National Council for Law Reporting - The Official Law Reporters of the Republic of Kenya

(A publication of the National Council for Law Reporting)

The Bench Bulletin is the definitive intelligence briefing for Kenya’s judicial officers, the law practitioner, managers and the business people. It is a monthly digest of recent developments in law, particularly, case law, new legislation in the form of Acts of Parliament, rules and regulations, pending legislation contained in Bills tabled before Parliament and selected Legal Notices and Gazette Notices.

The Bench Bulletin

Issue 6: January 2008

Kenya Law Reports is preparing a special series of law reports covering substantive and procedural issues of the law governing election petitions. The inaugural edition of the Election Petition Law Reports is scheduled to be released early this year.

The law reports will cover over four decades of jurisprudence in election petition decisions tracing the evolution of statute law and precedent on salient aspects of electoral law, including the nature of the jurisdiction of an election court; service of election petitions; election offences; parliamentary representation of minorities; constituency and district boundaries; political party nomination exercises and the nomination of Members of Parliament.

The idea of a special edition of the Kenya Law Reports covering election petitions stems as much from the need to consolidate judge-made law on the unique jurisdiction of election courts as from the commitment of Kenya Law Reports to tailor products that serve the unique needs of judicial officers, the legal profession and law students.

The special law reports will be published both in hard-copy bound volumes and on the Kenya Law Reports website, www.kenyalaw.org. Future developments in electoral law will be tracked and consolidated through updates on the website and by the publication of subsequent editions.

Kenya Law Reports also encourages debate on electoral law and provides an open forum on its website for the publication of researched papers on contemporary legal issues. Persons are welcome to submit papers to editor@kenyalaw.org.

The Election Petition Law Reports will be Kenya Law Reports’ second series of specialized law reports following the inauguration of the Land and Environment Law Reports in April 2007.

KLR to pubLish ELEction pEtition Law REpoRts

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The Bench Bulletin contains:

court of AppeAl cAses

high court cAses

prActice notes

KenyA gAzette notices

court news

... and much more.

EditorGladys Boss Shollei

Sub-EditorsJo’Rum AbuodhaMichael Murungi

DesignAamena H Jiwaji

© National Council for Law Reporting

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Digest of cAses reporteD

�Issue 6: January 2008

court of AppeAl

civil prActice AnD proceDure - representative suit – circumstances in which one or more persons may sue or be sued on behalf of other persons – procedure in bringing a representative suit – meaning of “persons having the same interest” in a suit – whether same interest means the same transaction – Civil Practice and Procedure Rules Order I rule 8. Kenya Airways Corporation Ltd v Tobias Oganya Auma & 6 others ..............................................................................7

civil prActice AnD proceDure - consent - consent order - review of a consent order - circumstances in which a consent may be reviewed - party seeking to have a consent reviewed or set aside on grounds of duress, illegality, public policy, undue influence and misrepresentation - party alleging that the consent was an attempt to enforce an illegal agreement - allegation of unjust enrichment - duty of the person seeking to set aside the consent to establish the grounds for setting it aside - appeal against the decision of the High Court declining to review the consent - whether the High Court had failed to properly consider the matters before it - Civil Procedure Rules Order 2, Order 44 rule 1 Samson Munikah (practicing as Munikah & Company Advocates) v. Wedube Estates Ltd ........................................9

civil prActice AnD proceDure - court fees - filing fees - suit by advocate - suit against client for fees for services rendered - whether such suits are exempted from court filing fees - whether a Deputy Registrar has power to exempt an advocate plaintiff from paying the fees - whether a plaint that has been filed without the payment of filing fees is a valid plaint - Civil Procedure Rules Order IV rule 2(2) - Advocates Act (Cap. 16) section 48, 49 South Nyanza Sugar Company Ltd v Samuel Osewe Ochillo t/a Ochillo & Company Advocates ...............................7

civil prActice AnD proceDure – jurisdiction – jurisdiction of the Court of Appeal – whether the Court of Appeal has a residual jurisdiction to re-open an appeal which it has previously heard and decided – notice of motion application seeking to re-open an appeal on the ground that one of the judges who had presided over the appeal was biased – whether such a motion could be entertained - Constitution of Kenya section 64, 77(9) Jasbir Singh Rai & 3 others v Tarlochan Singh Rai & 4 others .......................................................................................6

criminAl prActice AnD proceDure - trial - fair trial - rights of an arrested person – right to be brought to court within a reasonable time - section 72(3)(b) of the Constitution – complaint that the accused had not been brought to court within a reasonable time – complaint being raised for the first time in the Court of Appeal in an appeal against conviction – whether such was the proper time and forum for raising and dealing with such a complaint. Samuel Ndungu Kamau & another v Republic .................................................................................................................5

DAmAges – special damages – duty of a party to prove special damages before they can be awarded. Kenya Airways Corporation Ltd v Tobias Oganya Auma & 6 others ............................................................................7

employment lAw – redundancy – termination of employment on account of redundancy -meaning of redundancy – where there exits a contract of employment – whether the rules of natural justice may be applied to employment contracts – whether a court may prevent an employer from discharging its employees on account of redundancy where the laws relating to termination of employment are followed and the consent of Trade Unions obtained – whether it is reasonable for a contracted employee to expect to continue in employment until the age of retirement regardless of his productivity or the financial situation of his employer – whether general damages may be awarded in suits based on termination of employment - Trade Disputes Act (Cap. 234) - Regulation of Wages and Conditions of Employment Act (Cap. 229) Kenya Airways Corporation Ltd v Tobias Oganya Auma & 6 others .............................................................................7

eviDence - circumstantial evidence - where a case depends wholly on circumstantial evidence - murder - accused person having been with the deceased moments before her death - whether in such circumstances a rebuttable presumption arose that the accused had killed the deceased - accused failing to offer any explanation on the matter - whether the accused had been properly convicted for murder - Penal Code sections 203, 204 - Evidence Act (Cap. 80) section 119. Samuel Ndungu Kamau & another v Republic

eviDence - witness - hostile witness - procedure in declaring a witness hostile - effect of declaring a witness hostile – where a prosecution witness gives evidence favourable to the accused - prosecution not having sought the leave of the court to cross-examine the witness - whether in the circumstances the trial court had erred in failing to evaluate the evidence of such a witness - Evidence Act (Cap. 80) section 161, 163 Edusei Asili Malema v Republic ..........................................................................................................................................9

intellectuAl property - trade mark – suit for trade mark infringement and passing off - trade mark dispute between cigarette manufacturers - Horseman and Sportsman cigarette brands - appellant being the registered owner of the Sportsman brand and having applied it in trade for over 30 years - Horseman brand introduced by the respondent - whether the Horseman brand was so substantially similar to the Sportsman brand as to cause confusion among cigarette smokers or consumers – plaintiff’s burden of proof in a trademark infringement suit. British American Tobacco Kenya Ltd v Cut Tobacco Kenya Ltd ....................................................................................5

internAtionAl lAw – application of international law – international law applicable where domestic law is uncertain or lacking. Kenya Airways Corporation Ltd v Tobias Oganya Auma & 6 others ............................................................................7

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JuDiciAl officer – immunity from suit - privilege of a judge for actions done in the course of duty – scope of the privilege – allegations of bias made against a judge in an application in the Court of Appeal to set aside the judge’s decision – judge filing affidavit in response to the allegations and seeking to be heard in the application – whether it would be proper to admit the documents filed by the judge and to allow him to be heard – Judicature Act (Cap. 8) section 6 – Evidence Act (Cap. 80) section 129 Jasbir Singh Rai & 3 others v Tarlochan Singh Rai & 4 others ........................................................................................6

high court

ADvocAtes-retainer-where a client contested taxed costs as being inordinately high-where the advocates then filed an application seeking judgment for the taxed costs together with interests thereon under Section 51(2) of the Advocates Act (Cap.16)-where there was no written retainer but the advocates had an affidavit sworn by the Managing Director of the client confirming that the advocates were retained by the client-whether an advocate must have obtained written instructions from a client to enable him to participate on behalf of the client in a particular dispute. Ochieng, Onyango, Kibet & Ohaga Advocates v Adopt A Light Limited .....................................................................12

constitutionAl lAw – separation of powers – power of the High Court over the actions of Parliament – constitutional application challenging the election of a Speaker of the National Assembly – applicant seeking to nullify all actions undertaken by the Speaker and the National Assembly subsequent to the election – whether the application undermined parliamentary privilege and the doctrine of separation of powers – circumstances in which the Courts will interfere with the actions of Parliament – Constitution section 37, 38, 56, 57, 58 Peter O. Ngoge v Francis Ole Kaparo & 4 others ........................................................................................................... 11

elections – nominations – nomination of parliamentary candidates by political parties – jurisdiction of the High Court to entertain disputes arising from party nominations – whether a court other than an election court has jurisdiction to entertain such a dispute - whether such a dispute should be brought by way of a plaint or by a petition – Constitution of Kenya sections 34(d), 44(1), 42(a) - National Assembly and Presidential Elections Act (Cap. 7) sections 13(3)(b); 17 - Presidential and Parliamentary Elections Regulations regulations 8(3), 14. Jared Mariga Akoro & another v Richard Kwach & 5 others .......................................................................................12

environmentAl lAw-noxious weeds-where the Government of Kenya and the Food Agricultural Organization undertook a joint project in 1982 that introduced the weed/plant Prosopis Juliflora in Ngambo, Marigat Division of Baringo District-where some area residents filed a petition under Sections 60,70,71 and 75 of the Constitution and Provisions of the Environmental Management and Coordination Act, and the Suppression of Noxious Weeds Act seeking declarations, inter alia, that their right to life as set out in Section 71 of the Constitution had been compromised by the introduction of the weed-validity of the petition Charles Lekuyen Nabori & 9 Others v Attorney General & 3 Others ..........................................................................10

insurAnce lAw-motor vehicle third party insurance-notice under Section 10(2) of the Insurance (Motor Vehicle Third Parties Risks) Act, (Cap.405)-whether a demand notice/letter of notification of accident constituted a statutory notice under the provisions of Section 10 of Cap.405 Philip Kimani Gikonyo v Gateway Insurance Company Limited ..................................................................................13

insurAnce lAw-motor vehicle third party insurance-where the appellant obtained judgment against the director and authorized driver of a vehicle owned and insured by a limited liability company-where the appellant was unable to recover the judgment sum from the said driver and proceeded to file a declaratory suit against the insurer of the motor vehicle-where the lower court dismissed the suit holding that judgment was against the insured’s driver, and not the insured itself, therefore the same could not be enforced against the insurer-whether judgment against the insured’s driver was enforceable against the insurer Philip Kimani Gikonyo v Gateway Insurance Company Limited .................................................................................13

lAnD lAw-landlord and tenant-where the plaintiffs sued the defendant for selling the suit property to a 3rd party without giving the plaintiffs an option to purchase the same, despite verbal representations having been made to them by the defendants-whether a tenant has the right of first offer upon the landlord deciding to sell the property Dima College Ltd & 2 Others v Kenya Commercial Bank Ltd ......................................................................................15

locAl government – Mayor – term of office of a Mayor – whether the term of office of a Mayor expires with the dissolution of Parliament and local authorities – whether a Mayor is to remain in office until his successor assumes office – local authorities having been dissolved and the Ministry of Local Government having issued circulars directing Town Clerks that the offices of councilors and Mayors had fallen vacant – Town Clerk preventing a person from continuing to serve in the office of Mayor – whether the circulars were legal – whether the Town Clerk had acted contrary to the law – Local Government Act (Cap. 265) sections 13(2); 14(1),(2) John M. Nyaga v Town Clerk, Municipality of Embu & another .................................................................................14

from the courts

�Issue 6: January 2008

intellectuAl property - trade mark – suit for trade mark infringement and passing off - trade mark dispute between cigarette manufacturers - Horseman and Sportsman ciga-rette brands - appellant being the registered owner of the Sportsman brand and having applied it in trade for over 30 years - Horseman brand introduced by the respondent - whether the Horseman brand was so substantially similar to the Sportsman brand as to cause confusion among ciga-rette smokers or consumers – plaintiff’s burden of proof in a trademark infringement suit.

British American Tobacco Kenya Ltd v Cut Tobacco Kenya Ltd [2007] eKLR

Court of Appeal at NairobiP.K. Tunoi, E.O. O’Kubasu & E.M. Githinji JJ.A

December 20, 2007

The appellant and the respondent were manufacturers of two competing brands of cigarettes, Sportsman and Horse-man. In March 1999, the appellant filed a suit in the High Court against the respondent seeking various restraining orders and other relief on account of the respondent’s alleged breach of the appellant’s registered trade mark. The appellant argued that since 1998, the respondent had infringed the trade mark by using in the course of trade in Kenya a packaging for its own brand of cigarettes which was so identical to the appellant’s trade mark as to be a deceptive imitation. The appellant also claimed that the respondent had passed off its brand of cigarettes as those of the appellant.

The respondent denied the claim and argued that the ap-pellant was not entitled to the exclusive use of the words and symbols used on the respondent’s packaging. The respon-dent further contended that the trade mark Horseman was incapable of causing deception or confusion in the minds of consumers of cigarettes as each brand of cigarettes had its own distinctive and individual flavour.

At the close of the trial, the High Court found that the pack-aging for the respondent’s Horseman brand was not capable of deceiving and that the appellant had failed to establish its case. The suit was therefore dismissed. The appellant brought this appeal against the decision of the High Court.

Held:1. There can be no property rights in a particular colour

and there can be no property in general in words descriptive of goods. Evidence would be needed to show if the get-up of the appellant’s cigarette packet was likely to deceive the cigarette buying public into believing that they were buying the respondent’s brand.

2. The burden of satisfying the court that there has been an infringement of its trade mark is on the plaintiff. The plaintiff has to prove that there is a resemblance between the two marks and that such resemblance is deceptive.

�. It is the duty of the judge, which he cannot abdicate, to decide whether the trade mark complained of does so nearly resemble the registered trade mark as to be likely to deceive or cause confusion in the minds of the public.

�. A Court of Appeal will not normally interfere with a finding of fact by the trial court unless it is based on no evi-dence or on a misapprehension of the evidence or the Judge

court of AppeAl

Reported by Michael Murungiis shown demonstrably to have acted on wrong principles in reaching the findings he did.

Appeal dismissed with costs to the respondent.

criminAl prActice AnD proceDure - trial - fair trial - rights of an arrested person – right to be brought to court within a reasonable time - section 72(3)(b) of the Constitu-tion – complaint that the accused had not been brought to court within a reasonable time – complaint being raised for the first time in the Court of Appeal in an appeal against conviction – whether such was the proper time and forum for raising and dealing with such a complaint.eviDence - circumstantial evidence - where a case depends wholly on circumstantial evidence - murder - accused person having been with the deceased moments before her death - whether in such circumstances a rebuttable presumption arose that the accused had killed the de-ceased - accused failing to offer any explanation on the matter - whether the accused had been properly convicted for murder - Penal Code sections 203, 204 - Evidence Act (Cap. 80) section 119.

Samuel Ndungu Kamau & another v Republic [2007] eKLR

Court of Appeal at NairobiS.E.O. Bosire, E.O. O’Kubasu & W.S. Deverell JJ.A.

December 1�, 2007

John Kingu (the deceased) had gone missing for a month before his body was found buried in a shallow pit in his home compound. The two appellants had been tried in the High Court in connection with the death, convicted for murder and sentenced to death. The case against them depended wholly on circumstantial evidence. The 2nd appellant, who had been the deceased’s servant, was the last person known to have been with the deceased. When the deceased had gone miss-ing, the 2nd appellant left his employment without notice and when the police traced his location, they found some of the deceased’s personal items in his house.

Among the grounds of appeal which the 2nd appellant raised in his appeal against the decision of the High Court, he stated that after his arrest, he had not been presented to the court within the period provided under section 72(�)(b) of the Constitution and that the prosecution had not estab-lished that the death of the deceased had been caused with malice aforethought.

Held:1. The provisions of section 72(�)(b) of the Constitution

are framed in a way which presupposes that a complaint with regard to violation of the right [of an arrested person to be brought to court within a reasonable time]would either be raised at the trial or in an application under section 8� of the Constitution, where witnesses are normally called or affidavit evidence is presented to prove or rebut a factual proposition. When such a complaint is raised for the first time before the Court of Appeal, it may not be possible to investigate the truth or falsity of the allegation.

2. Moreover, the complaint of the violation of the 2nd appellant’s right did not relate to the question whether or not he had committed the offence for which he had been

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convicted.3. The nature of the injury inflicted on the deceased clearly

showed that whoever inflicted it intended either to cause grevious harm on him or to kill him. On that basis, it could not be said that there was no malice aforethought in the kill-ing of the deceased.

�. As the 2nd appellant was the last person to be seen with the deceased, it was his legal duty to explain where they had parted company or how the deceased had died. A rebuttable presumption was raised under section 119 of the Evidence Act that the 2nd appellant alone or in conjunction with un-known persons killed the deceased.

5. The conviction of the first appellant was based on mere suspicion. There wasn’t sufficient evidence connecting him with the killing of the deceased.

1st Appellant’s Appeal allowed, 2nd Appellant’s appeal dis-missed.

civil prActice AnD proceDure – jurisdiction – jurisdiction of the Court of Appeal – whether the Court of Appeal has a residual jurisdiction to re-open an appeal which it has previously heard and decided – notice of motion applica-tion seeking to re-open an appeal on the ground that one of the judges who had presided over the appeal was biased – whether such a motion could be entertained - Constitution of Kenya section 64, 77(9)JuDiciAl officer – immunity from suit - privilege of a judge for actions done in the course of duty – scope of the privilege – allegations of bias made against a judge in an applica-tion in the Court of Appeal to set aside the judge’s decision – judge filing affidavit in response to the allegations and seeking to be heard in the application – whether it would be proper to admit the documents filed by the judge and to allow him to be heard – Judicature Act (Cap. 8) section 6 – Evidence Act (Cap. 80) section 129

Jasbir Singh Rai & 3 others v Tarlochan Singh Rai & 4 others [2007] eKLR

Court of Appeal at NairobiR.S.C Omolo, S.E.O Bosire, E.M. Githinji, P.N. Waki &

W.S. Deverell, JJ. ADecember 7, 2007

The applicants sought an order to reopen and re-hear an appeal which had been heard and finally decided by a bench of three judges of the Court of Appeal. Their application was on a Notice of Motion citing sections 6� and 77(9) of the Constitution, section � of the Appellate Jurisdiction Act (Cap. 9); section � of the Judicature Act (Cap. 8) and rule 1(2) of the Court of Appeal Rules.

The grounds of the application were that one of the judges who had presided over the appeal had been biased in favour of the respondents; that the Court was not independent or impartial; that the appellants had not been given a fair hearing and that the rules of natural justice had not been observed.

Even though the judges who had presided over the chal-lenged appeal were not served with the application, one of the judges, who had since retired, filed an affidavit through his advocate in which he responded to the allegations made against him in the three affidavits supporting the applicant’s application. The judge’s advocate also filed a Notice of Ap-

pointment of Advocate. These two documents and the motion by the judge seeking to be heard in the application became the subject of an objection raised in limine by the applicants.

For their part, the respondents raised preliminary objections to the applicants’ Notice of Motion arguing that the Court of Appeal possessed appellate and not original jurisdiction, in that its powers could only be exercised in relation to appeals from the High Court. Counsel submitted that the allegation of the violation of a fundamental right (to an independent and impartial court) which was raised in the applicants’ motion was not a matter dealt with either by the High Court or by the Court of Appeal in its decision on the appeal. Accordingly, the respondents finally argued, the applicants had no right to raise that issue in the Court of Appeal when the appeal in which they alleged that right was violated was no longer in existence.

Held:1. Section 6 of the Judicature Act and section 129 of the

Evidence Act provided for the immunity of judicial officers from actions and questions at the suit of an individual. This immunity is given by law to judges not so much for their sake but for the sake of the public and for the advancement of justice, that being free from suits or actions, they may be free in thought and independent in the administration of justice.

2. In the circumstances of this case, the Court of Appeal had a judicial discretion to balance the two conflicting principles of public policy both of which were entrenched in section 77(9) of the Constitution: namely, the rule of natural justice that no person should be condemned unheard (the judge was seeking to be heard in response to adverse allegations made against him) and that a litigant should be heard fairly by an independent and impartial court.

�. The circumstances under which a judge may be per-mitted to respond to certain matters are circumscribed by section 129 of the Evidence Act. An affidavit such as the one filed by the judge in this case was not within the ambit of those circumstances. The affidavit was filed contrary to public policy.

�. It is an important general principle of high public impor-tance that there ought to and must be an end to litigation. The law aims at providing the best and safest solution compatible with human fallibility and having reached the solution, it closes the case. Though sometimes fresh material may be found which might lead to a different decision, it is normally in the interest of peace, certainty and security that once a case has been finalized it should not be reopened.

�. Another important principle is that justice must be done and be seen to have been done in each case that comes before the courts for determination. This principle is also based on public policy – that the public must have confidence in the courts and their decisions, i.e. the public must have confi-dence in the judicial system itself and if issues such as bias on the part of a judicial officer is not dealt with and corrected, the public will lose confidence in the judicial system.

6. The Court of Appeal of Kenya, just like the High Court and all other courts subordinate to the High Court, derives its existence from legislation. The Court of Appeal and the High Court are created under the Constitution. The only court with unlimited original jurisdiction in civil and criminal mat-ters is the High Court though under section 80 of the Civil Procedure Act and order �� of the Civil Procedure Rules, it may re-open a concluded determination.

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7. The jurisdiction and power of the Court of Appeal is estalished under section 6� of the Constitution. There was no provision in the Appellate Jurisdiction Act similar to section 80 of the Civil Procedure Act. The Court of Appeal can only hear appeals from the High Court.

8. The Court of Appeal has no jurisdiction to re-open, re-hear and then recall its earlier decision and substitute it with another.

(Per Bosire JA) “In [the Court of Appeal], unless the issue [of bias] is raised before an appeal is heard, it will mean that it cannot be properly raised. The Court would have become functus officio. Moreover, as this Court has no original ju-risdiction, the issue of bias cannot be properly raised for the Court to inquire into whether fundamental Constitutional rights have been infringed”.

Preliminary objection upheld, Applicants’ Notice of Motion struck out.

civil prActice AnD proceDure - court fees - filing fees - suit by advocate - suit against client for fees for services ren-dered - whether such suits are exempted from court filing fees - whether a Deputy Registrar has power to exempt an advocate plaintiff from paying the fees - whether a plaint that has been filed without the payment of filing fees is a valid plaint - Civil Procedure Rules Order IV rule 2(2) - Advocates Act (Cap. 16) section 48, 49

South Nyanza Sugar Company Ltd v Samuel Osewe Ochillo t/a Ochillo & Company Advocates [2007] eKLR

Court of Appeal at KisumuR.S.C. Omolo, E.O. O’Kubasu & J.W. Onyango Otieno

JJ.ANovember �0, 2007

In October 2001, the respondent, who was an advocate, filed a plaint claiming over Kshs. 2.6 Million as professional fees due to him from his client, the appellant. The plaint was accompanied by a letter addressed by the respondent’s law firm to the Deputy Registrar of the High Court advising that the suit had been filed under sections 48 and 49 of the Advocates Act and that it was exempt from court fees. An endorsement on the letter attributed to a Deputy Registrar stated “Approved. No court fees to be paid”.

The case proceeded and the High Court delivered its judg-ment in December 2002. The appellant appealed against the decision arguing, among other grounds, that the High Court had failed to consider that the suit was incompetent, frivolous and vexatious.

Held:1. Both as a matter of practice and also as a matter of law,

documents cannot validly be filed in the civil registry until fees have either been paid or provided for by a general deposit from the filing advocate from which authority has been given to deduct court fees.

2. The Civil Procedure Rules Order IV rule 2(2), which requires a plaint to be presented together with any fees pay-able on its filing, did not exclude plaints filed by advocates claiming fees from their clients. There was also nothing in sections �8 and �9 of the Advocates Act which would justify the exemption of filing fees in respect of such a suit.

�. The Deputy Registrar had no power to exempt the re-spondent from paying the requisite fees. As a result, the plaint was not properly filed and there was no valid plaint upon which the High Court could proceed to deliver judgment. The judgment was based on no valid plaint.

Appeal allowed, judgment and decree of the High Court set aside and substituted with an order striking out the plaint. Costs of the suit and the appeal awarded to the appellant.

employment lAw – redundancy – termination of employ-ment on account of redundancy -meaning of redundancy – where there exits a contract of employment – whether the rules of natural justice may be applied to employment contracts – whether a court may prevent an employer from discharging its employees on account of redundancy where the laws relating to termination of employment are followed and the consent of Trade Unions obtained – whether it is reasonable for a contracted employee to expect to continue in employment until the age of retirement regardless of his productivity or the financial situation of his employer – whether general damages may be awarded in suits based on termination of employment - Trade Disputes Act (Cap. 234) - Regulation of Wages and Conditions of Employment Act (Cap. 229)civil prActice AnD proceDure - representative suit – cir-cumstances in which one or more persons may sue or be sued on behalf of other persons – procedure in bringing a representative suit – meaning of “persons having the same interest” in a suit – whether same interest means the same transaction – Civil Practice and Procedure Rules Order I rule 8.DAmAges – special damages – duty of a party to prove special damages before they can be awarded.internAtionAl lAw – application of international law – in-ternational law applicable where domestic law is uncertain or lacking.

Kenya Airways Corporation Ltd v Tobias Oganya Auma & 6 others [2007] eKLR

Court of Appeal at NairobiP.K. Tunoi, P.N. Waki & W.S. Deverell

November 2�, 2007

About early 1990, Kenya’s national airline operator, Kenya Airways Corporation Ltd (the appellant) experienced serious financial problems. After an audit of the appellant’s opera-tions revealed that overstaffing was one of the contributors to the problem, it was decided to reduce its workforce of �,000 employees by almost a half. Indeed, the appellant felt that a number of the staff were not adaptable to modern develop-ments in the airline industry.

The appellant’s unionisable employees were members of several trade unions which had negotiated Collective Bar-gaining Agreements with the appellant. On April 2�, 1990, the appellant notified the Transport and Allied Workers Union (TAWU) that it intended to terminate the employment of a sizeable number of its members and outlined the criteria that it intended to apply. Subsequently, the appellant issued letters of termination to the respondents. It appeared that the trade unions involved had agreed that the redundancies were inevitable and they had come to a mutual agreement

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with the appellant on the implementation of the redundancy which, to all intents and purposes, was followed. The Min-istry of Labour had also been advised about the planned redundancies.

In 1992, the six respondents filed a suit against the appel-lant “on their behalf and on behalf of 960 ex-employees” of the appellant. They averred that the appellant had violated the redundancy provisions of the Regulation of Wages and Conditions of Employment Act (Cap. 229). They claimed compensation for loss of service calculated up to the retire-ment age of �� years, �6 months’ salary in lieu of notice of termination of employment, severance pay, unpaid leave and monies reserved on their Provident Fund. The value of the monetary claim added up to Kshs. 2,�9�,��9,629.

The appellant filed a defence to the suit in which it denied the claim and averred, firstly, that due to the undetermined nature of the contractual obligations between the appellant and its employees, the respondents did not have right to file a representative suit. Secondly, the appellant stated that it had carried out the redundancies in accordance with the terms of service of the respondents and the its regulations and finally, that it had complied with the provisions of the law govern-ing payment and other benefits to each respondent. It stated that the claim for loss of service and �6 months’ pay in lieu of notice had no legal basis and that the claim for the funds held by the Provident Fund should have been made against the Trustees of the Fund.

In September 199�, the High Court (Shields, J.) issued an order authorizing the representative suit. The main trial com-menced in February 1996 and closed on August 29, 2000.

In a judgment delivered on February 2�, 2001 by Mbogholi Msagha, J. the High Court found that the basic reasons for de-claring the respondents redundant were financial constraints and over-staffing and that those were matters for which the respondents were not to blame. The Court found that the appellant company had been mismanaged and that the re-dundancy was misplaced and illegal. In addition to what they had been paid, each respondent was awarded compensation equivalent to the remainder of his or her term of service based on retirement age but discounted by one third to account for unforeseen eventualities of life. The respondents were also awarded interest and the costs of the suit.

The appellant brought this appeal against the decision of the High Court.

Held:1. Order 1 rule 8 of the Civil Procedure Rules, which makes

provisions regarding representative suits, is an exception to the general rule that all persons interested in a suit ought to be made parties to it. The object of the rule is to facilitate the decision in questions in which a large body of persons is interested, without the practical difficulty that may arise under the ordinary procedure where each person files a separate suit.

2. The conditions necessary to bring a representative suit within Order 1 rule 8 are:

a. there are numerous persons;b. the persons have the same interest in the suit;c. the authority or permission of the court is obtained for

some of the persons to be represented by one or several others;

d. notice of the suit is given to all the persons repre-sented.

There is no requirement that a person seeking to institute a suit in a representative capacity must establish that he had obtained the sanction of the persons interested on whose behalf the suit is proposed to be instituted.

�. What is required under the rule is that the parties should have the same interest; it is not necessary that their interest arises from the same transaction.

�. The respondents in this case had the same interest within the meaning of Order 1 rule 8. They all challenged the re-dundancy visited upon them by the appellant and claimed damages and unpaid compensation for loss of service and severance pay amongst other reliefs.

�. As persons having separate causes of action in contract and in tort may have the same interest “in proceedings to enforce those causes of action” there was no legal bar for the respondents to bring a representative action for the reliefs sought in the plaint. The six named plaintiffs and the repre-sented persons had “the same interest” in the determination of substantive questions of law relating to the consequences of their redundancy.

6. Where it is demonstrated that domestic law is ambigu-ous, uncertain or totally lacking, the courts can have regard to international customary law and international instruments ratified by Kenya without reservation in order to resolve such ambiguity or uncertainty.

7. In determining the lawfulness or otherwise of termina-tion of employment whose terms and conditions have been reduced into a contract, the only test is whether the said termination or redundancy was in accordance with the con-tract itself. The rules of natural justice have no application to contracts of employment.

8. It is not the role of any tribunal to prevent an employer from restructuring or adopting modern technology so long as it observes all relevant regulations. The High Court had failed to examine the evidence to see whether the reasons for the redundancy were genuine. It was economically illogical to expect the appellant to retain workers in employment until they attained the age of retirement whether they delivered or not and whether the employer was solvent or not.

9. The evidence before the High Court established on a balance of probability that the appellant was entitled to re-trench some members of staff including the respondents by declaring them redundant. The excess staff had to leave in the process of rationalization and the appellant had either to restructure and cut costs or collapse altogether.

10. The respondents had not demonstrated that the process of selecting employees for redundancy was faulty. On the Court of Appeal’s independent assessment of the evidence, the appellant had observed all relevant laws and regulations governing the redundancy of the respondents.

11. It was unreasonable for the respondents to believe that it was their entitlement and right to be employed by the ap-pellant during their whole working life. The expectation had no basis in law as employment relationship is contractual and thus terminable under the terms of the same contract.

12. There can be no general damages in respect of suits based on a termination of employment contracts.

1�. The Provident Fund was run by Trustees who were independent from the appellant. Any claim to the Fund should have been directed at the Trustees and not the appellant and the High Court was right on this issue.

1�. All the respondents had been properly compensated by the appellant. The provisions of the Collective Bargaining

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Agreement had been adhered to.1�. The respondents had not proved each of their claimed

dues and hence special damages, though pleaded, could not be awarded. The High Court was right in finding so and there was no cross-appeal on that finding.

Appeal allowed, judgment and decree of the High Court set aside, suit dismissed and costs of the appeal awarded to the appellant.

eviDence - witness - hostile witness - procedure in declar-ing a witness hostile - effect of declaring a witness hostile – where a prosecution witness gives evidence favourable to the accused - prosecution not having sought the leave of the court to cross-examine the witness - whether in the circumstances the trial court had erred in failing to evalu-ate the evidence of such a witness - Evidence Act (Cap. 80) section 161, 163

Edusei Asili Malema v Republic [2007] eKLRCourt of Appeal at Kisumu

R.S.C. Omolo, E.M. Githinji & W.S. Deverell JJ.ANovember 2�, 2007

The appellant had been arraigned in the High Court on a charge of murder. At the close of the trial, he was convicted for the lesser offence of manslaughter and sentenced to im-prisonment for six years. The record of the trial showed that a sister of the deceased who had been called as a witness by the prosecution had given evidence which contradicted the prosecution case and tended to support the evidence of the appellant. Her evidence in essence, was that the deceased had been assaulted while he was participating in a robbery. Before she completed her evidence, State Counsel merely informed the trial Judge that the witness had completely deviated from the statement she had recorded with the police and that he did not wish to subject her to cross-examination since she was a child. It appeared that the trial court did not evaluate the evidence of this witness in arriving at its deci-sion to convict the appellant for manslaughter.

One of the grounds which the appellant raised in his appeal against his conviction and sentence was that the trial court had erred by failing to follow the proper procedure in treating a witness as a hostile witness.

Held:1. The credit of a witness may be impeached by a party who

calls him by proof of former statements inconsistent with any part of his evidence which is liable to be contradicted. The procedure is to apply for leave to treat the witness as hostile, prove and put in the former statements and then put to the witness the passages which are alleged to be inconsistent with the evidence given by the witness at the trial.

2. It is essential that the witness should be given an oppor-tunity of explaining the alleged inconsistencies as sometimes apparent inconsistencies are capable of completely satisfac-tory explanation. If serious and substantial inconsistencies are proved the effect is to render the witness unworthy of belief and not to make what he said in the former statement available as evidence at the trial.

�. In this case, it was clear that the prosecutor did not seek leave of the court to cross-examine the witness to impeach her

credit or to have her declared to be a hostile witness. Since the credit of the witness was not impeached, her evidence could not be merely disregarded. It had to be evaluated together with other evidence more so because she was not declared to be a hostile witness.

�. It is a misdirection for a trial court to hold that the evi-dence of a hostile witness could be safely disregarded. The evidence of such a witness must be evaluated in particular if it tends to favour the accused though it may not necessarily be acted upon by the court. In this case, the trial court therefore erred in law when it failed to evaluate the evidence of the witness which tended to support the appellant’s case.

�. However, on the whole and upon a consideration of all the evidence and the other grounds of appeal, the appellant had been properly convicted for manslaughter.

Appeal dismissed.

civil prActice AnD proceDure - consent - consent order - review of a consent order - circumstances in which a consent may be reviewed - party seeking to have a consent reviewed or set aside on grounds of duress, illegality, public policy, undue influence and misrepresentation - party al-leging that the consent was an attempt to enforce an illegal agreement - allegation of unjust enrichment - duty of the person seeking to set aside the consent to establish the grounds for setting it aside - appeal against the decision of the High Court declining to review the consent - whether the High Court had failed to properly consider the matters before it - Civil Procedure Rules Order 2, Order 44 rule 1

Samson Munikah (practicing as Munikah & Company Advocates) v. Wedube Estates Ltd [2007] eKLR

Court of Appeal at NairobiP.K. Tunoi, E.O. O’Kubasu & E.M. Githinji JJ. A

November 2�, 2007

In October 200�, the respondent filed a suit against the appellant in the High Court claiming a sum of Kshs. 10�,671,7��.60 with interest which was stated to be outstand-ing on account of returned cheques, professional undertak-ings and various liabilities. Later, the parties entered into a consent order to the effect that judgment be entered for the respondent in the sum of Kshs. 30 Million in full and final settlement of the principal sum plus interest at court rates. The consent order further provided that the decretal sum was to be liquidated in monthly installments of Kshs. 62�,000 with effect from Januar �1, 200�.

Later, the applicant filed an application asking the High Court to review and/or set aside the consent order mainly on the grounds that it was tainted with illegality, that it had been arrived at through extortion, blackmail, and undue influence and that it was contrary to law and public policy.

After hearing the application, the High Court came to the conclusion that the appellant had not entered into the consent order under duress and the application was dismissed. The appellant appealed.

Held:1. An advocate would have ostensible authority to compro-

mise a suit or consent to a judgment so far as the opponent is concerned.

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2. A consent judgment may be set aside only in certain circumstances e.g. on the ground of fraud or collusion; mis-representation of the facts, public policy or for such reasons as would enable a court to set aside or rescind a contract.

�. When the apellant made an application before the High Court to set aside the consent judment, the burden of proving any of the grounds/reasons was upon him.

�. On the evidence, it could not be said that the consent had been freely entered into and that it was tainted with illegality, undue influence and the transation on which it was based was against public policy as the respondent and its legal advisers wanted to use the court process to achieve what was illegal.

Appeal allowed, consent judgment set aside.

high court

Reported by Bwaya Buluma and Michael Murungi

environmentAl lAw-noxious weeds-where the Government of Kenya and the Food Agricultural Organization under-took a joint project in 1982 that introduced the weed/plant Prosopis Juliflora in Ngambo, Marigat Division of Baringo District-where some area residents filed a petition under Sections 60,70,71 and 75 of the Constitution and Provi-sions of the Environmental Management and Coordination Act, and the Suppression of Noxious Weeds Act seeking declarations, inter alia, that their right to life as set out in Section 71 of the Constitution had been compromised by the introduction of the weed-validity of the petition

Charles Lekuyen Nabori & 9 Others v Attorney General & 3 Others [2007] eKLRHigh Court at Nairobi

(Aganyanya, Rawal & Ang’awa, JJ.)December 11, 2007

The petitioners filed the petition under Sections 60,70,71 and 7� of the Constitution and the provisions of the En-vironmental Management and Coordination Act, and the Suppression of Noxious Weeds Act. They sought, inter alia, declarations that; the petitioner’s right to life as set out in Section 71 of the Constitution had been compromised by the introduction of the weed Prosopis Juliflora to warrant the court’s intervention, the weed should be declared a noxious weed in the same category with other weeds set out in the suppression of Noxious Weeds Act (Cap.�2�), and that the respondent’s failure to take affirmative steps towards eradi-cation of the weed/plant amounted to a breach of the right to own property and formed compulsory denial to that right as set out in Section 7� of the Constitution of Kenya, due to the invasive nature of the weed. The petitioners stated that the plant was introduced and planted in their area, Ngambo in Marigat Division of Baringo District, around the year 1982 under a joint project of the Food Agricultural Organization and the Government of Kenya. The plant then spread at an alarming rate and took over the area thus degrading the en-vironment and livelihood of the residents as well as forcing them to abandon their homes. Their complaint was initially laid before the Public Complaint Committee established under the Environmental Management and Coordination Act which ordered that the plant be declared noxious by the Minister for Agriculture and thereafter be eradicated, that

its planting should be outlawed and forbidden and that it be treated as a dangerous plant. The Committee’s report was never acted on by any authority. The respondents on their part contended that the issues raised by the petitioners could be solved under the procedure provided under Section �(�) of the Environmental Management and Coordination Act which had similar remedies as those provided under Section 8�(2) of the Constitution. Moreover, it was submitted that the petitioners were claiming their personal rights and the petition not being a public interest case, the petitioners ought to have exhausted the statutory actions before knocking at the doors of the Constitutional Courts.

Held:1. Section �(�) of the Environmental Management and

Coordination Act only provided the scope of the orders, writs and directions as enumerated in clauses (a) to (e) of subsection (�) of Section �. Section �(1) was restricted only to the right to a clean and healthy environment which could or could not be a part or parcel of one of the rights enshrined in Sections 70-8� of the Constitution.

2. The Constitution gave open doors to all those whose constitutional rights were violated or who feared for such violation irrespective of any availability of any other lawful action to them.

3. The sufficiency or otherwise of the evidence was an issue of proof of the claims and could not by itself be a ground to make the matter incompetent or an abuse of the court process.

�. The right to life did include a clean and healthy envi-ronment which guaranteed the full enjoyment of natural resources of the nation and earth.

�. There was an infringement of the petitioners right to life as understood by the makers of the Constitution and the signatories of the Rio Declaration of which the Government of Kenya was a signatory.

6. The plants had become dangerous and the Government was just showing a feeble semblance of any efforts to solve the grave situation on the ground.

7. The principle of the polluter must pay was to be upheld whereby the Government of Kenya was held accountable for its actions made 20 years earlier either knowingly or not. There was a duty of care and accountability by the Govern-ment of Kenya to be taken.

8. That a commission comprising of technical and local experts be appointed by the Government under terms and reference to be set out by the Court inter alia to:

a. Assess and quantify the loss visited upon the environ-ment and to the residents of Baringo District by the weed Prosopis Juliflora.

b. Assess and quantify the loss resulting from the introduc-tion and non-action by the Government.

c. Assess injury to persons and commensurate and make a finding and report to court its assessments and findings.

d. Assess and ascertain the injuries occasioned to indi-viduals resident in the areas affected by the weed Prosopis Juliflora and recommend commensurate monetary compen-sation thereto.

e. Complete its task within 60 days of appointment.

* Lady Justices Ang’awa and Rawal held the Government liable while Mr. Justice Aganyanya dismissed the case. Mr. Justice Aganyanya said the weed’s side effects were so re-

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mote for him to hold the Government liable.

Petition allowed.

constitutionAl lAw – separation of powers – power of the High Court over the actions of Parliament – consti-tutional application challenging the election of a Speaker of the National Assembly – applicant seeking to nullify all actions undertaken by the Speaker and the National As-sembly subsequent to the election – whether the application undermined parliamentary privilege and the doctrine of separation of powers – circumstances in which the Courts will interfere with the actions of Parliament – Constitution section 37, 38, 56, 57, 58

Peter O. Ngoge v Francis Ole Kaparo & 4 others [2007] eKLR

High Court at NairobiJ.G. Nyamu, R. Wendo & G.A. Dulu, JJ

December 7, 2007

The applicant had been one of the candidates who had offered himself for election as a Speaker in the National Assembly that had been constituted after the General Elec-tions held on December 27, 2002. The applicant had lost after garnering 2 votes against 20� votes garnered by the 1st respondent who had been declared the duly elected Speaker on January 9, 200�.

The applicant filed a constitutional reference challenging the election of the 1st respondent mainly on the grounds that on the day of the election, the National Assembly was not in existence as nominated members had not been gazetted and by virtue of section 12�(10) of the Constitution, the election could not take place on a day when Parliament had been prorogued by the President.

As a consequence of the alleged illegality in the election, the applicant asked the court to declare certain subsequent actions null and void or ultra vires the Constitution, includ-ing, the decision of the Clerk of the National Assembly (the 2nd respondent) declaring the 1st respondent the duly elected speaker; all actions done by the 1st respondent in purported exercise of the duties of Speaker; the oaths of office taken by elected and nominated members of Parliament on or sub-sequent to January 9, 200�; all Bills passed by Parliament; all by-elections presided over by the Electoral Commission of Kenya; the decision of the Constitution of Kenya Review Commission (the �th respondent) to include the 1st respondent as a delegate in the National Constitutional Conference and all deliberations of that Conference.

The applicant also sought a declaration that the 1st respondent’s action of carrying out the duties and enjoy-ing the privileges of the office of Speaker contravened his right not to be discriminated against under section 82 of the Constitution.

The 2nd respondent raised a preliminary objection to the petition mainly on the grounds that in questioning the pro-ceedings of the National Assembly, the applicant undermined the immunity of Parliament and the constitutional doctrine of separation of powers between Parliament, the Executive and the Judiciary.

In the course of the hearing, the Court had drawn the applicant’s attention to the fact that Parliament had been dis-

solved and asked him to consider whether his case had been overtaken by events. The applicant nevertheless submitted that his cause was still alive and it had not been overtaken.

Held:1. The Legislature, the Executive and the Judiciary are all

subject to the Constitution. The High Court has the power to strike out a law or legislation passed by Parliament which is in conflict with the Constitution as well as any privileges and immunities or powers claimed by Parliament which are in conflict with the Constitution. Nothing is immune from the courts’ scrutiny which is in conflict with the Constitution.

2. Under the Constitution, particularly section �7 and the Standing Orders of the National Assembly, the first business of the National Assembly is the election of the Speaker. The composition of the National Assembly as defined in sec-tion �1 was subject to other provisions of the Constitution including sections �7, �6, �7 and �8 which incorporated the standing orders concerning the election of the Speaker. Therefore, at the time of the election of the Speaker, the National Assembly was properly constituted.

�. The fact that nominated members of the National As-sembly had not been gazetted by the time of the election of Speaker did not invalidate the election of Speaker or the proceedings of the House. Under section �6(2) of the Con-stitution, the National Assembly may act notwithstanding a vacancy in its membership.

�. The mere making of an allegation of contravention of fundamental rights under chapter � of the Constitution, without particulars of the contravention and how that contra-vention was perpetrated would not justify the court’s inter-vention by way of an inquiry. Where the facts as pleaded do not plainly disclose any breach of fundamental rights or the Constitution, there cannot be any basis for an inquiry.

�. It would be a violation of the Constitution and the doc-trine of separation of powers for the Courts to interfere with internal arrangements of Parliament governed by the Stand-ing Orders unless those arrangements themselves violated the Constitution. The declarations and orders sought by the applicant would be in contravention of the Constitution.

6. All the contentions of the applicant had nothing to do with his fundamental rights. They challenged the internal arrangements of Parliament which were within the preserve of Parliament and protected by parliamentary privilege under section 12 of the National Assembly (Powers and Privileges) Act. There was no violation of the Constitution and/or the fundamental rights of the applicant in this case.

7. There cannot be a valid cause of action based on what would be a violation of the Constitution and an application which invites a court to violate the Constitution or the doc-trine of separation of powers is itself an abuse of the court process and incompetent. Such an action could be dealt with by the Court in a summary manner.

8. The applicant’s case had been overtaken by the fact of the dissolution of Parliament. The dissolution had brought to an end the substance of his case and the court could not give orders in an academic or speculative matter.

9. There was no nexus between the applicant’s alleged rights and the Electoral Commission of Kenya’s constitu-tional mandate on elections. The applicant had no standing to join the Commission in the proceedings.

Preliminary objection upheld, petition struck out with costs

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to the respondents.

elections – nominations – nomination of parliamentary candidates by political parties – jurisdiction of the High Court to entertain disputes arising from party nomina-tions – whether a court other than an election court has jurisdiction to entertain such a dispute - whether such a dispute should be brought by way of a plaint or by a peti-tion – Constitution of Kenya sections 34(d), 44(1), 42(a) - National Assembly and Presidential Elections Act (Cap. 7) sections 13(3)(b); 17 - Presidential and Parliamentary Elections Regulations regulations 8(3), 14.

Jared Mariga Akoro & another v Richard Kwach & 5 oth-ers [2007] eKLR

High Court at NairobiJustice Khamoni

November 2�, 2007

The plaintiffs/applicants were registered voters in Kasipul Kabondo constituency and were members of a political party known as the Orange Democratic Movement (ODM). Beginning on November 16, 2007, the party carried out a nationwide exercise for the nomination of persons who were to run for parliamentary and civic candidates in the General Election scheduled for December 27, 2007. The exercise was to be governed by the election and nomination rules of the political party.

The plaintiffs filed a plaint and chamber summons in the High Court stating that they had participated in the exercise and lost their bids to obtain the party’s parliamentary nomi-nation because the exercise had been conducted irregularly. They further stated that the party’s returning officer and the party’s National Election Board (the 1st – �th defendants/re-spondents) had wrongfully issued a certificate of nomination to the �th defendant/respondent who was due to present the certificate to the Electoral Commission of Kenya.

In their suit and chamber summons, the plaintiffs therefore sought to restrain the Commission from recognizing the �th defendant as the duly nominated ODM parliamentary aspirant for Kasipul Kabondo.

The Commission raised a preliminary objection that the court had no jurisdiction to entertain the suit because it had not been gazetted as an election court in accordance with the National Assembly and Presidential Elections Act and the Presidential and Parliamentary Elections Regulations. The Commission further argued that the action should have been filed by way of a petition instead of a plaint.

Held:1. The National Assembly and Presidential Elections Act

(Cap. 7) together with its rules form a complete regime of substantive and procedural law and where it is found appro-priate to rely on provisions of other laws outside that Act and the rules, its provisions should nevertheless be remembered so that any orders obtained can be executed without offend-ing the Act and its rules.

2. The jurisdiction granted to the High Court in section ��(1)(a) of the Constitution of Kenya concerning the validity of an election of a member of the National Assembly is the jurisdiction found in the provisions of the National Assembly and Presidential Elections Act so that the High Court exer-

cises that jurisdiction only after an election has taken place and the person against whom the complaint is made has been elected as a member of the National Assembly.

�. The nominations of parliamentary candidates is governed by the National Assembly and Presidential Elections Act. The only court recognized by that Act is an election court, being the High Court exercising the jurisdiction conferred on it by section ��(1) of the Constitution. Therefore, the procedure for addressing grievances arising from elections is through an election petition.

�. In order for a case emanating from a dispute in selec-tions or nominations among members of a political party or between such a member and officials of the party to be in a court of law other than an election court, that suit has to be instituted, prosecuted and determined before the Electoral Commission of Kenya sets the process of the anticipated presidential and parliamentary elections in motion.

(Dicta per Khamoni, J.) “[T]here may be need to review the National Assembly and Presidential Elections Act and its rules to, among other things, give more powers to the Electoral Commission and also allow political parties ample time six months to do and complete, up to and including dis-putes resolution, their respective intra-party nominations or selections for presidential and parliamentary elections before the date for nominations set by the Electoral Commission of Kenya pursuant to section �2A of the Constitution of Kenya as read with section 1�(�)(b) of the National Assembly and Presidential Elections Act and regulations 8(�) and 1� of the Presidential and Parliamentary Elections Regulations”.

Preliminary objection upheld, plaintiffs’ suit dismissed.

ADvocAtes-retainer-where a client contested taxed costs as being inordinately high-where the advocates then filed an application seeking judgment for the taxed costs together with interests thereon under Section 51(2) of the Advocates Act (Cap.16)-where there was no written retainer but the advocates had an affidavit sworn by the Managing Director of the client confirming that the advocates were retained by the client-whether an advocate must have obtained written instructions from a client to enable him to participate on behalf of the client in a particular dispute.

Ochieng, Onyango, Kibet & Ohaga Advocates v Adopt A Light Limited [2007] eKLR

High Court at Nairobi(Warsame, J.)

November 22, 2007

The applicant had allegedly acted for the respondent in some matter involving the Municipal Council of Mombasa, where the respondent was awarded a tender to collect revenue in the tune of Kshs.�2�,8�2,000/-. After the award the ap-plicant further represented the respondent before an appeals board upon the tender being challenged by an aggrieved party. All these services were allegedly given at the instruc-tion of the respondent. The applicant then filed a Notice of Motion seeking judgment for the taxed costs in the sum of Kshs.2,��6,97�.80 together with interest thereon at 12% per annum. The application was brought under Section �1(2) of the Advocates Act (Cap.16) with the applicant submitting that

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Section �1(2) gave the court discretion to make such order in relation to a certificate which had not been set aside or altered as it thought fit, including in a case where the retainer was not disputed. The applicant further submitted that a retainer needed not be in writing to be exhibited and that in any event the respondent was estopped from alleging that the retainer was disputed since the respondent’s Managing Director, Ms. Esther Passaris, had sworn an affidavit confirming that the applicants were retained by the respondent. On the other hand Mr. Ongoya, advocate for the respondent, argued that there was no jurisdiction under Section �1(2) of the Advocates Act or Section �A of the Civil Procedure Act to grant the orders sought in the application. The judgment, he submitted, could only be entered in a case where the retainer was not disputed and the applicant had not exhibited a retainer, therefore the application could not fall within the provisions of Section �1(2) of the Advocates Act. Moreover, Mr. Ongoya was of the view that since the respondent was preferring an appeal against the decision of May �1, 2007, the logical thing would be not to grant judgment until the question of costs actu-ally due to the applicant was determined under appeal, the question being whether the costs awarded to the applicant was inordinately high. Mr. Ongoya further submitted that a certificate of costs did not confer on a party a right to enforce recovery of costs other than in the single situation set out in Section �1(2) of Cap.16 and since the applicant had not exhibited any retainer in the application it thus did not fall within the provisions of Section �1(2).

Held:1. A plain reading of Section �1(2) showed that an advocate

needed not file a suit to recover his/her costs where a retainer was not disputed or where a retainer was disputed but had been proved to the court’s satisfaction.

2. The advocate/client relationship was grounded on a retainer and in the absence of a retainer, one could say the relationship was on shaky grounds. The burden of establish-ing the existence of a retainer was always and primarily on the advocate. However, the burden could sometimes shift to the client to demonstrate that s/he did not instruct the advocate in a particular matter, or that the instruction though given was withdrawn without the advocate offering any service.

�. It was not mandatory for the advocates in the applica-tion to exhibit proof of a retainer. An advocate must have obtained written instructions from a client to enable him to participate on behalf of the client in a particular dispute. The participation and/or instruction of an advocate could either be express or implied. It needed not be in writing even where the instruction was expressly given.

�. There was no doubt that the applicant was instructed by the respondent and in furtherance of those instructions offered some services to the respondent. The court was in agreement with the applicant that there was no requirement under Section �1(2) of the Advocates Act that a retainer ought to be in writing and that it was to be exhibited in an application like the present one before the advocate could be entitled to judgment. The only hurdle under Section �1(2) was whether there was proof of retainer by the advocate and whether retainer was disputed.

�. In the instant case, the retainer was not disputed by the respondent and therefore the applicant had comfortably passed the pre-requisite test imposed by statute in order to grant judgment in favour of an advocate. An advocate who

had passed the hurdle provided under Section �1(2) was automatically entitled to judgment.

Application allowed.

insurAnce lAw-motor vehicle third party insurance-notice under Section 10(2) of the Insurance (Motor Vehicle Third Parties Risks) Act, (Cap.405)-whether a demand notice/let-ter of notification of accident constituted a statutory notice under the provisions of Section 10 of Cap.405insurAnce lAw-motor vehicle third party insurance-where the appellant obtained judgment against the director and authorized driver of a vehicle owned and insured by a limited liability company-where the appellant was unable to recover the judgment sum from the said driver and proceeded to file a declaratory suit against the insurer of the motor vehicle-where the lower court dismissed the suit holding that judgment was against the insured’s driver, and not the insured itself, therefore the same could not be enforced against the insurer-whether judgment against the insured’s driver was enforceable against the insurer

Philip Kimani Gikonyo v Gateway Insurance Company Limited [2007] eKLRHigh Court at Nairobi

A.R.M. Visram, J.November 21, 2007

On December 21, 198�, the appellant was hit and injured by a motor vehicle registration number KTZ �01 owned and insured by Glass Fibre Reinforced Plastics Limited, driven by its director and authorized driver, Jeremiah G. Gikonyo. He filed suit in the lower court and obtained judgement against Mr. Gikonyo in the amount of Kshs.�00,�00. Being unable to recover the judgment sum from Mr. Gikonyo, the appel-lant filed a declaratory suit against the insurer of the motor vehicle, Gateway Insurance Company Limited. The lower court dismissed that suit holding that because the judgment was against the insured’s driver, and not the insured itself, the same could not be enforced against the insurer. The lower court further held that the insurer had not been served with the statutory notice required under Section 10(2) of the Insurance (Motor Vehicle Third Parties Risks) Act (Cap.�0�).

The appellant subsequently filed this appeal on the grounds, inter alia, that the learned trial magistrate erred in law and fact in holding that the judgment obtained against the direc-tor of the insured being an authorized driver could not be enforced against the insurer of the motor vehicle, and also made a similar error in holding that a demand notice/letter of notification of accident were not statutory notices under the provisions of Section 10 of the Insurance (Motor Vehicle Third Party Risks) Act, (Cap.�0�).

Held:1. With regard to the form a notice should take the court

held that it simply did not matter. A notice was a notice. Any notice, howsoever given, as long as it sufficiently outlines the happening of an event giving rise to a claim under the insurance policy, was a good notice under the Act.

2. A notice was given in the instant case. The insurer had been served with a copy of the demand letter dated March 2�, 198� from the appellant’s advocates addressed to the insured

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Fibre Reinforced Plastics Limited. The insurer’s witness, Mr. Washington M. Kaveke, acknowledged this notice in his testimony in the lower court and it was clearly wrong for the lower court to reject this as not being actual notice.

�. Section �(b) of the Insurance (Motor Vehicle Third Party Risks) Act (Cap.�0�) made it mandatory for motor vehicle owners and/or operators to obtain third party cover for death or bodily injury to all persons, except for those categories of people specifically excluded such as employees or pas-sengers. Therefore the appellant before the court was one such person.

�. It was not in dispute that the driver in the instant case was indeed the authorized driver and being the director of the insured company, if the insured’s corporate veil was lifted, he would emerge as the insured.

�. If the driver and director of the insured company was deemed to be the “insured” in accordance with the terms of the policy, and the injured third party-the appellant-was a person “entitled to the benefit of the judgment” , the inevi-table conclusion was that the appellant’s judgment against the insured’s driver was enforceable against the insurer, the respondent.

6. The required notice was thus properly served upon the re-spondent, within the time stipulated in the Act, and the lower court judgment was enforceable against the respondent.

Appeal allowed.

locAl government – Mayor – term of office of a Mayor – whether the term of office of a Mayor expires with the dissolution of Parliament and local authorities – whether a Mayor is to remain in office until his successor assumes office – local authorities having been dissolved and the Ministry of Local Government having issued circulars directing Town Clerks that the offices of councilors and Mayors had fallen vacant – Town Clerk preventing a person from continuing to serve in the office of Mayor – whether the circulars were legal – whether the Town Clerk had acted contrary to the law – Local Government Act (Cap. 265) sections 13(2); 14(1),(2)

John M. Nyaga v Town Clerk, Municipality of Embu & another [2007] eKLR High Court at EmbuJ.N. Khaminwa, J.November 7, 2007

The applicant filed a plaint against the Municipal Council of Embu and its Town Clerk seeking a declaration that as a Mayor of the Municipal Council, he was required by law to continue in office until the election of a succeeding Mayor. Simultaneously with the plaint the applicant lodged an application seeking a temporary injunction to restrain the defendants from barring him from entering upon his office and performing the duties of Mayor.

In his supporting affidavit, the applicant swore that he had been elected as a councillor of Kamiu Ward in the Municipal Council in 2002 and later he was elected as the Mayor of the Council in July 2006. On October 2�, 2007 after Parliament had been dissolved paving way for General Elections, the Town Clerk had locked the applicant’s office and denied him access to and use of it and withdrew his car, flag and other

Mayoral regalia. The applicant further swore that the action of the Town Clerk was illegal and in breach of the Local Government Act (Cap. 26�).

For their part, the respondents opposed the application. They stated that the local authorities had been dissolved and the Permanent Secretary (presumably in the Ministry of Lo-cal Government) had issued two circulars to all town clerks directing that all Mayors had ceased to be councilors with the dissolution of the councils. The circulars further advised that the offices of all Mayors and councilors had fallen va-cant and that the occupants should vacate their offices and surrender all Council property held by them. It was further directed that the affairs of local authorities should be run by committees of Chief Officers and Heads of Departments. The dissolution had been published in a Kenya Gazette Notice dated October 2�, 2007.

The Town Clerk and the Municipality of Embu filed an appeal against this decision along with an interlocutory application seeking a stay of the orders made by the High Court. In its ruling on December 7, 2007, the Court of Appeal allowed the application stating:

“The respondent has been granted at an interlocutory stage

the same reliefs that he seeks in the suit. The interlocutory orders are operative pending the hearing and determination of the suit. It is highly improbable that the respondent would be interested in the prosecution of the suit having obtained the desired orders or that the suit would be heard before the 27th December, 2007 when national civic elections are due. It would be unjust and a heavy financial burden to the Council which is run by public funds to maintain a Mayor in office indefinitely when the existence of the office is seriously contested. Furthermore, the Council would suffer great financial loss, if it is ultimately found that the office of a Mayor to which the respondent has been restored by a court order did not legally exist after the dissolution of the Council. On the other hand, if the application is allowed and the appeal is ultimately dismissed, the respondent can be adequately compensated for any financial loss that he may have suffered”.

Held:1. The Town Clerk is the Chief Executive Officer of the

Council and the circulars of the Permanent Secretary which the defendants referred to were not authorized by law. The Town Clerk receives no directions in performing his duties. He has to follow the provisions of the Local Government Act or any assignments given by his Council.

2. The action of the Town Clerk in denying the applicant the use of his Mayoral office and other facilities contravened section 1�(2) of the Local Government Act, which states that “….the Mayor shall, unless he resigns or ceases to be qualified or becomes disqualified, continue in office until his successor is elected and assigned”.

�. On a reading of the provisions of sections 1�(2), 1�(1) and 1�(2) of the Local Government Act, it was clear that in enacting the Act, Parliament did not intend that the office of the Mayor should at any time be vacant. The Mayors perform ceremonial functions and maintain the dignity of the Council and Parliament never intended the occupant of the office to be removed until a replacement was in office.

from the courts

1�Issue 6: January 2008

Appointments

Declaration of Election of PresidentGazette Notice No.12612-December �0, 2007The Electoral Commission of Kenya under Section �(�)(f)

of the Constitution and regulation �0(2)(a) of the Presi-dential and Parliamentary Elections Regulations, declared that MWAI KIBAKI had been elected the President of the Republic of Kenya being the person who received the great-est number of votes in the election held on December 27, 2007, and complied with the provisions of Section � of the Constitution.

Judges of AppealGazette Notice No.1�8-January 18, 2008His Excellency the President under Section 61(2) of the

Constitution, acting in accordance with the advice of the Judicial Service Commission appointed-

Justice Daniel Kennedy Sultani Aganyanya,Justice Joyce Adhiambo Aluoch,

as Judges of Appeal, with effect from December 2�, 2007.

Puisne JudgesGazette Notice No.1�7-January 18, 2008His Excellency the President under Section 61(2) of the

Constitution, acting in accordance with the advice of the Judicial Service Commission appointed-

Joseph R. Karanja,Hellen Omondi,Nancy Oginde,Philomena Mbete Mwilu,

as Puisne Judges, with effect from December 2�, 2007.

Registrar of the High CourtGazette Notice No.12��6-December 21, 2007His Lordship the Chief Justice under Section 69 of the

Constitution and the Judicial Service Regulations made under the Service Commissions Act, appointed MRS. CHRISTINE WANJIKU MEOLI to act as the Registrar of the High Court of Kenya until further notice.

Public Service CommissionGazette Notice No.1187-December 7, 2007His Excellency the President under Section 106(2) of the

Constitution appointed JOHN KAILEMIA MUKETHA to serve as a commissioner of the Public Service Commission of Kenya for a period of � years.

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gAzette & legAl notices

Compiled by Bwaya Buluma

Application allowed, injunction issued.

lAnD lAw-landlord and tenant-where the plaintiffs sued the defendant for selling the suit property to a 3rd party without giving the plaintiffs an option to purchase the same, despite verbal representations having been made to them by the defendants-whether a tenant has the right of first offer upon the landlord deciding to sell the property

Dima College Ltd & 2 Others v Kenya Commercial Bank Ltd [2007] eKLR

High Court at NairobiH.P.G. Waweru, J.November 1, 2007

The defendant, who was the registered proprietor of the suit property, was sued by the plaintiffs whose claim was that by two letters of offer the defendant offered to lease to the 2nd plaintiff certain separate portions of the premises standing on the suit property for terms of 6 years. The 2nd plaintiff duly accepted the offer and took possession of the premises. Later on the 1st plaintiff was incorporated with the object of acquiring the business carried on in the premises by the 2nd plaintiff and the 2nd plaintiff assigned his proprietary interests in the business, including the tenancies to the 1st plaintiff. The plaintiff’s present complaint was that the de-fendant was selling the suit property to a �rd party without giving the 1st and 2nd plaintiffs an option to purchase the same, despite certain representations being made to them by the defendants. The plaintiffs therefore wanted the court to declare that the defendant was estopped from selling or otherwise disposing of the suit property to any other person without first giving the 1st and 2nd plaintiffs, either jointly or severally, the first option to purchase it. They also wanted an order to compel the defendant to sell the property to the 1st plaintiff for a consideration of Kshs. 6�,000,000. The plain-tiffs subsequently sought a temporary injunction to restrain the defendant from disposing of the suit property pending the hearing and determination of the suit. The defendants opposed the application on the ground, inter alia, that the 1st letter of offer was accepted on behalf of Dima College (1st plaintiff) while the 2nd letter of offer was accepted by Dynamic Institute of Management and Accountancy Limited (Dima Ltd) (2nd plaintiff), therefore there was no subse-quent tenancy relationship between the 1st plaintiff and the defendant and therefore the 1st plaintiff had no locus standi to sue the defendant.

Held:1. The two offers of tenancy by the defendant were made

to the 2nd plaintiff who accepted the offers and indeed took possession of and occupied the demised portions of the prem-ises and conducted business therein. Although the letters of offer provided for 6 year leases, no leases were executed and registered as required by Section �0 of the Registration of Titles Act (Cap.281). Therefore no 6 year leases resulted.

2. The two letters of offer did not contain any option for the 2nd plaintiff to purchase the suit property. The 2nd plaintiff had sought to rely upon an alleged verbal representation to that effect. But there was no evidence of such representation before the court at that stage and in any case it was doubtful that a verbal representation would create a legal obligation

on the part of the defendant to first offer the suit property to the 2nd plaintiff to purchase.

�. The 2nd plaintiff having surrendered occupation and pos-session of the premises to the 1st plaintiff, having transferred the business to the 1st plaintiff, no longer had any enforceable rights as against the defendant.

4. None of the plaintiffs had satisfied the first principle for the grant of temporary injunction, the existence of a prima facie case with a probability of success.

Application dismissed.

16 National Council for Law Reporting

Bench Bulletin

Transport Licensing BoardGazette Notice No.11879-December 7, 2007His Excellency the President under Section �(1) of the

Transport Licensing Act appointed WILFRED MORAKWA OLE LEGEI to be Chairman of the Transport Licensing Board, for a period of � years. The appointment of Hassan Arthur Malipe Ole Kamwaro was revoked.

Privatisation CommissionGazette Notice No.11882-December 7, 2007The Minister for Finance under Section �(1)(d) of the

Privatization Act appointed:-Patricia A.O. Adala (Mrs.),James Gachoka,Rita Kavishe (Mrs.),Wainaina Kenyanjui,John Kiplagat Kenduiwo,Meshack J.R. Guto,Nancy Kaminchia (Mrs.)

to be members of the Privatization Commission, for a period of � years, with effect from January 2, 2008.

VAT Regional TribunalGazette Notice No.1211�-December 1�, 2007The Minister for Finance under Section �2 of the Value

Added Tax Act, appointed-Sankale ole Kantai-(Chairman),Rachel Lumbasyo,Samuel Manzi Maluki, Gaulke Micah Obbayi,Joseph Kamande Muturi,

to be members of the Nairobi Value Added Tax Regional Tribunal, for a period of 2 years, with effect from November 1, 2007.

Capital Markets TribunalGazette Notice No.12�80-December 2�, 2007The Minister for Finance under Section ��A(1) of the Capi-

tal Markets Act, appointed MORRIS GUCHURA NJAGE to be the Chairman of the Capital Markets Tribunal, for a period of � years, with effect from November 2�, 2007.

Industrial CourtGazette Notice No.1�0-January 18, 2008The Minister for Labour and Human Resource Develop-

ment under Section 1�(1)(b) of the Trade Disputes Act, after consultation with the Central Organization of Trade Unions and the Federation of Kenya employers, re-appointed-

Ainea Wafula Okhoya,David K. Siele,Jimmy Kilonzo,

as members of the Industrial Court, for a further period of

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� years, with effect from January 1, 2008.

Co-operative TribunalGazette Notice No.1�1-January 18, 2008The Minister for Co-operative Development and Market-

ing under Section 77(�) of the Co-operative Societies Act, extended the terms of-

J.L ole Kipury, andA.K. Kariuki,

as Chairman and Deputy Chairman of the Co-operative Tribunal, respectively, for a term of � years, with effect from January 1, 2008.

increAse of mAgistrAtes’ Jurisdiction

Gazette Notice No.11888-December 7, 2007His Lordship the Chief Justice under Section �(1) of the

Magistrate’s Courts Act, increased the limit of jurisdiction of BARBARA A. OJOO, Acting Senior Resident Magistrate, to Kshs.800,000, with effect from November 1, 2007.

Gazette Notice No.11889-December 7, 2007His Lordship the Chief Justice under Section �(1) of the

Magistrate’s Courts Act, increased the limit of jurisdiction of GILBERT KIMUTAI TOO, Acting Senior Resident Magistrate, to Kshs.800,000, with effect from November 1, 2007.

Gazette Notice No.11890-December 7, 2007His Lordship the Chief Justice under Section �(1) of the

Magistrate’s Courts Act, increased the limit of JULIUS MUKUT NANGEA, Acting Senior Resident Magistrate, to Kshs.800,000, with effect from November 1, 2007.

subsidiAry LegisLAtion

The following Subsidiary Legislation have been published by the Government Printer:

1. L.N.�92-The Sugar (Imposition of Levy) (Amendment) Order, 2007.

2. L.N.�00-The Council of Legal Education (Admission) Regulations, 2007.

�. L.N.�01-The Government Financial Management (Health Sector Services Fund) Regulations, 2007.

�. L.N.�02-The Fisheries (Beach Management Unit) Regulations, 2007.

�. L.N.�0�-The Wildlife (Conservation and Management) (Aloe Species) Regulations, 2007.

6. L.N.�0�-The Wildlife (Conservation and Management) (Amendment) Regulations, 2007.

7. L.N.�0�-The Cotton (General) Regulations, 2007.8. L.N.�-The Co-operative Societies (Amendment) Rules,

2007.9. L.N.�-The Income Tax (Turnover Tax) Rules, 2007.

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