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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 |
a1b86885fd3d-0 | REPUBLIC OF KENY A IN THE ENVIRONMENT AND LAND COUR T AT MALINDI ELC SUIT NO. 98 OF 2018
SWALEH ABDIL KADIR ……………………………………….………. PLAINTIFF VERSUS NA TIONAL
HOUSING CORPORA TION …………..……………. 1ST DEFENDANT THE HON ATTORNEY GENERAL
………………..…………..… 2ND DEFENDANT JUDGMENT By a Plaint dated 30th April 2018, the Plaintif f herein
sued the Defendants seeking the following orders; A declaration that the Plaintif f is the genuine and rightful owner of
portion No. 5546 Malindi. Special damages in the sum of Kshs. 12,000,000/-. Loss of future earnings in the form of
rental income from the suit land as the same rate of Kshs. 31,000.00 a month from the 1st day of March, 2018 until the
date of the judgment herein. Interest on b and c above at such rate and for such period as this Honorable court may deem
fit to grant. In the alternative to a, b, c and d above, compensatory damages on the basis of full repayment value of the
suit property herein as developed by the Plaintif f prior to the demolition thereof on the 12th day of February 2018,
together with unencumbered open market value of the land upon which that same as constructed being portion no. 5546
Malindi measuring nought decimal four eight nought (0.0480) Ha or thereabouts and situated at Malindi Township in the
Kilifi County ( suit land) as at the time of judgment herein in the aggregated sum of Kshs. 30,000,000.00 or such other
value as may be determined upon quantification by a licences quantity surveyor to be agreed upon by the parties within
14 days of the judgment herein or appointed by this honourable court upon failure of such agreement. General damages
for distress, pain and suf fering. Aggravated and exemplary damages. Costs of this suit together with interest thereon at
such rate and for such period of time as this honorable court may deem fit to grant. Any such other or further relief as this
honourable court may deem appropriate. PLAINTIFF’S CASE PW1 adopted his Witness Statement dated 30th April
2018 and produced the documents in the list of documents as Pex No 1 to 18 save for the valuation report. PW1 stated
that he was at all material times the registered lessee of all that piece of land Portion No. 5546 delineated on Survey Plan
No. 158373, C.R. No. 23699 situate in Malindi Township within Kilifi County . He further stated that he purchased the
suit land from the 1st Defendant on 20th December 1993, paid a consideration of Kshs. 145,000/- and a transfer in his
favour duly registered on 31st December 1993. PW1 testified that subsequently , and upon the requisite building
approvals from the then Municipal Council, he constructed a double storey building which he managed to rent out to five
tenants earning a total of Kshs. 28,675/- monthly rental income in January 2018. It was PW1’ s evidence that he enjoyed
quiet possession until the morning of 12th February 2018 when the 1st Defendant without notice wrongfully entered the
suit property , evacuated the tenants and demolished the building. As a result of what he referred to as wrongful
demolition, the Plaintif f alleged that the building has since become inhabitable causing him substantial loss and anguish.
The Plaintif f withdrew the suit against the 2nd Defendant vide a Notice to Withdraw dated 4th July 2019. On cross-
examination by Mr . Awino, PW1 testified that he developed the suit land between 2002 and 2003 and spent about Kshs.
12-13million but he did not have the receipts to show in court. He stated that half of the building was demolished and
was not agreeable to the 1st Defendant rebuilding the half unless they put up a fresh one. PW2 Edwin Otieno Oduor , a
professional Valuer conducted a valuation on the suit land and prepared and produced the valuation report dated 5th April
2018. On cross-examination by Mr . Baraza, counsel for the 1st Defendant, PW2 told the court that the demolition
affected the foundation of the building and the walls. DEFENDANT’S CASE DW1 Joshua Odege Sanduk a licenced
Surveyor adopted his Witness Statement dated 1st July 2019 and stated that he had been an employee of the 1st
Defendant for 13 years. He testified that the damage on the building occurred as collateral damage during execution of a
court order and indicated that the 1st Defendant was willing to restore the building to its original state and that they be
allowed to do so. DW1 confirmed on cross-examination by Mr . Binyenya, that the suit land belonged to the Plaintif f and
that the 1st Defendant made a mistake demolishing the building. PLAINTIFF’S SUBMISSION Mr . Binyenya counsel
for the Plaintif f filed submissions and lar gely reiterated the facts established in the parties’ pleadings and evidence
adduced in court. He submitted that the Plaintif f was entitled to damages for loss and injury suf fered. It was counsel’ s
submissions that the general rule regarding the measure of damages was that the injured party ought to be awarded a sum
so as to put him in a position similar or nearly close to the position he would have been had he not sustained the loss.
Counsel relied on the cases of Total Kenya Limited formerly Caltex Oil Kenya Limited v Janevams Limited [2015]
eKLR; and Peter M. Kariuki v Attorney General [2014] eKLR. ANAL YSIS AND DETERMINA TION It was undisputed
that the Plaintif f was the rightful owner of the suit land and building thereon. The 1st Defendant admitted that they
indeed wrongfully demolished the Plaintif f’s building. It follows therefore that the sole issue for determination in this
case is whether the Plaintif f is entitled to damages and costs of this suit as prayed. Under Section 13(7) of the
Environment and Land Court Act No.19 of 201 1, the Court has jurisdiction as follows:- In exercise of its jurisdiction
under this Act, the Court shall have power to make any order or grant, any relief as the Court deems fit and just
including:- a) Interim or permanent preservation orders including injunction. b) Prerogative orders c) Award of damages
d) Compensation e) Specific performance f) Restitution g) Declarations or h) Costs. The Plaintif f sought special damages
in the sum of Kshs. 12,000,000/- indicating that being the sum expended in constructing the building back in the year
2002. Special damages must be specifically pleaded and proved. In the case of Swalleh C. Kariuki & another v Viloet | https://augmentin.io/casetext/case/Kadir_v_National_Housing_Corporation___another__Environment_and_Land_Case_Civil_Suit_98_of_2018__[2023]_KEELC_21582__KLR___17_November_2023___Judgment_.docx.pdf |
a1b86885fd3d-1 | in the sum of Kshs. 12,000,000/- indicating that being the sum expended in constructing the building back in the year
2002. Special damages must be specifically pleaded and proved. In the case of Swalleh C. Kariuki & another v Viloet
Owiso Okuyu [2021] eKLR the court held that : “Special Damages must be both pleaded and proved, before they can be
awarded by the Court. Suf fice it to quote from the decision of the Court of Appeal in Hahn V. Singh, Civil Appeal No. 42
Of 1983 [1985] KLR 716, at P . 717, and 721 where the Learned Judges of Appeal - Kneller , Nyarangi JJA, and Chesoni
Ag. J.A. - held: “Special damages must not only be specifically claimed (pleaded) but also strictly proved…. for they are
not the direct natural or probable consequence of the act complained of and may not be inferred from the act. The degree
of certainty and particularity of proof required depends on the circumstances and nature of the acts themselves.” The
Plaintif f’s documentary evidence in support of the special damages is a bill of quantities for a proposed residential house | https://augmentin.io/casetext/case/Kadir_v_National_Housing_Corporation___another__Environment_and_Land_Case_Civil_Suit_98_of_2018__[2023]_KEELC_21582__KLR___17_November_2023___Judgment_.docx.pdf |
9e640acb2d40-0 | on Plot No. 5546. On perusal of that document, it shows that the document was prepared in February 2018 yet the
construction was done back in 2002. Again, the total estimation was calculated at Kshs. 12,884,745/-. It is not explained
why the Plaintif f would then claim only a sum of Kshs. 12,000,000/- out of that amount. The Plaintif f conceded in his
testimony that he did not have any receipts in support of the construction expenses. I thus find that the prayer for special
damages in the sum of Kshs. 12,000,000/- has not been proved. The Plaintif f also prayed for loss of future earnings in the
form of rental income at the rate of Kshs. 31,000/-. In the case of Douglas Kalafa Ombeva v David Ngama [2013] eKLR,
the Court of Appeal held that loss of earnings is a special damage claim, and as already established, it is paramount that
special damages are pleaded and proved. The Plaintif f pleaded that the rental statement for January 2018 from his five
tenants amounted to Kshs. 31,000/-. The Plaintif f explained that his estate agents Malindi Real Agency Limited would
deduct 8 percent from the rent collected. The Plaintif f exhibited a copy of an account statement dated 10th February 2018
from the said Agents establishes that the Plaintif f’s rental income for the month of January 2018 was indeed Kshs.
31,000/-. In the circumstances, I find that the Plaintif f is entitled to prayer to the rental income as prayed. In the
alternative, the Plaintif f sought compensatory damages based on full repayment value of the building prior to the
demolition together with unencumbered open market value of the suit land in the sum of Kshs. 30 million. The expert
evidence produced by the Plaintif f was not controverted by the 1st Defendant. I will therefore rely on the valuation report
exhibited by PW2. PW2 observed that the building was situated in a fast developing neighborhood identified as Ngala
Phase 4 within Malindi Town. He also established that the part demolition af fected the building’ s foundation and
therefore was not habitable. That the building could not be renovated due to the major damage caused. He estimated the
market value of the building at Kshs. 30,000,000/-. The evidence on record established that the demolition did not af fect
the suit land. In the absence of any other valuation report to rebut the one on record, I am inclined to award
compensatory damages as pleaded. In any event, the 1st Defendant conceded to their willingness to compensate the
Plaintif f for the loss caused. I therefore find that the Plaintif f has partially proved his case and make the following
specific orders; A declaration that the Plaintif f is the genuine and rightful owner of portion No. 5546 Malindi. Loss of
future earnings in the form of rental income from the suit land as the same rate of Kshs. 31,000.00 a month from the 1st
day of March, 2018 until the date of the judgment herein. An order is hereby issued for compensatory damages as full
payment of the value of the suit property as per the Valuation report in the sum of Kshs 30,000,000/ Costs of this suit to
the plaintif f. DA TED, SIGNED AND DELIVERED AT MALINDI THIS 17TH DA Y OF NOVEMBER 2023. M.A.
ODENY JUDGE NB: In view of the Public Order No. 2 of 2021 and subsequent circular dated 28th March, 2021 from
the Of fice of the Chief Justice on the declarations of measures restricting court operations due to the third wave of
Covid-19 pandemic this Judgment has been delivered online to the last known email address thereby waiving Order 21
[1] of the Civil Procedure Rules. | https://augmentin.io/casetext/case/Kadir_v_National_Housing_Corporation___another__Environment_and_Land_Case_Civil_Suit_98_of_2018__[2023]_KEELC_21582__KLR___17_November_2023___Judgment_.docx.pdf |
4d108d8dff8d-0 | REPUBLIC OF KENY A IN THE HIGH COUR T OF KENY A AT NAIROBI COMMERCIAL AND TAX DIVISION
COMMERCIAL CASE NO 391 OF 2015 INDIGO TELCOM LIMITED ……..…………… PLAINTIFF/APPLICANT
AND - INDEPENDENT ELECT ORAL AND BOUNDARIES COMMISSION ……………………..…. 1ST
DEFENDANT/RESPONDENT EZRA CHILOBA ……………………… 2ND DEFENDANT/RESPONDENT
MARJAN HUSSEIN MARJAN ……... 3RD DEFENDANT/RESPONDENT BETTY SUNGURA- NY ABUT O …….
4TH DEFENDANT/RESPONDENT OSMAN HASSAN IBRAHIM ……… 5TH DEFENDANT/RESPONDENT
PRAXEDES TOROREY ……………… 6TH DEFENDANT/RESPONDENT R U L I N G Before Court is the
application dated 16/3/2023. The same was brought under sections 1A, 1B & 3A of the Civil Procedure Act, section 7 of
the appellate jurisdiction Act, Order 50 rules 1 and 6 of the Civil Procedure rules. The application sought for the
extension of time within which to file and serve a notice of appeal against the judgment of this Court delivered on
30/9/2022. That the notice of appeal already filed be deemed to be as duly filed. In support of the application, the
applicant relied on the grounds on the face of it and on the supporting af fidavit of James K Muthui sworn on 16/3/2023.
It was the applicant’ s contention that the Court dismissed its case on 30/9/2022 and it intended to appeal against that
decision. In explaining the delay , it was averred that the advocate who had the conduct of the matter had not filed the
notice of appeal although she had informed the applicant’ s counsel that the same had been filed together with the request
for proceedings. That upon discovery of the failure to file, the applicant filed the notice of appeal on 14/3/2023 without
further delay . It was averred that the appeal was ar guable and the applicant would suf fer great injustice if the orders
sought are not granted. That the delay was not intended and was not inordinate and the error of the advocate should not
be visited on the client. The 1st defendant opposed the application vide a replying af fidavit of Chrispine Owiye sworn on
19/4/2023. It was averred that the plaintif f had not served the 1st defendant on time as required by Rule 75(2) of the
Court of Appeal Rules. That no good or suf ficient cause was provided to explain the delay in filing the notice of appeal.
It was contended that the delay of 6 months was inordinate and that the draft memorandum of appeal annexed to the
application did not disclose an ar guable appeal. The application was termed as incompetent and an abuse to the court
process. On their part, the 2nd to 5th defendant filed a response to the application via a replying af fidavit sworn on
10/5/2023 by EDWIN M MUKELE. He averred that the defendants were served with the notice of appeal on 20/3/2023,
6 months after the judgment was delivered. According to him, there had been no suf ficient cause for failing to serve the
notice within the stipulated timelines. That 6months delay was inordinate and inexcusable and the defendants would
suffer great prejudice if the orders sought are granted. The application was canvassed by way of written submissions
which have been considered. The applicant submitted that it was deserving of the orders sought as the delay in filing the
notice of appeal was caused by an error of the part of the Counsel who had the conduct of the matter . That upon
discovery of the error , the applicant’ s advocates had acted promptly without any further delay and the interest of justice
would dictate granting the orders sought. It was further submitted that the delay was not inordinate or intentional as it
was caused by error of Counsel. That the appeal raised matters of general public importance and the applicants would not
suffer any prejudice that cannot not be compensated by costs. It was submitted for the respondents that the applicant had
not provided any good or suf ficient reason for the delay as the applicant ought to have been keen and diligent in
following up on its case. That the mere allegation that the mistake was on the part of Counsel was not suf ficient enough
to invoke the court’ s jurisdiction. That the delay of five months was inordinate and appeal cannot be said to be of public
importance since it involved a private contractual arrangement between the applicant and the 1st defendant. I have
considered the parties’ contestations and the submissions on record. The applicant seeks leave to have the notice of
appeal admitted out of time. Rule 75 of the Court of Appeal Rules provides: - “1. Any person who desires to appeal to the
Court shall give notice in writing, which shall be lodged in duplicate with the registrar of the superior court. 2. Every
such notice shall, subject to rules 84 and 97, be so lodged within fourteen days of the date of the decision against which it
is desired to appeal.” It is not in dispute that judgment in this matter was delivered on 30/9/2022. The notice of appeal
was filed on 14/3/2023, nearly six month’ s later . In Thuita Mwangi v Kenya Airways [2003] eKLR, the Court of Appeal
reiterated its decision in Mutiso v Mwangi [1997] KLR 630 as follows: - “It is now well settled that the decision whether
or not to extend the time for appealing is essentially discretionary . It is also well settled that generally the matters which
this court takes into account in deciding whether to grant an extension of time are; first, the length of delay; secondly , the
reason for the delay; thirdly (possibly) the chances of appeal succeeding if the application is granted; and fourthly ,
the degree of prejudice to the Respondent of the application is granted.” The principles applicable in an application for
leave out of time were also considered by the Supreme Court in Nicholas Kiptoo Korir Arap Salat Vs. IEBC and 7
Others [2014] eKLR as follows: - “The underlying principles a court should consider in exercise of such discretion
include; 1. Extension of time is not a right of any party . It is an equitable remedy that is only available to a deserving
party at the discretion of the court; 2. A party who seeks for extension of time has the burden of laying a basis to the
satisfaction of the court; 3. Whether the court should exercise the discretion to extend time, is a consideration to be made
a case- to-case basis; 4. Whether there is a reasonable reason for the delay . The delay should be explained to the
satisfaction of the court; 5. Whether there will be any prejudice suf fered by the Respondent if the extension is granted; 6. | https://augmentin.io/casetext/case/Indigo_Telcom_Limited_v_Independent_Electoral_and_Boundaries_Commission___5_others__Commercial_Case_391_of_2015__[2023]_KEHC_25423__KLR___Commercial_and_Tax___20_November_2023___Ruling_.docx.pdf |
4d108d8dff8d-1 | a case- to-case basis; 4. Whether there is a reasonable reason for the delay . The delay should be explained to the
satisfaction of the court; 5. Whether there will be any prejudice suf fered by the Respondent if the extension is granted; 6.
Whether the application has been brought without undue delay . 7. ...” From the foregoing, the Court will have to apply
the said principles in determining the present application. These are; the duration of the delay , the reason for the delay ,
the prejudice that would be occasioned to the respondents and merit of the appeal. In the present case, since the judgment
was delivered on 30/9/2022, the notice of appeal ought to have been filed by the 14/10/2022. The notice of appeal was
however filed on 14/3/2023, meaning a delay of over 5 months. Even if we were to take into consideration the excluded
period, under Order 50 rule 4 of between 21/12/2022 and 13/1/2023, in the computation of time, the delay will still be in | https://augmentin.io/casetext/case/Indigo_Telcom_Limited_v_Independent_Electoral_and_Boundaries_Commission___5_others__Commercial_Case_391_of_2015__[2023]_KEHC_25423__KLR___Commercial_and_Tax___20_November_2023___Ruling_.docx.pdf |
b85feff2eea7-0 | excess of 4 months. That in my view was in ordinate delay . The same requires an explanation. In explaining the delay , it
was explained that it was the advocate who was conducting the matter who failed to take steps to lodge the appeal. The
law firm representing the applicant admitted that the default was attributable to it. It was the applicant’ s contention is that
the default of its advocates should not be visited upon it. The respondents opposed the application on the ground that the
delay was inordinate and the reasons advanced by the applicant are not suf ficient. I am of the view that, it is not
uncommon that advocates in law firms are susceptible to making grave mistakes. They may fail to report the proper steps
taken in a litigation. The question this Court has to answer is, should it let the client pursue an action for professional
negligence in those circumstances? My view is that the Court should be very restrained from taking that route. That route
should be taken only when it is clear that the delay is so inordinate and to allow an extension it would extremely
prejudice the opposite party . In the present case, the delay was inordinate delay . However , there was no evidence on the
part of the respondents that they would be exposed to prejudice that cannot be compensated by an award of costs if the
extension sought was granted. In the interests of justice, this matter raises very important issues of public interest. What
happens where a public entity decides to take a shortcut in favour of a preferred private investor to the exclusion of
others? Should the law be applied strictly to prevent the private sector players from enticing public of ficers and/or
entities from engaging in wrongful, irregular and acts that amount to an illegality? These are issues in my view that
require to be examined, interrogated on and pronounced in a resounding manner by our esteemed Appellate Court.
Accordingly , I am inclined to allow the application to give that esteemed Court an opportunity to interrogate the matter . I
cannot in my position examine whether or not the intended appeal is ar guable having in mind that I am convinced that I
was right in my judgment. Talking for myself, the appeal is unar guable. However , that is the role and preserve of the
Court of Appeal. Accordingly , the Court finds merit in the application and hereby allows the same as prayed. However ,
the applicant shall bear the costs of the application. It is so ordered. DA TED and DELIVERED at Nairobi this 20th day
of November , 2023. MABEY A, FCI Arb JUDGE | https://augmentin.io/casetext/case/Indigo_Telcom_Limited_v_Independent_Electoral_and_Boundaries_Commission___5_others__Commercial_Case_391_of_2015__[2023]_KEHC_25423__KLR___Commercial_and_Tax___20_November_2023___Ruling_.docx.pdf |
8837f40b906b-0 | REPUBLIC OF KENY A IN THE HIGH COUR T OF KENY A AT BUNGOMA MISC APPLICA TION NO. E109 OF
2018 MAR TIN KHAEMBA WEKANYW A-------------------------------APPLICANT VERSUS WAMAL WA SIMIYU &
CO ADVOCA TES-------------------RESPONDENT RULING The application before me is a notice of motion brought
under certificate of ur gency dated 7th February , 2023 and amended on 21st March,2023, pursuant to Article 40 of the
constitution, section 3A of the Civil Procedure Act, Order 40 Rules 1, 2, 3, 4 and 10, Order 45 of the Civil Procedure
Rules seeking the following orders; Spent Spent That pending the hearing of and determination of the application the
court be pleased to order the summoning of the court process server one David Imo for purposes of being cross-examined
by the applicant’ s counsel. That pending the hearing of the suit inter -partes, the Court be pleased to issue an order
compelling the 1st respondent from harassing the Applicant. The costs of the application be borne by the Respondent.
The same is supported by an af fidavit sworn by the Applicant who averred inter alia; that the Respondent through a firm
of Auctioneers have been harassing him intending to execute a decree dated 26th October ,2022 which emanated from an
application dated 10th May ,2019 whose service is highly disputed; that he stands to suf fer irreparable damage if the court
does not intervene; that he seeks to be granted a chance to defend himself as he was not given an opportunity due to
falsehoods of the process server . The Respondent in opposition averred that the Applicant was duly served with the court
documents as he was represented by his advocate on record; that the Auctioneer is immune to the proceedings by virtue
of section 6 of the Judicature Act as it was executing lawful warrants which have not been challenged, recalled or set
aside; that there is no illegality attributed to the Auctioneer and thus the application is an abuse of the court process and
which should be dismissed. In their submissions dated 25th August,2023 the Respondent submitted that the orders as
sought by the Applicants were against the court which is mandated to execute its decrees. Reliance was placed in the case
of Michael Bartenge vs. Stephen Bartenge (2007) Eklr . Counsel submitted that the Applicant ought to have sought for
stay orders and setting aside of the impugned decree since the calling of a process server for the purposes of cross
examination would not have any ef fect and would be engaging the court in an academic exercise unless the decree is
stayed/lifted. I have considered the application and submissions. The history of the matter is that the Respondent filed an
advocate-client bill of costs dated 24th June,2018 which was taxed of f at Kshs.145,234/= and a certificate of costs issued
on 22nd March,2019. The Respondent thereafter filed an application dated 10th May ,2019 seeking to have the certificate
of costs converted to a decree for purposes of execution. The application was allowed in the absence of the Applicant
herein on 26th October ,2022 after the court satisfied itself of service of the application upon the Applicant herein. As a
result, the Respondent herein proceeded to execute the decree. I find that the issue for determination is whether the
applicant is entitled to the reliefs sought. The Applicant in his application sought for orders that the application be
certified as ur gent and for orders restraining the Respondent from auctioning his property which orders were granted in
the interim. Further , the Applicant sought for an order summoning the Court process server for purposes of cross-
examination pending hearing and determination of the application which order was not granted in the interim. The last
two prayers were orders restraining the respondent from harassing the Applicant and a prayer for costs. It is clear from
the foregoing prayers that the Applicant is not seeking any orders beyond the inter parties hearing stage. Put dif ferently ,
the applicant is not seeking any order to preserve any property or threatened legal or equitable right pending the hearing
and determination of the instant application. I am aware that disputes will always arise during the execution stage in any
litigation, but in the instant application none has been disclosed. In Re Estate of Bakari Marakweli Mwakwisha
(deceased) (2008) eKLR it was held: “I am afraid the applicant did not seek any orders which may be granted. His only
substantive prayer was for the grant of an interlocutory injunction pending the hearing and determination of this
application. That order was granted at the time when the application was certified ur gent. It was to be in force pending
the hearing and determination of the application. Once the application is heard and determined, that order will have
served its purpose, and there will be nothing more to be done. Strictly speaking, indeed, there is no prayer to be heard.
The applicant ought to have included a prayer for an injunction pending the hearing and determination of the petition for
the grant of letters of administration intestate. But such injunction was not applied for , and the court cannot grant an
order which is not prayed for .” Even looking at the “orders” as sought without a substantive prayer , the application is
misconceived and incompetent as any relief sought can only be granted if there is pending a substantive prayer , and that
there is not one such in this application. Even so the prayer for orders restraining the Respondents from harassing the
Applicant has not been substantiated. Clearly , the application is devoid of the requisite prayers which could act as an
anchor . As it is, the orders sought are only ideal at the ex-parte stage but not the next stage as the same will have become
spent. If that is the position, then there is nothing substantive for this court’ s deliberation. As framed by the applicant, the
orders are to subsist until the determination of the application interpartes. The applicant must be informed that we are
now at the interpartes hearing stage and that the orders sought are deemed to have served the purpose and as such there is
nothing that the court can deliberate upon. Again, it is noted that the application stems from an execution of decree
process. As the applicant has not sought for an order of stay of execution of the decree, it is untenable to stop the
executioner from carrying out its lawful duties. I find the prayers are not capable of being granted and that if the same is
granted, the next question facing the applicant will be ‘’what next?’ ’ In view of the foregoing observations, I come to the
finding that the application is devoid of merit. The same is dismissed with costs to the Respondent. It is so ordered.
Dated and delivered at Bungoma this 17th day Of November 2023 D.Kemei Judge In the presence of No appearance
Motanya Applicant Onyando for Wamalwa Simiyu for Respondent Kizito Court Assistant | https://augmentin.io/casetext/case/Wekanywa_v_Wamalwa_Simiyu___Co_Advocates__Miscellaneous_Application_E109_of_2018__[2023]_KEHC_25424__KLR___17_November_2023___Ruling_.docx.pdf |
47cb92082445-0 | REPUBLIC OF KENY A IN THE EMPLOYMENT AND LABOUR RELA TIONS COUR T OF KENY A AT NAIROBI
ELRC CAUSE NO. 1077 OF 2017 TITUS OMONDI WANY AMA CLAIMANT - VERSUS - ARIST OCRA TS
CONCRETE L TD …………. RESPONDENT (Before Hon. Justice Byram Ongaya on Friday 17th November , 2023)
JUDGMENT The claimant filed the Statement of claim on 12.06.2017 through Mbigi Njuguna & Co Advocates. The
claimant prayed for judgment against the respondent for: Severance pay (15 days salary per month× 10 years worked) =
Kshs.194,630 Unpaid salary for 90 days (3 months) Kshs.38,926 ×3 months =1 16, 778 Notice (3 months’ salary)
Kshs.38,926 ×3 months = Kshs.1 16,778.00. Costs of the suit. The Memorandum of response was filed on 24.08.2017
through Prof Albert Mumma & Co Advocates. The respondent prayed that the suit be dismissed with costs. The
claimant’ s case was that he was employed by the respondent on 1 1.11.2005 as a Moxy Dumper Operator earning a basic
salary of Kshs.7,800 per month and a housing allowance of Kshs.1,600 per month. The claimant states that he was a in
that position for approximately ten years from 1 1.11.2009 to 31.03.2015 when he was unfairly terminated vide a letter
which stated that his services were no longer required. As at 31.03.2015 he was earning a gross salary of Kshs.38,926
with the net salary being Kshs.25,617. The claimant states that he was never given an opportunity to be heard and no
credible reasons were given as to why his services were no longer required. On the part of the respondent it was ar gued
that the claimant’ s letter of of fer was a fixed term contract which was to subsist for 3 months each renewable over the
period 1 1.11.2005 to 1 1.02.2016. That there was no contract capable of enforcement in law existing as at 31.03.2015
between the claimant and the respondent for the claimant to merit the monies sought. That there is no basis for service
pay as sought. It is not provided in the employment contract between the claimant and the respondent. Further , that there
is no basis for a claim for unpaid salary for 90 days (3 months) as sought by the claimant as all monies owing to the
claimant from its fixed term contract were duly paid to the claimant. The respondent states that there is no basis for a
claim for 3 months’ salary as sought because the letter of of fer dated 1 1.11.2005 only provided for one week notice or
one-week salary in lieu of notice. The respondent’ s case was that the contract between the claimant and respondent was
never renewed upon expiry . The Claimant filed his submissions. However , there are no submissions on record on the part
of the respondent. The Court has considered the parties’ respective cases and makes finding as follows. To answer the 1st
issue the Court returns that parties were in initially in a fixed term contract for three months. The respondent alleges the
contracts were renewed over the period of relationship. Further , the respondent alleges that the last of the three-months
contracts was for the term ending 31.03.2015. However , the Court finds that there are no subsequent monthly contracts
exhibited. The claimant testified thus, “Last day at work was 31.03.2015. I see my exhibit No.2. Is termination letter
dated 31.03.2015 ef fective 01.04.2015?” The Court finds that while the initial contract was the three-months’ contract,
when it lapsed there is no evidence that it was renewed. The parties are found to have been in a month to month contract
of service until the respondent issued the letter of termination of services dated 31.03.2015 conveying that the claimant’ s
services were no longer required ef fective 01.04.2015 and to collect final dues on 10.04.2015. To answer the 2nd issue,
the Court finds the termination was abrupt without due notice. The claimant is awarded Kshs.38, 926.00 being one-
month in lieu of notice and in view of section 35 of the Employment Act. The Court further finds that unpaid salary for
90 days was not established at all and, the 3 months’ notice pay had no contractual basis. To answer the 3rd issue, the
Court finds that the termination was unfair . The respondent has of fered no evidence to show that the claimant’ s services
were indeed not required and the reason has not been shown to have existed as at termination as envisaged in section 43
of the Act. The claimant’ s submission is upheld. If indeed his services were not required, then it amounted to redundancy
per section 40 of the Act but due procedure under the section was not invoked. The Court has considered the provisions
in section 40 of the Act. The claimant worked without break from 1 1.11.2005 to 31.03.2015. It makes 9 complete years
and due severance pay would be about 5 months’ salary at half month salary . He is awarded 9 x 0.5 x 38, 926.00 for
severance pay as claimed in amended claim making Kshs.175,167.00. having succeeded in his claim, the costs are
granted. In conclusion judgment is hereby entered for the claimant against the respondent for: Payment of
Kshs.214,093.00 by 31.12.2023 failing interest at Court rates be payable thereon from the date of filing the suit till full
payment. The respondent to pay costs of the suit. 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/Wanyama_v_Aristocrats_Concrete_Ltd__Employment_and_Labour_Relations_Cause_1077_of_2017__[2023]_KEELRC_2945__KLR___17_November_2023___Judgment_.docx.pdf |
5c84cd293ad6-0 | REPUBLIC OF KENY A IN THE HIGH COUR T OF KENY A AT ELDORET PROBA TE AND ADMINISTRA TION
CAUSE NO. E051 OF 2006 IN THE MA TTER OF THE EST ATE OF THE LA TE BENSON MBA TIAH MUY A
BETWEEN ELL Y KURIA MBA TIAH....................................................................................APPLICANT VERSUS
JOHNSON KAHIRA MBA TIAH..............................................................1ST RESPONDENT CHARLES WANYOIKE
MBA TIAH…...................................................2ND RESPONDENT AND ELIZABETH JEPCHUMBA
TUNOI................................................INTERESTED P ARTY RULING The Application herein seeks Review of orders
earlier given in this Cause on 7/1 1/2019. The background of the matter is that the deceased, Benson Mbatiah Muya died
on 22/10/2010 at the age of 83 years. He left behind a widow , Sarah Wanjiku Mbatiah and 4 children, namely , Reuben
Kamanu Mbatiah, Johnson Kahira Mbatia (1st Respondent), Elly Kuria Mbatiah (Applicant) and Charles Wanyoike
Mbatiah (2nd Respondent). The deceased also left behind a number of parcels of land. On 27/03/2006, the widow , Sarah
Wanjiku Mbatia applied for Grant of Letters of Administration Intestate in respect of the estate. Such Grant was then
issued by the Court on 16/08/2006, was subsequently confirmed on 16/03/2009 and the estate distributed. However , on
23/03/2009, the present 2nd Respondent, Charles Wanyoike Mbatiah applied for revocation of the grant claiming that he
was never consulted and that the Grant was obtained fraudently . He also challenged the mode of distribution adopted. In
the intervening period and before the Application could be heard, the widow-sole Administrator died in March 2013, thus
rendering the Grant inoperative. Pursuant to confirmation of the Grant, one of the parcels of land, Uasin
Gishu/Kimumu/2373 vested to the joint ownership of the Applicant and the 1st Respondent, Elly Kuria Mbatiah and
Johnson Kahira Mbatia, respectively . The duo then transferred the parcel into their name and subsequently , sometime in
the year 2015, sold the same at a purchase price of Kshs 8,000,000/- to the interested party , Elizabeth Jepchumba Tunoi
who in turn, obtained a title in her name. Pursuant to an Application filed by the 2nd Respondent on 19/08/2015, the
Court (S.M. Githinji J) on 7/1 1/2019 ordered that the said property , Uasin Gishu/Kimumu/2377, do revert to the estate
and also that the Applicant and the 1st Respondent, Elly Kuria Mbatiah and Johnson Kahira Mbatia, respectively , do,
inter alia, deposit the purchase price in a joint interest earning account. Upon failure by the duo to comply with the order
to deposit the purchase price, a Notice was issued to them on 15/01/2020, to show cause why they should not be
committed to civil jail. In response, by the Application dated 6/02/2020 the duo sought leave to appeal out of time against
the decision and for such leave to operate as a stay of all proceedings in the Cause. The Application was dismissed on
30/11/2020. Now before Court for determination is the Application brought by way of the Notice of Motion dated
16/11/2021 and filed by the Applicant, Elly Kuria Mbatiah, through Messrs J.M. Kimani & Co. Advocates. The prayers
sought are as follows: [………] Spent. THA T the Honourable Court’ s orders directing the Applicants to deposit the
purchase price into joint earning account be reviewed and or set aside. THA T this Honourable Court be pleased to allow
the Applicant to deposit Title number Waitaluk/Mobonde Block 12/Sirende/474 with the Court as security . [………..]
Spent Costs of this Motion be provided for . The Application is stated be brought under Section 76(e) of the Law of
Succession Act, Rule 73 of the Probate and Administration Rules and “all other enabling provisions of the law”. It is
premised on the grounds stated on the face thereon and is supported by the Affidavit sworn by the Applicant. In the
Affidavit, the Applicant deponed that the Court heard this matter in his absence and delivered a Ruling, the Court ordered
that he deposits Kshs 8,000,000/= in a joint interest earning account, on 6/02/2020 his previous Advocate filed an
Application for leave to appeal out of time but the same was disallowed by the Court, he was ordered to deposit the
amount within 60 days from 24/09/2021, he is aggrieved by the order since the amount is substantial and the property is
inherited from his parents and cannot be disposed of since the Applicant has placed inhibition against the title and that
the Grant was revoked by the Court since they have not agreed on who to administer the estate Response to the
Application The Application is opposed vide the Replying Affidavit sworn by the 2nd Respondent, Charles Wanyoike
Mbatiah and filed on 1/12/2021 through Messrs Wambua Kigamwa & Co. Advocates. In the Affidavit, the 2nd
Respondent deponed that the Application is a clear violation of Rule 49 of the Probate and Administration Rules, the
order sought to be reviewed was made on 7/1 1/2019 while the present Motion was filed on 17/1 1/2021 which is over 2
years later , the Applicant fails the test of bringing the Application without unreasonable delay as required in Order 45
Rule 1 of the Civil Procedure Rules, the Applicant cannot substitute the decision of the Court to suit his convenience, the
Court is functus of ficio, the Applicant can sell the land parcel known as Waitaluk/Mobonde Block 12/Sirende/474 (whose
title he proposes to deposit) and deposit the proceeds in Court. Hearing of the Application The Application was
canvassed by way of written Submissions. Pursuant to directions given, the Applicant filed his Submissions on 8/12/2021
while the 2nd Respondent filed on 21/06/2022. Applicant’ s Submissions Counsel for the Applicant submitted that the 2nd
Respondent filed the Summons dated 19/08/2015 seeking among others, orders that the Applicant be restrained from
carrying on any dealings in respect of the assets (parcels of land) of the deceased, that the said assets/plots revert or be
restored to the estate, that the Applicant do account to the estate and its beneficiaries for the proceeds arising from the
sale of the parcel of land Uasin Gishu Kimumu/2373 and deposit the proceeds in Court or in an interest earning account | https://augmentin.io/casetext/case/In_re_Estate_of_Benson_Mbatiah_Muya__Deceased___Probate___Administration_E051_of_2006__[2023]_KEHC_25371__KLR___17_November_2023___Ruling_.docx.pdf |
5c84cd293ad6-1 | restored to the estate, that the Applicant do account to the estate and its beneficiaries for the proceeds arising from the
sale of the parcel of land Uasin Gishu Kimumu/2373 and deposit the proceeds in Court or in an interest earning account
and that the Grant of Letters of Administration made to one Serah Wanjiku Mbatiah on 16/08/2006 and confirmed on
13/02/2009 be revoked or annulled. Counsel submitted further that the Application proceeded ex pate without the
participation of the Applicant and Ruling was delivered on 7/1 1/2019, the Court granted all the prayers sought, after
receiving a copy of the Ruling and Notice to Show Cause, the Applicant filed an Application seeking leave to appeal but
the same was dismissed and that subsequently , by the orders made by the Deputy Registrar , the Applicant was granted 60
days to comply . Counsel added that the amount to be deposited being Kshs 8,000,000/- for the Applicant and the 2nd
Respondent, it technically means that the Applicant is supposed to deposit Kshs 4,000,000/-, the value of the property
which the Applicant seeks to deposit in substitution is Kshs 7,500,000/-, the money ordered to be deposited belongs to | https://augmentin.io/casetext/case/In_re_Estate_of_Benson_Mbatiah_Muya__Deceased___Probate___Administration_E051_of_2006__[2023]_KEHC_25371__KLR___17_November_2023___Ruling_.docx.pdf |
5a929e2830fc-0 | the estate, after distribution of the estate, this amount will be taken into account and therefore the 2nd Respondent will
not be prejudiced in any way and that the Applicant has been unable to raise the funds and/or get a buyer for the property .
Regarding the 2nd Respondent’ s contention that the Motion of fends Rule 49 of the Probate and Administration Rules,
Counsel ar gued that Article 51 and 21 of the Constitution requires the Courts to administer justice without undue regard
to procedural technicalities. On the allegation of delay to file the Application, Counsel responded that the Court did not
order any timelines for depositing the money and cited the case of Estate of Omur Abdalla Taib [2017] eKLR. 2nd
Respondent’ s Submissions Counsel for the 2nd Respondent submitted that Order 45(1) of the Civil Procedure Rules
demands that any Application seeking review of a Judgment or Order must be made without unreasonable delay , the
Application has not been brought without unreasonable delay , no reason for the delay of over 2 years has been advanced,
the Motion is an afterthought and has been brought as a reaction to the consequences of committal to civil jail. He cited
the cases of Godfrey Wanjala Wafula & Another v Jairus Wakhungu Mulunda [2020] eKLR. Regarding the prayer that
the Applicant do substitute the order by depositing a title deed instead of the amount of Kshs 8,000,000/-, Counsel
submitted that the issue has already been litigated upon, that on 24/09/2021 the Applicant made the same prayer before
the Deputy Registrar who declined it and directed that failure to deposit the amount will warrant committal to civil jail.
He added that the Court is now functus of ficio and cited the case of Election Petitions No. 3, 4 & 5, Raila Odinga &
Others vs. IEBC & Others [2013] eKLR cited with approval in the article by Daniel Malan Pretorius. He also cited the
case of Jersey Evening Post Limited v Al Thani [2002] JLR 542. Counsel submitted further that bearing in mind that the
Court had already denied the same prayer , it would be prudent for the Applicant to now sell the land parcel whose title he
wishes to deposit as security and deposit the proceeds as ordered by the Court. In conclusion, he added that if the
Applicant was aggrieved by the decision of the Court, then he ought to have appealed, as opposed to seeking a Review .
He cited the case of Abasi Belinda v Fredrick Kangwamu & Another [1963] E.A. 557. Analysis and Determination Upon
examination of the Pleadings, Affidavits, Submissions and the entire Record, I find the issue that arises for determination
in this Application to be “whether the orders given herein on 7/1 1/2019 should be reviewed”. Review of orders in a
Succession Cause is governed by Rule 63(1) of the Probate and Administration Rules, which provides as follows: “63.
Application of Civil Procedure Rules and High Court (Practice and Procedure) Rules (1) Save as is in the Act or in these
Rules otherwise provided, and subject to any order of the court or a registrar in any particular case for reasons to be
recorded, the following provisions of the Civil Procedure Rules, namely Orders V, X, XI, XV , XVIII, XXV , XLIV and
XLIX (Cap. 21, Sub. Leg.), together with the High Court (Practice and Procedure) Rules (Cap. 8, Sub. Leg.), shall apply
so far as relevant to proceedings under these Rules. It is therefore clear from the foregoing that the only provisions of the
Civil Procedure Rules imported to the Law of Succession Act are those listed above and which includes Order 45 of the
Civil Procedure Rules which relates to Review (see John Mundia Njoroge & 9 Others vs. Cecilia Muthoni Njoroge &
Another [2016] eKLR). In the circumstances, any party seeking review of orders in a probate or Succession matter , must
meet the requirements set under Order 45(1). The same 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 . It is therefore
clear that Order 45 provides for three circumstances under which an order for review can be made. The first one is that
the Applicant must demonstrate that 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 as “for any other suf ficient
reason”. The Applicant has not disclosed the ground under which he has approached the Court but clearly it is not on
account of “discovery of new evidence” nor “mistake or error”. It can only therefore presumably be the third ground,
namely , “for any other suf ficient reason”. Counsel for the 2nd Respondent submitted that Order 45(1) demands that any
Application seeking a review of an Order must be made without unreasonable delay . He ar gued that having been filed
more than 2 years after the order sought to be reviewed was given, the Application was filed after an unreasonable delay .
It is true that the impugned Ruling was made on 7/09/2019. It is also true that the present Application seeking review of
the said order was filed on 18/09/2021. Clearly this was in excess of 2 years. Without any explanation over this time
lapse, I find that indeed, the Application was filed after an inordinate and unreasonable delay thus breaching the
requirement stipulated under Order 45(1) above. It is also true that after the impugned order was given on 7/1 1/2019, the
Applicant filed the Application dated 6/02/2020 seeking leave to appeal out of time. The Application was dismissed on
30/11/2020. In his Ruling, S. Githinji J stated as follows “Whether the application has been made without unreasonable
delay The ruling was delivered on 7th November 2019. The application was made on 6th February 2020, close to three
months after . They have attributed the delay to the fact that they were unrepresented as their advocate had ceased acting
and thus they were unaware of the orders. A perusal of the ruling indicates that there was no advocate for the respondent
on the day of the ruling. In re Estate of Mar garet Njambi Thuo (Deceased) [2020] eKLR the court held as follows on | https://augmentin.io/casetext/case/In_re_Estate_of_Benson_Mbatiah_Muya__Deceased___Probate___Administration_E051_of_2006__[2023]_KEHC_25371__KLR___17_November_2023___Ruling_.docx.pdf |
5a929e2830fc-1 | and thus they were unaware of the orders. A perusal of the ruling indicates that there was no advocate for the respondent
on the day of the ruling. In re Estate of Mar garet Njambi Thuo (Deceased) [2020] eKLR the court held as follows on
unreasonable delay; The applicant has not bothered to explain the delay of two months. What is considered as
unreasonable delay will vary from case to case. In Jaber Mohsen Ali’s case, the court said as follows: “The question that
arises is whether this application has been filed after unreasonable delay . What is unreasonable delay is dependent on the
surrounding circumstances of each case. Even one day after Judgment could be unreasonable delay depending on the
Judgment of the court and any order given thereafter .” The Judge went ahead to state that ……. “In the case | https://augmentin.io/casetext/case/In_re_Estate_of_Benson_Mbatiah_Muya__Deceased___Probate___Administration_E051_of_2006__[2023]_KEHC_25371__KLR___17_November_2023___Ruling_.docx.pdf |
eec8d34c9219-0 | of Christopher Kendagor v Christopher Kipkorir , Eldoret ELC No.919 of 2012 the applicant had been given 14 days to
vacate the suit land. He filed an application one day after the 14 days. The application was denied. The court holding
that, the application ought to have come before expiry of the period given to vacate the land.” I find that three months is
too long a period to not have followed up on the matter . Further , their advocates while filing an application to cease
acting touted the fact that the applicants were not picking their calls or communicating with them. In the premises I find
that the delay was unreasonable. The litigants were clearly dragging their feet and ignoring the matter .” On the same
subject of depositing the purchase price therefore, the Applicant has already been found to have been guilty of
unreasonable delay to approach Court for Review . In his Ruling, Githinji J found that the delay of 3 months was
unreasonable. In the present Application, that delay of 3 months has since escalated to over 2 years. If 3 months was
already found in this very matter and subject to have been inordinate, how can this Court now contradict that earlier
finding and declare a delay of over 2 years to be reasonable? The Applicant has not at all addressed or given any reasons
for the delay in filing the Application for review . In the absence of any explanation, I find that the delay is gross and
unreasonable. The 2nd Respondent has also correctly submitted that, in any event, the prayer that the Applicant be
allowed, in substitution, to deposit a title deed instead of the amount of Kshs 8,000,000/-, had already been litigated upon
before the Deputy Registrar . I agree with this Submission since the record shows that indeed, the same prayer was placed
before the Deputy Registrar when the Notice to show cause came before her . The Deputy Registrar delivered a reasoned
Ruling on 24/09/2021 whereof she declined the prayer and granted the Applicant a period of 60 days to deposit the funds
as ordered by Githinji J. The said directions by the Deputy Registrar not having been challenged, and this Court not
having been moved to set aside the same, the directions remain a valid and lawful order upon which this Court has no
reason to interfere. Final orders In the premises, the Notice of Motion dated 16/1 1/2021 filed by the Applicant, the said
Elly Kuria Mbatiah is hereby dismissed with costs to the 2nd Respondent, the said Charles Wanyoike Mbatiah.
DELIVERED, DA TED AND SIGNED AT ELDORET THIS 17TH DA Y OF NOVEMBER 2023 …………………..
WANANDA J. R. ANURO JUDGE | https://augmentin.io/casetext/case/In_re_Estate_of_Benson_Mbatiah_Muya__Deceased___Probate___Administration_E051_of_2006__[2023]_KEHC_25371__KLR___17_November_2023___Ruling_.docx.pdf |
65c7331262c2-0 | REPUBLIC OF KENY A IN THE EMPLOYMENT AND LABOUR RELA TIONS COUR T OF KENY A AT
MACHAKOS ELRC CAUSE NO. E001 OF 2021 DA VID INY ANI CLAIMANT - VERSUS - PROMASIDOR KENY A
LIMITED ………. RESPONDENT (Before Hon. Justice Byram Ongaya on Friday 17th November , 2023) JUDGMENT
The claimant filed the statement of claim on 02.06.2021 through Auma Okumu Advocates. The amended statement of
claim was dated 22.09.2022. The claimant prayed for judgment against the respondent for: A declaration that the
claimant’ s suspension from duty and summary dismissal amounted to a violation of the claimant’ s rights under section 5
(2) and (3)(b) of the employment act, 2007, Article 27(5) and Article 41(1) of the constitution of Kenya. A declaration
that the claimant suf fered unfair , wrongful and unlawful dismissal from employment. The respondent be ordered to pay
the claimant the following sums: One month’ s salary in lieu of the notice …………Kshs.471,368.00 Compensation for
wrongful and unfair dismissal from employment calculated at 12 months’ gross salary thus
2×471,368…………………………Kshs.5,656,416.00. Of fshore quarterly net payment (one month in lieu of notice)
……………………………. USD 2443 (Kshs.263, 844.00). Of fshore quarterly net payment …………USD 2443
(Kshs.263,844.00). Accrued leave ………………………….412,155.73. Gratuity
……………………………….2,034,498.66 Total ……………………………………Kshs.12,004,410.39. Interest on the
above from the date of filing the suit until payment in full at court rates. An order that the respondent issues the claimant
with a certificate of service and references befitting his status. The respondent be ordered to pay the costs of the claim
and interest. The Memorandum of defence was filed on 15.09.2021 through Ronn Law Advocates LLP . The respondent
prayed that the suit be dismissed with costs. The claimant’ s case was that he was employed by the respondent as a supply
chain manager vide a letter of employment 21.12.2010. That he served the respondent company with diligence and as a
result was promoted to the position of supply chain director with ef fect from 09.12.2016. That on 25.04.2019 the
claimant signed a salary review memorandum dated 24.04.2019 which stated that with ef fect from 01.04.2019 the
claimant’ s basic salary would be Kshs.426,368.25. That for the ten years that the claimant served the respondent, no
complaint was raised about his performance. On 15.03.2021 the claimant received a letter suspending his employment
for alleged breach of terms and conditions of his contract and the company’ s code of conduct. The claimant states that he
replied to said letter , through his letter dated 17.03.2021, informing the respondent of the need to specify the acts by the
claimants or conduct which amounted to the alleged breaches. In a letter dated 24.03.2021 the respondent requested the
claimant so show cause why the company should not take disciplinary action against him. Through a letter dated
27.03.2021 the claimant states that he responded to the respondent’ s show cause letter addressing each allegation. By a
letter dated 03.03.2021 the respondent invited the claimant to attend a disciplinary hearing on 31.03.2021, to which the
claimant honoured the invitation and attended the hearing. The claimant contends that the disciplinary hearing was not
carried out in accordance with fair labour practices, and was unfair for reasons that he was not informed of the particular
charges he was facing, prior to the meeting. The claimant pleaded that he followed all company procedures while
dischar ging his duties as supply chain director and that he acted in good faith while dischar ging said duties. The claimant
states that Inyani enterprises, allegedly owned by him is non-existent, and the same can be proved by conducting
searches with the companies’ registry . On the part of the respondents it is stated that the respondent received anonymous
information about possible fraud in its operations, which allegedly involved the respondent’ s staf f. Over a period of time
the respondent reviewed its operations with the aim of identifying the possible problem areas and the extent, if any , of the
fraud. The respondent engaged Stealth Africa Consulting Limited to assist with investigating areas where suspicious
activities were noted. In March 2021 the respondent directed its review towards members of staf f who regularly dealt
with or had contacts with suppliers. During this review , the respondent states that it received anonymous information
regarding the activities of various staf f members. In respect of the claimant it was alleged that he had been involved in or
aided and abetted activities that breached the respondent’ s requirement that staf f act with integrity and promote a culture
of ethics and compliance, and that he was involved in activities that constituted conflict of interest. The respondent states
that in view of the general nature of the information that the respondent had received anonymously , the respondent
considered that it was necessary to commission an investigation to ascertain the full facts and circumstances relating to
the alleged breaches. Consequently , the respondent suspended the claimant from employment vide a letter dated
15.03.2021 in order to facilitate the carrying out of an investigation. The claimant was informed of the suspension as well
as the reasons and terms thereof. Stealth Africa Consulting Limited conducted the investigations by interviewing staf f
members, conducting analysis of forensic images from the laptop that the respondent assigned the claimant for work
purposes and the carrying out of company and business searches. On or about 23.03.2021 an investigation report was
submitted by Stealth Africa Consulting to the respondent, as regards the aforesaid investigations. The respondent states
that the investigation report identified various alleged breaches by the claimant together with evidence supporting the
alleged breaches. The respondent considered the above and decided to give the claimant an opportunity to show cause
why disciplinary action should not be taken against him. That by a letter dated 24.03.2021 the respondent informed the
claimant of the alleged breaches and requested him to show cause in writing on or before 27.03.2021 why disciplinary
action should not be taken against him. The claimant did not request for additional time to prepare his response, but
responded through his letter of 27.03.2021. Upon receiving the response the respondent reviewed it and found it
unsatisfactory and instead decided to convene a disciplinary hearing. By a letter dated 30.03.2021 the respondent invited
the claimant for a disciplinary hearing, in which it informed the claimant of his right to be accompanied to the
disciplinary hearing by a fellow work colleague of his choice. The respondent states that the claimant did not request for
additional time to prepare for the disciplinary hearing. By a letter dated 01.04.2021 the respondent terminated the | https://augmentin.io/casetext/case/Inyani_v_Promasidor_Kenya_Limited__Employment_and_Labour_Relations_Cause_E001_of_2021__[2023]_KEELRC_2948__KLR___17_November_2023___Judgment_.docx.pdf |
65c7331262c2-1 | the claimant for a disciplinary hearing, in which it informed the claimant of his right to be accompanied to the
disciplinary hearing by a fellow work colleague of his choice. The respondent states that the claimant did not request for
additional time to prepare for the disciplinary hearing. By a letter dated 01.04.2021 the respondent terminated the
claimant’ s employment by summary dismissal. In the said letter , the respondent advised the claimant of his right to | https://augmentin.io/casetext/case/Inyani_v_Promasidor_Kenya_Limited__Employment_and_Labour_Relations_Cause_E001_of_2021__[2023]_KEELRC_2948__KLR___17_November_2023___Judgment_.docx.pdf |
c6cf0c58a85b-0 | appeal against the decision to terminate him, however , the claimant did not exercise this right. 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 there is no dispute that parties were in a contract of service. The respondent employed
the claimant as the Supply Chain Manager by the letter dated 21.12.2010 ef fective 01.03,201 1. He was promoted to
Supply Chain Director by the letter dated 09.12.2016. By letter dated 24.04.2019 his salary was increased to
Kshs.426,368.25. To answer the 2nd issue, there is no dispute that the contract of employment was terminated by the
letter of summary dismissal dated 01.04.2021 on account of gross misconduct upon particulars enumerated in the letter .
The termination was ef fective 01.04.2021. He was to be paid prorated salary up to and including 01.04.2021, the last day
of service; leave accrued but not taken; and, gratuity . The 3rd issue is whether the termination was unfair . On procedure,
the claimant was suspended by the letter dated 15.03.2021. While testifying that the suspension was imposed without
prior warning and reasons disclosed, the letter refers to a meeting on 15.03.2021 between the claimant and the Group
Chief Executive Of ficer (CEO) Mr . Olivier Thiry , the Managing Director (MD) Mr . Mark C. Williams; Doris Njoroge the
Human Resource Manager (HRM). The letter states that at the meeting the claimant had been informed about
information suggesting that he had breached the terms and conditions of service of the employment and provisions of the
respondent’ s Code of Business Conduct relating to claimant’ s acting with integrity and promotion of a culture of ethics
and compliance; the protection and use of the Company’ s assets; and compliance with rules on conflict of interest. He
was therefore suspended pending the investigations. The claimant says that the suspension was unfair for want of
particulars of the allegations. The Court finds that concern unfounded because the suspension was clearly a preliminary
decision pending investigation. It appears that investigations were to be carried out to crystallise the allegations. Further ,
the claimant had attended the meeting and was informed the circumstances prior to suspension. The Court finds that the
suspension being a preliminary decision based on preliminary inquiry , the respondent had not adopted an unfair
procedure in the manner the suspension had been imposed. The letter was categorical that the suspension was on full pay
as the claimant remained an employee. The letter further stated that the suspension was not a disciplinary sanction but it
was a necessary tool to facilitate the investigation referred to in the letter . It was categorical that the company would
contact him and convey the findings once the investigations were completed. In all circumstances and as submitted for
the respondent the suspension has not been shown to have been unlawful or unfair in the circumstances of the case.
Further on procedure, the claimant confirmed he received the request to show cause being the letter dated 24.03.2021. It
was allegations were levelled against the claimant as follows: Breach of the respondent’ s Code of Business Conduct and
terms of employment by causing or abetting aiding and abetting the making of payments to supposed suppliers of the
respondent for fictitious supplies hence loss of respondent’ s funds. That included claimant’ s approval of Local Purchase
Orders (LPOs) for the supposed suppliers knowing well that supplies had not been delivered by the supposed suppliers.
Such suppliers included Gibcoll Enterprises which was paid Kshs. 1,250,545.00 for fictitious supply of spare parts and
consumables between January and November 2020; Koyitoror Merchants Limited which was paid a total of
Kshs.257,720.00 for supply of spare parts and consumables between January and November 2020; and Toror Merchants
and L yne and Alia Engineering Ltd. In breach of the Code he received Kshs.25,000.00 from Patel Mondish Kumar
Dineshkumar on 04.03.2020 and who was the Manager at Bindip Ltd, a supplier of the Company . None disclosure of
multiple interests including directorship or shareholding- by using company assets for personal benefit or for the benefit
of other persons; using the respondent’ s assets, computer and equipment for outside business or unethical activities;
engaging in personal activities during working hours. The allegations included use of respondent’ s intellectual property
such as on 07.08.2020 he prepared a draft memorandum of understanding (MOU) between himself and Royal Converters
Limited to provide consultancy services in the development of an extrusion process for textured vegetable protein in
circumstances that Royal Converters Limited was not a customer of the Company and had no business relationship with
the company . The MOU had been prepared using respondent’ s time and laptop. Under the allegation, other specific
allegations whose specifics were stated were levelled against the claimant. The claimant replied the letter to show cause
by his letter dated 26.03.2021. He denied making the LPOs; he denied knowing the mentioned suppliers subject of the
LPOs allegations and finance director was answerable on how payments may have been ef fected; he had not received
money from Patel Mondish in capacity as company supplier and allegations were intrusive of his privacy in illegal access
of his mobile phone; the MOU remained a draft and there was no contractual relationship or as Inyani Enterprises
Consultancy or Limited was a fictitious company; he had used company time and laptop or equipment because he desired
that the same communication be in respondent’ s best interest and acted with utmost good faith. Further by letter dated
30.03.2021 he was invited to attend the disciplinary hearing which he attended on 31.03.2021. The dismissal letter was
dated 01.04.2021. The Court finds that the procedure adopted by the respondent was per the prescribed notice and
hearing in section 41 of the Employment Act. While alleging that the time to defend himself was short, he as well
confirmed that he never asked for the extension of the time to prepare. He lamented that the investigation report was not
provided but despite the request to show cause stating that the investigation report had made the specific findings per the
levelled allegations, he ably made his response to each allegation by the letter dated 26.03.2021 without asking for the
report or suggesting that he needed details about the findings beyond what was in the request to show cause. Thus, as
submitted for the respondent, the procedure was not unfair at all. For the reasons for termination the Court returns that
the respondent has established that they were valid as per section 43 of the Employment Act and as well, they were fair
per section 45 of the Act as they related to the respondent’ s operational requirements and, the claimant’ s compatibility
and conduct. The claimant did not deny but admitted using the respondent’ s time and equipment to draw the MOU. The
MOU, he admitted, had been drawn yet it amounted to a design to unfairly interfere with the respondent’ s enterprise. The | https://augmentin.io/casetext/case/Inyani_v_Promasidor_Kenya_Limited__Employment_and_Labour_Relations_Cause_E001_of_2021__[2023]_KEELRC_2948__KLR___17_November_2023___Judgment_.docx.pdf |
c4909c8c70eb-0 | claimant admitted in his testimony that he had communicated as was alleged against him and ur ged that it was in the
respondent’ s best interest. How that could be was not demonstrated at all. As submitted for the respondent, there is
nothing on record which, on a balance of probability , would exculpate the claimant. The Court finds that claimant 100%
contributed to his summary dismissal when he breached the terms and code of service as was alleged. The respondent’ s
submissions are upheld in that regard. Thus, the Court returns that the termination was not unfair both in procedure and
substance. The 4th issue is on remedies. The Court returns that the claimant has not established any of the remedies as
being justified. One-month notice-pay and compensation were based on a return that the declarations as prayed for are
awarded. The Court has found they are not justified at all. Of fshore quarterly net payment was futuristic per the
claimant’ s own testimony and the Court finds they were unjustified. The suit must therefore collapse with costs. In
conclusion the suit is hereby dismissed with costs for the respondent, and, the Deputy registrar to cause the court file to
be returned to the Machakos Court’ s sub-registry forthwith. 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/Inyani_v_Promasidor_Kenya_Limited__Employment_and_Labour_Relations_Cause_E001_of_2021__[2023]_KEELRC_2948__KLR___17_November_2023___Judgment_.docx.pdf |
a7f43c3d8f83-0 | REPUBLIC OF KENY A IN THE HIGH COUR T OF KENY A AT NAIROBI COMMERCIAL & TAX DIVISION CIVIL
CASE NO. 303 OF 201 1 HANS JURGEN LANGER…….……………………………..1ST PLAINTIFF VERSUS JOE
MUSYIMI MUT AMBU………….............................1ST DEFENDANT MERCBIMA INTERNA TIONAL (K)
LIMITED………………2ND DEFENDANT RULING The defendants filed a notice of motion, dated 5th May 2021
seeking to set aside the ex parte Judgment entered on 25/7/2019 and leave to defend. The application is premised on
grounds that although the defendants entered appearance and filed a defence, they did not attend court for the hearing on
18th June 2019 because they were not aware of the hearing date. According to the defendants, their advocates then on
record (M/s Kyalo Mwengi & Co. Advocate) did not notify them of the hearing date and as a result they did not attend
court. The defendants stated that as at 23rd October 2014 their advocates’ offices were still based at View Park Towers,
Utalii Street and only relocated to Hughes Building on Muindi Mbingu Street in November 2018. The defendants
asserted that due to their advocates’ mistake, judgment was entered against them and they faced the risk of execution as
the respondents had instructed auctioneers to execute the decree issued against them for Euros 651,943.56. The
defendants ar gued that the judgment obtained against them was irregular and should be set aside. They also ar gued that
notice of entry of judgment was not served on them to af ford them an opportunity to appeal or apply for review of that
judgment. The defendant further stated that the application had been brought without undue delay and that the plaintif f
would not suf fer prejudice if the application was allowed. They however stood to suf fer great prejudice if the judgment
was not set aside and execution was allowed to proceed. The defendants called for aid, article 159(2) (a) and (d) of the
Constitution and sections 1A (1) and 1B (1) (a) of the Civil Procedure Act that regardless of the technicalities, it is just
for the Court to allow their application so that they are not condemned unheard. The defendants faulted the plaintif f for
failing to disclose to Court that they [defendants] had filed a suit (HCCC No. 824 of 2010) before the same court,
between the same parties and over the same claims. The defendants took the view , that there was no basis for the
plaintif f’s contention that there is conflict of interest since Mr . Robert Asembo did not represent the plaintif f in a bribery
case or cyber -crime criminal case. The defendants relied on Order 10 rule 1 1 of the Civil Procedure Rules that the court
may set a side or vary judgment and any consequential orders on terms that are just. The defendants again relied on the
Patel v E A Cargo Handling Services Ltd [1974] E A 75 that there are no limits or restrictions on the judge’ s discretion to
set aside or vary an exparte judgment. The defendants again relied on Shah v Mbogo [1967] E A 166 that the discretion
to set aside an exparte judgment is intended to be exercised so that to avoid injustice or hardship. The defendants further
cited the decision in Mungai v Gachuhi & another [2005] eKLR that a decision is final only when a proper hearing has
taken place. Response The plaintif f opposed the application through a replying af fidavit and written submissions. The
plaintif f stated that despite ef forts to have the suit heard expeditiously , the defendants’ advocates were unavailable for the
fixing of hearing dates. When they failed to appear , his advocates served them with Hearing Notices and filed af fidavits
of service. He continuously followed up the case and travelled from Germany to attend the hearings but the case never
took of f. The plaintif f’s advocates raised concerns with the court that the suit was taking too long to conclude and the
defendants’ advocates were again invited to fix a hearing date but did not attend. They were served with a hearing notice
and an af fidavit of service was filed. On the hearing date, neither the defendants nor their advocates attended court. The
case proceeded to hearing and on 25th July 2019 the court delivered judgment allowing the suit. The plaintif f contended
that the defendants filed this application on 5th May 2021, more than one year and eight months after the judgment had
been delivered an inordinate delay . The plaintif f also faulted the defendants for failing to inform the Court of the status of
HCCC No. 824 of 2010 they said they had filed. The plaintif f argued that the firm of M/s Asembo & Co. Advocates
having previously represented him, was improperly on record due to conflict of interest. Their Entering into the matter
without leave or consent of the defendants’ previous advocates was also irregular and against Order 9 rule 9 of the Civil
Procedure Rules. The plaintif f asserted that the judgment is regular and he should be allowed to enjoy the fruits of the
judgment. He relied on Order 12 rules 2(a) and 7 of the Rules that he was entitled to proceed with the hearing ex parte
since the defendants had been served with a hearing notice. The plaintif f also relied on the decision in Josphat Nderitu
Kariuki v Pine Breeze Hospital Ltd (Civil Suit 223 of 2005) [2006] eKLR that the defendants had not given suf ficient
explanation for their failure to attend court. Their advocates should thus bear the consequences of their professional
negligence for failure to attend court on behalf of their clients. The defendant again relied on Lucy Bosire v Nyankoni
Manga (ELC 21 1 of 2009) [2016] eKLR, that it was the defendants’ responsibility to follow up their case. They cannot
lay the blame on their previous advocates. Reliance was further placed on Josphat Muthui Muli (Industrial Cause No.
1224 of 2012) [2014] eKLR, that the court’ s discretion to set aside an ex parte judgment is intended to be exercised to
avoid injustice or hardship resulting from accident, inadvertence, or excusable mistake or error , but not to assist a person
who has deliberately sought (whether by evasion or otherwise) to obstruct or delay the cause of justice. The plaintif f cited
brahim Mungara Mwangi v Francis Ndegwa Mwangi [2014] eKLR and Water Parnters International v Benjamin K’oyoo
T/A Group of Women in Agriculture – Kochieng (Gwako) Ministries (Civil Case No. 105 of 2010) [2014] eKLR, that the
application had been brought after an inordinate delay . The plaintif f further cited Jackline Wakesho v Aroma Café (Cause
No. 212 of 2013) [2014] eKLR that the defendants’ non-compliance with Order 9 rule 9 rendered the proceedings | https://augmentin.io/casetext/case/Langer_v_Mutambu___another__Civil_Case_303_of_2011__[2023]_KEHC_25372__KLR___Commercial_and_Tax___17_November_2023___Ruling_.docx.pdf |
a7f43c3d8f83-1 | application had been brought after an inordinate delay . The plaintif f further cited Jackline Wakesho v Aroma Café (Cause
No. 212 of 2013) [2014] eKLR that the defendants’ non-compliance with Order 9 rule 9 rendered the proceedings
incompetent. Determination I have considered the application, the response and ar guments by parties. I have also
considered the decisions relied on in support of the parties’ respective positions. The defendants’ reason for seeking to set
aside the exparte judgment is that they were not aware of the hearing date. According to the defendants, their then
advocates M/s Kyalo Mwengi & Co. Advocate did not inform them of the hearing date. That was the reason why they
failed to attend court. The defendants also ar gued that their advocates’ mistake caused the plaintif f to obtain judgment
and decree against them for Euros 651,943.56 which was irregular and should be set aside so that they can have their day | https://augmentin.io/casetext/case/Langer_v_Mutambu___another__Civil_Case_303_of_2011__[2023]_KEHC_25372__KLR___Commercial_and_Tax___17_November_2023___Ruling_.docx.pdf |
e18401b676e5-0 | in court. The defendants again ar gued that notice of entry of judgment was not served on them as required by the rules.
Whether the judgment is irregular The defendants’ argument is that the judgment entered against them is irregular and
should be set aside ex debito justitiae: as a matter of right. Whether a judgment is regular or irregular is a matter of fact to
be determined from the circumstances of the case. The Court of Appeal has addressed the distinction between a regular
and irregular judgment in several decisions. In James Kanyita Nderitu V Maries Philotas Ghika & Another [2016] eKLR,
the Court stated that: In a regular default judgment, the defendant will have been duly served with summons to enter
appearance, but for one reason or another , he had failed to enter appearances or to file defence, resulting in default
judgment. Such a defendant is entitled, under Order 10 Rule 1 1 of the Civil Procedure Rules, to move the court to set
aside the default judgment and to grant him leave to defend the suit. In such a scenario, the court has unfettered
discretion in determining whether or not to set aside the default judgment, and will take into account such as the reason
for the failure of the defendant to file his Memorandum of appearance or defence, as the case may be, the length of time
that has elapsed since the default judgment was entered; whether the intended defence raises triable issues; the respective
prejudice such party is likely to suf fer. The court then stated regarding an irregular judgment that: [J]udgment will have
been entered against a defendant who has not been served or properly served with summons to enter appearance. In such
a situation, the default judgment is set aside ex debito justitiae, as a matter of right. The court does not even have to be
moved by a party once it comes to its notice that the judgment is irregular , it can set aside the default judgment on its
own motion. In addition, the court will not venture into considerations of whether the intended defence raises triable
issue. Or whether there has been inordinate delay in applying to set aside the irregular judgment. The reason why such
judgment is set aside as of right, and not as a matter of discretion, is because the party against whom it is entered has
been condemned without notice of the allegations against him or an opportunity to be heard in response to those
allegations. The right to be heard before an adverse decision is taken against a person is fundamental and permeates our
entire justice system. In Bouchard International (Services) Ltd v M’mwereria [1987] KLR 193, the Court of Appeal held
that: The basis of approach in Kenya to the exercise of the discretion to be employed or rejected under either Rule 8 or
Rule 10 (the latter dealing with judgement by default) is that if service of summons to enter appearance has not been
effected, the lack of an initiating process will cause the steps taken to set aside ex debito justitiae. If service of notice of
hearing or summons to enter appearance has been served, then the court will have before it a regular judgement which
may yet be set aside or varied on just terms. To exercise this discretion is a statutory duty and the exercise must be
judicial… The Court went on to state that: A judge has to judge the matter in the light of all the facts and circumstances
both prior and subsequent and of the respective merits of the parties before it would be just and reasonable to set aside or
vary the judgement, if necessary , upon terms to be imposed. The decisions are clear that in a regular judgment, a
defendant will have been properly served but for some reason, he failed to enter appearance of file a defence. In such a
case, the court still has wide discretion to set aside the judgment on terms that are just. An irregular judgment will have
been obtained without service or proper service on the defendant. Such a judgment will be set aside as a matter of right
and the defendant granted unconditional leave to defend. I have perused the record in this matter . The suit was filed on
14th July 201 1 but did not take of f until 18th June 2019. On that day , the plaintif f was present in court but the defendants
and their advocate were not. The suit proceeded to hearing and judgment was delivered on 25th July 2019, which the
defendants ar gue was irregular . Order 12 rule 2 of the rules provides that if on the day fixed for hearing, after the suit has
been called out for hearing outside the court, only the plaintif f attends, and if the court is satisfied that notice of hearing
was duly served, it may proceed ex parte. On 18th June 2019 when the suit came up for hearing, the court was informed
that the defendants’ advocates had been served and upon satisfying itself of the service, the court proceeded to hear the
suit. The record shows that the defendants had been served with summons, entered appearance and filed a defence. Their
advocate was also served with a hearing notice but both the defendants and their advocate failed to attend court for the
hearing of the case. Failure to attend court, though served, did not make the judgment resulting from the exparte hearing
irregular . It is therefore this court’ s finding that the judgment entered against the defendants was a regular judgment.
Whether to set aside The next issue is whether to set aside the exparte judgment. The court having determined that the
judgment was regular , whether or not to set aside the judgment is an exercise of discretion which should be done on
terms that are just. That is; this discretion like all other discretions, must be exercised judiciously . 40.In Shanzu
Investments Ltd v Commissioner of Lands [1993] eKLR, the court delivered itself thus: The jurisdiction to vary
judgment being a judicial discretion should be exercised judicially; and, as is often said, whether judicial discretion
should be exercised or withheld in a party’ s favour , depends, on a lar ge measure, on the facts of each particular case. The
tests for the exercise of this discretion are these: - First, was there a defense on the merits? Secondly , would there be any
prejudice? Thirdly , what was the explanation for any delay . In Shabir Din v Ram Parkash Anand (1955) 22 EACA
48 Briggs JA stated at page 51: I consider that under Order IX rule 20, the discretion of the court is perfectly free, and the
only question is whether upon the facts of any particular case it should be exercised. In particular , mistake or
misunderstanding of the appellant's legal advisers, even though negligent, may be accepted as a proper ground for
granting relief, but whether it will be so accepted must depend on the facts of the particular case. It is neither possible nor
desirable to indicate in detail the manner in which the discretion should be exercised. In Yooshin Engineering
Corporation v Aia Architects Limited (Civil Appeal E074 of 2022) [2023] KECA 872 (KLR) (7 July 2023) (Judgment),
the Court of Appeal reiterated that: [E]ven where the judgement is regular , the court still retains the wide discretion to set
the same aside though if the Court decides to set aside the judgement, depending on the circumstances, it may do so on | https://augmentin.io/casetext/case/Langer_v_Mutambu___another__Civil_Case_303_of_2011__[2023]_KEHC_25372__KLR___Commercial_and_Tax___17_November_2023___Ruling_.docx.pdf |
e18401b676e5-1 | the Court of Appeal reiterated that: [E]ven where the judgement is regular , the court still retains the wide discretion to set
the same aside though if the Court decides to set aside the judgement, depending on the circumstances, it may do so on
conditions that are just. That discretion, being wide, the main concern is for the court to do justice to the parties, and in so
doing the court will not impose conditions on itself to fetter the wide discretion given to it by the rules. It has however to | https://augmentin.io/casetext/case/Langer_v_Mutambu___another__Civil_Case_303_of_2011__[2023]_KEHC_25372__KLR___Commercial_and_Tax___17_November_2023___Ruling_.docx.pdf |
889c7fa09c72-0 | ask itself under what conditions, if any , it ought to set aside the judgement and such conditions, if appropriate, must be
just to both the Plaintif f and the Defendant. The decisions af firm that the discretion of the court to set aside a regular
exparte judgment is wide but the discretion must be exercised judicious and any conditions to be imposed must be just to
both parties, the plaintif f and the defendant. I have gone through the record which shows that although judgment was
entered on 25th July 2019, this application was only filed in May 2021, almost two years after the suit had been heard.
The defendants, apart from stating that they were not informed of the hearing date, did not attempt to explain why they
made no ef fort to find out from their advocates the status of their case. In other words, the defendants did not explain the
delay in filing the application to set aside the judgment. Even though the defendants again stated that their advocates then
on record had not moved of fice when some letter was sent to them, that ar gument would not be relevant in this
application. The issue here is why the defendants did not attend court and whether the exparte judgment should be set
aside. As already alluded to, this court’ discretion to set aside a regular exparte judgment though wide, must be exercised
judiciously and for good reason. In this regard, it was the defendants’ duty to show that the circumstances they were
relying on to seek to set aside the judgment were persuasive and that their failure to attend court was excusable. I have
perused the af fidavit of service by Benson Mutinda sworn on 12th June 2019. The process server served a hearing notice
on the defendant’ s Advocates which was received and stamped. The defendants did not explain why they did not take
steps to find out from their advocates the status of their case even if the advocates had not informed them of the hearing
date. The defendants only woke up after the plaintif f moved to execute the judgment almost two years after the case had
been heard, to persuade the court to exercise its discretion in their favour . Regarding the defendants’ argument that notice
of entry of judgment was not served, the defendants must have had in mind Order 22 rule 6 which states that where
judgment in “default of appearance or defence” has been entered against a defendant, no execution by payment,
attachment or eviction should issue unless not a notice of not than ten days notice of the entry of judgment has been
served on him personally , and a copy of that notice is filed with the first application for execution. It is plain from the
rule that the notice is to be served where judgment is entered in default of appearance or defence. The rational for
requiring service of a notice is to make the defendant aware of entry of judgment against him and the impending
execution so that to obviate being taken by surprise. The defendant may take steps to challenge the default judgment in
the event he disputes service of summons or even opt to pay to avert the impending execution. Where appearance was
however entered and a defence filed, like in this case, execution of the judgment entered after the exparte hearing of the
case, (in the absence of the defendant), does not require service of the notice for entry of such judgment. Flowing from
my analysis above and after a careful consideration of the application, ar guments by parties and on perusing the defence,
the conclusion I come to is that the defendants have not satisfied this Court that they deserve this court’ s discretion to set
aside the regular exparte judgment entered against them. I have perused the defence and, in my view , the defence is a
mere denial that does not raise triable issues to call for leave to defend. The contention that there was another suit
between the same parties over the same issue would not be a ground for setting aside a regular judgment since the
defendants did not disclose to this Court what became of that suit. Taking into account all the circumstances surrounding
this case, I find this application unmeritorious. Consequently , the application is declined and dismissed with costs. Dated
Signed and Delivered at Nairobi this 17th Day of November 2023 E C MWIT A JUDGE | https://augmentin.io/casetext/case/Langer_v_Mutambu___another__Civil_Case_303_of_2011__[2023]_KEHC_25372__KLR___Commercial_and_Tax___17_November_2023___Ruling_.docx.pdf |
0bbb419e923a-0 | IN THE COUR T OF APPEAL AT KISUMU (CORAM: OMONDI, JA, IN CHAMBERS)) CIVIL APPLICA TION NO.
E093 OF 2023 BETWEEN RICHARD MAPESA MATULI APPLICANT AND ADAM AMBANI MULANDA
RESPONDENT (An application for extension of time to file Notice of Appeal out of time, and leave to file appeal out of
time from the ruling of the Environment and Land Court at Kakamega, (D. Ohungo,J.) dated 30th November 2021 in
ELC. No. 228 of 2017) ******************** RULING The Application dated 1st August, 2023 brought pursuant to
Rule 4 Court of Appeal Rules, 2010 seeks; Leave for extension of time to file a notice of appeal; and the intended appeal;
that the annexed memorandum of appeal be deemed as properly on record, and be admitted for hearing; there be stay of
execution of the ruling delivered on 30th November 2021, pending hearing and determination of the application and the
intended appeal; costs be in the cause. The application is supported by the af fidavit of even date sworn by Richard
Mapesa Matuli who deposes that due to ill health, he was not in a position to instruct his counsel to file the appeal in a
timely manner , although his advocate has now requested for the decree as well as the certified typed proceedings
emanating from the court; and a draft notice of appeal has also been prepared. The matter was listed for hearing on 1st
November 2023, but the respondent had not filed any response to the application; and none of the parties filed any
written submissions. The only rational conclusion to make is that the applicant has lost interest in the matter which is
now deemed as unprosecuted. It is thus dismissed for want of prosecution under rule 58 (1) of the Court of Appeal Rules.
I make no orders on costs. Dated and delivered at Kisumu this 17th day of November , 2023. H. A. OMONDI
............................................ JUDGE OF APPEAL I certify that this is a true copy of the original. Signed DEPUTY
REGISTRAR | https://augmentin.io/casetext/case/Matuli_v_Mulanda__Civil_Application_E093_of_2023__[2023]_KECA_1367__KLR___17_November_2023___Ruling_.docx.pdf |
c58094f56f81-0 | IN THE COUR T OF APPEAL AT KISUMU (CORAM: OMONDI, JA. (IN CHAMBERS)) CIVIL APPLICA TION
NO.085 OF 2023 RICHARD JESOME WASIKE APPLICANT AND ANTHONY LUSENAKA .................................
1ST RESPONDENT INDEPENDENT ELECT ORAL AND BOUNDARIES COMMISSION 2ND RESPONDENT
(Being an application for extension of time for filing of a Notice of Appeal and Record of Appeal from the Judgment of
the High Court of Kenya at Bungoma (R.E Ogola, J.) dated 25th April 2023 in Election Civil Appeal No. E002 of 2022)
*********************************** RULING By a Notice of Motion dated 19th July 2023, brought under rule 4
of the Court of Appeal Rules, supported by an af fidavit of even date, sworn by Richard Jesome Wasike, the applicant
prays that this Court extends time for filing of a Notice of Appeal and Record of Appeal against the judgment of the High
Court of Kenya at Bungoma (R.E Ogola, J.) delivered on 25th April, 2023 in Bungoma High Court Election Civil Appeal
No. E002 of 2022. The applicant prays that this Court, be pleased to extend time for service of the Notice of Appeal,
Record of Appeal and letter bespeaking typed proceedings; and the costs of and incidental to this application to abide the
result of the intended appeal. A brief background to this matter will help put issues in perspective. The applicant herein
participated in the General Elections held on 9th August 2022, and was one of the candidates seeking to be elected as a
member of the county Assembly of Bungoma for Bukembe West Ward. On 1 1th August 2022 the 1st respondent was
declared the winner of the elections. The applicant was aggrieved by the declaration and on 7th September 2022, filed an
election petition CMCC Election Civil Appeal No. 2 of 2022 in the Magistrate’ s Court at Bungoma, contesting the
election of a Member of the County Assembly; he subsequently filed an amended petition on 7th October 2022. On 21st
October 2022, the 1st respondent filed a notice of motion application dated 19th October 2022 seeking to have the
petition struck out in its entirety on the basis that the af fidavits in support of the petition were filed out of statutory
timelines and the petitioner ’s affidavit in support of the petition was commissioned by an advocate who did not have a
practicing certificate hence incompetent. The application was heard, and the trial court rendered its ruling and struck out
the petition in its entirety vide a ruling delivered on 15th November 2022. Upon the matter being dismissed, he filed
Bungoma High Court Election Civil Appeal No. E002 of 2022. The matter was heard, and judgment delivered on 25th
April 2023, wherein the petition was dismissed for being incurably defective in failing to comply with the Elections
(Parliamentary and County Elections) Petition Rules 2017. The applicant being dissatisfied with the judgment explains
that immediately after delivery of the judgment, counsel in conduct of the matter failed to update him on the recourse that
was to be taken despite the applicant giving counsel instructions to proceed with lodging an appeal, file a notice of appeal
and also file an application for stay of execution. According to the applicant, he kept on checking with his advocates to
know the status of the matter , and he eventually concluded that the only reason why his advocates were taking him in
circles, and not filing the appeal after delivery of the judgment, was that they had been compromised. The applicant thus
decided to engage another advocate, being Nabibia and Co Advocates, but time for filing a notice of appeal, record of
appeal, service of letter bespeaking proceedings and service of notice of appeal and record of appeal had lapsed; yet he
has a genuine interest to pursue the appeal; that he has also written to the deputy registrar of the High Court seeking
typed and certified proceedings. He describes his appeal as merited and has high chances of success. In opposing the
application, the 1st respondent through the replying af fidavit dated 16th October 2023, sworn by Anthony Lusenaka
contends that rule 4 of the Court of Appeal Rules does not apply to Election Petitions which have timelines stipulated in
the Constitution of Kenya as well as the Elections Act, thus stripping this Court of jurisdiction in the matter; that in any
event the reasons given for delay are laced with unproven allegations intended to malign the former advocates on record;
and do not meet the threshold to warrant extending the time within which to file the appeal. In his written submissions,
the applicant takes a more reconciliatory tone and says that his counsel inadvertently failed to file and lodge an appeal
against the Judgment despite firm instructions to do so. He ur ges this Court to hold that the mistakes of counsel should
not be visited on a litigant, unless both are out to mislead the Court, which is not the case in this instance. He maintains
that rule 4 clothes this Court with jurisdiction to entertain his application; and refers to the case of Nicholas Kiptoo_Arap
Korir Salat vs. Independent Electoral and Boundaries Commission & 7 Others [2014] eKLR, to reiterate the principles
that guide the courts when dealing with applications for extension of time. The 1st respondent submits that this Court
lacks the jurisdiction to hear the matter ab intio, and refers to the provisions of section 75(1A) of the Elections Act No.
24 of 201 1 as read together with section 75(4), which provides that appeals from the decision of the magistrate’ s court
challenging the validity of election results in the position for member of the County Assembly lie in the High Court on
issues of law only . In addition, the 1st respondent refers to 85 of the Election Act which provides that appeals to the
Court of Appeal from the High Court are in relation cases challenging results in the positions of National Assembly ,
Senate and County Governor . It is ar gued that the express omission of the position of County Assembly in section 85
shows that the legislature’ s intention was to bring an end to litigation, so that the decision of the High Court is final and
there is no right of a second appeal to this Court. This Court’ s attention is drawn to the constitutional underpinning that
election petitions be heard expeditiously and are time bound, so that those elected can concentrate and serve the people
instead of being embroiled in court cases for a long time; and there is no right to a further appeal. In support of this
proposition the 1st respondent refers to the case of Council of County Governors vs. The Attorney General and Another
(2017) eKLR. The second issue that is raised relates to whether this Court has jurisdiction to enlar ge time for hearing of
an election petition. The 1st respondent submits that Article 87 of the Constitution provides that Parliament shall enact
legislation to establish mechanisms for timely settling of election disputes. and pursuant to this provision section 75(2) | https://augmentin.io/casetext/case/Wasike_v_Lusenaka___another__Civil_Application_085_of_2023__[2023]_KECA_1368__KLR___17_November_2023___Ruling_.docx.pdf |
c58094f56f81-1 | (2017) eKLR. The second issue that is raised relates to whether this Court has jurisdiction to enlar ge time for hearing of
an election petition. The 1st respondent submits that Article 87 of the Constitution provides that Parliament shall enact
legislation to establish mechanisms for timely settling of election disputes. and pursuant to this provision section 75(2)
provides that election petitions shall be heard and determined within six months from the date of filing the petition. It is
argued that the court has no jurisdiction to extend the statutory timelines for hearing of the petition. Drawing from the
Supreme Court’ s decision in Martha Wangari Karua vs. Independent Electoral and Boundaries Commission & 3 Others | https://augmentin.io/casetext/case/Wasike_v_Lusenaka___another__Civil_Application_085_of_2023__[2023]_KECA_1368__KLR___17_November_2023___Ruling_.docx.pdf |
bc5e4d780b71-0 | [2019] eKLR , the 1st respondent contends that a substantive hearing of an Election Petition cannot continue where the
timelines for hearing a petition have already lapsed. The respondent ar gues that in this instance, the Petition was struck
out in its entirety vide an application. The petition did not proceed to a full hearing, this, therefore, means that this appeal
seeks to have the proceedings in the lower court reopened after the statutory timeline of hearing a petition of six months
has elapsed. Ultimately , the 1st respondent submits that the applicant has not met the minimum principles that a party
must prove to be granted orders under rule 4 of the Court of Appeal Rules as were laid down in the case of Nicholas
Kiptoo Arap Korir Salat vs Independent Electoral and Boundaries Commission & 7 Others (Supra) in this case, there has
been an inordinate delay since Election Petitions are time-bound and there is a need for compliance. Reference is made to
rule 6(2) of the Court of Appeal (Election Petition) Rules 2017 which provide that a notice of appeal is to be lodged
within 7 days of the decision appealed against and be served on all parties within 5 days of filing under rule 7; that in this
case, even the notice of appeal has not been filed; yet the decision was rendered on 25th April, 2023 which is 4 months
down the line. That even if the court were to grant the orders sought there is no suf ficient time to hear and determine the
appeal since Rule 23 of the Court of Appeal Election Petition Rules 2017 provides that an appeal must be heard and
determined within six months from the date of the judgment of the High Court. Four months have already elapsed from
the date of the judgment. It is also pointed out that the applicant has confirmed in his supporting af fidavit that the High
Court proceedings have not been typed, he has not even annexed the letter requesting for the typing and payment of the
same; and he has not given plausible reason for the delay as he has not produced any evidence to even show that he had
given instructions to his advocate to appeal. The sum total of the applicant’ s submissions is that there is no petition
properly before the court that can be re-opened and the court will be acting in futility . The first clarification that need to
be is that the Judge who heard the appeal in the High court at Bungoma is R E. Ougo J. and not R. E Ogolla, J, actually
there is no Judge who goes by that identification. The second thing I take note of, as pointed out by the 1st respondent, is
that the applicant filed his Petition in the Magistrate’ s Court on 7th September 2022; and indeed, echo the question the
observation made regarding profound juridical significance of this date in the determination of the question of whether
there is any more to be done by this or any other Court after 7th March 2022. There is no gainsaying that an election
petition must be heard and determined within six months from the date of filing of the petition, after which proceedings
in an election petition become a nullity if it has not been determined. The applicant blames his previous counsel for
failing to act, although there is no a single document presented to confirm that he had indeed given instructions. But with
greatest respect, I think I am even being too indulgent to address that, because as was pointed out in the now oft cited
case of Owners of the Motor Vessel “Lillian S” vs. Caltex Oil (Kenya) Ltd [1989] eKLR, that jurisdiction is everything,
and I must first address the question as to whether I even have jurisdiction to deal with an intended appeal arising from a
disputed election of a Member of the County Assembly . In the event that statutory provisions and emer ging jurisprudence
frowns upon me inking my way in the matter , then I must do what the late Justice Nyarangi said in the M.V . Lillian case
(supra) – that: “… Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending
the evidence. A court of law downs tools in respect of the matter before it the moment it holds the opinion that it is
without jurisdiction.” It would thus mean that upon determining the status of this court in handling this matter , the ink in
my pen must suddenly dry , and not take one step further . That is what would even cloth me with the temerity to even
deign to consider the applicability of rule 4 of the Court of Appeal Rules in election petitions. Starting with the statutory
provisions on appeals from county elections petitions filed at the Magistrate’ s court, sections 75(4) of the Elections Act
provides as follows: An appeal under subsection (1A) shall lie to the High Court on matters of law only and shall be:
filed within thirty days of the decision of the Magistrate’ s Court; and heard and determined within six months from the
date of filing of the appeal. The jurisdiction of this Court to hear election appeals is found in section 85A of the Elections
Act which states: (1) An appeal from the High Court in an election petition concerning membership of National
Assembly , Senate or the of fice of County Governor , shall lie to the court on matters of law only . My understanding is that
the two provisions I have adverted to, expressly provide that appeals regarding the election or nomination of members of
the County Assembly at the High Court address matters of law only , clearly suggests that those appeals terminate at the
High Court. This is fortified by the fact that significantly , the County Assembly is not included under section 85A of the
Election Act, as it was the intention of Parliament that the High Court was the last port of call on matters pertaining to
elections to the County Assembly , as provided for under section 75(4) of the Election Act. The issue as to whether the
Court of Appeal can entertain a second appeal regarding the election of a Member of County Assembly in the absence of
an express Constitutional and/or statutory provision conferring jurisdiction on the Court of appeal has been the subject of
judicial pronouncements in several case. Indeed, the Supreme Court has definitively ruled on the issue in Hamdia Yaroi
Shek Nuri vs. Faith Tumaini Kombe, Amani National Congress & Independent Electoral & Boundaries Commission
[2019] eKLR, the apex Court agreed with this Court that in the absence of an express statutory provision, no second
appeal lies in the Court of Appeal from the High Court, on matters regarding the question of validity of the election of a
member of the County Assembly . The key issue that the Supreme Court sought to answer was whether this Court has
jurisdiction to hear and determine an appeal from the High Court (being a second appeal) emanating from an election of
a member of a County Assembly . In reaching its verdict, the Supreme Court directly took up the question whether the
silence in section 75(4) and non-inclusion in section 85(A) of the Elections Act notwithstanding, a right of appeal still
lies to the Court of Appeal from the High Court, in an election petition concerning membership of a County Assembly , in
view of Article 164(3) of the Constitution. After citing its earlier decisions on the constitutional validity of the restrictions | https://augmentin.io/casetext/case/Wasike_v_Lusenaka___another__Civil_Application_085_of_2023__[2023]_KECA_1368__KLR___17_November_2023___Ruling_.docx.pdf |
bc5e4d780b71-1 | silence in section 75(4) and non-inclusion in section 85(A) of the Elections Act notwithstanding, a right of appeal still
lies to the Court of Appeal from the High Court, in an election petition concerning membership of a County Assembly , in
view of Article 164(3) of the Constitution. After citing its earlier decisions on the constitutional validity of the restrictions
placed in the number , length and costs of electoral disputes by statute by section 85A of the Elections Act (see, for
example, Gatirau Peter Munya vs. Dickson Mwenda Kithinji & 2 Others Supreme Court Petition NO. 2B of 2014), the | https://augmentin.io/casetext/case/Wasike_v_Lusenaka___another__Civil_Application_085_of_2023__[2023]_KECA_1368__KLR___17_November_2023___Ruling_.docx.pdf |
713afc265d2d-0 | Supreme Court stridently put the matter to rest in the following words: ….[I]t is not dif ficult to critically advert to such
argumentation, as would question the constitutional validity of sections 85A and 75(4) of the Elections Act. In this
context, the starting point, in our view , must be Article 87 of the Constitution, pursuant to which parliament is
majestically char ged with the duty of enacting legislation to ‘establish mechanisms for the timely settling of electoral
disputes.’ The fact that the Constitution lays a fundamental premium on the need for the expeditious disposal of electoral
disputes, is self-evidence in the plain language of Article 87…… It has to be noted that, what Article 87 requires
parliament to do, is not limited to the enactment of legislation setting ‘timelines’ for the disposition of electoral disputes.
The Article talks of ‘mechanisms for the timely’ settlement of electoral disputes. As such, the setting of timelines in
legislation is just but one of the mechanisms for the timely settlement of electoral disputes. Other mechanisms, are
discernible in the other provisions of the Elections Act touching upon such other matters, as the form of petitions, manner
of service of petitions, the scope of appeals, and, in our view , the level of appeals among others. As long as these
‘mechanisms’ are not inconsistent with, or violation of the provisions of the Constitution, and as long as they are in
accord with Article 87 of the Constitution, their validity cannot be questioned….T o argue that, notwithstanding the non-
provision for a second appeal in section 75(4) of the Elections Act, such right of appeal nonetheless subsists under Article
87 of the Constitution. Not to be left behind, and indeed a bolster to that jurisprudence, is this Court has made
pronouncements in several decisions such as Mohamed Ali Sheikh vs. Abdiwahab Sheikh & 4 Others, Hassan Jimal Abdi
vs. Ibrahim Noor Hussein & 2 Others; Twaher Abdukadirim Mohammed vs. Mwathethe Adamson Kadenge & 2 Others
[2015 eKLR; Emmanuel Changawa Kombe (Interested Party) [2018] eKLR; and Mogesi Agnes Bange & 8 Others vs.
IEBC & 12 Others [2018 eKLR; Isaac Oerri Abiri vs. Samwel Nyang’au Nyanchama & 2 Others [2014] eKLR. All these
cases have held that the Court of Appeal has no jurisdiction to entertain a second appeal from the High Court regarding
the question of validity of the election of a Member of the County Assembly . In the decisions cited, both the Supreme
Court and the Court of Appeal also confirmed that the omission of a provision for a second or further appeal under
section 75(4) of the Elections Act was deliberate. I need not say more, this application would have nowhere to begin, not
even one toe on which to pretend to stand, there would be no basis of granting leave to appeal on a matter which has no
authority to close it as such. Consequently , I hold and find that the application for extension of time within which to file
and serve the Notice of appeal and record of appeal, have no justification. The application lacks merit and is thus
dismissed with costs to the 1st respondent. Dated and delivered at Kisumu this 17th day of November , 2023. H. A.
OMONDI ………………………. JUDGE OF APPEAL I certify that this is a true copy of the original. Signed DEPUTY
REGISTRAR | https://augmentin.io/casetext/case/Wasike_v_Lusenaka___another__Civil_Application_085_of_2023__[2023]_KECA_1368__KLR___17_November_2023___Ruling_.docx.pdf |
751f67058edd-0 | REPUBLIC OF KENY A IN THE EMPLOYMENT AND LABOUR RELA TIONS COUR T OF KENY A AT NAIROBI
CAUSE NO. 1596 OF 2018 ERICK OMERI EMIRA CLAIMANT - VERSUS - SECUREX AGENCIES (K) L TD
………….RESPONDENT (Before Hon. Justice Byram Ongaya on Friday 17th November , 2023) JUDGMENT The
claimant filed the Memorandum of claim on 10.12.2018 through S.J Nyang & Co Advocates. The claimant prayed for
judgment against the respondent for: An order compelling the respondent to pay the claimant his terminal dues and salary
in lieu of notice all totalling to Kshs.340,087.00. General damages for mental torture, stress anguish as a result of loss of
employment. Reinstatement to employment together with withheld salary to date. Costs of the claim and interest on (a)
and (b) above at commercial rates. Or in the alternative payment of withheld salaries together with orders (a,b&c). The
reply to claim was filed on 04.04.2019 through Simiyu Wekesa Advocates. The respondent prayed that the claimant’ s suit
against it be dismissed with costs. The claimant’ s case was that he was an employee of the respondent from 02.02.2013
until 18.12.2015 when without reasonable justification, the respondent casually terminated his services without notice.
That on 1 1.06.2015, the Kenya Power & Lighting Company through their employees or representatives made a malicious
complaint to the Muthaiga Police Station to the ef fect that the claimant together with others had stolen a 22KV A
transformer serial no. 1256438 at the Ruaraka Kenya power complex contrary to section 268 as read with section 275 of
the Penal Code and later arraigned in court on the 18.06.2015 in criminal case no. 1925 of 2015 at Makadara law courts,
Nairobi. The claimant was tried before the Principal Magistrate’ s Court at Makadara Law Courts where after lengthy trial
the claimant was acquitted under section 210 of the criminal procedure code. It is the claimant’ s case that the respondent
did not procedurally terminate his employment. Instead, it relied and focused on the allegations of theft, which
allegations caused the claimant to be put in custody for some days, during which, he was alleged to have deserted duty
and his services summarily terminated without giving him a fair hearing. The claimant stated that on 17.06.2015 he
received a report from the main of fice of the respondent instructing him to inform his night shift colleagues not to leave
the assignment the next day , 18.06.2015. That KPLC sent police of ficers to arrest the claimant and two of his colleagues
Daniel Ouma and Peter Natembea. The police did not arrest the rest of the claimant’ s colleagues who were twenty-seven
in number . The claimant and his colleagues were held at Industrial Area Prisons, and the claimant was bailed out on
26.06.2015 by his uncle. The claimant pleaded that on 29.06.2015 he went to the respondent’ s base of fice seeking to
resume work, but, he was given a notice to report back to the base of fice on 02.07.2015 for a hearing. That on 02.07.2015
the claimant went to the respondent’ s base of fice as instructed and met his colleague Peter Natembea who had equally
been notified to attend a hearing on same day . That after 3 hours of waiting, they were informed that their area manager
one Mr . Nderutu was not available and that they should leave and return on 07.07.2015. On 07.07.2015 the claimant
arrived at the respondent’ s offices at 0820 Hrs. He met discovered that his colleague Peter Natembea had already arrived.
They were the informed that Mr . Nderutu, the human resource manager , operations and shop stewards were in a meeting,
and that they should wait. When the meeting ended, Mr . Nderutu informed the claimant that he had to attend to an
emer gency in the field. Some of the shop stewards approached the claimant and Peter Natembea, and tried to convince
them to write resignation letters so that they get paid quickly like their colleague Daniel Ouma. The claimant and his
colleague declined to write the resignation letters, and were informed to return to the respondent’ s offices on 08.07.2015.
On 08.07.2015 the claimant returned to the respondent’ s offices. Mr . Nderutu was not available and thus the meeting
could not take place. The respondent’ s secretary asked the claimant to leave his contacts behind, which he states, he
wrote down on a piece of paper . The claimant states that he fundraised amongst his friends and used the monies to
relocate, together with his family , back to his home in Busia County . That on 1 1.01.2016 he returned to Nairobi
purposely to collect his school certificates which were in the custody of the respondent. That he was requested to return
the respondent’ s property before being given his certificates, which he states he did on 12.01.2016. On the same date his
certificates were handed over to him together with a certificate of service and a cheque for the days he had worked in the
month of June 2015. On the part of the respondent, it admitted that the claimant was its employee, employed as a security
guard ef fective 01.05.201 1 to 30.06.2015 earning a basic salary of Kshs.12,221/= and a house allowance of
Kshs.1,833.17/=. That on 09.06.2015 the claimant was assigned duties at Kenya Power and Lighting Company (KPLC)
Ruaraka grounds. While on duty at the site, the claimant failed to raise alarm or report vandalism of a transformer that
occurred at KPLC Ruaraka grounds which was discovered the following day on 10.06.2015. The claimant was
summoned by the respondent on the events that led to the transformer being vandalized and he prepared a written
statement on his observations in relation to the security breach at KPLC Ruaraka grounds. The respondent stated that the
claimant’ s actions of failing to raise alarm of the theft resulted in him being issued with a notice to show cause on
29.06.2015. He was required to attend a disciplinary hearing on 02.07.2015. The claimant did not show up for the
disciplinary hearing on 02.07.2015 and no reason was given for the absence. The claimant having failed to appear for
disciplinary proceedings and having been absent from duty without authority , the respondent summarily dismissed him.
The respondent stated that the claimant showed up at the respondent’ s premises on 13.01.2016 to collect his terminal | https://augmentin.io/casetext/case/Emira_v_Securex_Agencies__K__Ltd__Cause_1596_of_2018__[2023]_KEELRC_2940__KLR___17_November_2023___Judgment_.docx.pdf |
751f67058edd-1 | disciplinary hearing on 02.07.2015 and no reason was given for the absence. The claimant having failed to appear for
disciplinary proceedings and having been absent from duty without authority , the respondent summarily dismissed him.
The respondent stated that the claimant showed up at the respondent’ s premises on 13.01.2016 to collect his terminal
dues. However , he did not of fer an explanation on his whereabouts for the six months that he was absent from
employment. The respondent paid his final dues and issued him a certificate of service. The Claimant filed his
submissions. Despite service the respondent failed to attend at the hearing and failed to file final submissions. The court
has considered the parties’ respective cases and makes finding as follows. To answer the 1st issue, there is no dispute that
the parties were in a contract of service. The 2nd issue is whether the contract of service was terminated. The respondent
states that a notice to show cause was issued on 29.06.2015 for a disciplinary hearing on 02.07.2015. Further , that the
claimant failed to show at the disciplinary hearing and resurfaced on 13.01.2016 to collect his terminal dues. The
claimant’ s account is that he received the notice to report back on 02.07.2015 but the hearing was adjourned to | https://augmentin.io/casetext/case/Emira_v_Securex_Agencies__K__Ltd__Cause_1596_of_2018__[2023]_KEELRC_2940__KLR___17_November_2023___Judgment_.docx.pdf |
3ffc73558398-0 | 07.07.2015. the claimant stated that on 07.07.2015 the Human Resource Manager for the second time was very busy to
meet him and the shop steward who had been in a meeting with the Manager asked him to resign like his co-accused
Daniel Ouma had done so as to be paid the worked days. He declined and was asked to go back on 08.07.2015 when the
meeting could not take place but the secretary for the Manager asked her to record his address and to go home to be
called later . He testified he never received the call until 15.07.2015 when it became unsustainable as he could no longer
pay the rent and he did the fundraiser and travelled to his rural home in Busia. He came back to Nairobi on 1 1.01.2016,
handed over and received the final cheque for days worked. The Court finds that the claimant’ s account upon his own
testimony is not challenged at all. It was for the respondent to show that on 02.07.2015 the claimant had failed to attend
the disciplinary hearing as envisaged in section 43 of the Employment Act. If indeed the claimant had failed to do so, it is
not clear why the same could not be revived in January 2016 when the claimant showed up. Instead it appears the
respondent decided to give a final pay cheque without reference to the disciplinary process. The Court finds that the
respondent frustrated the disciplinary hearing. The Court finds that the procedure adopted was not fair as per section 41
of the Act. The disciplinary procedure having aborted at the instance of the respondent, it cannot be said that there was
established reason for the termination as envisaged in section 43 of the Act. It was unfair in substance and procedure. The
submissions made for the claimant are upheld. The claimant exhibits a letter dated 9.08.2018 addressed to his advocate
by the respondent stating that the claimant was declared a deserter 18.12.2015 after receiving the letter to show cause
dated 29.06.2015 and failing to attend a disciplinary hearing on 02.07.2015. Once again, the respondent fails to explain
why the letter on desertion was not issued promptly on 02.07.2015, once again rendering the respondent’ s account not
probable on a balance of probability . The 3rd issue is on remedies. The Court finds as follows: The claimant was
dismissed when the disciplinary process aborted at the respondent’ s instance and it was without notice as he is awarded
Kshs.22,000.00 in lieu of notice. The court has considered the factors in section 12 of the Act. The aggravating factors
are that the respondent failed to conclude the disciplinary process and subjected the claimant to unjustified adjournments.
The Court has considered the period served and also considered the claimant otherwise had a clean record of service. He
is awarded 8 months’ salaries in compensation making Kshs.176,000.00. There appears no material on record shows the
claimant was a member of NSSF and the claim for service pay is declined. The Court has considered the suf fering the
claimant went through for the manner he was dismissed and awarded 8 months’ salaries in compensation. The claimant
has not shown justification for general damages for mental torture, stress and anguish as a separate heading for award. It
is declined. There were no submissions made in that regard to justify the award. The submissions made for payment of
withheld salaries are found baseless as no claim and prayer had been made in that regard. No submissions were made on
the prayer for reinstatement and the same is deemed abandoned and correctly so as it was already statute barred, three
years having lapsed from the date of the termination. The termination having been constructive ef fective 02.07.2015
when the disciplinary process aborted. The claimant has succeeded and the respondent will pay costs. In conclusion
judgment is hereby entered for the claimant against the respondent for: Payment of Kshs.198,000.00 by 31.12.2023
failing interest to be payable thereon at Court rates from the date of this judgment till full payment. The respondent to
pay costs of the suit. 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/Emira_v_Securex_Agencies__K__Ltd__Cause_1596_of_2018__[2023]_KEELRC_2940__KLR___17_November_2023___Judgment_.docx.pdf |
fdcd05c3add3-0 | REPUBLIC OF KENY A IN THE HIGH COUR T OF KENY A AT NAIROBI CIVIL CASE NO. 136 OF 2018 TATU
CITY LIMITED.......................................1ST PLAINTIFF KOFINAF COMP ANY LIMITED………………….….2ND
PLAINTIFF VERSUS STEPHEN MBUGUA MW AGIRU………..............1ST DEFENDANT WINFRED WANJIKU
GITONGA ……………….. 2ND DEFENDANT GABRIEL KAGO …………………………………….3RD
DEFENDANT ERIC WAINAINA …………………………………… 4TH DEFENDANT GALGALLO F AYO
…………………………………… 5TH DEFENDANT NATION MEDIA GROUP LIMITED…………….. 6TH
DEFENDANT RULING The application coming for consideration in this ruling is the one dated 6/12/2018 brought
under Order 2 Rule 15, Order 6 and Order 51 rule 1 of the Civil Proceedings rules 2010 seeking the following prayers
The plaint dated 1 1th June 2018 and lodged by the 1st and 2nd plaintif fs be struck out in respect of the allegations against
the 1st defendant and 2nd defendant. That costs of this application be borne by the 1st and 2nd plaintif fs. The application
is based on the grounds on the face of it as follows; The plaintif f filed the plaint dated 1 1th June, 2018 out of time and it
is therefore time barred due to limitation of time. That notwithstanding, the plaint is based on a grave misconception
about the employment and engagement of the 1st defendant not a publisher . The plaintif f’s plaint is sub judice as it seeks
to use the forum of this honourable court to litigate and influence court matters that are pending adjudication in various
other courts. The plaintif fs’ plaint is based on allegations that are contrary to the freedoms of speech guaranteed under
article 33 of the constitution of Kenya. The plaintif fs have not specifically disclosed how the alleged publications have
undermined their reputation and character in the eyes of the right thinking members of the society . The plaintif f does not
disclose a reasonable cause of action for a defamation suit, let alone a cause of action against the 1st defendant and 2nd
defendant. The plaintif fs’ allegations of harassments and malice are mere allegations as they are devoid of concise and
specific particulars with respect to the 1st defendant and 2nde defendant. The plaintif fs allegations are unrelated and are
farfetched and thus cannot be linked to the alleged cause of defamation that the plaintif fs very unimaginatively strive to
pursue on the instance case. The plaintif fs’ imputations of gross criminal behavior by the 1st defendant and 2nd
defendant are based on plaintif fs’ opinions and actions which are contrary to the express provisions of criminal and land
laws on finding of guilt and placement of caveats hence it is an abuse of the court process. The plaintif f is significantly
based on wild and unfounded allegations against the 1st defendant and 2nd defendant that are completely unrelated and
remote to their insinuation of defamation. The plaint as filed has no legs to stand on and should be cut of f at the knees
to/and avoid an expensive and wholly unnecessary waste of scarce judicial time and resources; an act that is inimical to
public policy interest. It is in the interest of justice that the plaint dated 1 1th June, 2018 be struck out with costs at the
earliest opportunity as it discloses no reasonable cause of action against the 1st defendant and 2nd defendant and lacks
merit. The plaintif f filed a replying af fidavit sworn on 31/5/2019 by CHRIST OPHER BARRON opposing the application
dated 6/12/2018 in which it is deposed that the application herein is an abuse of court process. the application is too
general in its nature and failed to particularize the ground the 1st and 2nd defendants are seeking to rely on to have this
suit struck out. He stated that in his af fidavit the 1st defendant make it appear that he is the founder of Tatu City Project
yet the same is blatantly false. The 1st defendant is only concerned about his own personal interests and not those of the
companies and their project. The 1st defendant and his proxies have taken all steps necessary to try and bring the projects
to a stand still to the detriment of the plaintif fs and its stakeholders. He averred that the articles that were complained
about were facilitating and procured at the behest and instructions of the 1st defendant. The 1st defendant procured the
4th defendant to cover the story allegedly that the 1st and 2nd plaintif f were embroiled in a row with villagers over Tatu
City Properties. This position is false. This was intended to destroy the image and reputation of the plaintif fs and their
associate companies. The same was done with ill intent to insert pressure upon the plaintif fs and force them to under go
economic harm and damages. The 1st defendant also procured the 5th and 6th defendants to publish a story in the
business daily edition dated 23/5/2018 under the caption “Land Of ficials entangled in Tatu City fraud claims” concerning
the 1st defendants claim in another constitutional petition namely Thika ELC Petition No. 5 of 2018 which was later
withdrawn by the 1st defendant herein. He stated that the stories complained of have been published by the 4th , 5th and
6th defendant at the 1st defendant’ s instance in the expectation that such an adverse publicity will prevent the
development of the Tatu City Project otherwise paralyze the 1st and 2nd plaintif f’s operations thus creating a leverage for
the 1st defendant to try and force a buy-out of his one share on his terms. The parties filed written submissions as
follows: the 1st defendants submitted that to sustain a suit for defamation, the Plaintif f must prove that there were either
words or publication and that they were defamatory in that they lowered the reputation of the claimant. The 1st defendant
submitted that the plaint does not mention the words that were defamatory which were spoken by the 1st defendant. The
Plaintif f only alleges that the 1st Defendant procured the 4th, 5th, and 6th Defendants to publish defamatory words. That
is not an element of uttering a word as is contemplated by the court in of Joseph Njogu Kamunge v Charles Muriuki
Gachari [2016] eKLR The 1st defendant submitted the Plaint has not specifically disclosed how the alleged
publications have undermined the reputation of the Plaintif fs in the eyes of the right-thinking members of the society .
Having fallen short of this element, the Plaint does not sustain a defamation suit let alone against the 1st Defendant. The
1st defendant submitted further that the matter is barred by limitation of time. The cause of action of the Plaintif fs against | https://augmentin.io/casetext/case/Tatu_City_Limited___another_v_Mwagiru___5_others__Civil_Case_136_of_2018__[2023]_KEHC_25354__KLR___17_November_2023___Ruling_.docx.pdf |
fdcd05c3add3-1 | publications have undermined the reputation of the Plaintif fs in the eyes of the right-thinking members of the society .
Having fallen short of this element, the Plaint does not sustain a defamation suit let alone against the 1st Defendant. The
1st defendant submitted further that the matter is barred by limitation of time. The cause of action of the Plaintif fs against
the 1st Defendant has no chance of success because the suit was instituted on 1 1/6/2018. It is based on the alleged
invalidity of caveats which were removed by the Registrar on Chief Land Registrar on the 25/5/2012 and the Nairobi
Civil Application No. 198 of 2013 which was filed in 2013. The 1st defendant ar gued that he is a mere citizen of Kenya
and has no control or influence over the journalists that work for the Business Daily or the Nation Newspapers. The 1st
Defendant is not a publisher or a proprietor of any newspaper making media house as alleged by the Plaintif fs at
paragraph 1 1 of the Plaint. Neither is the 1st Defendant an employee of any publishing company within or without | https://augmentin.io/casetext/case/Tatu_City_Limited___another_v_Mwagiru___5_others__Civil_Case_136_of_2018__[2023]_KEHC_25354__KLR___17_November_2023___Ruling_.docx.pdf |
b4374222ec0c-0 | Kenya. No particulars of any statement uttered by the 1st Defendant have been alleged in the Plaint. The 1st and 2nd
plaintif fs submitted that law is very clear and categorical on the nature of an Application seeking to strike out a suit and
the threshold that must be met. Under Order 2, Rule 15 of the Civil Procedure Rules, 2010, provides: "(1) At any stage of
the proceedings the court may order to be struck out or amended any pleading on the ground that- a. it discloses no
reasonable cause of action or defence in law; or b. it is scandalous, frivolous or vexatious; or c. it may prejudice,
embarrass or delay the fair trial of the action; or d. it is otherwise an abuse of the process of the court, and may order the
suit to be stayed or dismissed or judgment to be entered accordingly , as the case may be. (2) No evidence shall be
admissible on an application under sub rule (1) (a) but the application shall state concisely the grounds on which it is
made." The plaintif fs submitted the application herein disregards Order 2, Rule 15 of the Civil Procedure Rules, the 1st
Defendant's submissions contain material evidence which should not form the substance of an application for striking
out. The Application filed by the 1st Defendant are mere side shows aimed at distracting the Court from the real issues
before it for determination. It is trite law that summary procedure is a radical remedy and a court of law should be slow
in resorting to this procedure which can only be applicable in plain, clear and obvious cases. Madan J (as he then was) in
D T Dobie & Company (Kenya) Limited v Muchina,[1982]KLR 1,at page 9,said: “The Court ought to act very
cautiously and carefully and consider all facts of the case without embarking upon a trial thereof before dismissing a case
for not disclosing a reasonable cause of action or being otherwise an abuse of the process of the Court. At this stage the
Court ought not to deal with any merits of the case for that is a function solely reserved for the judge at the trial as the
Court itself is not usually fully informed so as to deal with the merits without discovery , without oral discovery tested by
cross-examination in the ordinary way .” A pleading ought to be struck out if it is shown to be completely bad to the
extent that not even an amendment can save it. The Court of Appeal in Francis Kamande v Vanguard Electrical Services
Limited, Civil Appeal Number 152 of 1996, [1998] eKLR, observed that the summary procedure can only be adopted
when it can be clearly seen that a claim or answer is on the face of it “obviously unsustainable.” The plaintif fs further
submitted that the Plaint filed on the 1 1/6/2018 is not barred by the Statute of Limitations Act as it is not a defamatory
suit as alleged to be by the 1st Defendant a clear indication, he has not properly understood the suit filed herein or feigns
ignorance by alleging that this is a defamatory suit. The 1st Defendant is well aware that the issues raised in Plaint relate
to the conduct of the 1st Defendant that has caused great financial loss to the 1st and 2nd Plaintif f which he cannot use
this court to escape from the same. The issues for determination in this application are as follows; Whether this suit
discloses a cause of action against the 1st and 2nd defendants. Whether the plaintif f’s suit is statute time barred. Whether
the plaintif f’s suit against the 1st and 2nd defendants should be struck out. On the issue as to whether the suit discloses a
cause of action against the 1st and 2nd defendants, I find that this is not an issue that can be determined at interlocutory
stage. There is need for a full hearing for the court to determine the said issue. On the issue as to whether the plaintif f’s
suit is statute time barred again the issue needs ventilation by adducing evidence to determine when the cause of action
arose. On the issue as to whether the plaintif f’s suit against the 1st and 2nd defendants should be struck out, I find that
striking out of the suit would be a draconian step. The duty of the court is to preserve pleadings no matter how hopeless.
In Yaya Towers Limited v Trade Bank Limited (In Liquidation) (Civil Appeal No. 35 of 2000) the same court expressed
itself thus: “A plaintif f (defendant) is entitled to pursue a claim in our courts however implausible and however
improbable his chances of success. Unless the defendant (plaintif f) can demonstrate shortly and conclusively that the
plaintif f’s claim is bound to fail or is otherwise objectionable as an abuse of the process of the Court, it must be allowed
to proceed to trial...It cannot be doubted that the Court has inherent jurisdiction to dismiss that, which is an abuse of the
process of the Court. It is a jurisdiction, which ought to be sparingly exercised and only in exceptional cases, and its
exercise would not be justified merely because the story told in the pleadings was highly improbable, and one, which was
difficult to believe, could be proved.” The application dated 6/12/2018 lacks in merit and the same is dismissed with
costs to the plaintif fs. 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
Plaintif f ……………………………………… for the Defendant | https://augmentin.io/casetext/case/Tatu_City_Limited___another_v_Mwagiru___5_others__Civil_Case_136_of_2018__[2023]_KEHC_25354__KLR___17_November_2023___Ruling_.docx.pdf |
cf75b2f74e01-0 | REPUBLIC OF KENY A IN THE ENVIRONMENT AND LAND COUR T AT MALINDI ELC MISC. APP. NO. 53 OF
2022 SAFE HA VEN LIMITED ………………………………………………. APPLICANT VERSUS SHARIF
MOHAMAD A. OMAR …………..……………………. 1ST RESPONDENT BOUGANVILLAEA COTT AGES
LIMITED ………………..… 2ND RESPONDENT ORNELLA BONTEMPI LUIGI (Defending in the capacity of legal
representative of the estate of BONTEMPI LUIGI-DECEASED)…………….….………. 3RD RESPONDENT
KHADIJA SHARIFF MOHAMED ……………………………… 4TH RESPONDENT REGISTRAR OF COAST
LAND TITLES ……………………… 5TH RESPONDENT RULING This ruling is in respect of a Notice of Motion
dated 24th November 2022 by the Applicant seeking the following orders: Spent. That the Honourable court be pleased
to enlar ge time to allow the Applicant to seek leave to review the judgment of Justice J.O. Olola delivered on 31st August
2021 in ELC Case No. 82 of 2014 at Malindi. That upon enlar gement of time the Honourable court be pleased to grant
leave to the Applicant to review the judgment of Justice J.O Olola delivered on 31st August 2021 in ELC Case No. 82 of
2014 at Malindi. Spent. Spent. That the Honourable court be pleased to review and/or vary and/or set aside the judgment
of Justice J.O Olola delivered on 31st August 2021 in ELC Case No. 82 of 2014 at Malindi. That an order do issue
directing the Registrar of Coast Land Titles to cancel the indenture dated 5th July 2022 registered in favour of the 4th
Respondent over the suit property and any further dealings on the property . That an order do issue directing the Registrar
of Coast Land Titles to restore the title to the suit property in favour of the 3rd Respondent. That this honourable court do
grant any other orders it deems fit and just to grant. That costs of this suit be provided for . The application is based on the
grounds listed on its face and supported by the af fidavit of Radhika Muralee Thayyil dated 24th November 2022, who
deponed that sometime in the year 2013, the Applicant entered into an agreement to purchase land parcel identified as
Subdivision No. 5650 (Original No. 24/5) (V ol. No. L T21 Folio B 20A, File 7031) Malindi being part portion of Plot No.
24 (the suit property). That upon payment of the purchase price however , the Applicant was not able to transfer the same
as there was a caution registered against the title in ELC Case No. 82 of 2014. As a result, the Applicant filed ELC Case
No. 79 of 2017 where judgment was entered on 22nd September 2022 by Olola J. declaring the Applicant a bona fide
purchaser for value over the suit property . The learned judge also issued an order for specific performance against the 3rd
Respondent. The Applicant further deponed that her ef forts to execute that judgment has been frustrated due to the
existence of an earlier judgment in ELC Case No. 82 of 2014 delivered on 31st August 2021 by Olola J. According to
her, the Applicant only became aware of that judgment on 10th November 2022 and that the suit property has since been
transferred to the 4th Respondent. She stated that the judgment in ELC No. 82 of 2014 was ripe for review for the
following reasons; The Honourable court in error failed to consider that the statute of limitation had expired as the suit
was brought by the 1st Respondent over 17 years from when the cause of action accrued thus directly of fending section 7
of the Limitation of Actions Act, Cap 22. The Honourable court erred in directing that a new title for the suit property be
issued in favour of the 2nd Respondent herein, failing to consider that there was no valid document in the form of a sale
agreement in the name of the 2nd respondent brought before the court, to establish that the 2nd Respondent had any stake
in the purchase of the property from the previous registered owner , contrary to section 3 (3) of the Law of Contract Act,
Cap 23. The Honourable court erred in relying on inadmissible documents, failing to consider that the only sale
agreement produced in court did not pass title to the 2nd Respondent nor did it create beneficial ownership and in any
case it was neither signed by all the parties thereto, nor was there attestation as required by section 3(3) of the Law of
Contract Act, Cap 23 and section 38 of the Land Act, 2012. The Honourable court in error relied on an instrument, being
sale agreement, not duly stamped for stamp duty contrary to section 19 (1) of the Stamp Duty Act, Cap 480, which states
that no instrument char geable with stamp duty shall be received in any proceedings whatsoever unless it is duly stamped.
The Honourable court failed to take into account that the two suits being ELC 82 of 2014 and ELC 79 OF 2017 ought to
have been consolidated before the determination of the former suit as both matters dealt with the same suit property
before the same judge. The Honourable court failed to ensure that the provisions of Order 21 rule 6 were complied with
prior to delivery of the judgment in ELC 82 of 2014 being that a certified copy of the title for the suit property ought to
have been produced by the Land Registrar before issuance of judgment. The Honourable Court failed to consider the law
of adverse possession and that the 3rd Respondent had been in exclusive possession of the property from 1991 without
any protest from the 2nd Respondent as the alleged true owner , being a shareholding director of the 2nd Respondent
therefore having access to the financial accounts and asset register of the company . The application was opposed by the
1st, 2nd and 4th Respondents who filed grounds of opposition on 13th February 2023 and stated that the application was
an afterthought having been filed more than one year since delivery of judgment. That the Application did not raise any
sufficient reasons for leave to be granted. The Respondents further stated that the application did not meet the threshold
for review under Order 45 and that the court did not have jurisdiction to determine the application having pronounced
itself on 31st August 2021. The Respondents averred that the Applicant had at one point participated in ELC 82 of 2014
but later withdrew and filed ELC 79 of 2017 to the exclusion of the 1st, 2nd and 4th Respondents. The 4th Respondent
also filed a replying af fidavit dated 9th February 2023 where she deponed that following the impugned judgment, the suit | https://augmentin.io/casetext/case/Safe_Haven_Limited_v_Omar___4_others__Environment_and_Land_Miscellaneous_Application_53_of_2022__[2023]_KEELC_21578__KLR___17_November_2023___Ruling_.docx.pdf |
cf75b2f74e01-1 | but later withdrew and filed ELC 79 of 2017 to the exclusion of the 1st, 2nd and 4th Respondents. The 4th Respondent
also filed a replying af fidavit dated 9th February 2023 where she deponed that following the impugned judgment, the suit
property was transferred back to the 1st and 2nd Respondents who subsequently transferred the same to her vide an
indenture dated 5th July 2022 which was registered on 22nd July 2022. She also stated that the 1st Respondent was her
biological father . The 5th Respondent also opposed the application and stated that the application did not meet the
conditions outlined under Order 45 rule 1 of the Civil Procedure Rules and the threshold for grant of injunctions hence an
abuse of court process. The 3rd Respondent did not participate in these proceedings. APPLICANT’S SUBMISSIONS
Counsel for the Applicant identified three issues for determination namely: Whether the Applicant has locus standi to
bring this application. Whether a legal conflict arises by gist of the existence of two conflicting judgments over the same | https://augmentin.io/casetext/case/Safe_Haven_Limited_v_Omar___4_others__Environment_and_Land_Miscellaneous_Application_53_of_2022__[2023]_KEELC_21578__KLR___17_November_2023___Ruling_.docx.pdf |
fb9492886b50-0 | subject matter . Whether the reliefs sought by the Applicant should be granted. On the first issue whether the Applicant
has locus standi to file this application, counsel submitted that the simple interpretation of the language used in section
80 of the Civil Procedure Act, and Order 45 of the rules thereunder , was that the right to review extended to any
aggrieved party even if they were not parties to a suit of which the Applicant is aggrieved by the Judgment in ELC NO
82 OF 2014. Counsel relied on the cases of Accredo Ag and 3 others v Stef fano Uccelli and another [2017] eKLR; and
Union of India v Nareshkumar Jagad and others v Review Petition C D. No. 40966 of 2013 cited in Civil Appeal No.
7448 of 201 1, where the court held that a third party to the proceedings if he considers himself an aggrieved person, may
take recourse to the remedy of review . It was counsel’ s further submission that the grounds highlighted in the application
were suf ficient to warrant a review of the impugned judgment to ensure that justice is served and that a bad precedent is
not set in future proceedings. Counsel relied on the cases of Benjoh Amalgamated Limited and another v Kenya
Commercial Bank Limited [2014] eKLR and Makula International Ltd v His Eminence Cardinal Nsubuga and another
[1982] HCB 1 1. Counsel ar gued that this court was clothed with inherent jurisdiction under Section 3A of the Civil
Procedure Act to ensure ends of justice and cited the Supreme Court case of Fredrick Otieno Outa v Jared Odoyo Okello
and 3 Others [2017] eKLR. Mr . Wahome explained that the review application could not be filed under ELC 82 of 2014
since the Applicant was not a party in that suit, hence the present miscellaneous application. He ar gued that once a court
delivered its judgment, it became functus of ficio and could not entertain a joinder application and that a joinder
application need to be made in a pending case and cited the case in Civicon Limited v Kivuwatt Limited and 2 Others
[2015] eKLR. On the second issue as to whether a legal conflict arises by gist of the existence of two conflicting
judgments over the same subject matter , counsel submitted that since the two judgments gave the Applicant in one, and
the 1st and 2nd Respondents in another , the same property , it was imperative that the judgment in ELC 82 of 2014 be
reviewed. According to counsel, the latter decision, in this case judgment in ELC No. 79 of 2017, ought to be followed
and relied on the case of Govinda Naik v West Patent Press Co. Ltd –AIR 1890 Kant 92. Counsel ur ged the court to
allow the application as prayed. 2ND AND 4TH RESPONDENTS’SUBMISSIONS. Counsel identified two issues
namely- whether the Applicant has locus standi to seek the orders and whether costs should be awarded. On the first
issue, counsel submitted that the Applicant was not a party in ELC No. 82 of 2014 therefore lacked the requisite locus
standi to seek the orders sought in the application hence not entitled to review orders. Counsel relied on the case of
Accredo Ag and 3 others v Stef fano Uccelli and another (supra) Mr . Matheka relied on the case of Isaac Indah Muchesi v
Lawrence Gichuru Njenga and 3 Others [2018] eKLR and submitted that the delay of 1 year 3 months in filing the
application was inordinate as equity aids the vigilant and not those who slumber on their rights. Counsel added that the
grounds relied upon by the Applicant did do not meet the threshold required under Section 80 of the Civil Procedure Act
and Order 45 rule 1 of the Civil Procedure Rules and relied on the case of Republic –v- Advocates Disciplinary Tribunal
Ex-parte Apollo Mboya [2019] eKLR. Mr . Mataheka submitted that the Applicant was not entitled to a temporary
injunction since he was not the registered owner of the suit property and further that he has not established a prima facie
case. Counsel relied on the case of Nguruman Limited v Jan Bonde Nielsen and 2 Others [2014] eKLR. 5TH
RESPONDENT’S SUBMISSIONS Mr . Munga counsel for the 5th Respondent identified three issues for determination
which he generated from the provisions of Section 80 of the Civil Procedure Act and Order 45 of the Rules thereunder .
The issues were whether the Applicant has established the existence of an error apparent on the face of the judgment;
whether the Applicant has established the existence of other suf ficient reason; and whether the Applicant filed the
application without unreasonable delay . Regarding the first issue, counsel quoted the definition of an error apparent on
the face of the record as was explained in the case of Republic v Advocates Disciplinary Tribunal Ex parte Apollo Mboya
[supra]. Counsel ar gued that the Applicant’ s allegation that the court failed to consider the law on adverse possession was
misplaced since adverse possession was never pleaded in ELC No. 82 of 2014 hence there was no error apparent on the
face of the record. On the second issue, Mr . Munga submitted that annexure RMT 4b attached to the applicant’ s
supporting af fidavit was suf ficient proof that the Applicant was at all material times aware of the existence of the suit
ELC 82 of 2014 and its intended outcome. He ar gued that the discovery did not amount to new evidence and relied on
the case of Alpha Fine Foods Limited v Horeca Kenya Limited and 4 others [2021] eKLR. Finally , Mr. Munga submitted
that the delay of 15 months to file the application was not explained therefore the application ought to be dismissed on
the ground of inordinate delay . Counsel cited that case of Afapack Entrprises Limited v Punita Jayant Acharya suing as
the administrator of the Estate of the late Suchila Anatrai Raval [2018] eKLR where a delay of 9 months from the date
the decision was considered inordinate. ANAL YSIS AND DETERMINA TION The only issue for determination is
whether the application as filed is proper before the court or an abuse of court process. This is an application for review
under Order 45 Rule 1 of the Civil Procedure Rules and Section 80 of the Civil Procedure Act. Order 45 rule allows any
party or a non-party who is aggrieved by a judgment or order of the court to file an application for review . Even though
the Applicant has locus standi to file an application for review of the Judgment in ELC No 82 of 2014, the right
procedure has to be followed. The Applicant ought to have filed the application in ELC CASE NO 82 OF 2014 which he
seeks the court to review the judgment. Assuming that the court allows the orders sought how arethey going to be
implemented. Courts do not give orders in vain. It should be noted that the Applicant was at one point a party in ELC 82 | https://augmentin.io/casetext/case/Safe_Haven_Limited_v_Omar___4_others__Environment_and_Land_Miscellaneous_Application_53_of_2022__[2023]_KEELC_21578__KLR___17_November_2023___Ruling_.docx.pdf |
fb9492886b50-1 | seeks the court to review the judgment. Assuming that the court allows the orders sought how arethey going to be
implemented. Courts do not give orders in vain. It should be noted that the Applicant was at one point a party in ELC 82
of 2014 but chose to withdraw and file ELC No. 79 of 2017 that he now wants the court to implement as it was in his
favour . The court will therefore not dwell further on the merits of the application but order that the application is hereby
struck out with costs to the Respondents. DA TED, SIGNED AND DELIVERED AT MALINDI THIS 17TH DA Y OF
NOVEMBER 2023. M.A. ODENY JUDGE NB: In view of the Public Order No. 2 of 2021 and subsequent circular dated
28th March, 2021 from the Of fice of the Chief Justice on the declarations of measures restricting court operations due to | https://augmentin.io/casetext/case/Safe_Haven_Limited_v_Omar___4_others__Environment_and_Land_Miscellaneous_Application_53_of_2022__[2023]_KEELC_21578__KLR___17_November_2023___Ruling_.docx.pdf |
9acef0058c43-0 | the third wave of Covid-19 pandemic this ruling has been delivered online to the last known email address thereby
waiving Order 21 [1] of the Civil Procedure Rules. | https://augmentin.io/casetext/case/Safe_Haven_Limited_v_Omar___4_others__Environment_and_Land_Miscellaneous_Application_53_of_2022__[2023]_KEELC_21578__KLR___17_November_2023___Ruling_.docx.pdf |
c1adcf5e2efb-0 | REPUBLIC OF KENY A IN THE HIGH COUR T OF KENY A AT NAIROBI CIVIL APPEAL NO. 594 OF 2018
MUTINDW A FARMERS CO-OPERA TIVE SOCIETY LIMITED……....................................... APPELLANT -
VERSUS- IRIGA FAMERS SOCIETY………………..........1ST RESPONDENT KIRIANI F ARMERS SOCIETY
LTD……………2ND RESPONDENT CO-OP HOLDINGS CO-OPERA TIVE SOCIETY……………………….3RD
RESPONDENT RULING The application coming for consideration in this ruling is the one dated 31/1/2019 brought
under Section 79G of the Civil Procedure Act Chapter 21 Laws of Kenya, Section 81 of the Co-operative Act no. 12 of
1997, and 51 Rule 1 of the Civil Procedure Rules, Rule 6 of the Co-operative Tribunal (Practice and Procedure) Rules
2009 seeking the following orders The honourable court be pleased to strike out the Memorandum of appeal dated 18th
December 2018. In the alternative and without prejudice to prayer (1) herein, the Honourable court be pleased to strike
out grounds 1, 2, 3, 4, 5, 1 1, 12 and 13 of the Memorandum of Appeal dated 18th December 2018. The cost of this
application be borne by the appellant herein. The application is based on the following grounds; The appellant has filed
one appeal in respect of two rulings delivered on 6th June and 19th November 2017. The appeal in respect of the ruling
delivered on 6th June 2017 is time-barred and contrary to Section 81 of the Co-operative Societies Act having been filed
on 18th December 2018. The said appeal has been filed over Eighteen (18) months out of time. The appellant did not
seek leave to file the appeal out of time. The court does not have jurisdiction to hear the said appeal. The appellant’ s
memorandum of appeal is bad in law , substance and form as it seeks to challenge two decisions of the honourable Co-
operative tribunal made on diverse dates and on dif ferent issues. It is in the best interest of justice that the prayers sought
herein are granted. The appellant filed a replying af fidavit sworn on 29/9/2023 in opposition to the application and
disposed that a party who wishes to file an appeal of the decision of the tribunal has a right to appeal to the high court.
The intended appellant is required to file an appeal within 30 days from the date of the decision. The appeal in respect to
the ruling delivered on 6/6/2017 has been filed 18 months out of time and without the leave of court. the appeal is statute
barred and the court has no jurisdiction to hear and determine the appeal in respect of the ruling. A clear look at the
memorandum of appeal is an afterthought and has no legal basis and lacks color of merit. The 1st and 2nd respondents
did not file any submissions. The 3rd respondent and the appellant filed rival submissions as follows; the 3rd respondent
submitted that the present Appeal is time-barred having been filed grossly late beyond the legally acceptable timelines
and the court ought not entertain it any further by dint of the express provisions of Section 81 of the Co-operatives
Societies Act, Section 79G of the Civil Procedure Act. Section 81(1) of the Co-operatives Societies Act provides as
follows: Any party to the proceedings before the Tribunal who is aggrieved by any order of the Tribunal may , within
thirty days of such order , appeal against such order to the High Court: Provided that the High Court may , where it is
satisfied that there is suf ficient reason for so doing, extend the said period of thirty days upon such conditions, if any , as
it may think fit. Rule 6 of the Co-operatives Tribunal (Practice and Procedure) Rules, 2009 provides as follows: The
provisions of the Civil Procedure Rules (Cap. 21, Sub. Leg.) shall apply in respect of the proceedings of the Tribunal.
Section 79G of the Civil Procedure Act, Cap 21 Laws of Kenya provides as follows: Time for filing appeals from
subordinate courts Every appeal from a subordinate court to the High Court shall be filed within a period of thirty days
from the date of the decree or order appealed against, excluding from such period any time which the lower court may
certify as having been requisite for the preparation and delivery to the appellant of a copy of the decree or order:
Provided that an appeal may be admitted out of time if the appellant satisfies the court that he had good and suf ficient
cause for not filing the appeal in time. The 3rd respondent ar gued that Appellant’ s right of appeal only lies where the law
specifically provides for such right to accrue and where no such right is automatic. The right of appeal is conferred by
statute and cannot be inferred. Like any party seeking to appeal the decision of the Co-operatives Tribunal, the Appellant
should have first obtained leave of court to extend time. That further an issue of time limitation goes to the jurisdiction of
the Court. This Court is clothed with Appellate jurisdiction solely under the provisions of Section 81 of Cap 490 which
the Appellant has violated. Therefore, this court does not have suf ficient jurisdiction to entertain the various grounds of
Appeal filed in respect of the ruling delivered on 6/6/2017. The appellants on the other hand submitted that the
application herein should be dismissed for being an abuse of court process because the application is sworn by a stranger .
Mr. Ndegwa is neither the Chairman, Deputy Chairman, Treasurer , Secretary or a Board of Director of the committee.
The 2nd respondent’ s advocate further confessed to the court on 3/10/2023 that the of ficials were changed and they have
not been able to access the new of ficials, he nevertheless supports the application by the 3rd applicant’ s and associates
himself with their submissions. The appellants further submitted that Article 41 of the Constitution, it need not be
belabored that a cause of action against a Constitutional right arises on a daily basis as long as that right is infringed and
cannot be barred by time. That the court should invoke its supervisory powers and determine for itself if the matters the
Tribunal seeks to spend precious judicial time upon have been barred by statute and/or abated and proceed in the interest
of justice instead of being fettered by procedural technicalities which are denounced under Article 159 of the
Constitution. The issues for determination are: Whether the appeal should be struck of f. Whether the memorandum of
appeal is statute time barred. On the issue as to whether this appeal should be struck out, I find that the 3rd respondent
submitted that the appeal was filed out of time. I find that the said issue is one to be canvassed during the appeal. On the
issue as to whether the appeal is statute barred, again I find that the same can be canvassed during the appeal. I find that | https://augmentin.io/casetext/case/Mutindwa_Farmers_Co-operative_Society_Limited_v_Iriga_Famers_Society___2_others__Civil_Appeal_594_of_2018__[2023]_KEHC_25352__KLR___Civ___17_November_2023___Ruling_.docx.pdf |
c1adcf5e2efb-1 | submitted that the appeal was filed out of time. I find that the said issue is one to be canvassed during the appeal. On the
issue as to whether the appeal is statute barred, again I find that the same can be canvassed during the appeal. I find that
striking out of a case no matter how hopeless should be the last resort of the court. In the case of Stecol Corporation
Limited v Susan Awuor Mudemb [2021] eKLR the court held as follows; “In Kamlesh Mansukhalal Damki Patni Vs
Director of Public Prosecution & 3 Others [2015]eKLR, the Court of Appeal articulated that: “It suf fices to comment that
a court of law should be hesitant at closing the door to the corridors of justice prior to a litigant being heard on his
complaint.” I dismiss the application dated 31/1/2015 and direct that the parties file their submissions for determination | https://augmentin.io/casetext/case/Mutindwa_Farmers_Co-operative_Society_Limited_v_Iriga_Famers_Society___2_others__Civil_Appeal_594_of_2018__[2023]_KEHC_25352__KLR___Civ___17_November_2023___Ruling_.docx.pdf |
9432749f6cf2-0 | of the main appeal. The costs of the Application to abide the 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 ……………………………..for the 3rd Respondent | https://augmentin.io/casetext/case/Mutindwa_Farmers_Co-operative_Society_Limited_v_Iriga_Famers_Society___2_others__Civil_Appeal_594_of_2018__[2023]_KEHC_25352__KLR___Civ___17_November_2023___Ruling_.docx.pdf |
9ed49a46f511-0 | REPUBLIC OF KENY A IN THE HIGH COUR T OF KENY A AT NAIROBI CIVIL APPEAL NO. E278 OF 2021
GLAXO SMITHKLINE PHARMACEUTICAL KENY A LIMITED …………...............................1ST APPELLANT
STELLA KIGUJA NG’ANGA……………………….. 2ND APPELLANT -VERSUS- JOSEPH MULINGE KILO
……………………..........RESPONDENT (Being an appeal from the judgment and decree of Hon. A. N. Makau (PM) in
Milimani CMCC No. 1719 of 2019 delivered on 24/2/2020) JUDGMENT The respondent in this appeal, JOSEPH
MULINGE KILO filed Milimani CMCC no. 1719 of 2019 seeking general damages for pain and suf fering and loss of
amenities and special damages of ksh.3,550/= together with costs and interest for injuries the respondent sustained on
22/4/2018 while the respondent was riding motor cycle registration no. KMET 654V when it was hit by the 1st appellants
motor vehicle registration no. KCF 750U. The respondent who suf fered cut wound web of the 2nd and 3rd fingers on the
left hand, bruises on the left thumb, cut wound on the left leg, swollen tender left leg and blunt injury on the hip region
blamed the 2nd appellants motor vehicle for the accident. The trial court found that both the rider and the motor vehicle
were to blame of the accident and apportioned liability at 80:20% in favour of the respondent against the appellants. The
trial court assessed quantum of damages as follows; General damages for pain & suf fering ksh.300,000 Special damages
ksh. 3,550 Total ksh.303,550 Less 20% contributory negligence ksh.242,840 The appellants have appealed against the
said judgment and decree for the following reasons. That the learned magistrate erred in law in failing to consider the
provisions of the Traffic Act Cap 403 and the traf fic rules thereunder as a result, arrived at an erroneous conclusion That
the learned magistrate erred in fact by failing to scrutinize/evaluate the evidence tendered in this matter and as a result
held the appellants wholly liable for the accident The learned magistrate erred in law and in fact by failing to scrutinize
the evidence tendered in support of the injuries suf fered by the respondent and to correctly relate them to case law cited
and as a result failed to arrive at a fair and reasonable compensation for the said injuries. That the learned magistrate
erred in law and in fact in failing to find that the nature of the injuries by the respondent did not warrant an award of
general damages of Kshs. 300,000 That the learned magistrate erred in law by failing to properly consider the appellants’
defence, evidence and submissions and in doing so arrived at an erroneous conclusion. That the learned magistrate erred
in law and fact by awarding an inordinately high award of damages for the injuries sustained by the plaintif f. The
appellant submitted that the respondent does not give a comprehensive account of the accident but merely avers that he
was lawfully riding motor cycle registration number KMEB 131Y along Ngong road-Green house when the driver of
motor vehicle KCF 750U carelessly drove at high speed that it lost control and hit his motorcycle causing him very
serious injuries. The Appellants’ account of the accident, which was uncontroverted during trial was that on the fateful
day at around 1:00 pm, the 2nd Appellant was driving motor vehicle registration number KCF 750U along Ngong Road
intending to turn right into Ngong Lane. The visibility was clear and there was minimal road traf fic. The 2nd Appellant
indicated that he was turning right and once ascertaining the road was clear , turned right towards Double Tree Hotel and
he had already turned when motor vehicle registration KMEB 131Y coming from the direction of Prestige Mall, hit its
rear bumper . That from the foregoing, it is clear that the accident occurred when the motor cycle registration number
KMET 131Y hit the rear of motor vehicle registration number KCF 750U. The appellant ar gued that the respondent did
not adduce any eye witness evidence to support his version of events from which he seeks the court to hold that the 2nd
appellant is liable for the accident. he did not adduce any evidence proving that the 2nd appellant was driving the motor
vehicle at an excessive speed and further the police abstract dates 1 1/7/2018 confirms the occurrence of an accident but
does not state who the police blame for the accident. It was therefore the appellants ar gument that the respondent failed
to dischar ge his burden of proof to the required standard pursuant to section 108 and 109 of the evidence Act and the trial
court erred in holding the appellants liable for the accident either wholly of partially . On damages the appellant submitted
that from the medical report dated 15/10/2019 the respondent suf fered bruises in the left hand, cut wound on the left shin
and blunt injury right hip region. It was the appellants ar gument that kshs. 300,000 was excessive and that an award of
Kshs. 150,000 would be suf ficient based on comparable cases. In support the appellants cited Ahmed Said Amadi v Jacob
Fundi Mugo [2021] eKLR: where, the respondent herein was medically examined on 1 1th July , 2012. He sustained a cut
to the head, lacerations on both the upper and lower lip, and an abrasion on the right elbow . PW2 indicated that the
respondent would recover fully with no disability . The High Court awarded general damages of Kshs. 150,000.00 The
respondent submitted that the trial court was justified in its findings on liability considering the evidence that was
adduced by both parties. the trial court found that the 2nd appellant joined the road when it was not clear for her and
determined that the appellants were 80% liable. On damages the respondent ar gued that Kshs 300,000 as damages was
sufficient and in support cited a decision of the High Court in the case of Robinson Njoroge v Daniel Obasa [2021]
eKLR where the court upheld Kshs. 300,000 for comparable injuries. This being a first appeal, the duty of the first
appellate court is to re-evaluate the evidence adduced before the trial court and to arrive at its own conclusion whether to
support the findings of the trial court while bearing in mind that the trial court had the opportunity of seeing the
witnesses. 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 | https://augmentin.io/casetext/case/Glaxo_Smithkline_Pharmaceutical_Kenya_Limited___another_v_Kilo__Civil_Appeal_E278_of_2021__[2023]_KEHC_25400__KLR___Civ___17_November_2023___Judgment_.docx.pdf |
9ed49a46f511-1 | 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 | https://augmentin.io/casetext/case/Glaxo_Smithkline_Pharmaceutical_Kenya_Limited___another_v_Kilo__Civil_Appeal_E278_of_2021__[2023]_KEHC_25400__KLR___Civ___17_November_2023___Judgment_.docx.pdf |
13bf58b00bf5-0 | impression based on the demeanor of a witness is inconsistent with the evidence in the case generally .” The issues for
determination are as follows; Whether the trial court was right on its findings on liability . Whether the award of damages
was inordinately high. Whether the trial court failed to considered the defence and arrived at an erroneous decision. On
the issue as to whether the trial court was right in its findings on liability , the record is clear that the motor cycle hit the
car from the back. The trial court found that the 2nd appellant confirmed that the rider hit the motor vehicle at the rear .
The trial court said that the 2nd appellant knew that the rider had a right of way and she ought to have given way before
joining the road. The trial court also found that the rider ought to have slowed down to avoid hitting the motor vehicle at
the rear . In the circumstances, I find that the court was not right on its findings on liability . I have re-evaluated the
evidence and find that both were to blame for the accident and the court ought to have apportioned liability at 50:50%. I
accordingly set aside 80:20% ratio and substitute it with 50:50% liability for reasons that although the 1st appellant was
hit at the rear , there is evidence she had already joined the road when she was hit at the back. On the issue as to whether
the award was inordinately high, I have considered the authorities relied on by the trial court and I find they were
comparable. The respondent sustained soft tissue injuries. In Catherine Wanjiru Kingori & 3 Others v Gibson Theuri
Gichubi [2005] eKLR the plaintif f therein suf fered injuries on the left ankle, injuries on the legs and chest, dislocation of
the left wrist, fracture of the radius and ulna and soft tissue injuries to the face. The Court awarded general damages of
Kshs. 300,000 in 2005. In Francis Ndungu Wambui & 2 others v Benson Maina Gatia [2019] eKLR quite recently , the
High Court reviewed downwards an award of general damages of Kshs. 400,000 to Kshs. 300,000 for injuries of head
injury with loss of consciousness and soft tissue injuries. I find kshs.300,000 reasonable in the circumstances of this case.
I also find that the defence by the Appellant was referred to in the judgment. I accordingly adjust the amount payable as
follows Liability is adjusted to 50:50% in against the appellant in favour of the respondent General damages for pain
&suf fering 300,000 Special damages 3,550 Total 303,550 Less 50% liability 151,775 The trial court’ s judgment is set
aside and substituted with judgment in favour of the respondent against the appellants in the sum of ksh.151,775 with
costs and interest from the time of the judgment of the trial court until payment in full. Since the appeal succeeded
partially each party is to bear its own costs. Orders accordingly . 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 Respondent | https://augmentin.io/casetext/case/Glaxo_Smithkline_Pharmaceutical_Kenya_Limited___another_v_Kilo__Civil_Appeal_E278_of_2021__[2023]_KEHC_25400__KLR___Civ___17_November_2023___Judgment_.docx.pdf |
e12b596fb51e-0 | REPUBLIC OF KENY A IN THE HIGH COUR T OF KENY A AT BUNGOMA CIVIL APPEAL NO.71 OF 2023
IMPACT FINANCE TRUST CDF BUMULA………..1ST APPELLANT/APPLICANT BENARD ANALO
MAKA TIANI T/A BENWEIL AUCTIONEERS ……………………….….2ND APPELLANT/APPLICANT VERSUS
JUDITH MUKHW ANA KOKONY A & ANOTHER .....................1ST RESPONDENT BENSON SIMIYU
……………………………………………….…….2ND RESPONDENT RULING The application under consideration
is the one dated 3rd day of July , 2023 filed by the Appellant/Applicant seeking the following reliefs namely: Spent.
Spent. That there be temporary stay of execution of the order and ruling in Bungoma CMCCC NO. 456 of 2016 made on
14.6.2023 pending the hearing and determination of the appeal herein. That costs of the application be provided for . The
application is premised on grounds inter alia; that the Appellant/applicant has since filed an appeal in this court that is
pending determination and hence the need to protect the subject matter of the appeal; that the orders granted by the lower
court leaves the Appellant/applicants exposed to execution by the Respondent whereof the appeal shall be rendered
nugatory; that the Appellant/Applicant has a meritorious appeal with high chances of success; that the applicants
application was dismissed by the trial court and hence this appeal; that the applicants will suf fer substantial loss if the
orders are not granted; that the applicants are ready to abide by any conditions to be imposed by the court. The
Respondents opposed the application vide a replying af fidavit sworn by Benson Simiyu the 2nd respondent on his own
behalf and that of the 1st Respondent sworn on 20/7/2023 wherein he averred inter alia; that the application is fatally
incompetent, destitute of any merit and is otherwise an abuse of the due process of the Honourable Court; that this suit
was instituted way back in the year 2016 and judgment in the matter was delivered by the Honourable court on the 18th
January 2023; that from the application, the appellants were aware from the 15th of December 2022 that the defence case
had been closed; that despite being aware of the development, the appellants did not take any action without
unreasonable delay to stop the writing of the judgement and request for the defence case to be re-opened; that however
since the judgment was delivered on the 18th January 2023, the appellants never took any action to request for the setting
aside of the judgement within a reasonable time only to wait until 23rd March 2023 to file the application which was
dismissed through a ruling delivered on the 14th June, 2023; that it is clear that the applicants were indolent in moving
the court and that the application was made with inordinate delay; that the applicants have not demonstrated how they
will suf fer substantial loss, as in any event he is a farmer who makes a living through farming and as such , in the event
of success of the appeal, the respondents are able to refund what would have been paid to the respondents; that it has
been a long walk to justice on the part of the respondents who lost one of their source of income through what he stated
was an unjust, illegal, fraudulent and unfair act of the appellants way back in the year 2016 and having obtained the
judgement in their favour , it is only in the interest of justice that the decree holder/respondents get to have a chance to
enjoy the fruits of the same; that a perusal of the memorandum of appeal shows that the appeal is not meritorious, the
honourable court having given a ruling based on a judicious exercise of its discretion as required by the law; that the
applicants have not of fered any security for the due performance of the decree and costs that were assessed in the lower
court matter plus interest as required by Order 42 Rule 6 (2) of the Civil Procedure Rules; that the application be
dismissed with costs as the applicants have not met the required threshold to warrant the application being allowed; The
application was canvassed by way of written submissions. The applicants filed their submissions dated 25th August 2023
while the respondents relied on their replying af fidavit sworn on 20th day of July , 2023. I have given due consideration to
the rival af fidavits and submissions. I find that the issue of for determination is whether the application meets the
threshold to warrant grant of an order of stay of execution pending determination of the Appellants’ appeal. It is trite that
an application seeking stay of execution must meet the clear provisions of Order 42 Rule 6(2) of the Civil Procedure
Rules which provides in summary as follows: ‘’No order for stay of execution shall be made under sub rule (1) unless-
The court is satisfied that substantial loss may result to the applicant unless the order is made and that the application has
been made without unreasonable delay; and Such security as the court may order for the due performance of such decree
or order as it may ultimately be binding on him has been given by the applicant.’ ’ As to whether the application has been
filed without undue delay , it is noted that the impugned ruling was delivered on 14/6/2023 while the Memorandum of
Appeal was filed on 3/7/2023. It is thus clear that there was no inordinate delay at all on the part of the
Appellant/Applicant. That condition has been met. As regards the issue of whether the applicant will suf fer substantial
loss, the applicant has beseeched this court for intervention since according to them, the appeal will be rendered nugatory
if orders of stay are not granted at this stage as the Respondent has already taken out warrants and is ready to execute. It
is not in doubt that substantial loss does not represent any particular amount or size whether monetary or otherwise. It is
sufficient that the applicant can show that the execution is likely to put into motion other state of af fairs which will
substantially af fect the Appellant as the eventual successful party in the appeal. See James Wangalwa & Another V.
Agnes Naliaka Cheseto [2020] eKLR. The Respondents have averred that they are persons of means and that they do
farming and will be in a position to refund the decretal sums in the event of success of appeal. However , the Respondents
did not go further by presenting evidence to the ef fect that indeed they are not persons of straw such as by availing bank
statements etc. This thus bolsters the Appellants’ concerns that they are likely to have a paper judgement in the event of
success of appeal as the Respondents will not be in a position to refund the monies already paid to them. I find that the
Appellants have satisfied this condition. As regards the issue of security , the Appellants have averred that they are ready
and willing to provide security for the due performance of the decree and that they are ready to abide by any condition to | https://augmentin.io/casetext/case/Impact_Finance_Trust_CDF_Bumula___another_v_Kokonya___another___another__Civil_Appeal_71_of_2023__[2023]_KEHC_25413__KLR___17_November_2023___Ruling_.docx.pdf |
e12b596fb51e-1 | success of appeal as the Respondents will not be in a position to refund the monies already paid to them. I find that the
Appellants have satisfied this condition. As regards the issue of security , the Appellants have averred that they are ready
and willing to provide security for the due performance of the decree and that they are ready to abide by any condition to
be imposed by the court. Indeed, the Respondents are the decree holders and already on the seat of judgement and that
they ought to enjoy the fruits of that judgement. If the Appellants are now seeking to stand in their way , then they must
see to it that the Respondents’ concerns are taken care of. On the other hand, the Appellants are also entitled to ventilate | https://augmentin.io/casetext/case/Impact_Finance_Trust_CDF_Bumula___another_v_Kokonya___another___another__Civil_Appeal_71_of_2023__[2023]_KEHC_25413__KLR___17_November_2023___Ruling_.docx.pdf |
37df51bb22fd-0 | their appeal otherwise the same might be rendered nugatory . In order to balance their rival concerns, I find that an order
that the Appellants deposit the entire decretal sums into a joint interest earning account in the joint names of the
Advocates for the parties pending determination of the appeal will be appropriate in the circumstances. In the result, I
find merit in the Appellants application dated 30/6/2023. The same is allowed in the following terms: An order of stay of
execution of the decree and all consequential orders in Bungoma CMCC No. 456 of 2016 is hereby granted upon the
Appellants depositing the entire decretal amount plus assessed costs as disclosed on the warrants of attachment into a
joint interest earning account in the names of both Advocates within fourteen (14) days from the date of this ruling
failing which the stay shall lapse. The costs of the application shall abide in the appeal. Dated and delivered at Bungoma
this 17TH DA Y OF Of NOVEMBER 2023 D.Kemei Judge In the presence of Onyando For Wamalwa Simiyu For
Appellants/Applicants No appearance Milimo for Respondents Kizito Court Assistant. | https://augmentin.io/casetext/case/Impact_Finance_Trust_CDF_Bumula___another_v_Kokonya___another___another__Civil_Appeal_71_of_2023__[2023]_KEHC_25413__KLR___17_November_2023___Ruling_.docx.pdf |
745e84a8ff3e-0 | REPUBLIC OF KENY A IN THE HIGH COUR T OF KENY A AT NAIROBI CIVIL CASE NO. 373 OF 2010
HEZEKIAH OIRA.................................................. PLAINTIFF VERSUS P ATRICK
QUARCOO………................................DEFENDANT RULING The application coming for consideration is the one
dated 6/3/2023 brought under Section 1A, 1b and 3a OF THE Civil Procedure Act, Under Order 22 rule 22, Order 40,
Rules 1, and 4, Order 42, Rule 6, Order 51 Rule 1 of the Civil Procedure Rules, 2010, Cap 21 Laws of Kenya and all
other enabling provisions of law seeking the following orders; This application be certified ur gent and service thereof be
dispensed with and the same be herd ex-parte in the first instance. Pending the hearing and determination of this
application, this honourable court be pleased to grant a stay of execution of the judgment delivered by Hon. Justice
Sergon on 24th February 2023 in HCCC NO. 373 of 2010 – Nairobi and any other decree that ensue therefrom. The costs
of this application be provided for . Any other orders that the honourable court may deem fit to grant. The application is
based on the following grounds; On 24th February 2023, the honourable court delivered judgment in favour of the
plaintif f and awarded him kshs.3,300,000 in damages. The defendant is dissatisfied with the decision and intends to
appeal against it. The defendant has filed a notice of appeal and requested for typed proceedings and a certified copy of
the judgment. The defendant has an ar guable appeal which will be rendered nugatory in the event a stay of execution for
the following reasons, among others: The impugned letter of 8th June 2010 was written by the defendant in his capacity
as the Chief Executive Of ficer of Radio Africa Limited and addressed to the plaintif f as the Corporation Secretary of
Kenya Broadcasting Corporation and discussed actions taken by Kenya Broadcasting Corporation. Companies operate
through their of ficials and it is ar guable that any defamation suit should have instead been instituted by Kenya
Broadcasting Corporation against Radio Africa Limited. The letter of 8th June 2020 was covered by qualified privileges
as it aimed to dischar ge a private duty , the defendant as the Chief Executive Of ficer of Radio Africa Limited had a
legitimate interest in the subject matter of the letter and the letter raised a complaint about a statutory body which has a
public authority or responsibility . The contents of the letter of 8th June 2020 were substantially true. The letter of 8th
June 2020 as a demand letter and there was no malice on the part of the defendant, as the Chief Executive Of ficer of
Radio Africa Limited, in communicating their dissatisfaction with Kenya Broadcasting Corporation on how the latter had
handled Memorandum of Understanding the parties had made. When delivering the judgment, the Honourable Court
granted the defendant a 30 day stay of execution pending the filing of a formal stay application. The stay is scheduled to
lapse on 26th March 2023. The defendant stands to suf fer substantial loss in the event the judgment of 24th February
2023 is not stayed, and the plaintif f is allowed to commence the execution process for kshs.3,300,000 he was awarded as
damages. The defendant is apprehensive that in the event the appeal is successful, he will be unable to recover the sums
and/or will be subjected to lengthy litigious process for the recovery of the sums which will expose the defendant to
further expenses. The defendant is willing to deposit the decretal sum as security in a joint interest earning account in the
names of the advocates representing the parties. This application has been brought timeously and without unreasonable
delay and it is in the interest of fairness and justice that this application is heard ur gently at the court’ s earliest
convenience. The plaintif f will not be prejudiced if the orders sought herein are granted. It is in the interest of justice that
this application is allowed. The application is supported by the af fidavit of the applicant P ATRICK QUARCOO sworn on
6/3/2023 which reiterates the grounds on which this application is premised. The respondent Hezekia Oira filed a
replying af fidavit sworn on 25/4/2023 opposing the application dated 6/3/2023 in which he deponed that the judgment in
HCCC No. 373 of 2010 was delivered on 24/2/2023. The court found as a fact the letter written by the applicant on
8/6/2010 that disparaged the respondent was false and that the applicant was actuated by malice and because the
respondent’ s employer KBC dismissed and got the respondent prosecuted never mind that he was acquitted had achieved
his malicious intentions The judgement that was delivered awarded the respondent a sum of Kshs 3,000,000 general
damages for defamation and Kshs 300,000 for aggravated damages making a total of total of Kshs. 3,300,000. The
applicant was granted a temporary stay of execution for 30 days to pay but to date he has not done the same and has
instead brought this present application seeking for stay pending the hearing and determination of the intended appeal.
Apart from the speculative allegations the applicant has not given any evidence of substantial loss or any reason why he
thinks that he will be unable to recover the said sum. He indicated that as an advocate of the high court he will be able to
refund the decretal sum to the applicant in the event he succeeds in the appeal. The applicant filed a supplementary
affidavit sworn on 28/4/2023 in response to the replying af fidavit. The parties filed written submissions as follows; the
applicant in his submission indicated that he would suf fer substantial loss and his appeal will be rendered nugatory unless
the orders sought herein are granted. He contended that he has an ar guable appeal that ought to be considered on its
merits by the court of appeal. The applicant further submitted that the respondent bears the burden of proving his ability
to repay the decretal sum once the applicant has raised his reasonable apprehensions to the court and in support cited the
case of National Industrial Credit Bank Ltd v Aquinas Francis Wasike & another [2006] eKLR the Court of Appeal
considered this burden as follows: “This Court has said before and it would bear repeating that while the legal duty is on
an applicant to prove the allegation that an appeal would be rendered nugatory because a respondent would be unable to
pay back the decretal sum, it is unreasonable to expect such an applicant to know in detail the resources owned by the
respondent or lack of them. Once an applicant expresses that a respondent would be unable to pay back the decretal sum,
the evidential burden must then shift to the respondent to show what resources he has since that is a matter which is
peculiarly within his knowledge.” The applicant contended further that he has complied with the courts directions on
security and ur ged this court to consider the holding in Focin Motorcycle Co. Limited vs. Ann Wambui Wangui & | https://augmentin.io/casetext/case/Oira_v_Quarcoo__Civil_Case_373_of_2010__[2023]_KEHC_25355__KLR___17_November_2023___Ruling_.docx.pdf |
745e84a8ff3e-1 | the evidential burden must then shift to the respondent to show what resources he has since that is a matter which is
peculiarly within his knowledge.” The applicant contended further that he has complied with the courts directions on
security and ur ged this court to consider the holding in Focin Motorcycle Co. Limited vs. Ann Wambui Wangui &
Another [2018] eKLR where it was held that “…Where the applicant proposes to provide security as the Applicant has
done, it is a mark of good faith that the application for stay is not just meant to deny the respondent the fruits of | https://augmentin.io/casetext/case/Oira_v_Quarcoo__Civil_Case_373_of_2010__[2023]_KEHC_25355__KLR___17_November_2023___Ruling_.docx.pdf |
dd0a50932285-0 | judgment. My view is that it is suf ficient for the applicant to state that he is ready to provide security or to propose the
kind of security but it is the discretion of the Court to determine the security . The Applicant has of fered to provide
security and has therefore satisfied this ground for stay…” The respondent submitted that the applicant alleges that he
has an ar guable appeal however no memorandum of appeal was attached to the application to ascertain whether the
applicant has a good appeal with a chance of success. The applicant has also not assigned any error in the learned judge’ s
finding or any evidence to justify his perception. The respondent ar gued that the applicant’ s apprehension that he would
be unable to refund the decretal sum cannot be a ground of granting of stay of execution. Moreover , this court and the
court of appeal has held severally that in a money judgement the applicant must demonstrate with evidence that the
respondent will not be able to refund the money and also by evidence the damages he will suf fer unless the order is
granted. The issues for determination in this application are as follows; Whether the application was filed without undue
delay . Whether the applicant is entitled to stay pending appeal. I find that the application was filed on 6/3/2023 one
month after the judgment was delivered on 24/2/2023. I also find that the applicant has deposited security for the due
performance of the decree. In the case of Patrick Ngetakimanzi vs Marcus Mutuamuluvi & 2 Others- High Court
Election Petition No. 8 of 2013 it was held as follows; “Security of costs ensures that the respondent is not left without
recompense for any costs or char ges payable to him. The duty of the court is therefore to create a level ground for all the
parties involved, in this case, the proportionality of the right of the petitioner to access to justice vis-a-vis the
respondent's right to have security for any costs that may be owed to him and not to have vexatious proceedings brought
against him.” The application dated 6/3/2023 be and is hereby allowed in the following terms.: THA T stay of execution
of the judgment delivered on 24/2/2023 be and is hereby granted pending appeal to the Court of Appeal. THA T the costs
of the application to abide the 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 Plaintif f ……………………………………… for the Defendant | https://augmentin.io/casetext/case/Oira_v_Quarcoo__Civil_Case_373_of_2010__[2023]_KEHC_25355__KLR___17_November_2023___Ruling_.docx.pdf |