out in
Avatar Sing Bhamra & Another V. Oriental Commercial Bank, Kisumu High Court Civil case No. 53 of 2004. The
parties filed their respective submissions. The court has considered the parties’ respective positions and makes finding as | https://augmentin.io/casetext/case/Khisa_v_Kenya_Plantation_and_Agricultural_Workers_Union__Petition_E25_of_2023__[2023]_KEELRC_2943__KLR___17_November_2023___Ruling_.docx.pdf |
b151ffc732ce-1 | Avatar Sing Bhamra & Another V. Oriental Commercial Bank, Kisumu High Court Civil case No. 53 of 2004. The
parties filed their respective submissions. The court has considered the parties’ respective positions and makes finding as
follows. The only issue is whether the petition is trapped by the principle of constitutional avoidance. The answer lies
largely in the pleadings. The petitioner has alleged violation of his rights and fundamental freedoms including Articles | https://augmentin.io/casetext/case/Khisa_v_Kenya_Plantation_and_Agricultural_Workers_Union__Petition_E25_of_2023__[2023]_KEELRC_2943__KLR___17_November_2023___Ruling_.docx.pdf |
34e46362e16c-0 | 41, 50(1) and 47 (1) of the Constitution as set out in paragraphs 36 to 45 of the petition. The petitioner prays for a
declaration that his rights and fundamental freedoms were violated. How then can the Court decide the issues without
taking evidence on the express alleged constitutional violations? It appears that as ur ged for the petitioner , the
preliminary objection will collapse as whether rights and fundamental freedoms were violated is in dispute and is a
matter which must go to full hearing and determined after taking evidence. The preliminary objection fails to pass the
threshold and will fail. In conclusion the preliminary objection dated 24.03.2023 is hereby dismissed with costs in the
cause and parties to fix the matter for further directions for expeditious determination of the petition. Signed, dated and
delivered by video-link and in court at Nairobi this Friday 17th November , 2023. BYRAM ONGA YA PRINCIP AL
JUDGE | https://augmentin.io/casetext/case/Khisa_v_Kenya_Plantation_and_Agricultural_Workers_Union__Petition_E25_of_2023__[2023]_KEELRC_2943__KLR___17_November_2023___Ruling_.docx.pdf |
ed719b70540c-0 | REPUBLIC OF KENY A IN THE EMPLOYMENT AND LABOUR RELA TIONS COUR T OF KENY A AT
MACHAKOS CAUSE NO.E006 OF 2022 P ATRICK MWONGERA NJIIRI CLAIMANT - VERSUS - MARS
WRIGLEY CONFECTIONER Y (K) LIMITED..................................................................RESPONDENT (Before Hon.
Justice Byram Ongaya on Friday 17th November , 2023) JUDGMENT The claimant filed the Memorandum of claim on
27.04.2022 through Kyalo Muia & Company Advocates. The claimant prayed for judgment against the respondent for: A
declaration that the claimant’ s termination of employment by the respondent was unlawful, unfair and in breach of the
provisions of the Employment Act Cap 226, laws of Kenya. An order be made directing the respondent to pay the
claimant all his terminal dues. An order be made directing the respondent to pay the claimant damages under the Labour
Institutions Act, 2007. General damages for wrongful, unlawful and unfair termination of employment. General damages
for loss of expected earnings. Costs of the suit and interest. Any other or further relief as this Honourable Court may
deem fit and just. The memorandum of response was filed on 14.07.2022 through Obura Mbeche & Company Advocates.
The respondent prayed that the suit be dismissed in its entirety with costs to the respondent. The claimant’ s case was that
he was employed by the respondent as a machine operator from 09.01.2017 up to 15.03.2022 when his services were
unlawfully terminated by the respondent. The claimant states that at the time of the termination of his employment, he
was earning a basic salary of Kshs.106,542/=. The claimant states that during his employment with the respondent, a
period of five years, he was a diligent and committed employee and never received a warning letter . That on the night of
02.03.2022 he was on night shift when an accident occurred past 10:30 pm. That while he was picking glucose from a
rack by moving the machine called Walk Behind, the tank tipped sideways to the left hand side and fell to the ground.
The claimant states that he reported the incident to his line manager , one Madam Christine, who advised that he takes
photographs and sends the same to her . The claimant states that with the help of the night shift manager , one Madam
Janet, they secured the fallen tank and confirmed that there was no spillage or damage to the same and the glucose was
then taken to an area called the Hot box. The claimant pleaded that the incident was an accident, and that despite his
written explanation, the respondent proceeded to terminate his services. On the part of the respondents it is admitted that
the claimant was an employee of the respondent, however , it is stated that he earned a monthly basic salary of Kshs
53,271 and a monthly house allowance of Kshs.10,609.63. That on 02.03.2022 while on night shift duty , the claimant
was involved in a safety incident at the raw material warehouse where he tempered with ideal working conditions before
undertaking movement of 1.3T glucose resulting in topping of a pallet of glucose 39 from the walk behind owing to the
unsafe working conditions. That arising from that incident the claimant was invited to show cause by way of the
respondent’ s letter dated 07.03.2022 as preliminary investigations had revealed that the claimant had intentionally
switched of f the lights in the area before undertaking the activity . That the claimant tendered his written response on
08.03.2022 admitting to switching of f the lights in the incident area before undertaking transfer of the glucose which
action was in breach of the established respondent’ s incorporated, level 2, SES: SES Guideline. That as a consequence
the claimant was issued with a letter dated 08.03.2022 inviting him to a disciplinary hearing which was held on
09.03.2022, where he was accorded an opportunity to be heard. That thereafter his employment was terminated ef fective
15.03.2022. with the responded computing and paying his terminal dues at the sum of Kshs.378,229.33. That at the time
of termination the claimant had an ongoing bank loan of Kshs.534,793.70 and the respondent deducted the monthly
payment of Kshs.28,828. The respondent maintains that the claimant’ s termination was lawful, procedural and for
justifiable reason. The parties filed their respective submissions. The Court has considered the parties’ respective cases
and makes finding as follows. To answer the 1st issue, the Court returns that the parties were in a contract of service. To
answer the 2nd issue, the Court returns that the contract of service was terminated by the letter dated 15.03.2022. To
answer the 3rd issue, the Court returns that the termination was not unfair both in procedure and substance. In particular ,
the claimant received the show cause letter , he responded, he attended the disciplinary hearing and the letter of
termination followed. Due procedure of a notice and a hearing per section 41 of the Act was accorded to the claimant per
section 41 of the Employment Act, 2007. In the letter dated 08.03.2022 the claimant admitted allowing unauthorised
persons to access to a restricted area and further , in his testimony , he admitted switching of f lights. He is found to have
indeed breached the operating standards as was alleged and leading to his dismissal. He confirmed switching of f some of
the lights in an area of operation but. the operating standards as prescribed, required such an area not to have partial
lighting. He confirmed that he had thereby breached the operating standard not to switch of f the lights and for the area to
be well lit with the light from the lights, some of which he had switched of f. After the accident, he admitted in his
testimony that his line manager accessed the restricted area but without the prescribed written permission. He also
confirmed that prior to the Manager accessing another person known as Richard had also accessed the area in breach of
the operating standard as Richard had no written permission or permit. He then testified that it was his obligation to issue
access permits but he had not signed and completed the permit form he had initially given to Richard prior to the
accident. He dropped prayer for terminal dues as they had been paid. Further , he testified that he had not performed his
duties on discussing with his team of five (5) members and signing the risk assessment document per operating
standards. The Court finds that the reason for termination was not unfair as envisaged in section 43 of the Act as it related
to the claimant’ s contact, compatibility and the beach of the respondent’ s operational requirements. The 4th issue is on
remedies. No submissions were made for the claimant to specifically justify the remedies as claimed and prayed for . As
urged for the respondent, none is justified. The claimant’ s suit has failed and is liable to dismissal with costs. In
conclusion judgement is hereby entered for the respondent against the claimant for dismissal of the suit with costs; and, | https://augmentin.io/casetext/case/Njiiri_v_Mars_Wrigley_Confectionery__K__Limited__Cause_E006_of_2022__[2023]_KEELRC_2951__KLR___17_November_2023___Judgment_.docx.pdf |
ed719b70540c-1 | remedies. No submissions were made for the claimant to specifically justify the remedies as claimed and prayed for . As
urged for the respondent, none is justified. The claimant’ s suit has failed and is liable to dismissal with costs. In
conclusion judgement is hereby entered for the respondent against the claimant for dismissal of the suit with costs; and,
the Deputy Registrar to cause the court file returned to the Machakos Sub-Registry forthwith. Signed, dated and | https://augmentin.io/casetext/case/Njiiri_v_Mars_Wrigley_Confectionery__K__Limited__Cause_E006_of_2022__[2023]_KEELRC_2951__KLR___17_November_2023___Judgment_.docx.pdf |
8be58b88b40f-0 | delivered by video-link and in court at Nairobi this Friday 17th November , 2023. BYRAM ONGA YA PRINCIP AL
JUDGE | https://augmentin.io/casetext/case/Njiiri_v_Mars_Wrigley_Confectionery__K__Limited__Cause_E006_of_2022__[2023]_KEELRC_2951__KLR___17_November_2023___Judgment_.docx.pdf |
619dbd4b4b9d-0 | REPUBLIC OF KENY A IN THE HIGH COUR T OF KENY A AT MAKUENI IN THE HIGH COUR T OF KENY A AT
MAKUENI CONSTITUTIONAL PETITION (REV) NO. 127/2022. IN THE MA TTER OF ARTICLES 22(1) 23 (1) (3)
(d), 24(1) (d), 2(a) (b) (c), 25 (a), 20 (1) (2) (3) (a), 47, 48, 51(1), 52, 159, 165 (3) (d) (ii), 258(i) & (ii), 259(i), 27, 48, &
165 OF THE CONSTITUTION OF KENY A AND SECTION 3 & 4 OF THE PROBA TION ACT (SIC) CAP 64 LA WS
OF KENY A. AND IN THE MA TTER OF SECTION 3(b) OF THE COMMUNITY SER VICE ORDERS ACT NO. 10
LAWS OF KENY A. WILSON MWOLOLO MASESI ………………………….………. APPLICANT VERSUS
REPUBLIC ………………………………………………..…...…… RESPONDENT JUDGMENT Through a certificate
of ur gency filed on 22th April 2022 the petitioner filed a Notice of Motion together with the petition on the basis that his
rights under Articles, 23, 24 & 25, read together with Article 50(2) have been violated - that Section 3 and 4 (2) of the
Probation of Of fenders Act are applicable to him and that Section 333 of the Criminal Procedure Code should be applied
to him. I have perused the petition, the af fidavit in support, the record in HCCRA 2/2019. The petitioner was char ged
with three counts of Sexual Assault Contrary to Section 5(1) (a) (1) (2) of the Sexual Of fences Act. He was convicted and
sentenced to 10 years’ imprisonment on each count to run concurrently on 17th December 2018 in Kilungu MC SOA
18/18. He then filed an appeal - HCCRA 2/19. On 1 1th October 2019 the High Court dismissed his appeal against the
conviction and sentence - and directed that the sentence to run from the date of his arrest. In support of his petition the
petitioner filed submissions on 6th October 2022. He submitted that he was an old man “to waste all those years in
custody” and was seeking a non-custodial sentence. He ur ged the court to set him free. On its part the state objected to
the petition - that the petitioner had filed an appeal which had been determined by court of equal jurisdiction and was
seeking this court to sit on appeal of another Judge’ s judgment. That the period spent in custody pending the hearing and
determination of his case in the subordinate court was considered during the appeal. That the petition had no merit. The
issue for determination is whether the petition/application for revision has any merit. It is true that the petitioner did file
an appeal no. 2/2019 which was heard and determined by the Hon. Justice C. Kariuki. That the court dismissed his
appeal, sustained the conviction and the sentence and directed that the sentence to start from the date the appellant was
arrested. In the circumstances - Section 333 of the Criminal Procedure Code is not applicable to the petitioner . With
respect to alleged violation of his rights - there is no evidence that the applicant has given to this court to demonstrate
that any of the rights he alleges to have been violated were violated. As to whether the applicant should serve a non-
custodial sentence the petitioner gives the reason/ground - that he is too old to waste all that time in prison – really? The
petitioner is not seeing the value of his imprisonment as a consequence of a legitimate sentence - if he considers it a
waste of time - then perhaps he has not appreciated the fact that he was found guilty of a sexual of fence. In addition, his
appeal against the conviction and sentence was dismissed, the conviction and sentence upheld by this court. It is my view
that the orders sought by the petitioner are actually a further appeal disguised as a petition/ criminal revision. They can
only come from the superior court. In the circumstances the petitioner/revision is without merit, the same is dismissed
accordingly . Dated signed and delivered this 17th day of November 2023
………………………………………………………………………. Mumbua T. Matheka Judge CA -Mwiwa Appellant -
present For State - Kazungu | https://augmentin.io/casetext/case/Masesi_v_Republic__Constitutional_Petition_127_of_2022__[2023]_KEHC_25430__KLR___17_November_2023___Judgment_.docx.pdf |
c7efcfc57b0e-0 | IN THE HIGH COUR T AT NAIROBI CIVIL DIVISION (APPELLA TE SIDE) CORAM: D. S. MAJANJA J. CIVIL
APPEAL NO. E187 OF 2022 BETWEEN NGUI KA TUVI
………………..…………………………………..………………... 1ST APPELLANT DERICK KY ALO KISALU
…………….…….………………………………….… 2ND APPELLANT AND JOHN WAKIRI KIRE
………………………………………………………………... RESPONDENT (Being an appeal from the Ruling and
Order of Hon. K. O. Gweno, Adjudicator/RM dated 23rd March 2022 at Milimani Small Claims Court Case No. E530 of
2021) JUDGMENT The appeal herein emanates from a ruling by the Small Claims Court declining to set aside an ex-
parte judgment entered against the Appellants. By the judgment dated 17.12.2021 (“the Judgment”), the Small Claims
court found the Appellants fully liable for a road traf fic accident that took place on 16.06.2021. The Respondent suf fered
injuries as a result of the accident and was awarded an aggregate sum of Kshs. 450,000.00 comprising general damages,
special damages and lost earnings. Execution of the decree by the Respondent caused the Appellants to lodge an
application dated 04.02.2022 seeking to set aside interlocutory judgment entered against it. In his supporting af fidavit,
the Respondent stated that he came to learn of the Judgment as a result of the execution. He requested to cross-examine
the deponent of the process server regarding the mode of service and that they be allowed to file the Response to the
Statement of Claim as their defence raises triable issues. In his response to the application, the Respondent’ s advocate
opposed the application on the ground that that the judgment was regular and no basis had been made to set aside the
Judgment as the Appellants advocates had been notified of the proceedings and despite being served they failed to
participate in the proceedings. The Adjudicator considered the application and held that since the Appellants had not
contested service, the Judgment was regular . That the Appellants did not give any reasons why they did not file their
defence on time and the court declined to exercise discretion in their favour . As this is an Appeal from the Small Claims
Court, the jurisdiction of the Court is circumscribed by section 38 of the Small Claims Court Act (“the SCCA”) which
limits appeals to matters of law . This means the Court can only intervene if the evidence on record does not reasonably
support the conclusions made by the trial Court. Under section 43 of the SCCA, the court may on application of any
party to the proceedings set aside any of its orders and make such orders as it thinks just. This jurisdiction, as with the
jurisdiction of the ordinary courts to set aside default judgment is wide and unfettered and the appellate court will not
interfere with the decision of the trial court unless it is satisfied that the judge in exercising his discretion has misdirected
himself in some matter and as a result has arrived at a wrong decision, or unless it is manifest from the case as a whole
that the judge has been clearly wrong in the exercise of his discretion and that as a result there has been an injustice (see
Mbogo v Shah [1968] EA 93 and United India Insurance Co. Ltd and Others v East African Underwriters (Kenya) Ltd
NRB CA Civil Appeal No. 36 of 1983 [1985] eKLR). From the record, the default judgment was entered on 1 1.11.2021
by the Adjudicator who was satisfied the Respondents were duly served. Thereafter the court fixed the matter for formal
proof on 21.1 1.2021 on which day it proceeded for formal proof and judgment was duly reserved. While the Appellants
refute service of the Statement of Claim, in ground (c) of the application dated 04.02.2022, they state as follows: The
Respondents/Applicants had instructed the firm of Kimondo Gachoka & Company Advocates to come on record on their
behalf and the said firm (filed its) Memorandum of Appearance and Response to the Statement of Claim dated 2nd
December 2021 and served upon the firm on record for the Claimant/Respondent on 8th December , 2021 and further
wrote various letter(s) dated 26th November 2021 and 30th December 2021 which were received by the firm but no
disclosure was made to the firm of Kimondo & Gachoka and Co. Advocates that there was an interlocutory judgment
against their client or that the matter was coming up for hearing mention or judgment. This statement was confirmed by
the Respondent hence the Adjudicator was correct to come to the conclusion that in fact Appellants were duly served
hence the interlocutory judgment was regular . Further by the time the Appellants purportedly entered appearance and
filed their Response to the Claim on 02.12.2021, interlocutory judgment had been entered, the formal proof had
proceeded and the judgment reserved for 17.12.2021. I use the word purported because the entry of interlocutory
judgment debarred the Appellants from filing their Response to the Claim unless that interlocutory judgment was set
aside. Even where the judgment is regular , the court may yet proceed to set aside the judgment if justice of the case
demands, particularly where the defendant demonstrates that it has a good defence and any prejudice caused by setting
aside may be assuaged by an award of costs (see Tree Shade Motors Limited v D T Dobie and Company (K) Ltd and
Another [1998] eKLR). While the Appellants did not explain why they failed to file their Response to the Claim within
the time prescribed, the Adjudicator did not consider whether the Appellants had a good defence or whether indeed any
prejudice could be assuaged by an order for costs. In this case, it is clear that by purporting to file memorandum of
appearance and the Response to the Claim the Appellants demonstrated an intention to defend the claim. As to whether
the Appellants’ response raised a triable issue, is clear that the Respondent was a pedestrian and thus the issue of whether
the Appellants were fully liable or whether the Respondent contributed to the accident was a live issue. I also hold that
this is a case where costs and a conditional order would suf ficiently protect the Respondent. Having reached the aforesaid
conclusion, I allow the appeal and order as follows: The interlocutory judgment entered against the Appellants on
11.11.2021 and the judgment of 17.12.2021 is set aside on the terms hereunder . The Appellants shall deposit the decretal
amount in a joint interest earning account in the names of the Advocates of the Appellants and the Respondent within 21
days from the date hereof. The Appellants shall pay costs of the proceeding in the Subordinate Court and of this Appeal | https://augmentin.io/casetext/case/Katuvi___another_v_Kire__Civil_Appeal_E187_of_2022__[2023]_KEHC_25363__KLR___17_November_2023___Judgment_.docx.pdf |
c7efcfc57b0e-1 | amount in a joint interest earning account in the names of the Advocates of the Appellants and the Respondent within 21
days from the date hereof. The Appellants shall pay costs of the proceeding in the Subordinate Court and of this Appeal
assessed at Kshs. 35,000.00 within 21 days from the date hereof. The Response to the Claim filed in the Small Claims
Court shall be deemed as duly filed and served. The matter is referred back to the Small Claims Court for disposal.
DATED and DELIVERED at NAIROBI this 17th day of NOVEMBER 2023. D. S. MAJANJA JUDGE Mr Njuguna | https://augmentin.io/casetext/case/Katuvi___another_v_Kire__Civil_Appeal_E187_of_2022__[2023]_KEHC_25363__KLR___17_November_2023___Judgment_.docx.pdf |
86434aed2b8a-0 | instructed by Kimondo Gachoka and Company Advocates for the Appellants. Mr Abdirazak instructed by Roba and
Associates Advocates for the Respondent. | https://augmentin.io/casetext/case/Katuvi___another_v_Kire__Civil_Appeal_E187_of_2022__[2023]_KEHC_25363__KLR___17_November_2023___Judgment_.docx.pdf |
ef8ad0794f41-0 | REPUBLIC OF KENY A IN THE HIGH COUR T OF KENY A AT NAIROBI CIVIL APPEAL NO. 461 OF 201 1 TOM
K’OPERE trading as T. O K’OPERE & CO. ADVOCA TES.............................. APPELLANT -VERSUS- THE
DISCIPLINAR Y COMMITTEE OF THE LSK...............................................1ST RESPONDENT SISTER MAR Y
DOMINIC SA VIO AKOTH.... 2ND RESPONDENT (Being an appeal from the judgment of the Disciplinary Committee
of the Law Society of Kenya given on 12/09/201 1 in D. C. no. 26of 201 1) JUDGMENT The 2nd respondent filed a
complaint against the appellant at the Laws Society of Kenya being D.C. No. 26 of 201 1. The complaint was in respect of
the appellant’ s failure to release to the 2nd respondent’ s documents received by his firm on behalf of the 2nd respondent.
The documents were in respect of land parcel TITLE NO. WESTKASIPUL/KARABACH/599 (hereafter referred to as
the suit property) situated at Rachuonyo which the 2nd respondent allegedly bought by way or public auction from
National Bank of Kenya(NBK). A brief background of this case was that the owner of the suit property (Richard Omanya
(now deceased)) char ged the suit property to the National bank of Kenya (NBK) to secure a loan of kshs.300,000. The
deceased was running a school at the suit property which collapsed and the deceased converted it into a health centre.
When the health centre did not do well, the deceased leased the health centre to the second respondent. The deceased was
unable to service the loan and the bank (NBK) invoked its statutory power of sale. The appellant thereafter participated in
negotiations between the family of the deceased and the 2nd respondent in which the 2nd respondent of fered to buy 5
acres of the suit property comprising the Health centre for ksh.3,000,000. Subsequently the 2nd complainant purchased
the entire suit property at an auction held on 7/12/2001 at Kshs. 1,500,000. The appellant refused to release the
documents he was holding in respect of the suit property and the 2nd respondent filed the complaint at the LSK on
16/3/201 1. The 1st respondent found that the appellant was guilty of professional misconduct for reasons that he released
the title documents of the suit property to one of the parties after acting for both the family of the deceased and the 2nd
respondent in the transaction. The 1st respondent said that as advocate acting for both parties, the appellant was under a
duty to balance the parties’ interests and not to favour one party over another . The 1st respondent also stated in their
judgment that the appellant was in breach of his professional responsibility by releasing the title documents of the suit
property to one of the parties. The 1st respondent said that the appellant ought to have returned the documents to the
bank (NBK) instead of releasing them to the family of the deceased. The Appellant filed an interpleader suit in Nairobi
and the case was transferred to Kisumu ELC court where it was determined. The appellant is aggrieved with the decision
of the 1st respondent and he filed this appeal on the following grounds; The entire judgment/order/conviction is contrary
to law in that it totally ignores the Provisions of the Land Control act – Cap 302 Laws of Kenya and more specifically
Sections 6, 8 and 22 thereof in the manner the advocate made his decision not to release the title documents to the
complainants. The Disciplinary committee erred both in law and fact in holding that the appellant/advocate withheld
completion documents of a transaction which transaction was void in law and any furtherance thereof would constitute a
criminal of fence in terms of Section 22 of the Land Control Act there being no consent from the Land Control Board as
required under Section 6 and 8 thereof, no purpose would have been achieved by releasing the title documents which
were still in the name of the deceased to the complainants. The judgment/order/conviction is premised on the
purport/presumption that the 2nd respondent/ complainant was a client of the appellant/advocate when there is no
evidence tendered in support to show:- Any instructions given by the 2nd respondent to the advocate, written or
otherwise as by the law required. Any direct communication between the complainants and the advocate to suggest any
instructions. Any payment of fees or commitment to pay fees so as to create advocate-client relationship. Clear admission
of fact that the advocate was representing the deceased owner of the property in dispute and thereafter the estate. The
disciplinary committee erred in law and fact in failing to consider and appreciate the undisputed and overwhelming fact
that the complainants were purely nominees to the auction transaction and never participated or attended any auction sale
and their name was only given by the Highest Bidder pursuant to an arrangement with the deceased family and at no time
were they a client of the advocate/appellant and grossly misinterpreted the advocates letter of 04/10/06 almost two (2)
years after the transaction. The disciplinary committee erred in law and fact in failing to consider and appreciate the
correspondences annexed to the advocate’ s replying af fidavit which clearly demonstrated that the complainants were at
no time the clients of the advocate and there has never been any advocate-client relationship between the appellant and
the 2nd respondent. The disciplinary committee exceeded its jurisdiction and mandate, in purporting to determine a
commercial dispute between the complainants and the estate of the deceased owner of the suit property without hearing
the other parties who were involved in the transaction and clearly named in the proceedings thus rendering a decision
which is ultra vires its powers and jurisdiction and further violating the fundamental rules of natural justice by deciding
who was entitled to the release of the title documents in relation to Title No. West Kasipul/Karabach/599 which is still in
the name of the deceased without hearing the members of the deceased family who transacted with the complainant
herein. This dispute is recognized in paragraph 16 of the judgment (page 6). The disciplinary committee erred in law and
fact in ignoring the correspondences exchanged between the complainant’ s advocates and the appellant for six (6) years
between 2005 and 201 1 thus arriving at a wrong and absurd conclusion that the advocate failed to reply to
correspondence a decision which is not supported by any logic. The disciplinary committee erred in law and fact in
convicting the appellant for professional misconduct when in its own finding at paragraph 21 (page 9) it recognizes that
the dealings between the transaction is valid under the Land Control Act and the ef fect of this finding is that in the
absence of any consent from the Land Control Board, and the property remaining in the name of the deceased, the only
claim the complainants may have is over any sums paid towards the transaction and not the property , which confirm the
position that no documents of the title could be released to the complainants. The disciplinary committee erred in law and | https://augmentin.io/casetext/case/K'Opere_trading_as_TO_K’Opere___Co_Advocates_v_Disciplinary_Committee_of_the_LSK___another__Civil_Appeal_461_of_2011__[2023]_KEHC_25353__KLR___17_November_2023___Ruling_.docx.pdf |
ef8ad0794f41-1 | absence of any consent from the Land Control Board, and the property remaining in the name of the deceased, the only
claim the complainants may have is over any sums paid towards the transaction and not the property , which confirm the
position that no documents of the title could be released to the complainants. The disciplinary committee erred in law and
fact in its interpretation of Sections 55, 60 and 60a of the Advocates Act thus arriving at a wrong decision. The | https://augmentin.io/casetext/case/K'Opere_trading_as_TO_K’Opere___Co_Advocates_v_Disciplinary_Committee_of_the_LSK___another__Civil_Appeal_461_of_2011__[2023]_KEHC_25353__KLR___17_November_2023___Ruling_.docx.pdf |
16d2a79429bd-0 | judgment/order/conviction of the appellant by the disciplinary committee was arrived at based on an erroneous
reasoning, failure to appreciate the facts and evidence before the committee and based on wrong conclusions. The parties
filed written submissions as follows: the appellant submitted that the disciplinary committee appreciated that there were
other parties involved including the deceased’ s family members, widow (consolata Omanya), the deceased daughter in
law (Bertha Omanya), the char ge Bank (National Bank of Kenya and the deceased daughters who took out letter of
administration of the deceased estate have been enjoined in this appeal and were parties to the interpleader proceedings.
None of these parties were enjoined in the primary complaint by the complainant and the disciplinary committee
recognized this fact but did not hear the said parties before rendering its judgement. The appellant ar gued that the
Interpleader Application was very Specific on only two Prayers; the first issue was for determination of who between the
1st and 2nd Respondents was entitled to the Release of the Title Documents which had already been deposited in Court;
and secondly , who between the two parties was to pay the Appellant Advocate's Costs/Fees. The trial judge in his
judgment instead proceeded to frame Seven (7) Issues most of which were not relevant to the Interpleader Proceedings
but the only portion which touched on the Prayers in the Originating Summons dated 27/4/12. The judge came to the
finding that the suit property could not be ef fected to the 1st respondent as there was no valid consent and therefore the
court was of the view that the property still belonged to the deceased and therefore his beneficiaries should benefit from
his estate. The appellant ar gued that this is the legal position that he took before being taken to the disciplinary
committee and that is why in his letter dated 7/4/201 1 indicated that there being no consent from the land control board,
the transfer could not be ef fected and preferred to release the title documents to the deceased estate on condition that the
estate make arrangements to refund the 2nd respondent the total amount paid to the char ge Kshs. 1,500,000 to secure the
release of the title and dischar ge of the property pursuant to the botched auction sale. The appellant indicated that the 2nd
respondent had for the past six years instructed several advocates among them; Muniafu Ondari & Co. Advocates, Mose
& Mose Advocates, Kiage & co. Advocates to act for them. The appellant advocate copied the letter dated 7/4/201 1 to the
2nd respondent, her advocates and the secretary LSK setting out the conditions for the intended release of the title
documents to the deceased family which condition was never complied with by the deceased family forcing the advocate
to continue holding the title documents until the same were deposited in court. As relating to the issue of advocate client
relationship between the appellant and the 2nd respondent the appellant ar gued the same was raised in the proceedings
but not conclusively dealt with by the disciplinary committee. The 2nd respondent in her various af fidavits confirmed
that she never dealt with the appellant directly but through the two family members of the deceased and never attended
the public auction sale and insisted that the appellant advocate received the title documents on their behalf but all
subsequent correspondences for 6 years from 2005-201 1 show that they were represented by 4 dif ferent firms of
advocates. The appellant ar gued that the action by the Appellant Advocate for which the Disciplinary Committee
convicted him involved a question of Interpretation of the Law in a Transaction. The Decision of the Committee
presupposes that the Advocate cannot and should not make a Legal Opinion or Decision on a mater he is acting for Two
(2) Competing Clients by advising on the way forward where a provision for the Law (Section 22 of the Land Control
Act) clearly stipulates a Criminal Sanction where an Advocate or Party takes a particular action in furtherance of a void
transaction. To this extent the Disciplinary Committee in acknowledging the Dilemma caused by the Provisions of the
Land Control Act should not have proceeded with the Hearing of the Complaint and convicted the Appellant but hold the
Complaint in abeyance or decline Jurisdiction pending a Determination by the Court on the Interpretation of the
Provisions of the Land Control Act through the Interpleader Proceedings. In this Case, notwithstanding the Conviction
and Sentence, the Disciplinary Committee file is still open and being Mentioned after every Six (6) Months to determine
what the Court has determined. This should form a basis and Justification for Setting Aside the Decision of the
Disciplinary Committee for want of Jurisdiction. In opposition the 1st respondent submitted that 2nd Respondent
purchased the subject property through an auction as the property had been char ged by the late Richard Omanya Adongo
to National Bank of Kenya. The Appellant, who was acting for both the 2nd Respondent and the family of the deceased
received the completion documents from the Bank on behalf of the 2nd Respondent and instead released the same to the
family of the deceased. It is on this basis that the 1st Respondent found the Appellant guilty for professional misconduct.
The Appellant as the advocate for the 2nd Respondent received the purchase price for the property from the 2nd
Respondent vide Cheque No. 100688 and partly through a direct deposit. Subsequently , the National bank of Kenya
released the completion documents to the Appellant vide the letter dated 26/4/2005 on behalf of the 2nd Respondent. It
was therefore imperative for the Appellant to release the completion documents to the 2nd Respondent who rightfully
bought the subject property in a public auction. On the contrary , the Appellant released the completion documents to the
family of the deceased, Richard Omanya Adongo, whom he was also acting for . The 1st respondent ar gued further that it
was not within the mandate of the 1st Respondent to determine the validity of the transaction. It's on this basis that the
1st Respondent only addressed the professional misconduct of the Appellant, which is within its realm. In that regard, the
contention that the transaction was void in law is without merit. The 1st respondent noted a letter dated 21/7/2006 where
the appellant admitted that the 2nd respondent was his client and it was on this basis that the appellant received the
documents from Legacy Auctioneering Services. It was also in his capacity as the advocate that the appellant received the
purchase price vide cheque No. 100688 and partly through a direct deposit. The appellant also issued a fee not vide the
letter dated 4/10/2006 to be paid by both the 2nd respondent and the family of the deceased. The 2nd respondent in its
submissions reiterated the sentiments of the 1st respondent. The 2nd respondent further ar gued that the appellant is
attempting to hide his misconduct by invoking the provisions of section 6 and 8 of the Land Control Act. The 1st
respondent has the disciplinary jurisdiction to hear and determine a complaint brought to it by any person against an | https://augmentin.io/casetext/case/K'Opere_trading_as_TO_K’Opere___Co_Advocates_v_Disciplinary_Committee_of_the_LSK___another__Civil_Appeal_461_of_2011__[2023]_KEHC_25353__KLR___17_November_2023___Ruling_.docx.pdf |
fe64dbfe3d25-0 | advocate pursuant to section 55 of the Advocates Act. This being a first appeal, the duty of the 1st appellate court is to re-
evaluate the evidence before the Disciplinary Committee and to come up with its own conclusion whether to support the
findings of the committee. In Selle –Vs- Associated Motor Boat Co. [1968] EA 123 it was held in the following terms: -
“An appeal from the High Court is by way of re-trial and the Court of Appeal is not bound to follow the trial judge’ s
finding of fact if it appears either that he failed to take account of particular circumstances or probabilities, or if the
impression of the demeanour of a witness is inconsistent with the evidence generally . An appeal to this court from a trial
by the High Court is by way of retrial and the principles upon which this court acts in such an appeal are well settled.
Briefly put they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it
should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this
respect. In particular , this court is not bound necessarily to follow the trial judge’ s findings of fact if it appears either that
he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the
evidence or if the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally .”
The issues for determination in this appeal are as follows; Whether the 2nd respondent was a client of the appellant.
Whether the 1st respondent was right in finding that the appellant was guilty of professional misconduct. Whether the 1st
respondent exceeded its jurisdiction by determining a land dispute between the 2nd respondent and the family of the
deceased. Whether the decision of the 1st respondent should be set aside. On the issue as to whether the 2nd respondent
was a client of the appellant, the 2nd respondent maintained that she was the one who had instructed the appellant to act
for her in the sale transaction of the property . The appellant denied having any client/advocate relationship with the 2nd
respondent and said he did not have any written or verbal instructions to act for her . The appellant denied that there was
any direct communication between him and the 2nd respondent or payment of fees. I have perused the proceedings
correspondences and the judgment of the 1st respondent and I find that the appellant was acting for both parties. There is
evidence that the appellant participated in negotiations between the 2nd respondent and the family of the deceased for the
sale of the suit property prior to the auction. The 2nd respondent was a tenant of the deceased while the deceased was the
initial client of the deceased before the sale negotiations. I find that the 1st respondent was right in pointing out at
paragraph 31 of their judgment that the appellant was an advocate for both the 2nd respondent and the family of the
deceased. On the issue as to whether the 1st respondent was right in finding the appellant guilty of professional
misconduct, I find that the 1st respondent found that the appellant was wrong in releasing the documents to one of the
parties. The complaint filed by the 2nd respondent was in respect of withholding the documents. In the judgment the 1st
respondent found the appellant guilty of having released the same to one of the parties. I find that the appellant deposited
the documents in court by order of the court and he filed interpleader proceeding at the NAIROBI ELC NO.220 OF 2012
which was later transferred Kisumu and it became KISUMU ELC NO. 64 OF 2019. The said case has since been
determined and it is awaiting determination of an appeal at the Court of Appeal at Kisumu being KISUMU CA 054 OF
2023. The title documents were deposited with the Registrar of the Court of appeal by order of this court dated 15th
August 2023 awaiting the determination of the appeal to the Court of Appeal. In the circumstances, the appellant did not
release the documents to one of the parties. He may have threatened to release them but he did not do so. I therefore find
that the 1st respondent was not right in finding the appellant guilty of professional misconduct. On the issue as to
whether the 1st respondent exceeded its jurisdiction by determining a land dispute between the 2nd respondent and the
family of the deceased, I find that the family of the deceased was not a party in D. C. no. 26of 201 1 between the
Appellant and the 2nd Respondent. In the circumstances, the 1st Respondent did not have the mandate to decide who was
entitled to the title documents of the suit property since they were made aware that there was a dispute between the 2nd
Respondent and the family of the deceased. I accordingly allow the appeal and I set aside the decision of the 1st
respondent. On the issue of costs, I direct that each party bears its own costs of this appeal. Dated, Signed and Delivered
online via Microsoft Teams at Nairobi this 17th day of November , 2023. ………….……………. N. ONGERI JUDGE In
the presence of: ……………………………. for the Appellant ……………………………. for the 1st Respondent
.......................... for the 2nd Respondent | https://augmentin.io/casetext/case/K'Opere_trading_as_TO_K’Opere___Co_Advocates_v_Disciplinary_Committee_of_the_LSK___another__Civil_Appeal_461_of_2011__[2023]_KEHC_25353__KLR___17_November_2023___Ruling_.docx.pdf |
44c8fad43114-0 | IN THE HIGH COUR T AT NAIROBI MILIMANI LA W COUR T CIVIL DIVISION (APPELLA TE SIDE) CIVIL
APPEAL NO. E091 OF 2021 BETWEEN NKOROI BUNDI KEL VIN
.…………..…..…………….……………….…………….. APPELLANT AND WILSON RUNY AMBO
………………..…………..…………………..………….. RESPONDENT (Being an appeal from the Judgment and
Decree of Hon. D.W . Mburu, SPM dated 29th January 2021 at the Magistrates Court at Nairobi, Milimani in Civil Case
No. 1722 of 2019) JUDGMENT This appeal is against the trial court’ s judgment on quantum. The Respondent was
injured in a road traf fic accident that took place on 17.10.2017 while he was walking along the road when he was
knocked down by the Appellant’ s motor vehicle registration number KA W 701W . After hearing the case, the trial
magistrate found the Appellant fully liable and awarded the Respondent Kshs. 850,000.00 and Kshs. 143,530.00 as
general and special damages respectively . It is the award of general damages that has precipitated this appeal. According
to the Plaint dated 17.03.2018, the Respondent pleaded that he sustained a mid-shaft fracture of the left tibia and fibula
and suf fered a swollen tender and painful leg. In his testimony the Respondent confirmed these injuries. He produced a
Dischar ge Summary from PCEA Kikuyu Hospital showing that he was admitted to the hospital on 19.12.2017 and
dischar ged on 22.12.2017 for treatment of the left leg injury . The Respondent was also examined by Dr G. K. Mwaura on
04.01.2019 who prepared a report of even date. Dr Mwaura examined the P3 Medical Report, Dischar ge Summary ,
booking sheet and X-ray request form from Kiambu Level 4 Hospital. He confirmed that the Respondent suf fered a
fracture of the left tibia and fibula which was treated initially by application of plaster of paris and the tibia fracture fixed
by a K-nail. When he was examined, the Respondent was heathy and normal. Dr Mwaura noted that the Respondent
experiences pain on the left leg upon exertion and cannot walk or stand for a long time. He classified the injury as
grievous harm and assessed permanent degree of incapacity at 10%. In support of his plea to be awarded Kshs.
1,000,000.00, the Respondent cited several cases. In Hussein Abdi Hashi v Hassan Noor [2004] eKLR where the plaintif f
sustained a fracture of the left malleoulus and metatarsal and laceration to the ankle, his incapacity was assessed at 20%.
He was awarded Kshs. 800,000.00. In Abdi Salaan Nuron v Kenya Tea Development Authority KRC HCCC No. 26 of
1999 (UR), the plaintif f was awarded Kshs. 800,000.00 after sustaining a fracture of the right tibia and fibula. He also
cited Savco Stores Limited v David Mwangi Kimotho [2008] eKLR where the plaintif f suffered a fracture of the tibia
and fibula, fractured left elbow and deep cut on the forehead. He suf fered permanent disability at 20% and was awarded
Kshs. 800,000.00/ The Appellant ur ged the court to award Kshs. 300,000.00. It cited Civicon Limited v Richard Njomo
Omwancha and 2 others [2019]eKLR. The court reduced an award of Kshs. 1,000,000.00 to Kshs. 450,000.00 for the 3rd
plaintif f who suf fered a fracture of the right tibia fibula, fracture of four upper teeth, cut wound on the upper and lower
lip, swollen and tender upper lip, bruises on the chin, dislocation of the left shoulder and bruises on the right thigh. In
Gladys L yaka Mwombe v Francis Namatsi and 2 Others [2019]eKLR the plaintif f was awarded Kshs. 300,000.00 for
sustaining a fracture of the lower tibia and fibula, a cut wound on the anterior part of the scalp, a head injury , spinal cord
injury , neck injury and a cut wound on the face. In making the award, the trial magistrate found that the authorities cited
by the Respondent were relevant and involved comparable injuries to those the plaintif f had sustained hence the award of
Kshs. 850,000.00 would be appropriate for pain and suf fering. The parties are agreed on the nature and extent of the
injuries sustained by the Respondent. The issue presented in this appeal as stated in the Memorandum of Appeal dated
24.11.2021 is whether the award was inordinately high and excessive in light of the injuries sustained by the Respondent.
As this is an appeal on quantum of damages, the appellate court can only intervene if it is shown that the trial court, in
awarding of the damages, took into consideration an irrelevant fact or the sum awarded is inordinately low or too high
that it must be a wholly erroneous estimate of the damage, or it should be established that a wrong principle of law was
applied (see Butt v Khan [1981] KLR 349). This appeal concerns the award of general damages. General damages are
damages at lar ge and the court does the best it can in reaching an award that reflects the nature and gravity of the injuries.
In assessing damages, the general method of approach should be that comparable injuries should as far as possible be
compensated by comparable awards but it must be recalled that no two cases are exactly alike (see Stanley Maore v
Geof frey Mwenda NYR CA Civil Appeal No. 147 of 2002 [2004]eKLR). In addition, the current value of the shilling
and the economy have to be taken into account and although astronomical awards must be avoided, the court must ensure
that awards make sense and result in fair compensation (see Ugenya Bus Service v Gachoki NKU CA Civil Appeal No.
66 of 1981 [1982]eKLR and Jabane v Olenja [1986] KLR 661). It is not in dispute that the Appellant sustained a fracture
of the left tibia and fibula together with soft tissue injuries. The injuries have healed but have left him with dif ficulty in
walking and permanent disability assessed at 10%. Looking at the cases cited by the Respondent before the trial court, I
note that the victims therein suf fered more serious and greater disability . Although the cases cited by the Respondent
were decided in 2004 and 2008, those cited by the Appellant were more recent and reflective of the trend of damages
awarded in cases of where the victims sustained similar injuries. Since the award of general damages was excessive, this | https://augmentin.io/casetext/case/Kelvin_v_Runyambo__Civil_Appeal_E091_of_2021__[2023]_KEHC_25388__KLR___Civ___17_November_2023___Judgment_.docx.pdf |
44c8fad43114-1 | note that the victims therein suf fered more serious and greater disability . Although the cases cited by the Respondent
were decided in 2004 and 2008, those cited by the Appellant were more recent and reflective of the trend of damages
awarded in cases of where the victims sustained similar injuries. Since the award of general damages was excessive, this
court is entitled to intervene. I therefore set aside the award of Kshs. 1,000,000.00 and substitute with an award of Kshs.
600,000.00. I allow the appeal to the extent that I set aside the award of general damages and substitute it with an award
of Kshs. 600,000.00. The said sum shall accrue interest at court rates from the date of judgment in the subordinate court.
The Appellant shall have costs of the appeal assessed at Kshs. 30,000.00. DA TED and DELIVERED at NAIROBI this
17th day of NOVEMBER 2023. D.S. MAJANJA JUDGE Mr Karimi instructed by Wainaina & Karimi Advocates for the
Appellants. Mr Wachira instructed by Waiganjo Wachira and Company Advocates for the Respondent. | https://augmentin.io/casetext/case/Kelvin_v_Runyambo__Civil_Appeal_E091_of_2021__[2023]_KEHC_25388__KLR___Civ___17_November_2023___Judgment_.docx.pdf |
4009de329d6b-0 | REPUBLIC OF KENY A IN THE HIGH COUR T OF KENY A AT KENY A CRIMINAL CASE NO. 14 OF 2018
REPUBLIC………....………………………………………PROSECUTION VERSUS GIDEON CHERUIYOT
LANGA T.....................................ACCUSED JUDGMENT The Accused is char ged with three counts of Murder contrary
to Section 203 as read with Section 204 of the Penal Code. Particulars of the of fence are that, the accused and his co-
accused on 5th July , 2018 at Kiptenden Village in Kebeneti Location in Soin Sigowet Sub-County within Kericho
County , murdered Janet Chelangat Langat, Gideon Kiprono Koech and Allan Kipkirui Cheruiyot. The accused person
pleaded not guilty to the char ge and the prosecution called nine (9) witnesses to prove its case. Lilian Cherono Koech
(Pw. 1) testified that on 5th July , 2018 she was at home, at around 1 1pm when she heard commotion coming from the in-
laws home, she went to their home, where she heard the Janet Chelangat Langat (deceased) pleading with her husband,
not to kill her , after a while the wife and child fell quiet. Pw . 1 went back for her phone and called the neighbours, upon
returning to the scene, Pw . 1 testified that people wanted to break into the house of the accused, the accused opened his
door and they realized that the accused had killed three people, his wife, child and brother -in-law , the three deceased had
sustained severe injuries. The accused fled the scene whilst armed with a panga. The police came and took the bodies. On
cross examination, Pw . 1 confirmed that her home is about 50-100 meters from the accused person's home. Pw . 1 also
confirmed that she was standing outside the house hence she did not see what happened inside the house. She also stated
that she was not aware whether there was fighting or quarreling between the parties before the incident. She confirmed
that the accused person is a brother to her husband. On reexamination, Pw . 1 stated that she was not aware if the
accused's actions were premeditated. Elizabeth Chebii Too (Pw .2) recalls that on 5th July , 2018 at around 10 pm she
heard screams from the accused person's home, she went to see what was happening, when she arrived, she found that
several people had gathered near the accused person's house, she went to the door and saw people staring inside. She
stated that she had a metal bar which she had carried to protect herself, she used it to break into the house of the accused
through the window , she looked inside using a torch and saw the accused holding a panga and saw the accused person's
wife lying down with cuts on the head and the child lying on her feet. The accused came out of the house whilst swaying
the panga and ran towards the river . Upon entering the house of the accused they found three lifeless bodies of the
deceased persons, they had cuts on their heads. The chief came and called the police who came and took the bodies. On
cross examination Pw . 2 confirmed that she heard commotion from the accused person's house, went to the scene and
found several people near the house and that she did not know how many people were in the house. She confirmed that
the panga was not in court. She stated that she was aware that the accused suf fered from epilepsy and would occasionally
get epileptic seizures and injure others. She also stated that she has known the accused for a longtime, he lived well with
his wife and children, she had never heard the accused fight or quarrel with his wife on a prior occasion nor was she
aware of any disagreements between them. Victor Langat Kipngetich (Pw . 3) stated that on the material day and time he
was asleep when he heard screams from the accused person's house, he went to the accused person's house, the door was
closed and he did not hear any noise inside the house. The accused person opened the door and ran away , they went after
him but he disappeared. Upon returning to the accused person's house, they found that he had killed his whole family . He
stated that he had known the accused person for a longtime and did not know why the accused killed his family . On cross
examination Pw . 3 stated that on the material night they pursued the accused for a short distance before he disappeared
and that the accused had a panga which was not in court. He confirmed that he has known the accused for twenty years
and was not aware that he had marital problems. He also confirmed that the accused suf fered from epileptic seizures,
however , he was under medication. He confirmed that on the material day , he did not see the accused attack his family .
Judith Chepkemoi (Pw . 4) recalls that on the material night at around 1 1pm she was at her house asleep when she heard
screams from the house of the accused, when she arrived at the house of the accused, the door was locked from inside,
she heard the accused beating his wife who continued screaming. Pw . 4 went to alert the neighbours, when the
neighbours gathered but the door was still locked, the neighbours decided to break into the house. The accused left the
house while holding a panga, she pointed out the panga in court, the panga being PMFI - 1. She testified that they entered
the house and found Janet Chelangat, Allan Kipkirui - the son and Gideon Kiprono - Janet's brother lying down in a pool
of blood, they were all deceased, she was there when the police came and took the bodies. On cross examination, Pw . 4
stated that she heard screams while she was in her house, it took her twenty (20) minutes to get to the accused person's
house, when she arrived, she did not go inside the house and therefore did not know what was going on in the house.
Micah Kibet Kemei (Pw .5) stated that he knows the accused person herein, he also knew Janet Chelangat Langat
(deceased), Gideon Kiprono Koech (deceased) a brother to Janet and Allan Kipkirui Cheruiyot (deceased) a son to Janet.
He recalls that he went to the mortuary and identified the bodies of the deceased and that the deceased persons had
sustained fatal and severe cuts and that it was the accused person who had cut them. On cross examination, Pw . 5
confirmed that he did not see the accused person cutting the deceased persons. CPL Wycliff Otieno (Pw .6) recalls that on
5th July , 2018 at around 1 1:30 pm he was at his home sleeping when he received a call from DCIO Belgut informing him
about a murder that has occurred at Belgut, he proceeded to the crime scene and found 3 bodies in a house belonging to | https://augmentin.io/casetext/case/Republic_v_Langat__Criminal_Case_14_of_2018__[2023]_KEHC_25401__KLR___16_November_2023___Judgment_.docx.pdf |
4009de329d6b-1 | 5th July , 2018 at around 1 1:30 pm he was at his home sleeping when he received a call from DCIO Belgut informing him
about a murder that has occurred at Belgut, he proceeded to the crime scene and found 3 bodies in a house belonging to
the accused person herein. Upon inquiring they were informed that the accused person had killed 3 people in the house
and went away to an unknown destination while armed with a panga. He stated that he observed that the deceased
persons had deep cuts in their heads. He and his colleagues surveyed the crime scene and he took some photographs of
the crime scene using his phone and sent them over to the scene of crime of ficer for processing. He stated he recovered a
blood stained jembe at the crime scene, the jembe was marked as MFI-10. The bodies were taken to Sigowet. The
following morning there was information that the accused was armed with a panga at Cheptunge Boys Secondary
School, he was subsequently arrested and the panga recovered from the accused, the panga was marked as MFI-1. The | https://augmentin.io/casetext/case/Republic_v_Langat__Criminal_Case_14_of_2018__[2023]_KEHC_25401__KLR___16_November_2023___Judgment_.docx.pdf |
37d05ffc4047-0 | accused was wearing a blood stained vest, marked as MF1-1 1. Pw . 6 testified that on 9th July , 2018 he witnessed the post
mortems on the deceased and that on 1 1th July , 2018 sent various exhibits to the government analyst. He subsequently
charged the accused with murder upon completing investigation. Pw . 6 proceeded to produce the following exhibits in
court: the panga, jembe, vest as PExh. 1, 10 and 1 1 respectively . On cross examination, Pw .6 confirmed that CIP Kariuki
recovered the panga upon disarming the accused person at the Secondary School. He stated that he took photographs at
the crime scene yet he was not a crime scene of ficer, he was the investigating of ficer in the case. He also confirmed that
before a person is char ged with murder a statement of inquiry is taken and further that they opened a miscellaneous file
and took the accused for mental assessment at Kericho District Referral Hospital and he was found fit to stand trial. He
confirmed that upon inquiry he was aware that the accused person had a history of chronic disease. He confirmed that he
did not take fingerprints from the panga and jembe or complete a list of inventory from the crime scene. Dr . Sammy
Langat (Pw . 7) recalls that on 9th July , 2018 he conducted a post mortem on the body of Gideon Kiprono Koech, he
noted that the body had multiple cut wounds on the cortex and left perineal region and therefore formed the opinion that
the cause of death was severe head injury by a sharp object and produced the post mortem report as Pexh. 2. On the same
day he conducted the post mortem on Allan Kipkirui Cheruiyot the body had multiple cut wounds on the head, he
concluded that the cause of death was severe head injury secondary to fracture of the skull and loss of blood , he
produced the post mortem report as Pexh. 3. On the same day he also conducted the post mortem on Jane Chelangat
Langat, the body had multiple cut wounds on the head and a compressed fracture of the skull, her brain had deep cuts, he
therefore concluded that the cause of death was severe head injury leading to the loss of blood following assault by a
sharp object, he produced the post mortem as Pexh. 4. On cross examination, Pw .7 he confirmed that he conducted the
post mortems at Sigowet Hospital and that at the time he was a medical of ficer. Richard Langat (Pw . 8) a government
chemist in Kisumu stated that on 1 1th July , 2018 he received an exhibit memo form from PC Wycliff Otieno of Sondu
Police Station with the following items a blood stained jembe - A, blood stained panga - B, blood stained t-shirt - C and
blood swabs from all the deceased persons. He conducted preliminary tests and his findings were that the jembe, panga
and t-shirt contained blood of human origin, he extracted DNA from all the items and generated DNA profiles and his
findings were that item A matched with the blood sample of Gideon Kiprono Koech, item C matched with the blood
sample of Allan Kipkirui Cheruiyot whereas item B matched with the blood sample of Janet Chelangat Langat. He
prepared a report on 28th August, 2018, he produced the exhibit memo form as PExh. 5 and the report as PExh. 6. On
cross examination, Pw . 8 confirmed that he received the exhibits on 1 1th July , 2018 and that the jembe and panga were
wrapped in paper whereas the t-shirt was wrapped in an envelope and the blood swabs were in vials. Sgt Mlongo (Pw . 9)
a gazetted as a scene of crimes of ficer vide gazette notice no 4562 dated 7th July , 2003 stated that his duties include
processing photographs taken by investigating of ficers and certifying them for court purposes. He recalls that on 10th
July, he received a marked CD from PC Wycliff Otieno (Pw . 6) in respect of the instant murder case, he was requested to
process the photographs and certify them for court purposes. He processed the photographs and prepared a certificate
dated 10th July , 2018. He produced the nine photographs as PExh. 7 (1-9) and the certificate as PExh. 9. On cross
examination Pw . 9 confirmed that he did not visit the crime scene. Section 21 1 of the Criminal Procedure Code was
complied with, the accused opted to give an unsworn statement and called two witnesses. Gideon Cheruiyot Langat
(Dw.1) in his defence stated that he could not recall the events of the material day , citing mental illness, he stated that he
was under medication, however at the time, was not taking medication due to financial challenges. Emily Ngeno (Dw .2)
stated that the accused is her brother and that he has been epileptic since childhood and whenever he would get epileptic
seizures, he would turn violent. Nancy Wendot (Dw . 3) a senior clinical of ficer at Kericho County Referral Hospital
stated that she was in possession of a mental status examination report in respect of the accused which was done on 9th
July, 2018, in the said report it was noted that the accused was an epileptic. She stated that when the accused was brought
in for the mental assessment, he told her that he had slashed his wife with a slasher and she came to the conclusion that
the accused was not of sound mind and that there are two other mental status reports that were consistent with her report,
she produced the reports as DExh. 1 (a) and (b). She also stated that persons who suf fer from epileptic fits also do
abnormal acts. On cross examination, Dw . 3 confirmed that epilepsy can be managed by medical treatment and that
epilepsy is a convulsion disorder . On re-examination, Dw . 3 stated that epileptic patients at times turn out to be mental
patients. Mr . Nyadimo Learned Counsel representing the accused herein filed submissions in which he ar gued the
defence of insanity . He cited section 9 of the Penal Code CAP 63 Laws of Kenya which prescribes that a person is not
criminally responsible for an act or omission which occurs independently of the exercise of his will, or for an event
which occurs by accident. The Learned Counsel relied on the following cases in support of the defence of insanity
Leonard Mwangani Munyasia v Republic (2015) eKLR in which the court stated as follows; “It is a rule of universal
application and of criminal responsibility that a man cannot be condemned if it is proved that at the time of the of fence he
was not a master of his mind.” The Learned Counsel relied on the case of Richard Chemagong v Republic, Criminal | https://augmentin.io/casetext/case/Republic_v_Langat__Criminal_Case_14_of_2018__[2023]_KEHC_25401__KLR___16_November_2023___Judgment_.docx.pdf |
37d05ffc4047-1 | application and of criminal responsibility that a man cannot be condemned if it is proved that at the time of the of fence he
was not a master of his mind.” The Learned Counsel relied on the case of Richard Chemagong v Republic, Criminal
Appeal No. 150 of 1983 where the Court of Appeal made reference to the McNaughten rules and sought to distinguish a
malfunctioning of the mind from non-functioning of the mind due to epilepsy and held that there was ample evidence
that the defendant therein was acting unconsciously and involuntarily when he inflicted the injury . The Learned Counsel
finally submitted that it was trite law that in order to establish a defence on the ground of insanity it must be proven that
at the time of committing the act the accused was labouring under a defect of reason and cited section 166 (1) of the
Criminal Procedure Code CAP 75 Laws of Kenya to buttress his ar gument, the said provision states as follows; “Where
an act or omission is char ged against a person as an of fence, and it is given in evidence on the trial of that person for that
offence that he was insane so as not to be responsible for his acts or omissions at the time when the act was done or the | https://augmentin.io/casetext/case/Republic_v_Langat__Criminal_Case_14_of_2018__[2023]_KEHC_25401__KLR___16_November_2023___Judgment_.docx.pdf |
b4ee07484e1e-0 | omission made, then if it appears to the court before which the person is tried that he did the act or made the omission
charged but was insane at the time he did or made it, the court shall make a special finding to the ef fect that the accused
was guilty of the act or omission char ged but was insane when he did the act or made the omission.” The sole issue for
consideration is whether the prosecution proved its case against the accused beyond reasonable doubt. The of fence of
murder is provided for in section 203 of the Penal Code that provides as follows; “Any person who of malice
aforethought causes death of another person by an unlawful act or omission is guilty of murder .” In Republic v Andrew
Omwenga [2009] eKLR the court held: “It is clear from this definition that for an accused person to be convicted of
murder , it must be proved that he caused the death of the deceased with malice aforethought by an unlawful act or
omission – there are therefore three ingredients of murder which the prosecution must prove beyond reasonable doubt in
order to secure a conviction. They are: (a) The death of the deceased and the cause of the death, (b) That the accused
committed the unlawful act which caused the death of the deceased and (c) That the accused had the malice
aforethought.” The accused in this case was char ged with the of fence of murder contrary to section 203 of the penal code
which defines murder as the unlawful killing of a person or persons with malice aforethought. (a) Death and Cause of
Death In this case the death of the deceased persons is not disputed, on the material night three lifeless bodies were found
in the house of the accused person according to the eyewitness accounts of Pw . 1, Pw . 2, Pw . 3 and Pw . 4. On 9th July ,
2018 Dr . Sammy Langat (Pw . 7) conducted post mortem examinations on the three deceased persons, his observations
were that the deceased persons had sustained multiple cut wounds on the head and his findings were that the cause of
death of all the three deceased persons was severe head injury and produced the post mortem reports as PExh. 2, 3 and 4.
Whether the accused committed the unlawful act which caused the death of the deceased I am aware that there were no
eyewitnesses to the assault of the deceased persons, as most of the prosecution witnesses testified that on the material
night, they gathered outside the house of the accused after they heard commotion from the accused persons house, the
house was locked and the crowd wanted to break in when the accused opened the door , came out of the house while
swaying a panga and ran towards the river . When they entered the house, they stumbled upon the lifeless bodies of the
deceased and it dawned on them that the accused had killed three people. I find that the accused persons' defence of
insanity does not hold water in the circumstances of the of fence and further that the fact that he suf fers from epilepsy
cannot explain the cold hearted murders and the callous and cavalier attitude after he committed the instant of fice.
Accordingly , I am satisfied that the prosecution proved beyond reasonable doubt that it was the accused person who
unlawfully caused the deceased's death. Whether the Accused Person had Malice Aforethought. For the char ge of murder
to succeed, it must be proved that they acted with malice aforethought. Section 206 of the Penal Code provides
circumstances from which malice aforethought may be inferred. They are: "(a) An intention to cause death of or to do
grievous harm to any person, whether that person is the person actually killed or not; (b)Knowledge that the act or
omission causing death will probably cause the death of or grievous harm to some person, whether that person is the
person actually killed or not, although such knowledge is accompanied by indif ference whether death or grievous bodily
harm is caused or not, or by a wish that it may not be cause;© An intention to commit a felony;(d)…" In Republic v
Tubere S/O Ochen [1945] 12 EACA 63 the court held that:- “an inference of malice aforethought can be established by
considering the nature of the weapon used, the part of the body tar geted, the manner in which the weapon was used and
the conduct of the accused before, during and after the attack.” Having considered the brief facts of this case, I find that
the accused person herein had malice aforethought, the accused used a jembe and a panga to assault the hapless victims
in the wee hours of the night and whilst assaulting them tar geted their heads and soon after he had inflicted fatal injuries,
fled the scene of the crime, he was apprehended the following morning as he sought refuge at a nearby secondary school.
I do take cognizance of the fact that there are no eye witness accounts to the events leading to the demise of the deceased,
however , I find that circumstantial evidence points to the culpability of the deceased. In Sawe v Rep [2003] KLR 364,
the Court of Appeal expressed as follows: “In order to justify on circumstantial evidence, the inference of guilt, the
inculpatory facts must be incompatible with the innocence of the accused, and incapable of explanation upon any other
reasonable hypothesis than that of his guilt. There must be no other co-existing circumstances weakening the chain of
circumstances relied upon. The burden of proving facts that justify the drawing of this inference from the facts to the
exclusion of any other reasonable hypothesis of innocence remains with the prosecution. It is a burden which never shifts
to the party accused.” Accordingly , I find that the defence put forward by the accused person namely: Gideon Cheruiyot
Langat does not displace the prosecution’ s case. The prosecution has therefore proved its case against the accused beyond
reasonable doubt and in the premises, I find the accused person guilty for the of fence of Murder Contrary to Section 203
as read with Section 204 of the Penal Code. The accused person is hereby convicted. Dated,Signed and Delivered at
Kericho this 16th day of November , 2023. ………….……………. J.K. SERGON JUDGE In the presence of:
C/Assistant - Ruttoh Prosecutor – Mr . Musyoki Accused – Present in Person Nyadimo for the Accused | https://augmentin.io/casetext/case/Republic_v_Langat__Criminal_Case_14_of_2018__[2023]_KEHC_25401__KLR___16_November_2023___Judgment_.docx.pdf |
07c7e8eb8b04-0 | IN THE HIGH COUR T AT NAIROBI MILIMANI LA W COUR TS CIVIL DIVISION (APPELLA TE SIDE) CORAM:
D. S. MAJANJA J. CIVIL APPEAL NO. E793 OF 2021 BETWEEN LA SALLE CA THOLIC PRIMAR Y SCHOOL
………………..……………………. APPELLANT AND EAGLE GROUP INTERNA TIONAL LIMITED
……………………………….. RESPONDENT (Being an appeal from the Ruling and Order of Hon. K.O. Gweno,
RM/Adjudicator dated 20th September 2021 at the Small Claims Court at Nairobi SCC No. No.40 of 2021) JUDGMENT
The parties are currently embroiled in proceedings before the Small Claims Court where the Respondent claims to have
supplied 345 laptops worth Kshs. 7,762,000.00 to the Appellant for which it paid leaving a balance of Kshs. 762,500.00
which the Respondent seeks. On 20.09.2021, after the close of hearing of the parties’ cases, the Respondent’ s counsel
orally sought leave of the court to file additional documents. The Appellant’ s counsel opposed the application on the
ground that both parties had closed their cases and that the Respondent had time to prepare its case and that the
Respondent’ s counsel ought to have sought for an adjournment. In response, the Respondent’ s counsel averred that he
was in fact seeking “leave to file a substantive application” and that the Appellant would not be prejudiced with the
application since they had the Respondent’ s documents. By a ruling dated 20.09.2021 (“the Ruling”), the Adjudicator
held that the Appellant had not explained how it would be prejudiced if the court allowed the application for additional
evidence to be adduced. He noted that the application made was based on the court’ s discretion and that the said
discretion had to be exercised judiciously . Further , that Article 159(2) of the Constitution enjoined the court dispense
substantive justice without undue regard to technicalities and that in this case, the subordinate court had to determine the
real issue in controversy . That if the additional evidence would assist the court in arriving at an accurate decision, then it
ought to be allowed. The Adjudicator further held that the Appellant would also cross-examine the witness on the said
additional documents and in that regard, it made orders re-opening the suit, directing the Appellant to be supplied with
the additional documents so that it can defend itself and that the parties were at liberty to call witnesses for purposes of
producing the said additional documents and cross-examination. The Appellant is dissatisfied with the Ruling and
appeals to this court based on the amended memorandum of appeal dated 13.07.2022. The appeal has been canvassed by
way written submissions. In its submissions, the Appellant raises the following issues for determination. First, whether
the Smalls Claims Court can order re-opening of a matter once both parties have closed their case. If so, under what
circumstances. It also asks whether the court should be moved by a formal application and whether both parties must
substantially be heard before the court can make a finding. The Small Claims Court Act, 2016 (“the SCCA”) and the
Small Claims Court Rules, 2019 (“the Rules”) are silent on whether the Small Claims Court has the power to order for
re-opening of a case once both parties have testified and closed their respective cases. The parties agree that the decision
on whether or not to allow a party to re-open its case and to adduce additional evidence is a matter of discretion. In this
respect the court is guided by the principles set out at section 3 of the SCCA that is; timely disposal of all proceeding
using the least expensive method, equal opportunity to access judicial services, fairness of process and simplicity of
procedure. Further , under section 17 of the SCCA, the court is empowered to control its own procedure in determination
of claims before it and in exercise of that control, the court shall have regard to the rules of natural justice. This provision
is echoed by the Rules which at Rule 31 provides that in conduct of proceedings the Court shall not be bound by the strict
rules of procedure and evidence. The totality of the provisions I have cited means that the High Court in exercising
appellate jurisdiction must be alive to the general objective of the Small Claims Court and avoid being too prescriptive in
its decisions to the extent of undermining the essence of the Small Claims Court. This appeal concerns the exercise of
discretion by the Adjudicator . This court is guided by the principle settled in Mbogo v Shah [1968] EA 93 that an
appellate court will not interfere with the decision of the trial court unless it is satisfied that the judge in exercising his
discretion has misdirected himself in some matter and as a result has arrived at a wrong decision, or unless it is manifest
from the case as a whole that the judge has been clearly wrong in the exercise of his discretion and that as a result there
has been an injustice. Thus, when Adjudicator considers an application to reopen a case and for leave to adduce
additional evidence, it must act judiciously by allowing and granting the parties an opportunity to make their case to the
fullest extent bearing in mind the principles articulated in the SCCA and underpinned by Article 159(2)(d) of the
Constitution which commands the court to eschew procedural technicalities. Having read the record, I hold the
Adjudicator erred in failing to grant the Respondent an opportunity to make its case. The Respondent requested for an
opportunity to make a formal application. While I accept that oral and informal applications are allowed, a formal
application allows a party to put its case fully before the court and permits the other party to respond. The Respondent
sought the leave of the court to file a substantive application which I believe would have included the
information/documents sought to be adduced and would have assisted the court determine their relevance. The court
would thus be in a better position to make a judicious decision as to whether to reopen the case and admit the additional
evidence. Rendering the Ruling without allowing the substantive application to be filed first also denied the Appellant the
opportunity to substantively reply to the said application thereby occasioning it prejudice. In addition, the court did not
interrogate why the said additional evidence was not called earlier on at the hearing as such an interrogation was
necessary and relevant at that stage to once again inform the trial court’ s discretion. Failure to interrogate this and
proceeding to make the Ruling was a misapprehension and abuse of the trial court’ s discretion. I also do not think that the
constrained timeline of the Small Claims Court is an impediment to the Adjudicator permitting a formal application since
the court and parties are aware of timelines embedded in the SCCA and the Adjudicator is empowered to give appropriate
directions. For the reasons I have given, I allow the appeal. I remand the matter to the Small Claims Court to give
direction on the Respondent’ s request to file a formal application bearing in mind the considerations I have made and in | https://augmentin.io/casetext/case/La_Salle_Catholic_Primary_School_v_Eagle_Group_International_Limited__Civil_Appeal_E793_of_2021__[2023]_KEHC_25358__KLR___Civ___17_November_2023___Judgment_.docx.pdf |
07c7e8eb8b04-1 | the court and parties are aware of timelines embedded in the SCCA and the Adjudicator is empowered to give appropriate
directions. For the reasons I have given, I allow the appeal. I remand the matter to the Small Claims Court to give
direction on the Respondent’ s request to file a formal application bearing in mind the considerations I have made and in
particular the timelines. Given the nature of the appeal, each party shall bear its own costs. DA TED and DELIVERED at | https://augmentin.io/casetext/case/La_Salle_Catholic_Primary_School_v_Eagle_Group_International_Limited__Civil_Appeal_E793_of_2021__[2023]_KEHC_25358__KLR___Civ___17_November_2023___Judgment_.docx.pdf |
8d392aced34d-0 | NAIROBI this 17th day of NOVEMBER 2023. D. S. MAJANJA JUDGE Mr Situma instructed by KWEW Advocates
LLP for the Appellant. Mr Wachira instructed by Wachira Gachoka and Company Advocates for the Respondent. | https://augmentin.io/casetext/case/La_Salle_Catholic_Primary_School_v_Eagle_Group_International_Limited__Civil_Appeal_E793_of_2021__[2023]_KEHC_25358__KLR___Civ___17_November_2023___Judgment_.docx.pdf |
84a8b44f4adb-0 | REPUBLIC OF KENY A IN THE HIGH COUR T OF KENY A AT BUNGOMA CIVIL APPEAL NO. E040 OF 2021
JIANGXI KHONGMEI ENG. COMP ANY LTD--------------APPELLANT -VERSUS- ELIUD WAFULA MAELO--------
--------------------------------RESPONDENT (Being an appeal arising from the Ruling by Hon. G.P . OMONDI (S.R.M) in
Bungoma Civil Suit no. 276 of 2018 delivered on 30th April,2020). JUDGEMENT Vide a plaint dated 30th May ,2018
the Respondent sued the Appellant and another seeking for payment of Kshs.120,000/= w .e.f 1st December 2016 until
full payment plus costs and interest. The Appellant filed a defence dated 23rd July 2018 and the Respondent in turn filed
a response to the defence dated 1st October ,2018. Parties thereafter complied with Order 1 1 of the Civil Procedure Rules
paving way for the matter being set down for hearing. On the 1st hearing date, the Appellant’ s counsel sought for an
adjournment which was allowed with costs to the Respondent and that the matter was fixed for hearing on 2nd July , 2019
by consent. Come 2nd July , 2019, the Appellant did not appear and the matter proceeded ex-parte with the Respondent
calling two witnesses and thereafter closing his case. The Appellants case was subsequently closed for non-attendance
and directions on filing submissions were taken for 16th July ,2019 and- thereafter judgment was subsequently delivered
on 16th October ,2019. The Respondent drew his bill of costs dated 31st October ,2019 and served the Appellant who did
not oppose the same and that the Court subsequently taxed it at Kshs. 513,765/=. The Respondent immediately
commenced execution and instructed a firm of Auctioneers namely Eshikhoni Auctioneers who attached the appellant’ s
assets to realize the sums owed by the Appellant as well as their costs. The Appellant filed an application dated 9th
December ,2019 seeking orders inter alia for stay of the courts decree restraining the firm of auctioneers from seizing
proclaimed property and for the setting aside of the judgment delivered on 16th October , 2019.The court issued interim
orders which were vacated on 30th April,2020 when the court dismissed the application with costs to the Respondent. At
the same time, the auctioneers bill of costs dated 13th December ,2019 was allowed as presented as the Appellant did not
register its opposition. The Appellants filed yet another application dated 19th June,2020 seeking for orders inter alia;
stay of execution of the judgment delivered on 16th October , 2019 and for release of the attached motor vehicle. Interim
orders were granted and a hearing date issued. On the hearing date, the trial Court was informed that a similar application
had been filed in the High Court and that the decretal sum had been deposited in a joint interest earning account and thus
the application was deemed as spent. Various other applications were filed in this court all which have already been dealt
with leaving behind for determination the appeal dated 2nd July ,2021 challenging the court’ s ruling dated 30th April
2020 on the application dated 9th December ,2020. The Appellant lodged its Memorandum of Appeal dated 2nd
July,2021, on the following grounds: The learned trial magistrate erred in law and in fact in treating the application and
submissions before him superficially and consequently coming to a wrong conclusion on the same. The learned trial
magistrate failed to exercise discretion judiciously when he disallowed the application seeking to set aside ex-parte
proceedings and judgment where the court had condemned the Appellant to pay Kshs. 3,896,715/= plus interest and costs
yet the case had not been heard and determined on its merits. The learned trial magistrate erred in law and in fact by
failing to appreciate that the Appellant’ s then advocates M/S Kidiavai & Company Advocates had without care and out of
negligence failed to attend- court when the matter was coming up for hearing and communicate his in ability to reach the
Appellant and adjourn the matter to another date. The learned trial magistrate erred in law and in fact in failing to
consider the pleadings filed and authorities submitted on behalf of the appellant and further taking into account evidence
that was not supported by the pleadings before court and thus arriving at an award that is so manifestly high so as to be
erroneous. The learned trial magistrate erred in law and in fact in failing to appreciate that the failure by the Appellant to
attend court due to communication breakdown between it and their advocates was an excusable mistake visited upon the
Appellant buy it advocates. The learned trial magistrate erred in law and in fact in not appreciating suf ficiently or at all
the pleadings and evidence that was on record as a whole. The learned trial magistrate failed to exercise discretion
judiciously when justice for the case mandates that the mistakes of an advocate even if they were blunders, should not be
visited on the clients when the situation can be remedied by costs. The learned trial magistrate in rendering his ruling
dismissing the application to set aside ex-parte judgment and proceedings failed to take into account the principle of
proportionality , and did not do justice to the appellant whose advocates failed to attend court and was condemned to pay
Kshs.3,896,715/= plus interest and costs. The Appellant prayed for the appeal to be allowed and the ruling in question be
set aside and in its place the Appellant be allowed to defend the suit in the subordinate court or in the alternative the
award for general damages in the subordinate court be reduced in line with the vehicle hire agreement as produced in the
lower court and/or as this Honourable court deems fit and just. The appeal was canvassed by way of written submissions.
The Appellant and the Respondent filed and exchanged their respective submissions. Vide submissions dated 27th June
2023 and filed on 29th June,2023, the Appellant submitted that the impugned ruling of fended the interest of justice. It
was their submission that the failure to attend court for defence hearing was neither deliberate nor intentional but due to
communication breakdown between the appellant and their advocate on record. Counsel quoted the case of Mbogoh &
Another vs. Shah (1968)EA 93 and James Kanyiita Nderitu & Another vs. Marios Philotas Ghiksa & Another (2016)
eKLR. The Appellant further relied on Article 159 (2) of the Constitution Section 1A and 1B of the Civil Procedure Act
and stated that it filed an ar guable defence denying the Respondents claim and that it was only fair that they be allowed
to prosecute their case and by so doing the Respondent would not be prejudiced in any way It was further submitted that
the sum involved was colossal and that the Appellant was disputing the car hire agreement informing the Respondents | https://augmentin.io/casetext/case/Jiangxi_Khongmei_Eng._Company_Ltd_v_Maelo__Civil_Appeal_E040_of_2021__[2023]_KEHC_25412__KLR___17_November_2023___Judgment_.docx.pdf |
84a8b44f4adb-1 | and stated that it filed an ar guable defence denying the Respondents claim and that it was only fair that they be allowed
to prosecute their case and by so doing the Respondent would not be prejudiced in any way It was further submitted that
the sum involved was colossal and that the Appellant was disputing the car hire agreement informing the Respondents
claim. Counsel quoted the case of Patel vs. EA Handling Services Limited (1974) EZ 75 and Tree Shade Motor Ltd vs,
DT Dobie Co. Ltd CA 38 of 1998 and Maina vs. Muriuki (1984)KLR 407. The Appellant submitted that the court should
not condemn the Appellant unheard and that they ought not to suf fer due to a mistake by its counsel and quoted the case
of Lee G Muthonga vs. Habib Zurich Finance (K) Limited & Another in Civil Application no. Nair 236 of 2009 and | https://augmentin.io/casetext/case/Jiangxi_Khongmei_Eng._Company_Ltd_v_Maelo__Civil_Appeal_E040_of_2021__[2023]_KEHC_25412__KLR___17_November_2023___Judgment_.docx.pdf |
e16f15ce9260-0 | Winnie Wambui Kibinge & 2others vs. Match Electrical Limited Civil Case No. 222 of 2010. It was further submitted
that the Appellant’ s defence raised triable issues and that the Respondent can be compensated by way of costs and that
the decretal sum had been deposited in a joint account. Lastly , the Appellant submitted that that the Respondent himself
had filed an application to appeal out of time meaning that he was also dissatisfied with the lower court’ s judgment and
the Court should therefore allow this appeal and set aside the lower court’ s judgment The Respondent’ s submissions are
dated 20th September ,2023 and filed on 22nd September ,2023. He submitted that the Court judiciously exercised its
discretion and disallowed the Appellants application subject of this application. It was his submission that the Appellant’ s
argument in the application was not justifiable thus unworthy of the orders sought and that the trial Court cannot
therefore be faulted. Counsel quoted the case in Civil Appeal 36 of 1983 United India Insurance Co. Limited & Others
vs. East Africa Underwrites (Kenya) Limited (1985) Eklr . It was submitted that the ar gument that the Respondent sough
to appeal the trial courts findings was not reason enough to allow the Appellants appeal. Lastly , the Respondent
submitted that the Appellant did not develop the ar gument for reduction of the decretal sum as prayed in the appeal and
he therefore ur ged the court to dismiss the Appeal with costs. This being a first appeal, parties are entitled to and expect a
rehearing, reevaluation and reconsideration of the evidence afresh and a determination of this court with reasons for such
determination. In other words, a first appeal is by way of retrial and this court, as the first appellate court, has a duty to
re-evaluate, re-analyze and re-consider the evidence and draw its own conclusions, of course bearing in mind that it did
not see the witnesses testifying and therefore give due allowance for that. In Gitobu Imanyara & 2 others v Attorney
General [2016] e KLR, the Court of Appeal stated that; “[A]n appeal to this Court from a trial by the High Court is by
way of retrial and the principles upon which this Court acts in such an appeal are well settled. Briefly put, they are that
this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in
mind that it has neither seen nor heard the witnesses and should make due allowances in this respect” In Peters v Sunday
Post Ltd [1958] EA 424, the Court held that; “Whilst an appellate court has jurisdiction to review the evidence to
determine whether the conclusions of the trial judge should stand, this jurisdiction is exercised with caution; if there is no
evidence to support a particular conclusion, or if it is shown that the trial judge has failed to appreciate the weight or
bearing of circumstances admitted or proved, or had plainly gone wrong, the appellate court will not hesitate so to
decide” Similarly , in Abok James Odera t/a A.J Odera & Associates v John Patrick Machira t/a Machira & Co.
Advocates [2013] e KLR, the same stated with regard to the duty of the first appellate court; “This being a first appeal,
we are reminded of our primary role as a first appellate court namely , to re-evaluate, re-assess and reanalyze the extracts
on the record and then determine whether the conclusions reached by the learned trial Judge are to stand or not and give
reasons either way” I have given due consideration to the appeal herein, the evidence before the trial Court, the grounds
of appeal and the submissions by the parties in this appeal as well as the parties’ submissions in the lower Court. In my
humble view , I find the issues for consideration is whether the appeal has merit and what is the appropriate order for
costs. That the decision whether or not to set aside ex parte judgement is discretionary is not in doubt and that the
discretion is intended so to be exercised to avoid injustice and hardship resulting from accident, inadvertence or
excusable mistake or error , but is not designed to assist a person who has deliberately sought whether by evasion or
otherwise to obstruct or delay the course of justice. See Shah vs. Mbogo & Another [1967] EA 116. In this case, the
grounds upon which the application to set aside the judgement was made were two-fold. First, it was contended that
there was a miscommunication between the Appellant and their advocate on record on the stages of proceedings before
the trial court and secondly as a result, they were denied an opportunity to defend their case. As was held by the Court of
Appeal in CMC Holdings Ltd vs. Nzioki [2004] KLR 173: “In an application for setting aside ex parte judgement, the
Court exercises its discretion in allowing or rejecting the same. That discretion must be exercised upon reasons and must
be exercised judiciously…In law the discretion that a court of law has, in deciding whether or not to set aside ex
parte order was meant to ensure that a litigant does not suf fer injustice or hardship as a result of amongst other an
excusable mistake or error . It would not be proper use of such discretion if the Court turns its back to a litigant who
clearly demonstrates such an excusable mistake, inadvertence, accident or error . Such an exercise of discretion would be
wrong principle. In the instant case the learned trial magistrate did not exercise her discretion properly when she failed to
address herself as to whether the appellant’ s unchallenged allegation that its counsel did not inform it of the hearing date
for the hearing that took place ex parte and hence it would appear was true and not if true, the ef fect of the same on
the ex parte judgement was entered as a result of the non-appearance of the appellant and on the entire suit. The answer
to that weighty matter was not to advise the appellant of the recourse open to it as the learned magistrate did here. In
doing so she drove the appellant out of the seat of justice empty handed when it had what it might have well amounted to
an excusable mistake visited upon the appellant by its advocate...The second disturbing matter which arises from the
decision of the learned magistrate in dismissing the application for setting aside the ex parte judgement is that in so
dismissing the same application, the learned trial magistrate does not appear to have considered whether or not the
defence which was already on record was reasonable or raised triable issues. The law is now well settled that in an
application for setting aside ex parte judgement, the Court must consider not only the reasons why the defence was not
filed or for that matter why the applicant failed to turn up for the hearing on the hearing date but also whether the
applicant has reasonable defence which is usually referred as whether the defence if filed already or if draft defence is
annexed to the application, raises triable issues. The Court has wide discretion in such cases to set aside ex
parte judgement. In the instant case, the defence and counterclaim was already in the file when the matter was heard ex
parte and the trial magistrate stated that she considered the same and dismissed the same defence and counterclaim when | https://augmentin.io/casetext/case/Jiangxi_Khongmei_Eng._Company_Ltd_v_Maelo__Civil_Appeal_E040_of_2021__[2023]_KEHC_25412__KLR___17_November_2023___Judgment_.docx.pdf |
e16f15ce9260-1 | annexed to the application, raises triable issues. The Court has wide discretion in such cases to set aside ex
parte judgement. In the instant case, the defence and counterclaim was already in the file when the matter was heard ex
parte and the trial magistrate stated that she considered the same and dismissed the same defence and counterclaim when
the appellant was not in court to put forward its case. Further it appears that certain matters raised in the defence were not | https://augmentin.io/casetext/case/Jiangxi_Khongmei_Eng._Company_Ltd_v_Maelo__Civil_Appeal_E040_of_2021__[2023]_KEHC_25412__KLR___17_November_2023___Judgment_.docx.pdf |
5e866492512a-0 | considered at all and indeed could not be considered without the appellant’ s input..... What the Trial Court should have
done when hearing the application to set aside the ex parte judgement was to ignore her judgement on record and look at
the matter afresh considering the pleadings before her and see if on their face value a prima facie triable issue (even if
only one) was raised by the defence and counterclaim. If the same was raised, then whether the reasons for the
appellant’ s appearance were weak, she was in law bound to exercise her discretion and set aside the ex parte judgement
so as to allow the appellant to put forward its defence. Of course in such a case, the applicant would be condemned in
costs or even ordered to pay thrown away costs. The learned judge should not have considered what the learned Trial
Court had concluded on the evidence before her but should have in the same way looked at the pleading and considered
whether a triable issue was raised by the defence and if so, then the appeal should have been allowed.” In Pindoria
Construction Ltd vs. Ironmongers Sanytaryware Civil Appeal No. 16 of 1976 it was held that: “It is a common ground
that it is a matter for discretion whether or not to set aside a judgement under rule 8 of Order 9B of the Civil Procedure
Rules. It is also well settled that the Court of Appeal will not interfere with the exercise of the discretion of a judge unless
it is satisfied that he misdirected himself in some matter and as a result arrived at a wrong decision or unless it is manifest
from the case as a whole that the Judge was clearly wrong in the exercise of his discretion and that as a result there has
been injustice… The appellant was not altogether free from blame. He could have tried harder to be present at the date of
hearing. He delayed considerably in filing his application to set aside the ex parte judgement. The trial Judge’ s
exasperation at his behaviour was understandable. Although he should not have been precluded from defending the claim
against him he has to be penalized to some extent in view of his somewhat dilatory actions.” The principle that emer ges
from the above cited cases is that the discretion of a court to set aside or vary ex-parte judgment entered in default of
appearance or defence is a free one and is intended to be exercised to avoid injustice or hardship but not to assist a person
guilty of deliberate conduct intended to obstruct or delay the course of justice. This was the position that was adopted
in Rayat Trading Co. Limited vs Bank of Baroda & Tetezi House Ltd [2018] eKLR where the court listed the matters to
be considered in the exercise of this discretion as follows: -i. the defendant has a real prospect of successfully defending
the claim; orii.it appears to the court that there is some other good reason why; iii. the judgment should be set aside or
varied; or iv . the defendant should be allowed to defend the claim Similarly , in the case of, Thorn PLC vs Macdonald
[1999] CPLR 660, the Court of Appeal highlighted the following guiding principles: -i. while the length of any delay by
the defendant must be taken into account, any pre-action delay is irrelevant; ii. any failure by the defendant to provide a
good explanation for the delay is a factor to be taken into account, but is not always a reason to refuse to set aside; iii. the
primary considerations are whether there is a defence with a real prospect of success, and that justice should be done; and
iv. prejudice (or the absence of it) to the claimant also has to be taken into account. In the case of Rahman vs Rahman
(1999) L TL 26/1 1/9, the court considered the nature of the discretion to set aside a default judgment and concluded that
the elements the judge had to consider were: the nature of the defence, the period of delay (i.e., why the application to set
aside had not been made before), any prejudice the claimant was likely to suf fer if the default judgment was set aside,
and the overriding objective. In Philip Kiptoo Chemwolo and Mumias Sugar Company Ltd vs Augustine Kubende (1982-
1988) KAR, the Court of Appeal held that: -“The court has unlimited discretion to set aside or vary a judgment entered in
default of appearance upon such terms as are just in the light of all facts and circumstances both prior and subsequent and
of the respective merits of the parties. Kimani -v- MC Conmell (1966) EA 545 where a regular judgment had been
entered the court would not usually set aside the judgment unless it was satisfied that there is a triable issue.” One of the
key factors to consider when setting aside an ex-parte judgment is whether the defendant has a defence on merit. In Sebei
District Administration vs Gasyali & others (1968) EA 300 Sheridan J. observed that: -“The nature of the action should
be considered. The defence if one has been brought to the notice of the court, however irregularly , should be considered,
the question as to whether the plaintif f can reasonably be compensated by costs for any delay occasioned should be
considered and finally , I think, it should always be remembered that to deny the subject a hearing should be the last resort
of the court” In the case of, Tree Shade Motor Limited vs DT Dobie Co Ltd CA 38/98, the Court held that even when ex-
parte judgment was lawfully entered, the court should look at the draft defence to see if it contains a valid or reasonable
defence. As can be noted from the proceedings, this matter first came to court on 14th November ,2018 when the
Appellants were not present and a further mention date for 20th February ,2019 fixed and again, the Appellants were not
present and a hearing date for 16th April,2019 was issued. On the said date, Ms. Wekesa held brief for Mr . Kidiavai,
counsel for the Appellant and sought for an adjournment which was objected to but however granted with orders as to
costs. Thereafter , a fresh date for hearing was set i.e on 2nd July ,2019. On that date, neither the Appellant nor their
counsel on record were present in court despite the date having been fixed by consent. The trial court ordered the case to
proceed. The Respondent who was present called two witness and closed his case while the Appellant’ s case was equally
closed. Directions for submissions were taken for 16th July ,2019 and thereafter a date for judgment was fixed for 1 1th
September ,2019 but the judgment was delivered on 16th October ,2019. Thereafter , the Respondent filed a bill of costs
dated 31st October ,2019 which was fixed for assessment on 27th November ,2019 and the Respondent was ordered to
serve the same upon the Appellant. When this matter came up for taxation, the Appellant was absent despite there being
proof that they were served and that the court set a date for ruling on the bill of costs for 4th December ,2019 when the
bill of costs was taxed of f at Kshs.513,765/=. On 10th December , 2019 the Appellant came to court with the application | https://augmentin.io/casetext/case/Jiangxi_Khongmei_Eng._Company_Ltd_v_Maelo__Civil_Appeal_E040_of_2021__[2023]_KEHC_25412__KLR___17_November_2023___Judgment_.docx.pdf |
5e866492512a-1 | proof that they were served and that the court set a date for ruling on the bill of costs for 4th December ,2019 when the
bill of costs was taxed of f at Kshs.513,765/=. On 10th December , 2019 the Appellant came to court with the application
which informed the impugned ruling. It is imperative to note that the current application was filed on 10th
December ,2019 after proclamation that was done on 5th December ,2019 while judgment was entered on 16th
October ,2019. Therefore, the current application was filed about two months after entry of Judgment. In my view , I find
that a two months delay in filing the application is not only inordinate but has also not been explained by the applicant. | https://augmentin.io/casetext/case/Jiangxi_Khongmei_Eng._Company_Ltd_v_Maelo__Civil_Appeal_E040_of_2021__[2023]_KEHC_25412__KLR___17_November_2023___Judgment_.docx.pdf |
f17a3b525cf6-0 | This coupled with the fact that counsel for the Appellant was consistently served with notices. I am not persuaded that the
appellant has made out a case for the grant of the discretionary orders to set aside the interlocutory judgement entered
herein. My above findings notwithstanding, this court is still minded to exercise its discretion so as to grant the applicant
a reprieve by granting them a chance to be heard more so considering the fact that the suit involves a claim for the sum of
close to Kshs 4 million which is quite a substantial amount of money . This reprieve will however not be granted without
any conditions on the part of the applicant who has clearly been indolent in the handling of its case. My line of thinking
is bolstered by the decision in in Rayat Trading Co. Limited vs Bank of Baroda & Tetezi House Ltd [2018] eKLR where
the Court held that: -“If the court sets aside a default judgment, it may do so on terms. In most cases, the defaulting
defendant will be ordered to pay the claimant’ s costs thrown away . In addition, the Court may consider imposing a
condition that the defendant must pay a specified sum of money into court to await the final disposal of the claim.”
Further , i agree with the holding of the Supreme Court of India which stated in Sangram Singh vs. Election Tribunal,
Koteh, AIR 1955 SC 664, at 71 1 cited in the case of Gerita Nasipondi Bukunya & 2 others v Attorney General [2019]
eKLR that: “[T]here must be ever present to the mind the fact that our laws of procedure are grounded on a principle of
natural justice which requires that men should not be condemned unheard, that decisions should not be reached behind
their backs, that proceedings that af fect their lives and property should not continue in their absence and that they should
not be precluded from participating in them.” In Wachira Karani vs. Bildad Wachira (2016) eKLR as was quoted in the
case of David Gicheru v Gicheha Farms Limited & another [2020] eKLR the Court held that:- “The fundamental duty of
the Court is to do justice between the parties. It is in turn, fundamental that to that duty , those parties should each be
allowed a proper opportunity to put their cases upon the merits of the matter…” Further , even if the absence of the
Appellant was to be blamed on their counsel, as was appreciated by Apalloo, J. A (as then was) in the case of Philip
Chemowolo & Another –vs- Augustine Kubede [1982-88] KAR 103 at 1040: “Blunder will continue to be made from
time to time and it does not follow that because a mistake has been made that a party should suf fer the penalty of not
having his case heard on merit. I think the broad equity approach to this matter is that unless there is fraud or intention to
overreach, there is no error or default that cannot be put right by payment of costs. The Court as is often said exists for
the purpose of deciding the rights of the parties and not the purpose of imposing discipline.” In the result, it is my finding
that the appeal has merit. The same I allowed. The ruling delivered on 30th April, 2020 in Bungoma CMCC No. 276 of
2018 is hereby set aside and substituted with an order allowing the appellant’ s application dated 19thDecember , 2019
with thrown away costs of Kshs 20, 000/ being paid by the appellant to the respondent. Each party to bear their own costs
of this appeal. It is so ordered. Dated and delivered at Bungoma this 17TH Day Of November 2023. D.Kemei Judge In
the presence of No appearance Samba Odek for Appellant No appearance Angima for Respondent Kizito Court Assistant | https://augmentin.io/casetext/case/Jiangxi_Khongmei_Eng._Company_Ltd_v_Maelo__Civil_Appeal_E040_of_2021__[2023]_KEHC_25412__KLR___17_November_2023___Judgment_.docx.pdf |
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