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Family Miscellaneous Application E002 of 2025 | Borde v Shige (Family Miscellaneous Application E002 of 2025) [2025] KEHC 4424 (KLR) (8 April 2025) (Ruling) | Ruling | High Court at Marsabit | High Court | FR Olel | 8 April 2025 | 2,025 | Marsabit | Family | Shukri Shige Borde v Hawo Hussein Shige | [2025] KEHC 4424 (KLR) | null | The applicant did file his Notice of motion Application under provisions of Section 34,45,47 and 83 of the law of succession Act, Order 40 Rule 1(a) and 4 of the Civil procedure Rules and Article 40 of the Constitution of Kenya and sought for Orders that;
a.
Pending the hearing and determination of this Application, this Honourable court be pleased to issue a temporary injunction restraining the Respondents, their agents, servants and/or employees from intermeddling and/or interfering, wasting, constructing on or howsoever dealing with parcels of land at Dakabaricha sagante (121), a land at Dirib Gombo and residential home occupied by the widow which form part of the Deceased Estate.
b.
This Honourable court be pleased to order for an audit of the entire Deceased estate since his demise to be conducted by a reputable audit firm.
c.
Pending the hearing and determination of this Application, this Honourable court be pleased to issue an order preserving the Deceased Estate.
2.
This application is supported by the grounds stated on the face of the said Application and the supporting affidavit of the applicant where he depones that matters relating to the estate of the deceased had been determined by the Kadhi, vide Marsabit Succession cause No E1 of 2023, and the respondent being dissatisfied had appeal against the said decision vide Marsabit High court civil Appeal No E003 of 2023, yet she was a stranger to the estate and had not even been listed as a beneficiary by their Area chief.
3.
The applicant further averred that the respondent was selling estate property to third parties and was therefore unlawfully intermeddling with the deceased estate. He therefore urged the court to intervene and issue the orders sought as the estate beneficiaries would to suffer irreparable loss and damage should the respondent be allowed to continue with her unlawful activities.
4.
In response, the respondent did file her replying affidavit dated 10th March 2025, where she averred that the Kadhi’s decision on distribution of the estate was set aside by the honorable judge in Marsabit High court, Civil Appeal No E003 of 2023 and the applicant had neither filed an appeal to the court of appeal or sought to review the said judgment. The upshot was that the applicant was neither an administrator nor had the capacity to sue as such.
5.
Secondly, the respondent averred that the applicant had not provided any evidence to prove that the properties referred too, belonged to the estate and/or proof of their sale. The issue of intermeddling with estate property was therefore mute. She prayed that the this application be dismissed with costs. | 6.
I have considered the application and response filed. The judgment issued by the kadhi in Marsabit Kadhi’s Succession cause No E001 of 2023 was set aside by the Honorable judge in Marsabit High court Civil Appeal No E003 of 2023 and he did direct that the Kadhi’s court file be forwarded to the High court, Marsabit for hearing and determination.
7.
The applicant should have filed this application in the succession file, to be forwarded to this court and not seek substantive orders in a Miscellaneous Application filed not hinged on any substantive suit. See Rajab Kosgei Magut Vrs Nuru Jepleting choge (2020) eklr, J P Machira T/A Machira & co Advocates Vrs Wachira Waruru & Another (2007) eklr and County government of Machakos Vrs Export processing zone Authority
8.
Be that as it may, the application filed must also fail as the applicant has not proved that the property referred to belongs to the estate and/or that the respondent has interfered/intermeddled in any manner with the said estate. No injunctive orders can therefore issue as prayed for.
9.
The upshot is that the notice of motion application dated 7th February 2025 lacks merit and is dismissed with costs to the Respondent.
10.
It is so Ordered. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/4424/eng@2025-04-08 |
Civil Appeal E078 of 2021 | Busienei v Lizano Limited (Civil Appeal E078 of 2021) [2025] KEHC 4483 (KLR) (8 April 2025) (Judgment) | Judgement | High Court at Eldoret | High Court | E Ominde | 8 April 2025 | 2,025 | Uasin Gishu | Civil | Richard Kipruto Busienei v Lizano Limited | [2025] KEHC 4483 (KLR) | null | 1.
This is an appeal arising from the decision of Honourable Christine Menya (SRM) delivered on 18/07/2021 in Eldoret Chief Magistrate’s Court, Civil Suit No. 704 of 2018.
2.
By a Plaint dated 29/06/2018, the Respondent herein sued the Appellant seeking special damages of Kshs.1,305,000/=, an interest of 10% per day until payment in full as from 7/05/2018, costs of and incidental to this suit and any other relief that the Honourable Court may deem fit and just too grant.
3.
The Appellant filed a Statement of Defence dated 26/06/2018 denying the averments by the Respondent.
4.
The case then proceeded for trial and by its Judgment delivered on 18/06/2021, the Court found in favour of the Respondent and ordered for specific performance to the effect that the Appellant was ordered to pay for the value of the fertilizer he took and used from the Respondent to the tune of Kshs.1,305,000/=, the trial Court further observed that clause (e) of the said agreement provided that in case of breach, the Appellant was liable to pay the company 10% interest per day until the payment was made in full and proceeded to make a finding that there was no proof that the said clause was amended and therefore ordered that in addition to the purchase price, the Appellant do pay an additional 10% interest until payment in full as from 7/05/2018 till the said sum is complete. The trial Court also awarded the Respondents costs and interest of the suit at Court rate as from the date of the judgment until payment in full.
5.
Being dissatisfied with the decision of the trial Court, the Appellant lodged the Memorandum of Appeal dated 13/07/2021 on 14/07/2021 listing the grounds of appeal as:
1.
That the trial Magistrate erred in law and fact by finding that there was a valid binding contract.
2.
That the trial Magistrate erred in law and fact by failing to observe that the Agreement dated 11/04/2018 offended the provisions of Section 3 of the Companies Act.
3.
That the trial Magistrate erred in law and fact by failing to observe that the Agreement dated 11/04/2018 offended the provisions of Section 35(1) and 37 (2) of the Companies.
4.
That the trial Magistrate erred in law and fact by failing to observe that the Agreement dated 11/04/2018 offended the provision of order 4 Rule 4 of the Civil Procedure Rules
5.
That the trial Magistrate erred in law and fact by failing to observe that there was no company resolutions sanctioning the commencement of the suit and appointing of the Advocate on record for the Respondent.
6.
That the trial Magistrate erred in law and fact by failing to observe that the Plaintiff had not pleaded particulars of breach as required under Order 2 Rule 4 of the Civil Procedure Rules 2010.
7.
That the trial Magistrate erred in law and fact by failing to observe that the Agreement dated 11/04/2018 offended the provisions of Section 16 and 16 A of the Banking Act on the issue of interest.
8.
That the trial Magistrate erred in law and fact by failing to observe that the trial Court was bereft of jurisdiction.
9.
That the trial Magistrate erred in law and fact by failing to observe that the Agreement dated 11/04/2018 offended the provision of Section 3 of the Contract Act.
10.
That the trial Magistrate erred in law and fact by failing to consider that the suit was bad in law and incurable defective.
11.
That the trial Magistrate erred in law and fact by failing to consider the Defendant’s Submissions.
12.
That the trial Magistrate erred in law and fact generally. | 43.
As the first appellate Court, the role of this Court is to revisit the evidence on record, evaluate it and reach its own conclusion in the matter. (See the case of Selle & Ano. vs. Associated Motor Boat Co. Ltd (1968) EA 123). This Court nevertheless appreciates that an appellate Court will not ordinarily interfere with findings of fact by the trial Court unless they were based on no evidence at all, or on a misapprehension of it or the Court is shown demonstrably to have acted on wrong principles in reaching the findings. This was the holding in Mwanasokoni – versus- Kenya Bus Service Ltd. (1982-88) 1 KAR 278 and Kiruga –versus- Kiruga & Another (1988) KLR 348). | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/4483/eng@2025-04-08 |
Arbitration Cause E005 of 2024 | Cape Suppliers Limited v Villa Care Limited (Arbitration Cause E005 & E014 of 2024 (Consolidated)) [2025] KEHC 4497 (KLR) (Commercial and Tax) (8 April 2025) (Ruling) | Ruling | High Court at Nairobi (Milimani Commercial Courts) | High Court | BM Musyoki | 8 April 2025 | 2,025 | Nairobi | Commercal and Tax | Cape Suppliers Limited v Villa Care Limited | [2025] KEHC 4497 (KLR) | null |
1.
On 19-03-2024, Honourable Justice P.M. Mulwa made an order consolidating the two causes herein. When the parties’ advocates appeared before me on 25-11-2024, they told me that they had filed their submissions which covered both matters. However, after going through the submissions, I discovered that the applicant in arbitration cause number E005 of 2024 says nothing about arbitration cause number 014 of 2024. its submissions filed in arbitration cause number E014 of 2024 are of a totally different matter relating to taxation. Nevertheless, this ruling will cover both applications.
Application dated 18th January 2024 in Miscellaneous E005 of 2024
2.
The application prays for the following orders;
1.
Spent.
2.
There be a stay of adoption and recognition of the arbitral award dated 10th February 2023 but published and released by the sole arbitrator- Mr. Kevin Tom Mogeni on 20th December 2023, pending the hearing and determination of this application.
3.
The arbitral award dated 10th February 2023 but released by the sole arbitrator Mr. Kevin Tom Mogeni and received by the parties on 20th December 2023 be set aside.
4.
The costs of this application be borne by the respondent. | null | Allowed | https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/4497/eng@2025-04-08 |
Civil Appeal E001 of 2022 | Chepkemboi v Nangila & another (Suing as the Legal Representatives and Administrators of the Estate of Meshack Wafula Simiyu (DCD)) (Civil Appeal E001 of 2022) [2025] KEHC 4479 (KLR) (8 April 2025) (Judgment) | Judgement | High Court at Kitale | High Court | RK Limo | 8 April 2025 | 2,025 | Trans-Nzoia | Civil | Kathleen Chepkemboi v Metrine Nangila & Joyce Mudeizi | [2025] KEHC 4479 (KLR) | null |
1.
This is an appeal against the judgment of Hon. M.I.G Moranga Senior Principal Magistrate delivered on 29/9/2021 vide Kitale CMCC No.95 of 2019.
2.
In that case the respondents suing as legal representatives and administratrixes of the estate of Meshack Wafula Simiyu (dcd) had brought an action against the appellant blaming her/her agent or driver for causing an accident on 21/5/2018 while driving motor vehicle Reg No.KBH 781W within Kitale town. The appellant’s driver was blamed by the respondents for knocking down the deceased who was riding a motor cycle Reg No. KMEH 054Q as a result of which he sustained fatal injuries from which he later succumbed while undergoing treatment.
3.
A brief overview of the case before the subordinate court shows that the respondents’ case with respect to liability mainly hinged on the evidence of a traffic police officer named PC Philip Metios (PW2). This is because there was no eye witness availed by the respondents to testify.
4.
The traffic officer (PW2) told the trial court that he was not the investigating officer but had the details of how the accident occurred from the police file. He stated that the appellant’s driver left his lane and drove onto the right side and collided with a motor bike ridden by the deceased. He stated that the driver was charged with careless driving and the traffic case was ongoing.
5.
On quantum, the evidence tendered was that the deceased was aged 27 years and was a boda boda rider earning a salary of 3000/- per month. There was no documentary evidence to prove the same however the respondent stated the deceased supported his wife, two children and a younger sister from the income he earned.
6.
The appellant called the driver of the suit motor vehicle at the time namely Edward Masai (DW1). He conceded that the accident occurred but disputed the date insisting that it occurred on 28/5/2018 and not 21/5/2018. According to him the accident happened between 5am and 6am and that he was driving the suit motor vehicle within Kitale Town when he spotted 2 bodaboda riders who were on the right side and that they spotted a passenger and both rushed for the passenger. He stated that one made a U-turn suddenly and because he was too close he tried swerving but unfortunately he hit him. He denied being drunk or over speeding. He however, admitted that he was charged with a traffic offence because of the accident. He blamed the rider (dcd) for causing the accident by making a sudden U-turn. He stated that he took the deceased to Kitale Referral Hospital and later assisted him to be transferred to Moi Teaching and Referral Hospital Eldoret where he unfortunately died 2 days thereafter.
7.
The trial court evaluated the evidence tendered and found that the respondents had proved their case against the appellant and found the appellant 100% liable for the accident. On quantum the trial court found that because there was no documentary evidence to prove the income of the deceased he resorted to the minimum wage guidelines which stipulated that the minimum wage for the category of persons working where the deceased worked was Kshs. 7,241 . It adopted the ratio of 2/3 and multiplier of 30 years given that the deceased was aged 27 years old at the time. The trial court in summary made the following awards under different heads;
i.
Pain and suffering - 100,000/-
ii.
Loss of expectation of life - 100,000/-
iii.
Loss of dependency -1,737,840/-
iv.
Special damages - 40,870/-
v.
Funeral expenses - 70,000/-
Total 2,071,330/- | null | Allowed in part | https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/4479/eng@2025-04-08 |
Customs Tax Appeal E026 of 2024 | Commissioner Customs and Border Control v Ripple Mart Limited (Customs Tax Appeal E026 of 2024) [2025] KEHC 4477 (KLR) (Commercial and Tax) (8 April 2025) (Judgment) | Judgement | High Court at Nairobi (Milimani Commercial Courts) | High Court | BM Musyoki | 8 April 2025 | 2,025 | Nairobi | Commercal and Tax | Commissioner Customs and Border Control v Ripple Mart Limited | [2025] KEHC 4477 (KLR) | null |
1.
A desk review of imports by the respondent for the period between 2nd August 2018 and 8th February 2022 was said to have revealed a short of levy taxes due from the respondent as a result of application of a wrong duty rate. Following the desk review, the appellant on 1-02-2022 and 7-02-2022 sent letters to the respondent demanding the said levies. The respondent applied for review of the decision and before the appellant could make a decision on the objection, the respondent rushed to the Tax Appeals Tribunal to challenge that decision vide appeal number 193 of 2022. In that appeal, the tribunal noted that the appeal was filled before the appellant’s decision on the application for review was made and could therefore not have been in respect of that review as a taxpayer can only appeal after determination of application for review. The tribunal therefore noted that there was no appealable decision and struck out the appeal.
2.
As the above appeal was pending, the respondent made its decision on application for review on 15th March 2022. On 5th June 2023, the appellant issued a demand for payment of Kshs 16,749,855.00 stating that the judgement in the TAT appeal number 193 of 2022 had been delivered in its favour. By a letter dated 8th June 2023, the respondent through its advocates filed an objection to that demand. In reply to the objection, the appellant wrote a letter dated 7th July 2023 in which it communicated that the Commissioner had already issued its review decision on the issue vide its letter dated 15th March 2022 and sought to clarify that the application for review was unsuccessful and attached a copy of the decision. It is against the letter that the appeal before the tribunal in the matter now before this court was premised.
3.
The tribunal rendered its judgement on 24-05-2024 where it allowed the appeal and held that the application for review by the respondent had been deemed allowed by operation of the law pursuant to Section 229(5) of East African Community Customs Management Act (hereinafter referred to as ÉACCMA). It is this decision which sparked this appeal whose grounds are as follows;
1.
That the Honourable Tribunal erred in law by failing to objectively consider the appellant’s pleadings and submissions that there is no appealable decision for its jurisdiction.
2.
That the Honourable Tribunal erred in law and in fact in its findings that the appellant’s application for review had been allowed by operation of the law.
3.
That the Honourable Tribunal erred in its finding that the appellant did not communicate the review decision in accordance with the provisions of Section 229(4) of EACCMA.
4.
That the Honourable Tribunal erred in law and fact in its finding that the review decision dated 15th March 2022 was transmitted on 7th July 2023.
5.
That the Honourable Tribunal erred in fact and law by shifting the primary burden of proof to the Commissioner to demonstrate that the review decision dated 15th March 2022 was transmitted to the respondent on time when there is no denial of the postal address. | null | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/4477/eng@2025-04-08 |
Income Tax Appeal E196 of 2023 | Commissioner of Domestic Taxes v Imperial Industry Park Company Limited (Income Tax Appeal E196 of 2023) [2025] KEHC 4475 (KLR) (Commercial and Tax) (8 April 2025) (Judgment) | Judgement | High Court at Nairobi (Milimani Commercial Courts) | High Court | BM Musyoki | 8 April 2025 | 2,025 | Nairobi | Commercal and Tax | Commissioner of Domestic Taxes v Imperial Industry Park Company Limited | [2025] KEHC 4475 (KLR) | null |
1.
The appellant conducted investigations on the respondent’s tax affairs for the period between January 2017 and December 2020. The appellant claimed that the respondent had failed to declare or had under-declared its income tax and VAT for the said period. Upon investigations, the appellant issued an additional assessment on 29-11-2021 to which the respondent did not object in time. On an application by the respondent, the appellant on 9-03-2022 allowed filing of late objection following which the respondent filed the objection to the assessment on 18-03-2022. The appellant did not respond to the objection until 5-08-2022 where it confirmed the income tax assessment of Kshs 42,104,924.00 and Kshs 123,653.00 for VAT.
2.
The respondent lodged an appeal before the tribunal challenging the appellant’s decision dated 5-08-2022. In its judgment, the tribunal held that the letter dated 5-08-2022 which it referred to as invalidation notice was issued out of time and therefore invalid by virtue of section 51(4) of the Tax Procedures Act and consequently the issue of correctness of the assessment had been overtaken by events as the objection was considered to have been allowed by the operations of the law. The appellant was aggrieved with this decision and has approached this court on the following grounds of appeal;
1.
The tribunal erred in law and fact by failing to consider the merits of the appeal and focused on technicalities of timelines for issuing an objection decision.
2.
The tribunal erred in law and fact by setting aside the respondent’s (sic) decision dated 5th August 2022 where it confirmed the assessment on income tax and VAT for Kshs 42,104,924.00 and Kshs 123,653.00 respectfully, which taxes are due and payable.
3.
The tribunal erred in failing to determine whether the respondent’s additional assessment was justified and payable and in holding that the same was overtaken by events. | null | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/4475/eng@2025-04-08 |
Income Tax Appeal E041 of 2022 | Commissioner of Domestic Taxes v Odanga (Income Tax Appeal E041 of 2022) [2025] KEHC 4413 (KLR) (Commercial and Tax) (8 April 2025) (Judgment) | Judgement | High Court at Nairobi (Milimani Commercial Courts) | High Court | BM Musyoki | 8 April 2025 | 2,025 | Nairobi | Commercal and Tax | Commissioner of Domestic Taxes v Odanga | [2025] KEHC 4413 (KLR) | null |
1.
The appellant was dissatisfied with the decision of the Tax Appeals Tribunal dated 4th March 2022 in its appeal number 332 of 2018 which decision dismissed the appellant’s application dated 12th October 2021 which sought to review judgement of the tribunal dated 10th September 2021. The appellant had sought to review the said judgement on the ground that there was a mistake apparent on the face of the record. In the memorandum of appeal dated the 26th of April 2022 the appellant contends that;
a.
The tribunal erred in law and fact by failing to consider the appellant’s submissions on income tax with regard to its application for review.
b.
The tribunal erred in law and fact by failing to consider the appellant’s statement of facts and the supporting documents thereto which were all on income tax.
c.
The tribunal erred in law and fact by failing to note that the taxes in dispute related to income tax although the appellant had erroneously stated in some paragraphs that the tax in issue was VAT.
d.
The tribunal erred in law and fact by failing to consider the arguments of the appellant made in both the statement of facts and submissions and thereby reaching at an erroneous judgment.
e.
The tribunal erred in both fact and law by failing to consider the relevant material evidence placed before it and thus arriving at a wrong conclusion.
f.
The tribunal erred when it framed wrong issues for determination thus asked itself the wrong questions and in so doing arrived at a wrong conclusion. | null | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/4413/eng@2025-04-08 |
Income Tax Appeal E112 of 2024 | Commissioner of Investigations & Enforcement v Doshi Enterprises Limited (Income Tax Appeal E112 of 2024) [2025] KEHC 4501 (KLR) (Commercial and Tax) (8 April 2025) (Judgment) | Judgement | High Court at Nairobi (Milimani Commercial Courts) | null | BM Musyoki | 8 April 2025 | 2,025 | Nairobi | Commercal and Tax | Commissioner of Investigations & Enforcement v Doshi Enterprises Limited | [2025] KEHC 4501 (KLR) | null | 1.
The appellant commenced investigations on the respondent’s declared income for period between April 2015 and March 2020 upon which it issued the respondent with a notice of assessment demanding corporation tax of Kshs 59,120,592.00 and Value Added Tax of Kshs 28,600,371.00. The appellant objected to the assessment through a letter dated 26-07-2023 following which the appellant made an objection decision dated 23-09-2023 in which it confirmed corporate tax and VAT totaling to Kshs 87,720,963.00. The respondent reacted by filing appeal before the tax appeals tribunal and in its judgment dated 22-03-2024, the tribunal allowed the appeal and set aside the appellant’s objection decision.
2.
The above judgment sparked this appeal in which the appellant has raised the following grounds;
1.
The Honourable Tribunal erred in law in finding that the respondent discharged its burden of proof in accordance with section 56(1) o the Tax Procedures Act in total disregard of the appellant’s submissions which rebutted the respondent’s assertions.
2.
The Honourable Tribunal erred in law in finding that the respondent discharged its burden of proof in accordance withs Section 56(1) of the Tax Procedures Act yet the respondent only provided ledgers as opposed to bank statements which was the basis of the assessment.
3.
The Honourable Tribunal erred in law in finding that the respondent had discharged its burden of proof in accordance with Section 56(1) of the Tax Procedures Act with regard to alleged loans received from Manav foundation yet no single documentation was provided in support of the alleged loan.
4.
The Honourable Tribunal erred in law in finding that the respondent had discharged its burden of proof in accordance with Section 56(1) of the Tax Procedures Act in total disregard of the fact that the respondent did not produce any evidence in support of assertion that exchange losses were incurred wholly and exclusively in the production of income.
5.
The Honorable Tribunal erred in law in finding that the respondent had discharged its burden of proof in accordance with Section 56(1) of the Tax Procedures Act yet the respondent did not provide any evidence to demonstrate that some of the funds received were from the sale of dollars to its related entity Doshi Hardware.
6.
The Honourable Tribunal erred in law in failing to find that the burden of proof was on the respondent to explain all the income in their bank statement.
7.
The Honourable Tribunal erred in law in failing to consider the evidence and appellant’s submissions placed before it and violated the appellant’s right to fair hearing granted under Article 50(1) and 50(2) of the Constitution of Kenya.
8.
The Honourable Tribunal erred by finding that the appellant did not request for further documents from the appellant after receipt of the notice of objection contrary to section 56(1) of the TPA which places the burden of proof on the respondent.
9.
The Honourable Tribunal erred in law and fact in failing to exercise its powers to refer the matter back to the appellant for consideration in the event the respondent provided documents before the tribunal which had not been availed to the appellant contrary to section 29(2)(3)(c)(ii) of the Tax Procedures Act.
10.
The Honourable Tribunal erred in law and fact in misapplying section 51(11) to mean it has the same connotation with section 51(4) of the Tax Procedures Act. | null | Allowed | https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/4501/eng@2025-04-08 |
Income Tax Appeal E031 of 2023 | Dutch Flower Group Kenya v Commissioner of Domestic Taxes (Income Tax Appeal E031 of 2023) [2025] KEHC 4498 (KLR) (Commercial and Tax) (8 April 2025) (Ruling) | Ruling | High Court at Nairobi (Milimani Commercial Courts) | High Court | BM Musyoki | 8 April 2025 | 2,025 | Nairobi | Commercal and Tax | Dutch Flower Group Kenya v The Commissioner of Domestic Taxes | [2025] KEHC 4498 (KLR) | null |
1.
This matter was set for a judgment but I will instead deliver a ruling for reason stated hereafter.
2.
The appellant filed this appeal challenging judgement of the tax appeals tribunal dated 10-02-2023. The appeal before the tribunal sought to set aside objection decision of the respondent dated 17th May 2022 in which the respondent upheld its decision to reject refund for VAT input claim made by the appellant in respect of services offered to Flower Retail Europe BV (hereinafter referred to as FRE) and Flower Connect Holdings BV (hereinafter referred to as ‘FCH’) between the period of October 2019 and January 2020.
3.
The borne of contention before the tribunal was the nature of the relationship between the appellant and FRE and FCH. Whereas the appellant maintained that it was a service provider to the two companies, the respondent took position that the relationship was that of principal and agent with the appellant being the agent and the two companies principals. That difference in the definition of the relationship is the whole cause of dispute. In its judgement the tribunal in the part I consider relevant to this ruling stated as follows;
‘The tribunal has also taken note that the same issues were adjudicated on between the same parties in the High Court Income Tax Appeal No. E101 of 2020 Commissioner of Domestic Taxes -vs- Dutch Flowers Group Kenya Ltd arising out of an appeal from TAT No 9 of 2018- Dutch Flowers Group Kenya Ltd -vs- Commissioner of Domestic Taxes……..’ | null | Struck Out | https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/4498/eng@2025-04-08 |
Miscellaneous Application E175 of 2024 | Gaceru v CM Advocates LLP (Miscellaneous Application E175 of 2024) [2025] KEHC 4488 (KLR) (Family) (8 April 2025) (Ruling) | Ruling | High Court at Nairobi (Milimani Law Courts) | High Court | H Namisi | 8 April 2025 | 2,025 | Nairobi | Family | Njeri Gaceru v CM Advocates LLP | [2025] KEHC 4488 (KLR) | null | 1.
Before the Court is Chamber Summons dated 20 August 2024 seeking the following orders:
i.
(spent)
ii.
That the Respondent/Applicant be granted leave to file an Objection to the taxation and/or reference out of time to this Honourable Court against the Ruling of the Honourable Court’s taxing Officer delivered on the 23 August 2023 by Hon. Lesootia Saitabau, Deputy Registrar;
iii.
That upon the grant of prayer 2 above, the Honourable Court be pleased to order that the Honourable Taxing Officer decision on taxation delivered on the 23 August 2023 and all other subsequent processes be set aside and the Bill of Costs dated 19 January 2023 be taxed by the Court and/or remitted for taxation by another taxing officer other than Hon. Lesootia Saitabau, Deputy Registrar;
iv.
That the grant of prayers 2 and 3 above do operate as a stay of execution of the ruling of the Taxing Officer above;
v.
That this Honorable Court be pleased to grant stay of execution of the judgement and decree entered against the Defendant/Respondent and/or any further proceedings in High Court Miscellaneous Application No. E015 of 2023 or any subsequent orders therefrom pending the hearing and determination of this Application;
vi.
That costs of this Application be provided for;
2.
The Application is supported by the Affidavit sworn by the Applicant and premised on the grounds of the face of it. | null | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/4488/eng@2025-04-08 |
Commercial Appeal E722 of 2023 | Gathuka Ngugi Advocates v Backlite Limited (Commercial Appeal E722 of 2023) [2025] KEHC 4474 (KLR) (Commercial and Tax) (8 April 2025) (Ruling) | Ruling | High Court at Nairobi (Milimani Commercial Courts) | High Court | BM Musyoki | 8 April 2025 | 2,025 | Nairobi | Commercal and Tax | Gathuka Ngugi Advocates v Backlite Limited | [2025] KEHC 4474 (KLR) | null |
1.
For purposes of record and clarity, I have noted that this matter has since inception been prosecuted alongside this court’s miscellaneous application number E738 of 2023. The orders given in this ruling shall therefore apply in the said application with the necessary modifications.
2.
This matter was an advocates/client bill of costs filed by the applicant, an advocate who represented the respondent in milimani chief magistrate’s court commercial case number E275 of 2021. The respondent raised a preliminary objection to the taxation on grounds that there was a retainer agreement between the parties and as such, the court had no jurisdiction to tax the bill of costs pursuant to Section 45 of the Advocates Act. By a ruling delivered on 25th June 2024, the taxing officer Honourable Noelle Kyanya held that there was admission of the retainer agreement in the applicant’s submissions dated 20-03-2024 and in that case, she had not jurisdiction to tax the bill of costs and she proceeded to dismiss the bill of costs.
3.
Following the aforesaid ruling, the applicant filed chamber summons dated 1st August 2024 to which this ruling relates. In the chamber summons the applicant prays for the following orders;
1.
The Honourable Court be pleased to enlarge the time within which the applicant can institute the proceedings herein.
2.
The ruling of the taxing master delivered on 25th June 2023 in so far as the same relates to the reasoning and determination pertaining to the applicant/advocates bill of costs dated 16th August 2023 be set aside.
3.
The Honourable Court be pleased to re-tax the advocate’s bill of costs dated 16th August 2023.
4.
In the alternative and without prejudice to the foregoing, this Honourable Court be pleased to refer the matter back for re-taxation of the advocates bill of costs dated 16th August 2023 with proper and appropriate directions thereon.
5.
The costs of the application be awarded to the applicant. | null | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/4474/eng@2025-04-08 |
Commercial Appeal E738 of 2023 | Gathuka Ngugi Advocates v Backlite Limited (Commercial Appeal E738 of 2023) [2025] KEHC 4415 (KLR) (Commercial and Tax) (8 April 2025) (Ruling) | Ruling | High Court at Nairobi (Milimani Commercial Courts) | High Court | BM Musyoki | 8 April 2025 | 2,025 | Nairobi | Commercal and Tax | Gathuka Ngugi Advocates v Backlite Limited | [2025] KEHC 4415 (KLR) | null |
1.
For purposes of record and clarity, I have noted that this matter has since inception been prosecuted alongside this court’s miscellaneous application number E722 of 2023. The orders given in this ruling shall therefore apply in the said application with the necessary modifications.
2.
This matter was an advocates/client bill of costs filed by the applicant, an advocate who represented the respondent in milimani chief magistrate’s court commercial case number E5044 of 2020. The respondent raised a preliminary objection to the taxation on grounds that there was a retainer agreement between the parties and as such the court had no jurisdiction to tax the bill of costs pursuant to Section 45 of the Advocates Act. By a ruling delivered on 25th June 2024, the taxing officer Honourable Noelle Kyanya held that there was admission of the retainer agreement in the applicant’s submissions dated 20-03-2024 and in that case she had not jurisdiction to tax the bill of costs and she proceeded to dismiss the bill of costs.
3.
Following the aforesaid ruling, the applicant filed chamber summons dated 1st August 2024 to which this ruling relates. In the chamber summons the applicant prays for the following orders;
1.
The Honourable Court be pleased to enlarge the time within which the applicant can institute the proceedings herein.
2.
The ruling of the taxing master delivered on 25th June 2023 in so far as the same relates to the reasoning and determination pertaining to the applicant/advocates bill of costs dated 16th August 2023 be set aside.
3.
The Honourable Court be pleased to re-tax the advocate’s bill of costs dated 16th August 2023.
4.
In the alternative and without prejudice to the foregoing, this Honourable Court be pleased to refer the matter back for re-taxation of the advocates bill of costs dated 16th August 2023 with proper and appropriate direction thereon.
5.
The costs of the application be awarded to the applicant. | null | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/4415/eng@2025-04-08 |
Constitutional Petition E016 of 2024 | Githii v County Government of Nyeri; Mwangi & another (Interested Parties) (Constitutional Petition E016 of 2024) [2025] KEHC 4416 (KLR) (8 April 2025) (Judgment) | Judgement | High Court at Nyeri | High Court | DKN Magare | 8 April 2025 | 2,025 | Nyeri | Constitutional and Human Rights | Peter Kariuki Githii v County Government of Nyeri; Peter Ndegwa Mwangi & Jonah Waweru Kamau | [2025] KEHC 4416 (KLR) | null | 1.
Many years ago, it was understood that once a decision is rendered in rem, it applies to all and sundry. This may have changed over time while I was away. The viscous alcohol wars have raged with the filing of various matters attacking the Nyeri County Alcoholic Drinks and Control Bill and subsequent Acts. This Petition dated 22.10.2024 was filed in Kerugoya High Court before it was rerouted to this court.
2.
The Petitioners sought the following reliefs:
i.
The Respondent be put to strict proof as regards the alleged publication of the Nyeri County Alcoholic Drinks and Control Bill, 2023 on 12.10.2023, in the Kenya Gazette.
ii.
The Nyeri County Alcoholic Drinks and Control Bill, 2023 be declared unconstitutional, null and void.
iii.
Costs
3.
The petition is premised on the grounds in the petition and the verifying affidavit sworn by Peter Kariuki Githii on 22.10.2024 as follows:
i.
The Bill violates Article 199(1) of the Constitution for failure of gazettement in the Kenya Gazette.
ii.
The purported Gazettement of the Bill on 12.10.2023 is inaccessible to the Public.
iii.
The Bill is discriminatory within the meaning of Article 27 and Article 10 of the Constitution.
iv.
The public notice dated 2.10.2023 was done without locus standi.
v.
The Respondents failed to satisfy Section 85 of the Evidence Act. | Analysis
7.
The issue for determination is whether the Nyeri County Alcoholic Drink Control Bill 2023 is unconstitutional, null and void for want of public participation. The petitioner sought an order declaring the Nyeri County Alcoholic Drinks and Control Bill, 2023, unconstitutional and null and void for violating, inter alia, Article 199(1) of the Constitution. The said article provides as follows:
(1)
County legislation does not take effect unless published in the Gazette.
8.
For a question to be raised, it must be justiciable and not moot. Annexed to the petition was a copy of the Nyeri County Alcoholic Drink Control Bill 2023, which had been duly published in the Gazette.
9.
Whereas bills must be published, Article 199(1) did not deal with bills. It deals with county legislation. The legislation arising from the bill was the Nyeri County Alcoholic Drinks Control Act, 2024. The same has not been attacked in this matter. This court dealt with the Act's constitutionality from inception to execution. The courts have also dealt with regulations arising therefrom in Wanjeru v County Secretary/Head of County Public Service County Government of Nyeri; Mwangi & another (Interested Parties) [2024] KEHC 15988 (KLR). The constitutionality of the said Act was dealt with in the case of Nyeri County Bar Owners Association v County Government of Nyeri [2024] KEHC 12140 (KLR). In that, the court held as follows:
In this case, it is not the case of the Petitioner that they were not afforded reasonable opportunity to present their views. The Petitioner only maintained that its views were not considered and as such the entire exercise of public participation was also discriminatory. It is also not the case of the Petitioner that it was not allowed reasonable time within which to air out all its views. They participated and gave their views. I have seen amendments proposed and carried based on public participation. There were also others proposed but not carried. This is evidence of good faith. It must be understood that pubic participation is not equivalent to veto. The legislative prerogatives must be given accord unless it is clear that the legislature is rogue or the proposals derogate from all public views given. In Doctors for Life International vs. Speaker of the National Assembly and Others (CCT 12/05) 2006 ZACC), the court stated as follows: “It is true, as discussed previously, that time may be a relevant consideration in determining the reasonableness of a legislature’s failure to provide meaningful opportunities for public involvement in a given case. There may well be circumstances of emergency that require urgent legislative responses and short timetables. However, the Respondents have not demonstrated that such circumstances were present in this case. When it comes to establishing legislative timetables, the temptation to cut down on public involvement must be resisted. Problems encountered in speeding up a sluggish timetable do not ordinarily constitute a basis for inferring that inroads into the appropriate degree of public involvement are reasonable. The timetable must be subordinated to the rights guaranteed in the Constitution, and not the rights to the timetable.
35.
I dare add that, anyone with something useful, will say it notwithstanding the amount of reasonable time given. Someone without anything to say, will not say, even where a whole decade is given.
36.
Therefore, in my view, the Petitioner has failed to demonstrate the manner in which the impugned public participation in respect of the Act was contrary to the letter and spirit of the Constitution as to declare the Act unconstitutional, null and void. In Nairobi Metropolitan PSV Saccos Union Limited & 25 Others vs. County of Nairobi Government & 3 Others [2013] eKLR, Lenaola J (as he then was) observed that: “The petitioners have attacked the impugned legislation on grounds that it failed to comply with the process of public participation as required by the Constitution. Where legislation fails to comply with the Constitution, courts have powers to make necessary orders in that regard as was held in the Constitutional Court of South Africa in the case of Doctor's for Life International v The Speaker National Assembly and Others (supra) where it was stated as follows;“It is trite that legislation must conform to the Constitution in terms of both content and the manner in which it is adopted. Failure to comply with the manner and form requirements in enacting legislation renders the legislation invalid. And courts have the powers to declare such legislation invalid
37.
Based on the findings, I do not see the manner in which the Respondent’s public participation exercise was a sham.
10.
The petitioner argued that the purported Gazettement of the said Bill on 12.10.2024 was inaccessible to the public. Therefore, the Petitioner did not argue that there was no publication. The petitioner argued that the Gazettement was inadequate because it was inaccessible. No evidence was placed before the court regarding the bill's inaccessibility. This changed the gamut of the petition. The initial issues were with the publication. Now, the adequacy of publication goes to the root of constitutionality. This is because, in another matter, challenging the Act, in rem, the issue of public participation was dealt with comprehensively.
11.
The court’s duty is not to look at the adequacy of the publication but whether the bill was published. With respect to the essence of pleadings, the Supreme Court of Kenya, in its ruling on inter alia scrutiny in the case of Raila Amolo Odinga & Another vs. IEBC & 2 others (2017) eKLR found and held as follows in an election petition: -
“
In absence of pleadings, evidence if any, produced by the parties, cannot be considered. It is also a settled legal proposition that no party should be permitted to travel beyond its pleadings and parties are bound to take all necessary and material facts in support of the case set up by them. Pleadings ensure that each side is fully alive to the questions that are likely to be raised and they may have an opportunity of placing the relevant evidence before the court for its consideration. The issues arise only when a material proposition of fact or law is affirmed by one party and denied by the other party. Therefore, it is neither desirable nor permissible for a court to frame an issue not arising on the pleadings…...’”
12.
A party claiming a violation of the Constitution has the duty to lay before the court precise circumstances based on which the court can infer that the Constitution is threatened or violated. The apex court discussed the predeterminants of a proper Constitutional Petition in the decision made in Communications Commission of Kenya & 5 Others v Royal Media Services Limited & 5 Others [2014] eKLR, where the court stated as follows:
Although Article 22(1) of the Constitution gives every person the right to initiate proceedings claiming that a fundamental right or freedom has been denied, violated or infringed, or threatened, a party invoking this article has to show the rights said to be infringed, as well as the basis of his or her grievance. This principle emerges clearly from the High Court decision in Anarita Karimi Njeru v Republic, (1979) KLR 154: the necessity of a link between the aggrieved party, the provisions of the Constitution alleged to have been contravened, and the manifestation of contravention or infringement. Such principle plays a positive role, as a foundation of conviction and good faith, in engaging the constitutional process of dispute settlement.
13.
A deviation from the Constitution must not be illusionary. It must be tangible and discernible from a party’s pleadings. In Nasra Ibrahim Ibren v Independent Electoral and Boundaries Commission & 2 others [2018] eKLR the Supreme Court emphasized the need for precision as follows: -
(48)
… where a party in an election petition invokes this court’s jurisdiction under article 163(4)(a) of the Constitution, it is not enough for one to generally allege that the Court of Appeal erred in its decision(s) and that its reasoning and conclusions took a constitutional trajectory. The constitutional trajectory stated by this honourable court is not illusionary. It is tangible and should be discernable from a party’s pleadings. A party is under a constitutional forensic duty to clearly set out the particulars of the constitutional transgressions that in his/her opinion the Court of Appeal committed in their interpretation and/or application. Those grounds must be pleaded with precision and the constitutional principle and/or provision alleged to have been violated clearly set out.
14.
The axis of this court’s power to determine the constitutional validity of any legislation is Article 165(3) of the Constitution. The Article provides that:
3)
Subject to clause (5), the High Court shall have-
(b)
jurisdiction to determine the question whether a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed or threatened;
(c)
…
(d)
jurisdiction to hear any question respecting the interpretation of this Constitution, including the determination of-
(i)
the question whether any law is inconsistent with or in contravention of this constitution.
15.
The Petitioner should have laid down and particularized precisely how the Bill infringed on the Articles of the Constitution or as a whole. The preciseness of pleadings was set out in Anarita Karimi Njeru v Republic [1979] KLR, where the court observed as follows:
If a person is seeking redress from the High Court on a matter which involves a reference to the Constitution, it is important (if only to ensure that justice is done to his case) that he should set out with a reasonable degree of precision that of which he complains, the provisions said to be infringed, and the manner in which they are alleged to be infringed…
16.
The allegations by the Petitioner herein relate to the failure of due process in publishing legislation. Due process, substantive justice, and the exercise of jurisdiction are a function of precise legal and factual claims. This due process was not demonstrated whatsoever. In Kenya Medical Practitioners, Pharmacists and Dentists’ Union v University of Nairobi & another [2021] eKLR, the court discussed the need for precision in approval to the precedent in Anarita Karimi decision and observed as follows: -
The foregoing finding (Anarita Karimi Njeru) received endorsement from the Court of Appeal in Nairobi Civil Appeal No 290 of 2012, Mumo Matemu v Trusted Society of Human Rights Alliance[2013] eKLR when the Learned Judges remarked on the importance of compliance with procedure under article 159 of the Constitution, the overriding objective principle under section 1A and 1B of the Civil Procedure Act and need for precision in framing issues in constitutional petitions. It was observed thus:
(41)
We cannot but emphasize the importance of precise claims in due process, substantive justice, and the exercise of jurisdiction by a court. In essence, due process, substantive justice and the exercise of jurisdiction are a function of precise legal and factual claims. However, we also note that precision is not coterminous with exactitude. Restated, although precision must remain a requirement as it is important, it demands neither formulaic prescription of the factual claims nor formalistic utterance of the constitutional provisions alleged to have been violated. We speak particularly knowing that the whole function of pleadings, hearings, submissions and the judicial decision is to define issues in litigation and adjudication, and to demand exactitude ex ante is to miss the point.
17.
The Petition did not satisfy the precision required of constitutional petitions. The Petitioner failed to precisely plead how the alleged Bill violated Article 199(1) of the Constitution. It was contradictory for the Petitioner to assert that the Bill was purported to be published when it was not without stipulating the parameters for such publication to be proper publication. It was also not pleaded how the Bill contravened Articles 27 and 10 of the Constitution on discrimination.
18.
It was left to the court to discern the infringements alleged. The court cannot act on conjecture, speculation, or hyperbole. What the Petitioner has done is to petition the court and ask for relief unknown in law. What does the following prayer mean?
“
The Respondent be put to strict proof as regards the alleged publication of the Nyeri County Alcoholic Drinks and Control Bill, 2023 on 12.10.2023, in the Kenya Gazette.”
19.
If I allow this prayer, what is the petitioner seeking? The need for a precise and comprehensive petition is paramount, as addressed by the Court of Appeal in Migori County Government & another v Migori County Transport Sacco (Civil Appeal 110 of 2017) [2021] KECA 7 (KLR) (23 September 2021) (Judgment):
A constitutional petition ought to set out with a degree of precision the petitioner’s complaint, the provisions infringed and the manner in which they were alleged to be infringed. A constitutional petition ought to be drafted with some reasonable degree of precision, identifying the constitutional provisions that were alleged to have been violated or threatened to be violated and the manner of the violation and/or threatened violation. It was not enough to merely cite constitutional provisions. There had to be some particulars of the alleged infringements to enable the Respondents to respond to and/or answer the allegations or complaints. The Respondent's petition stated the particular provisions of the Constitution violated and the manner of violations attributed to the appellants.
20.
Consequently, the first limb of the prayers sought is otiose and accordingly fails. It has neither the legs to stand on nor life to be resuscitated. The second prayer has been dealt with comprehensively regarding the subject matter herein. Due to the separation of powers, the court was mandated to intervene in legislative powers but with reasonable constraints based on constitutional and legality parameters, which the Petitioner failed to demonstrate. On the question of separation of powers and privilege, the Court of Appeal, in Mumo Matemu v Trusted Society of Human Rights Alliance[2013] eKLR considered the scope of application of the separation of powers doctrine, and adopted the High Court’s standpoint in the following terms:
“
[Separation of powers] must mean that the Courts must show deference to the independence of the legislature as an important institution in the maintenance of our constitutional democracy, as well as accord the executive sufficient latitude to implement legislative intent. Yet, as the Respondents also concede Courts have an interpretive role – including the last word in determining the constitutionality of all governmental actions….”
“
[I]n a jurisdiction such as ours in which the Constitution is supreme, the Court has jurisdiction to intervene where there has been a failure to abide by [the] Standing Orders which have been given constitutional underpinning under the said Article. However, the Court must exercise restraint and only intervene in appropriate instances, bearing in mind the specific circumstances of each case.”
21.
The second limb is subject of the doctrine of res judicata. In public matters, a decision in rem in one matter binds all and sundry. It is not a must that everyone must also file a similar petition. The question of constitutionality of the Nyeri County Alcoholic Drinks Control Act 2024 was put to bed in Nyeri Petition Number 3 of 2024. Can it be revisited or is it res judicata? The doctrine implies that for a matter to be res judicata, the matters in issue must be similar to those which were previously in dispute between the same parties and the same having been determined on merits by a court of competent jurisdiction. The court in the English case of Henderson v Henderson (1843-60) All E.R 378, observed thus:
“
…where a given matter becomes the subject of litigation in, and of adjudication by a court of competent jurisdiction, the court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of a matter which might have been brought forward as part of the subject in contest, but which was not brought forward only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special case, not only to points upon which the court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation and which the parties, exercising reasonable diligence, might have brought forward at the time.”
22.
Res judicata applies to applications just like suits. In the case of Julia Muthoni Githinji v African Banking Corporation Limited [2020] eKLR the court stated thus:
14.
After a careful reappraisal of the application for injunction before the lower court, I have come to the conclusion that the application was resjudicata and the entire suit was subjudice as there was an active pending suit before a court of competent jurisdiction being Nakuru ELC No. 272 of 2017. All issues raised in the suit before the subordinate court could be properly litigated in the suit pending before the ELC. The filing of the suit by the appellant in the subordinate court when she had a similar suit in the ELC Court was an abuse of the Court process which the Court cannot countenance.
23.
The doctrine of res judicata arises from Section 7 of the Civil Procedure Act Cap 21 Laws of Kenya which defines the doctrine of Res Judicata in the following terms: -
“
No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court.”
24.
The Civil Procedure Act also provides explanations with respect to the application of the res judicata rule. Explanations 4 and 6 provide as follows:
No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court. Explanation. –
(4)
Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit.
(6)
Where persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating.
25.
What constitutes res judicata was addressed in depth in the case of Re Estate of Riungu Nkuuri (Deceased) [2021] eKLR where the court stated as follows:
The test for determining the Application of the doctrine of res-judicata in any given case is spelt out under Section 7 of the Civil Procedure Act. In Independent Electoral & Boundaries Commission vs Maina Kiai & 5 Others [2017] eKLR, the Supreme Court while considering the said provision held that all the elements outlined thereunder must be satisfied conjunctively for the doctrine to be invoked. That is:
“
(a)
The suit or issue was directly and substantially in issue in the former suit.
(b)
That former suit was between the same parties or parties under whom they or any of them claim.
(c)
Those parties were litigating under the same title.
(d)
The issue was heard and finally determined in the former suit.
(e)
The court that formerly heard and determined the issue was competent to try the subsequent suit or the suit in which the issue is raised.”
26.
The courts must always be vigilant to guard litigants evading the doctrine of res judicata by introducing new causes of action so as to seek the same remedy before the court. This was so held in the case of Attorney General & another ET vs (2012) eKLR where it was held that:
“
The courts must always be vigilant to guard litigants evading the doctrine of res judicata by introducing new causes of action so as to seek the same remedy before the court. The test is whether the plaintiff in the second suit is trying to bring before the court in another way and in form of a new cause of action which has been resolved by a court of competent jurisdiction. In the case of Omondi s NBK & Others (2001) EA 177 the court held that “parties cannot evade the doctrine of res judicata by merely adding other parties or causes of action in a subsequent suit”.
In that case the court quoted Kuloba J, (as he then was) in the case of Njanju vs Wambugu and another Nairobi HCC No. 2340 of 1991 (unreported) where he stated: If parties were allowed to go on litigating forever over the same issue with the same opponent before courts of competent jurisdiction merely because he gives his case some cosmetic face lift in every occasion he comes to court, then I do not see the use of doctrine of res judicata…..”.
27.
There is nothing new introduced in the claim. The questions raised, albeit in a hazy manner, relates to the constitutionality of the Nyeri County Alcoholic Drinks Control Act 2024. In this side attack, the Petitioner is attacking the publication of the bill leading to the enactment of the Nyeri County Alcoholic Drinks Control Act 2024. The questions for attack now were available in the former suit. What the petitioner has done is to convolute the former suit and present a similar one as if it is a brand new petition. No court should knowingly decide a matter that has been fully adjudicated by a competent court of law. In the case of Henderson v Henderson [1843-60] ALL ER 378 the court states as follows:
“
… where a given matter becomes the subject of litigation in and of adjudication by Court of competent jurisdiction the Court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances)| permit the same parties to open the same subject of litigation in respect of a matter which might have brought forward as part of the subject in contest but which was not brought forward only because they have from negligence, inadvertence or even accidently omitted party of their case. The plea of res judicata applies, except in special case, not only to points upon which the Court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation reasonable diligence might have brought forward at the time.”
28.
The separation of powers is what Baron De Montesquieue in his postulation, The spirit of the law chapter xi, 3, 1748, described as a check to abuse of powers. It was motivated by the understanding that whoever is given authority is prone to misuse it and extend it as far as they can. In order to avoid this kind of exploitation, it was essential that one power be a check on the other. As a result, the notion of executive, judicial and legislative branches of government was to preclude the exercise of arbitrary powers among the 3 arms and the cushion of tendencies towards anarchy.
29.
It was the duty of the Petitioner to demonstrate that the actions and omissions of the County Assembly of Nyeri were contrary to the specific provisions of the Constitution and the manner in which this happened. This is because what was in contest was a Bill and not an Act. For being a Bill, it meant the county assembly was in the process of making it a county legislation. The court would only interfere with precaution to avoid trekking the path so delicate and treacherous into the boundaries well within the legislative role of the county. The High Court, in Okiya Omtatah and 3 Others v. Attorney-General and 3 Others (2013) eKLR stated thus:
“
To agree with the National Assembly that this Court cannot interrogate its work will amount to saying that the National Assembly can fly beyond the reach of the radar of the Constitution. That is a proposition we do not agree with. Our view is that all organs created by the Constitution must live by the edict of the Constitution.”
30.
The court is thus alive that the broad profile of the Constitution commits law-making process to parliament and the county assemblies. This court can resolve disputes relating to uncertainties in the enactment and implementation of national and county legislation in case of uncertainties that relate to the mode of legislative drafting implementation within the purview of constitutional provisions. This is however in line with limitations to judicial authority such as separation of powers and justiciability concepts.
31.
In the case of Wanjiru Gikonyo & 2 others v National Assembly of Kenya & 4 others [2016] eKLR, J.L. Onguto J posited as follows regarding justiciability.
29.
The justiciability dogma and all principles under it are part of our Constitutional law and jurisprudence. The court in John Harun Mwau & 3 Others –v- AG & 2 others HCCP No. 65 of 2011 (unreported) stated as follows:
“
We also agree with the submissions of Prof. Ghai that this Court should not deal with hypothetical and academic issues. In our view, it is correct to state that the jurisdiction to interpret the Constitution conferred under Article 165(3) (d) does not exist in a vacuum and it is not exercised independently in the absence of a real dispute. It is exercised in the context of a dispute or controversy.”
30.
Later in Hon. Martin Nyaga Wambora –v- Speaker of County Assembly of Embu and 5 Others HCCP No. 3 of 2014, the court observed as follows:
“
It is clear from the above definition that whether a matter before a Court is justiciable or not depends on the facts and circumstances of each particular case but the Court must first satisfy itself that it has jurisdiction to entertain the matter before it can resolve the issue of justiciability.’
31.
In Coalition for Reform and Democracy (CORD) & 2 Others -v- Republic of Kenya & Another HCCP 628 of 2014 [2015]eKLR, the court cited the case of Patrick Ouma Onyango & 12 Others –v- AG & 2 Others Misc. Appl No. 677 of 2005 wherein the court had endorsed the doctrine of justiciability as stated by Lawrence H. Tribe in his treatise American Constitutional Law, 2nd Ed. Page 92 as follows:
“
In order for a claim to be justiciable as an article III matter, it must “present a real and substantial controversy which unequivocally calls for adjudication of the rights asserted.” In part, the extent to which there is a 'real and substantial controversy is determined under the doctrine of standing' by an examination of the sufficiency of the stake of the person making the claim, to ensure the litigant has suffered an actual injury which is fairly traceable to challenged action and likely to be redressed by the judicial relief requested. The substantiality of the controversy is also in part a feature of the controversy itself-an aspect of ‘the appropriateness of the issues for judicial decision...and the actual hardship of denying litigants the relief sought. Examination of the contours of the controversy is regarded as necessary to ensure that courts do not overstep their constitutional authority by issuing advisory opinions. The ban on advisory opinion is further articulated and reinforced by judicial consideration of two supplementary doctrines: that of 'ripeness' which requires that the factual claims underlying the litigation be concretely presented and not based on speculative future contigencies and of 'mootness' which reflects the complementary concern of ensuring that the passage of time or succession of events has not destroyed the previously live nature of the controversy. Finally, related to the nature of the controversy is the 'political question' doctrine, barring decision of certain disputes best suited to resolution by other governmental actors'.
32.
In Judicial Service Commission v. Speaker of the National Assembly and 8 Others (20130 eKLR, the court proceeded on the basis that the separation of powers doctrine obligated it to be conscious of certain limitations to judicial authority; the court remarked that some issues, by the terms of the Constitution, had been expressly committed to other arms of government. The court stated as doth:
“
the Constitution disperses powers among various constitutional organs. Where it is alleged that any of these organs has failed to act in accordance with the Constitution, then the Courts are empowered by Article 165(3)(d)(ii) to determine whether anything said to be done under the authority of the Constitution or any other law is inconsistent [with] or in contravention of the Constitution."
33.
Since what was in contest was a Bill, which is an actual legislative act in being; it was not in general permissible to this court to impugn through the process of the courts a bill before it has actually become law. A relevant observation on such issues has been made by the Nigerian Scholar, Law Professor B.O. Nwabueze’ The Presidential Constitution of Nigeria (London, Sweet & Maxwell, (1983) in these terms:
“
The review by the ordinary courts of the constitutionality or legality of legislative and executive acts, and of the propriety of administrative acts of a quasi-judicial nature is the main bulwark of constitutionalism in the Commonwealth and the United States….The court’s jurisdiction for this purpose may be invoked by an aggrieved party…, provided he can establish a locus standi entitling him to challenge the act in question. This condition means that what can be challenged is an actual legislative act in being; it is not in general permissible to impugn through the process of the courts a bill before it has actually become law.”
34.
Even if it were not for the foregoing, it is now clear that this Petition was overtaken by events upon operationalization of the Nyeri County Alcoholic Drinks Control Act, 2024. While I have clarified the issues raised herein, even if I had found fault with the manner in which the Respondent acted, I would still have declined to grant the orders sought herein. As was held in John Harun Mwau & 3 Others –vs- A.G & 2 Others [2012] eKLR:
“
…this court should not deal with hypothetical and academic issues. In our view, it is correct to state that the jurisdiction to interpret the Constitution conferred under Article 165 (3)(d) does not exist in a vacuum and it is not exercised independently in absence of a real dispute. It is exercised in the context of a dispute or controversy...”
35.
The Petition is, therefore, devoid of merit. It is accordingly dismissed.
36.
The next question is costs of the petition. The Court of Appeal in the case of Farah Awad Gullet v CMC Motors Group Limited [2018] KECA 158 (KLR) had this to say as regards costs: :
“
It is our finding that the position in law is that costs are at the discretion of the court seized up of the matter with the usual caveat being that such discretion should be exercised judiciously meaning without caprice or whim and on sound reasoning secondly that a court can only withhold costs either partially or wholly from a successful party for good cause to be shown.
37.
The Supreme Court set forth guiding principles applicable in the exercise of that discretion in the case of Jasbir Singh Rai & 3 others v. Tarlochan Singh Rai & 4 others, SC Petition No. 4 of 2012; [2014] eKLR, as follows: -
(18)
It emerges that the award of costs would normally be guided by the principle that “costs follow the event”: the effect being that the party who calls forth the event by instituting suit, will bear the costs if the suit fails; but if this party shows legitimate occasion, by successful suit, then the defendant or Respondent will bear the costs. However, the vital factor in setting the preference is the judiciously-exercised discretion of the Court, accommodating the special circumstances of the case, while being guided by ends of justice. The claims of the public interest will be a relevant factor, in the exercise of such discretion, as will also be the motivations and conduct of the parties, before, during, and subsequent to the actual process of litigation…. Although there is eminent good sense in the basic rule of costs– that costs follow the event – it is not an invariable rule and, indeed, the ultimate factor on award or non-award of costs is the judicial discretion. It follows, therefore, that costs do not, in law, constitute an unchanging consequence of legal proceedings – a position well illustrated by the considered opinions of this Court in other cases.
38.
The Respondent did not give a spirited fight. In the circumstances, being an attempt to have a second bite of the cherry, the court could have been inclined to award costs. However, given the foregoing, each party will bear their own costs.
Determination
39.
The upshot is that I make the following orders: -
a.
The Petition dated 22.10.2024 is dismissed for lack of merit.
b.
Each party shall bear own costs. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/4416/eng@2025-04-08 |
Judicial Review Application E191 of 2024 | Hinga & 17 others v Retirement Benefits Appeals Tribunal & another; Kenya Airports Authority Superannuation Scheme & another (Interested Parties) (Judicial Review Application E191 of 2024) [2025] KEHC 4535 (KLR) (Judicial Review) (8 April 2025) (Ruling) | Ruling | High Court at Nairobi (Milimani Law Courts) | High Court | RE Aburili | 8 April 2025 | 2,025 | Nairobi | Judicial Review | Stephen Wahome Hinga & 17 Others v Retirement Benefits Appeals Tribunal & Attorney General; Kenya Airports Authority Superannuation & Retirement Benefits Authority | [2025] KEHC 4535 (KLR) | null |
1.
The application before this Court is the applicant’s Chamber Summons application dated 28th August 2024. The application seeks leave to apply for an order or certiorari to quash the judgement and orders of the 1st respondent dated 29th February 2024 in RBAT No. 9 of 2021 – Stephen Wahome Ihiga & 16 Others –vs- Retirement Benefits Authority and Another.
2.
It also seeks for leave to apply for an order of Mandamus compelling the 1st respondent to determine the applicants appeal filed on 26th May 2021 in accordance with the Retirement Benefits Act and the Kenya Airports Authority Superannuation Scheme Rules.
3.
The application is based on the grounds on its face and the affidavit of Stephen Wahome Ihiga.
4.
The applicants’ case is that they are former Kenya Airports Authority employees and members of the Kenya Superannuation Scheme, governed by an irrevocable Trust Deed and Rules dated 11th August 1995 and last amended on 2nd October 2006.
5.
It is their case that on or about 14th June 2013 they discovered that their pension benefits had been underpaid due to alleged misrepresentation, concealment and non-disclosure of material facts.
6.
The 1st interested party is said to have continued to calculate their benefits at 12% as provided under the 1995 Trust Deed and rules instead of calculating the same using the updated 2006 Trust Deed and rules, which entitles them to 40% of their last salary.
7.
Aggrieved by this they filed a complaint to the 2nd interested party vide a letter dated 14th June 2013 but it was dismissed on 3rd May 2021. They appealed the decision to the Retirement Benefits Appeals Tribunal (RBAT), which also dismissed the appeal on 29th February 2024.
8.
The applicants argue that the 2006 Trust Deed entirely replaced earlier versions and has been upheld in past court decisions. They claim the Tribunal’s decision was irrational, unreasonable, procedurally unfair, and violated their rights. They now seek the court's intervention, alleging abuse of power by the Tribunal and requesting justice and fairness in the matter. | Analysis and determination
49.
It is well established that when a preliminary objection is raised on the court’s jurisdiction, the court must first determine this issue before considering the merits of the case.
50.
This principle is rooted in the case of Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd (1969) EA 696, where the Court of Appeal for East Africa, through Law, JA, and Newbold, P., held that a preliminary objection is a pure point of law, such as an objection to the jurisdiction of the court, which, if argued as a preliminary point, may dispose of the suit. The Court also emphasized that such an objection should not involve the examination of facts or the exercise of judicial discretion, which could unnecessarily increase costs and complicate issues.
51.
the Supreme Court, in Independent Electoral & Boundaries Commission v Jane Cheperenger & 2 Others [2015] eKLR, noted that the purpose of a preliminary objection is twofold: it serves as a shield to prevent wastage of judicial time and resources and protects the public interest by ensuring judicial time is only spent on deserving cases. The Court also stressed that such objections should not be used as a sword to dispose of cases prematurely or avoid judicial scrutiny.
52.
In the case of Hassan Ali Joho & Another v Suleiman Said Shahbal & 2 Others, Petition No. 10 of 2013, [2014] eKLR, the Court reiterated that a preliminary objection is a point of law raised based on the assumption that the facts pleaded by the other side are correct, and it cannot be raised if any fact has to be ascertained or if what I sought requires judicial discretion.
53.
Jurisdiction must always be determined first, as without it, the court has no authority to continue with proceedings. The importance of this principle was affirmed in Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] eKLR, where the court held that without jurisdiction, the court must “down its tools.” In this case, the respondents and interested parties have argued that the court lacks jurisdiction to entertain the applicant’s application dated 28th August 2024, claiming it is res judicata, having been conclusively determined. Section 7 of the Civil Procedure Act, Cap 21, defines res judicata, stating that no court shall try any suit or issue that has already been directly and substantially in issue in a previous suit between the same parties and has been decided by a competent court.
54.
The Black’s Law Dictionary (10th Edition), defines res judicata as an issue that has been definitively settled by judicial decision, requiring three essentials: an earlier decision on the issue, a final judgment on the merits, and the involvement of the same parties or parties in privity with the original parties.
55.
The principle prevents the reopening of litigation on the same cause of action, ensuring there is no multiplicity of actions involving the same parties. However, as observed in Njangu v Wambugu (Nairobi HCCC No. 2340 of 1991, unreported), if parties are allowed to endlessly litigate the same issue, it would defeat the purpose of the doctrine res judicata. Furthermore, in Siri Ram Kaura v M.J.E. Morgan (CA 71/1960), the Court of Appeal emphasized that the discovery of fresh evidence, without new circumstances, does not justify bypassing res judicata. To reopen a case, the new fact must substantially alter the case and could not have been discovered with reasonable diligence at the time of the original proceedings.
56.
In reviewing the present case, the court finds that the applicants are not re-litigating the same issues previously determined but are raising a challenge based on alleged procedural unfairness, irrationality, and abuse of discretion in the decision made by the Tribunal on 29th February 2024. Judicial review does not concern the merits of a decision but rather the process by which the decision was made. The applicants are entitled to challenge the legality, rationality, and procedural propriety of the administrative action, even if the substantive issue has previously arisen.
57.
Moreover, the record shows that the applicants’ complaint dated 14th June 2013 was based on alleged misrepresentation, concealment, and non-disclosure, giving rise to a fresh cause of action.
58.
The Tribunal in 2020 directed a merit-based reconsideration of the complaint, culminating in the impugned 2024 decision, a decision the applicants are now entitled to challenge on administrative law grounds. The court also notes that the current application includes parties who were not party in the prior litigation, or who are relying on facts or legal issues not conclusively determined in earlier proceedings.
59.
Applying the doctrine of res judicata in this case and at this stage would hinder access to justice as envisaged under Articles 48 and 50(1) of the Constitution. Therefore, the preliminary objection raising the ground of res judicata is declined and overruled, and the applicants are permitted to proceed with their judicial review application, noting that res judicata issue can still be canvassed in the main application if leave to apply is granted, assuming that indeed, at the hearing, it appears that the issues being raised herein have been conclusively determined by a court of competent jurisdiction and between the same persons or [persons litigating on behalf of the applicants herein.
60.
On the issue of leave to apply for judicial review orders, the court has considered the applicants’ chamber summons, statutory statement, and verifying affidavit, along with the responses from the respondents and interested parties. The court must exercise discretion judiciously when granting leave under Order 53 of the Civil Procedure Rules, ensuring that the application is not frivolous, statute-barred, or an abuse of process.(see Sylvana Mpabwanayo Ntaryamira v Allen Waiyaki Gichuhi & another [2016] KEHC 4176 (KLR).
61.
At the leave stage, the court does not examine the merits of the case but merely assesses whether the applicant has an arguable prima facie case. Judicial review remedies, being discretionary and of last resort, should only be granted if no other efficacious remedy is available, as outlined in Republic v County Council of Kwale Exparte Kondo & 97 Others (Mombasa HCC Miscellaneous Application No. 384/96) and Permanent Secretary Ministry of Planning & National Development Exparte Kaimenyi (2006) 1EA 353.
62.
In this case, the court finds that the applicants have raised serious and arguable issues that warrant further investigation at the substantive hearing. The claim is not frivolous, and the applicants have a legitimate basis for challenging the decision made by the 1st respondent.
63.
Therefore, leave is granted to institute judicial review proceedings, in terms of prayers No.1 and 2 of the chamber summons. The substantive motion to be filed within 21 days of today’s date in a fresh file. Each party bear its own costs.
64.
This file is closed | Allowed | https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/4535/eng@2025-04-08 |
Family Miscellaneous Application E240 of 2024 | HSM v MSM (Family Miscellaneous Application E240 of 2024) [2025] KEHC 4519 (KLR) (Family) (8 April 2025) (Ruling) | Ruling | High Court at Nairobi (Milimani Law Courts) | High Court | HK Chemitei | 8 April 2025 | 2,025 | Nairobi | Family | HSM v MSM | [2025] KEHC 4519 (KLR) | null |
1.
In her petition dated 18th October 2024 the petitioner seeks orders that:-
(a)
A declaration that MSM be and is hereby adjudged to be a person suffering from mental disorder under section 26 of the Mental Health Act Cap 248.
(b)
This court be pleased to appoint HSM guardian and manager of Mr. MSM in accordance with the mental Health Act Cap 248 with powers to sign, access, withdraw, execute and or carry out any act incidental to the affairs of the subject.
(c)
Costs be provided.
2.
The petition is based on the affidavits of the Applicant and one ZMI sworn on the same dates.
3.
The petitioner is the sister to the subject whereas Z is the mother who has consented to the petitioner being appointed the subject guardian.
4.
The court has perused the said affidavits as well as the medical reports on record in particular that of Holland Bloorview Kids Rehabilitation Hospital dated 20th February 2014 which appears comprehensive. The report shows that the subject suffered some injury during birth, “perinatal hypoxic ischemic injury.”
5.
In view of the said report and the relationship between the petitioner and the subject the court finds the petition meritorious and it is hereby allowed as prayed.
Costs in the cause. | null | Allowed | https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/4519/eng@2025-04-08 |
Miscellaneous Cause E232 of 2023 | HSS v IMI (Miscellaneous Cause E232 of 2023) [2025] KEHC 4527 (KLR) (Family) (8 April 2025) (Ruling) | Ruling | High Court at Nairobi (Milimani Law Courts) | High Court | HK Chemitei | 8 April 2025 | 2,025 | Nairobi | Family | DSS AKA HSS v IMI | [2025] KEHC 4527 (KLR) | null | 1.
In her Notice of Motion dated 26th October 2023 the Applicant seeks orders that:-
(a)
Spent
(b)
Divorce Cause No. E164 of 2023 before the Senior Resident Kadhi at Kadhis court at Nairobi be transferred for trial and disposal at the Chief Magistrate court at Milimani commercial courts Nairobi.
(c)
Upon prayer (b) being granted the Applicant be granted leave to file an answer to the petition and cross petition out of time.
(d)
The issues raised in the Divorce Cause No. E164 of 2023 that touch on the custody maintenance and welfare of the infant minor child known as Zunaisha Irfan Iqbal be ventilated in children’s courts cause also filed by the Applicant herein.
(e)
Costs be provided for.
2.
The application is based on the grounds thereof and the Applicant’s sworn affidavits dated 26th October 2023 and the annexures thereto. | 14.
I have perused the submissions on record by the parties and I think the issue basically for determination is whether in light of the changes in her faith midstream the matter ought to be transferred to the Chief Magistrate Court from the Kadhis court.
15.
It is true that Articel170(5) of the Constitution which mandates the Kadhis courts states as hereunder:-
“
The jurisdiction of a Kadhi's court shall be limited to the determination of questions of Muslim law relating to personal status, marriage, divorce or inheritance in proceedings in which all the parties profess the Muslim religion and submit to the jurisdiction of the Kadhis' courts.”
16.
Whereas the above position is true I do not have any evidence that the Applicant renounced her Islamic faith and reverted to Hinduism. That is a factual issue which can only be determined by way of evidence. None has been presented before this court.
17.
At the same time, it appears to me that the matter had proceeded so far that raising the jurisdictional issue via this application is too late in the day. I state so for the reason that the Respondent’s averments in the replying affidavit were not controverted.
18.
The Applicant went as far as filing a suit at the Chief Magistrates Children’s Court which was dismissed and the court directed the parties to submit themselves to the Kadhis court and deal with the matter there exhaustively.
19.
The ruling in suit number E1800 of 2023 at the Children’s Court was not appealed against by the Applicant. This is the same issue which she wants this court to deal with. I think and I agree with the Respondent that this is forum shopping to say the least. If she was not happy with the said decision, she should have preferred an appeal against it.
20.
Equally, asking this court to transfer the matter to the Chief Magistrate court and filing a suit before the said court was very ingenious but the court will not fall for it.
21.
The best approach is for the Applicant to exhaust all the issues before the Kadhis court including her argument on her faith and the changes she had gone through and if the said court is not persuaded then she moves to this court by way of appeal. The same goes with the issues surrounding the custody and maintenance of their minor child.
22.
This court will be doing a disservice to both parties noting the stage at which the matter at the lower court had reached. The court will always interrupt the proceedings at the trial court if it is proved beyond peradventure that there is need to stay the same.
23.
Staying of proceedings midstream is ordinarily not an issue to be taken lightly noting as stated above that there is an opportunity for the parties to approach the appellate court at appropriate time. It will be exercised where it is established that the proceedings are manifestly vexatious and frivolous and allowing it to proceed will be prejudicial to the Applicant.
24.
In the premises I find the application not meritorious and I dismiss it with no orders as to costs. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/4527/eng@2025-04-08 |
Succession Cause 444 of 2011 | In re Estate of Damaris Nduta Gitau (Deceased) (Succession Cause 444 of 2011) [2025] KEHC 4516 (KLR) (Family) (8 April 2025) (Directions) | Directions | High Court at Nairobi (Milimani Law Courts) | High Court | HK Chemitei | 8 April 2025 | 2,025 | Nairobi | Family | null | [2025] KEHC 4516 (KLR) | null |
1.
This matter has had twins and turns over the years yet the issues are simple and straight forward. To show the enormity of the same, all the judges who have handled it have moved to the court of appeal generally.
2.
I have perused the record and the reconstructed file. I have listened to the counsel for the Objectors and the administrator and I have perused over 10 pending applications some which seem to have been dealt with halfway and others pending.
3.
I have perused the preliminary objection dated 16th July 2024 in which it captured well the ruling dated 25th October 2022 by Muchelule J (as he then was) which stated as follows:-
“
That being the case I direct that all the parties in this case do within 30 days file and serve a response to the Respondent’s application of 31st October 2018 to confirm the grant. The Respondent shall within 21 days of service file any further affidavit. The application shall be heard orally in open court on 13th February 2023.” | 3.
I have perused the preliminary objection dated 16th July 2024 in which it captured well the ruling dated 25th October 2022 by Muchelule J (as he then was) which stated as follows:-
“
That being the case I direct that all the parties in this case do within 30 days file and serve a response to the Respondent’s application of 31st October 2018 to confirm the grant. The Respondent shall within 21 days of service file any further affidavit. The application shall be heard orally in open court on 13th February 2023.”
4.
Of course, 13th February 2023 passed without the parties complying with the above order. I’m however not sure whether the date of the application is 31st October 2018 or 24th October 2018. The one I have seen in the file is dated 24th October 2018.
5.
Whatever the case the court directed the same to be heard by way of oral evidence. Much has passed. The Objectors have made series of applications which the court decided to put on hold pending the hearing of the main application for confirmation.
6.
From the pending applications it appears that the administrator Edwin Muchene Gitau has used the grant to undertake activities which the Objectors argue that it has wasted the estate and by extension benefited him alone. These are issues which will come out at the time of determination of the main cause.
7.
I do not intend to go against the orders of Muchelule J. As a matter of fact, this matter ought to have been determined by now. In any case none of the parties appealed or applied to have it set aside.
8.
In the premises I direct as hereunder:-
(a)
The orders of this court dated 25th October 2022 be complied forthwith and the parties take a hearing date as a matter of priority.
(b)
Let there be stay of any sale, charging, distribution intermeddling or in any way dealing with all the estate assets pending the hearing and determination of the cause.
(c)
The parties are hereby granted leave to file any witness statements or affidavits, if any, and exchange them within 30 days from the date herein.
(d)
All the pending applications except the one for the confirmation of grant are hereby held in abeyance pending the determination of this cause.
(e)
All the original title documents and any other legal instruments under the name of the deceased and specifically Dagoretti/Riruta Plot Number 2276/2, Dagoretti/Uthiru/290, Ndumbuini plot Number T14 and T24, Kirinyaga road plot number 209/136/30, Kirinyaga road plot number 209/136/194, Kirinyaga road plot number 209/136/36, Ngara Mushembi road plot number 209/118/147, Karen plot number 2259/53 to be delivered to the Deputy Registrar of this court by whoever is holding them within 30 days from the date herein.
(f)
This file be placed in the strong room and under the custody of the Deputy Registrar of this court.
(g)
This matter be mentioned before the Deputy Registrar on 5th May 2025 for taking an appropriate date and confirming compliance.
(h)
Costs in the cause. | Court issues further directions | https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/4516/eng@2025-04-08 |
Succession Cause 2215 of 1995 | In re Estate of Francis Gatiba (Deceased) (Succession Cause 2215 of 1995) [2025] KEHC 4513 (KLR) (Family) (8 April 2025) (Ruling) | Ruling | High Court at Nairobi (Milimani Law Courts) | High Court | HK Chemitei | 8 April 2025 | 2,025 | Nairobi | Family | GWM & DM v The Land Registrar, Nairobi & The Honourable Attorney General | [2025] KEHC 4513 (KLR) | null |
1.
This ruling relates to the application dated 29th January, 2024 filled by GWM and seeking for orders that:-
a.
Spent.
b.
This honourable court be pleased to issue orders that the Applicants be and are hereby permitted and empowered by the court to sell the parcel of land known as Nairobi/block XXX/XXXX and the same be applied in the following:-
i.
The payment of school fees and school related expenses.
ii.
The investment of the balances of the sale for the purpose of future application in the education of the minor.
c.
The honourable court be pleased to make such further or other orders as it may deem just and expedient in the circumstances of this case.
2.
The application is based on the grounds thereof and supported by affidavit and further affidavit sworn by GWM on 29th January, 2024 and 28th February, 2024 respectively. | Analysis And Determination
8.
I have gone through the applications, responses thereto and the rival submissions filed by the parties, and address them as follows:-
9.
Although the application is unopposed, it is the duty of the Court to nevertheless subject it to a merit evaluation in accord with the applicable laws and principles. Indeed, in Gideon Sitelu Konchellah vs. Julius Lekakeny Ole Sunkuli & 2 others [2018] eKLR the Supreme Court of Kenya held that:-
“
…as a court of law, we have a duty in principle to look at what the application is about and what it seeks. It is not automatic that for any unopposed application, the Court will as a matter of cause grant the sought orders. It behooves the Court to be satisfied that prima facie, with no objection, the application is meritorious and the prayers may be granted. The Court is under a duty to look at the application and without making any inferences on facts point out any points of law, such as any jurisdictional impediment, which might render the application a non-starter. We see no such jurisdictional issue in the application before us. Hence we have proceeded to consider the facts before us as against the jurisprudence for grant of stay orders set by this Court…”
10.
The matter at hand must be handled however with great caution so that the minors immediate and future interest is taken care of. At the moment there is no evidence of the valuation of the subject property and the figures of Kshs.8,400,000 is from the Applicants.
11.
The appropriate way is to have the same valued and the Applicants to provide a comprehensive process of investing the proceeds before the application is granted. This will ensure that no room is left for any illegal activity which the minor may question when he comes of age.
12.
Consequently, I do order that:-
(a)
A valuation exercise be undertaken by a duly registered valuer of land parcel number Nairobi/block XXX/XXXX
(b)
The above exercise be undertaken within 30 days from the date herein.
(c)
A comprehensive investment plans of the sale proceeds be provided by the Applicants taking into consideration the immediate and future interest of the minor.
(d)
The matter be mentioned before the Deputy Registrar of this court to oversee the above exercise.
(e)
The parties be at liberty to apply.
(f)
Costs in the cause. | Allowed | https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/4513/eng@2025-04-08 |
Succession Cause 99 of 2017 | In re Estate of James Njenga Muiruri (Deceased) (Succession Cause 99 of 2017) [2025] KEHC 4605 (KLR) (8 April 2025) (Ruling) | Ruling | High Court at Nakuru | High Court | HI Ong'udi | 8 April 2025 | 2,025 | Nakuru | Family | Virginia Wambui Muriithi & Naomi Wanjiku Ndungu v Racharl Rukenya Njenga | [2025] KEHC 4605 (KLR) | null |
1.
In the amended Summons dated 11th October 2024 by the applicant prays for the following orders;
i.
Spent
ii.
The honourable Court be pleased to order and/ or direct the respondent herein, to execute and/ or sign all the relevant Transfer instruments, interalia the Mutation Forms respectively, together with such other applications for consent to facilitate the sub-division of LR. No. Nakuru/Rare/Kiriri/1023 and thereafter transfer the resultant sub-divisions in favour of the designated beneficiaries.
iii.
Consequent to prayer (2) hereof being granted, the honourable court be pleased to affix and/ or specify the timelines within which the respondent is to execute the Transfer and incidental instruments.
iv.
In the alternative to prayers (2) and (3) hereof, the honourable court be pleased to mandate and/ or authorize the deputy Registrar of the honourable court to take over the mandate and/ or powers of the respondent and execute the Transfer and incidental instruments to facilitate the completion of Administration.
v.
This honourable court be pleased to order Kenya Commercial Bank (KCB) Njoro branch to release title deed LR NO. Nakuru /Rare /Kiriri/1023 in joint account between the applicant and respondent to give effect of certificate of confirmation dated 29th July 2021.
vi.
The honourable court be pleased to issue further and/ or other reliefs, as may be just and/ or expedient to facilitate compliance with the Certificate of confirmation of Grant issued on the 29th July 2021.
vii.
Costs of the Application be borne in the course.
2.
The application is premised on the grounds on its face as well as the affidavit sworn on even date by the applicants. They deponed that the respondent applied for and was subsequently issued with grant of letters of representation of the estate of the deceased on 26th June, 2017. The deceased died on 1st September 2004. The said grant was confirmed on 29th July 2021 and a certificate of confirmation of grant issued. Further, that the respondent was obliged to commence the process of distribution and/ or transfer of shares to the beneficiaries in the deceased’s estate. She had however failed and/ or neglected to execute the statutory forms or instruments to facilitate the process of distribution.
3.
They further deponed that it was imperative that the respondent be compelled to undertake or execute her statutory mandate since the beneficiaries would not be able to appropriate, enjoy and/ or benefit from the estate of the deceased. They urged the court to grant the prayers sought in their application so as to have the deceased’s estate distributed. | Analysis and determination
15.
I have considered the application, affidavits by the parties together with the submissions and authorities filed by the applicants. In my opinion the issue for determination is whether the application is merited.
16.
Having carefully perused the court record, it is evident from the rectified certificate of confirmation of grant that the respondent was to hold in trust the title for Nakuru/Rare/Kiriri/1023. It is not in dispute that Grace Wangari Njenga (deceased) whom the applicants represent was the wife of the deceased. The grant was confirmed on 29th July 2021 and rectified on 16th March 2023. Section 83(g) of the Law of Succession Act mandates administrators of an estate to, within six months of confirmation of grant or longer period as the court may allow, complete the administration of the estate, and to produce to the court a full and accurate account of the completed administration. Clearly, in this matter the six (6) months have lapsed and there is no evidence of distribution of the deceased’s estate and no extension of the said period has been granted by this court to allow completion of administration of the estate. There is no doubt that the respondent has refused to sign the necessary documents to facilitate the distribution of the deceased estate to all the beneficiaries as per the confirmed grant. No evidence was adduced by the respondent to the contrary, nor any genuine reason given for the failure to act.
17.
I take judicial notice of the fact that this is a 2017 matter and the respondent has admitted that no distribution has taken place despite the grant having been confirmed. Further, Justice Chemitei in his ruling dated 2nd November 2023 noted that the respondent who was the administrator of the estate had delayed in executing the grant so as to transmit to the beneficiaries their rightful shares. Section 47 of the Law of Succession Act and Rule 73 of the Probate and Administration Rules grants a succession court inherent powers to make such orders as may be necessary for the ends of justice or to prevent abuse of the court process.
18.
Rule 73 of the P&A also provides as follows;
“
Nothing in these rules shall limit or otherwise affect the inherent power of the court to make such orders as may be necessary for the ends of justice to prevent abuse of the process of the court.”
19.
To prevent abuse of the court process and by the above provision, this court has inherent powers to prevent such abuse. I therefore find, and hold that the applicants’ amended summons dated 11th October 2024 is merited.
20.
Accordingly, the respondent is hereby ordered to execute and/ or sign all the relevant transfer instruments to facilitate the sub-division of LR. No. Nakuru/Rare/Kiriri/1023. This is to done within twenty-one (21) days failure to which the deputy Registrar shall take over the mandate and/ or powers of the respondent and execute the transfer and incidental instruments to facilitate the completion of administration.
21.
Regarding prayer No. 5 in the application, this court has not been supplied with evidence justifying the issuance of the said order. The same is thus declined at the moment.
22.
Being a family matter there shall be no order as to costs.
23.
Orders accordingly | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/4605/eng@2025-04-08 |
Succession Cause E706 of 2021 | In re Estate of Jerusha Waitherero Macharia (Deceased) (Succession Cause E706 of 2021) [2025] KEHC 4492 (KLR) (Family) (8 April 2025) (Ruling) | Ruling | High Court at Nairobi (Milimani Law Courts) | High Court | H Namisi | 8 April 2025 | 2,025 | Nairobi | Family | null | [2025] KEHC 4492 (KLR) | null |
1.
The Deceased passed away on 26 November 2020 through a tragic road accident. She died intestate. Following her death, the Applicant applied for and was subsequently issued with a Limited Grant of Letters of Administration ad Litem on 27 May 2021 for purposes of filing suit for and on behalf of the dependants of the Deceased under the Fatal Accident Act and Law Reform Act.
2.
The Applicant has filed the present application seeking the following orders:
i.
Spent;
ii.
That this Honorable Court be pleased to extend the validity of the Limited Grant of Letters of Administration ad litem issued herein on 27 May 2021;
iii.
That the costs of this Application be in the cause;
3.
The Application is supported by an Affidavit sworn by the Applicant. The Applicant avers that she was unable to immediately file the suit as contemplated due to financial constraints. However, when the suit was subsequently filed on 14 November 2023, the said date was beyond the statutory period as provided under Section 2(3)(b) of the Law Reform Act. Subsequently, the suit was withdrawn to enable the Applicant seek extension of the validity of the Limited Grant for purposes of filing a fresh suit. | 4.
Section 2(3)(b) of the Law Reform Act provides that:
No proceedings shall be maintainable in respect of a cause of action in tort which by virtue of this section has survived against the estate of a deceased person unless either – proceedings are taken in respect thereof not later than 6 months after his executor or administrator took out representation.
5.
I note that there has been significant delay between the issuance of the Limited Grant in May 2021 and the filing of the suit in November 2023. It is not clear when the said suit was withdrawn, therefore, I am able to tell if there was substantial delay between its withdrawal and the present application dated 30 October 2024. Be that as it may, the reason advanced by the Applicant, being financial constraints, is a legitimate reason to warrant this Court’s indulgence.
6.
In the circumstances, I allow the Application dated 30 October 2024. Since the Application was ex parte, I make no orders as to costs. | Allowed | https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/4492/eng@2025-04-08 |
Succession Cause 111 of 2013 | In re Estate of Kibicho Wanjie (Deceased) (Succession Cause 111 of 2013) [2025] KEHC 4593 (KLR) (8 April 2025) (Judgment) | Judgement | High Court at Kerugoya | High Court | RM Mwongo | 8 April 2025 | 2,025 | Kirinyaga | Family | Stephen Mugo Kibicho v Jemima Njoki Kibicho (DCD) & Millicent Wangari Kibicho & John Muriithi Kibicho | [2025] KEHC 4593 (KLR) | null | 1.
The deceased died on 27/10/2006 domiciled in Kirinyaga (District). A grant of letters of administration to the estate of the deceased was jointly issued to the petitioner and Jemima Njoki Kibicho (now deceased), who were the deceased’s son and wife. The petitioner filed summons for confirmation of grant dated 01st February 2021, the subject of the present protest.
2.
In the affidavit supporting the summons, the petitioner stated that the deceased was survived by his late wife and 5 children. He named them as Jemima Njoki Kibicho (deceased), Stephen Mugo Kibicho, Rose Wangari, James Muriuki, Millicent Wangari and John Muriithi.
3.
He also listed the properties, stocks and bank accounts forming the estate of the deceased, and proposed that the estate be distributed as follows:
1.
Land parcel number Mwerua/Gitaku/561 measuring 6.79 acres:
a.
Stephen Mugo Kibicho - 1 acre
b.
Rose Wangari - 1 acre
c.
James Muriuki - 1 acre
d.
Millicent Wangari - 2.89 acres
e.
John Muriithi - 0.9 acre
2.
Land parcel number Mwerua/Gitaku/562 measuring 2.1 acres
a.
John Muriithi- 2.1 acres
3.
Half share in plot no. 125 Kagio: to be jointly held in equal shares by the 5 children of the deceased
4.
Shares in Cooperative Bank: to be shared equally among the 5 children of the deceased.
5.
Shares in Kimmi Housing Limited: to be shared equally among the 5 children of the deceased.
6.
Munyaka shares: to be shared equally among the 5 children of the deceased.
7.
Mwirua Cooperative Society shares: to be shared equally among the 5 children of the deceased.
8.
Funds in KCB Kerugoya: to be shared equally among the 5 children of the deceased. | Analysis and Determination
19.
PW1, the 2nd protestor testified that prior to his death, the deceased left land parcel numbers Mwerua/Gitaku/561 and 562 to her and the 3rd protestor since they were already living there. She stated that the deceased did not leave a will but that those were his oral wishes. It was her evidence that the petitioner and James Muriuki were already given land gifts by the deceased before he died and so they are not entitled to the estate.
20.
In rebuttal, RW1 and RW2 testified that they received land parcel numbers Mwerua/Gitaku/226 and 228 from the clan upon recommendation by the deceased in 1960. That the deceased received parcel number Mwerua/Gitaku/227 where he raised all his children (save for Rose Wangari) This parcel he later subdivided into the current Mwerua/Gitaku/561 and 562. The deceased intended that the 3rd protestor would get Mwerua/Gitaku/562 since all his other sons already had other parcels of land from the clan.
21.
All evidence in civil matters, including the evidence presented herein, is subject to the standard of proof, namely, on a balance of probabilities. Section 107 and 109 of the Evidence Act places the burden of proof on the alleging party. Through the affidavit of protest, the protestors produced copies of green cards for the properties Mwerua/Gitaku/226 and 228 showing that the properties were registered to them as first owners.
22.
This position is supported in their evidence that they received the land from the clan through adjudication in 1960. The land is not in the name of the deceased and cannot feature as part of the deceased’s estate. As to the argument that the land was given to them as a gift from the deceased, it was incumbent upon the protestors to provide clear evidence to prove this allegation. They have not done so.
23.
The estate of the deceased is made up of Mwerua/Gitaku/561 and 562 and half plot number 125 Kagio, together with stocks and money. Both parties are in agreement concerning distribution of the stocks and money; the disagreement is on the immovable property. From the testimonies, there is no doubt that the properties Mwerua/Gitaku/561 and 562 belonged to the deceased prior to his death. It has also been proved on a balance of probabilities that half of plot number 125 Kagio belonged to the deceased, having acquired it alongside the petitioner.
24.
How should the deceased’s property be distributed? The deceased had 5 children. His known wife is also deceased. The distribution herein is, therefore, subject to section 38 of the Law of Succession Act which provides:
“
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.”
25.
The petitioner gave his reasons for proposing distribution in the manner set out in his summons for confirmation. In the proposal, the 2nd protestor will set a fairly larger portion of the property Mwerua/Gitaku/561 than the others. The 3rd protestor got a smaller portion of Mwerua/Gitaku/561, but also the whole of Mwerua/Gitaku/562. The summons for confirmation proposes distribution of half of the plot 125 Kagio amongst the 5 children in equal shares.
26.
The court endeavors to attain equitable distribution of the estate given the circumstances at hand. In Black’s Law Dictionary, 9th Edition ‘equitable’ means ‘Just; consistent with principles of justice and right; Existing in equity; available or sustainable by an action in equity, or under the rules and principles of equity’. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/4593/eng@2025-04-08 |
Miscellaneous Succession Cause 86 of 2013 | In re Estate of Ngare Munene Gakuya (Deceased) (Miscellaneous Succession Cause 86 of 2013) [2025] KEHC 4574 (KLR) (8 April 2025) (Judgment) | Judgement | High Court at Kerugoya | High Court | RM Mwongo | 8 April 2025 | 2,025 | Kirinyaga | Family | Faith Wamwea Mbogo v Janefer Njeri Ngare | [2025] KEHC 4574 (KLR) | null | 1.
The deceased died in 1985. A grant was issued to Jennifer Njeri Ngari the respondent herein, in SRM Succ No. 64 of 2004, Kerugoya. The grant was confirmed on13th May 2005. The only property of the estate was indicated as Baragwe/Guama/52.
2.
The applicant filed summons for revocation of grant dated 16th September 2006 seeking that the grant issued to the respondent in the estate of the deceased revoked. The application is premised on grounds that:
1.
The proceedings to obtain the grant were defective in substance;
2.
That the grant was obtained fraudulently by making of a false statement or by the concealment from the court of something material to the case;
3.
The grant was obtained by means of untrue allegation of a fact essential in point of law to justify the grant notwithstanding that the allegation was made in ignorance or inadvertently;
4.
In any event, the person to whom the grant was issued was not entitled to it as she is not a legal dependent and/or beneficiary of the estate and even the deceased was not entitled to the parcel of land in dispute; and
5.
The grant had become useless and inoperative through subsequent circumstances.
3.
The summons is supported by an affidavit sworn by the applicant in which she stated that land parcel number Baragwe/Guama/52 was registered in the name of her brother-in-law, the late Ireri Mbogo. Through Kerugoya Principal Magistrate’s Court Succession Cause No.64 of 2004, the land was transferred to the deceased herein and in March 1993, she filed another suit being Kerugoya Principal Magistrate’s Court Succession Cause No.76 of 1993 seeking to have the land reverted back to the name of the late Ireri Mbogo, its original owner.
4.
The respondent’s counsel objected to the suit on grounds of the applicant’s capacity to sue. The respondent’s objection was dismissed and the respondent appealed at the Court of Appeal where the appeal was dismissed. It became paramount that for her suit to be determined, the file Kerugoya Principal Magistrate’s Court Succession Cause No.64 of 2004 would need to be presented before the court in Kerugoya Principal Magistrate’s Court Succession Cause No. 76 of 1993, and she planned for this to be done.
5.
During the pendency of the determination of Kerugoya Principal Magistrate’s Court Succession Cause No.76 of 1993, the respondent petitioned for a grant through Kerugoya Principal Magistrate’s Court Succession Cause No.64 of 2004 without notifying any relatives or family members of the original owner of the land. The grant was issued to the respondent and it was confirmed as already indicated herein.
6.
The applicant deposed that the original owner of the suit land, the late Ireri Mbogo was a person of unsound mind and he died in the year 2005. According to the applicant, the late Ireri Mbogo did not have legal capacity to transfer the land owing to his mental incapacity. Regardless, the deceased herein somehow acquired the property from the late Ireri Mbogo through a transfer of land transaction with the transfer form duly executed. The deceased herein died on 17th February 1985. However, a search of the property indicates that the property was registered to the deceased herein posthumously in 1993 pursuant to a transfer instrument executed by the parties in 1991.
7.
The applicant stated that neither the respondent herein, nor her husband, the deceased herein are entitled to the land since it was obtained through fraud. That at the point of issuing the grant, the respondent concealed from the court the material fact that the property does not form part of the estate of the deceased. The applicant asserts that the respondent also concealed that the land was not legally obtained. On these grounds, the applicant urged the court to revoke the grant which was obtained fraudulently without involving the family of the late Ireri Mbogo, the rightful owner of the land. That she was also left out of the proceedings as a sister-in-law of the deceased. | 22.
The question of jurisdiction has arisen through the respondent’s submissions. Given the importance of that matter, it takes precedence. It has been long established that a court finding itself without jurisdiction must down its tools immediately. This was underscored by the Court of Appeal in the locus classicus case of Owners of The Motor Vessel “Lillian S v Caltex Oil (Kenya) Ltd [1989] KECA 48 (KLR). The court in that case stated:
“
Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law downs its tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.”
23.
The summons before this court, on its face, speaks of revocation of a grant. However, a deeper look at the pleadings and evidence that should culminate into a determination of the issue of revocation, reveals an underlying disputed question of land ownership and acquisition. In other words, whilst the issue of revocation is strongly raised before this family court, its root is anchored deeply within a land dispute. In fact, the land in question is the only issue concerned in the property purportedly forming the estate of the deceased.
24.
A court sitting to determine a succession cause is bound to do so using the Law of Succession Act to: Identify the deceased; appoint a personal representative of the deceased; identify the deceased’s estate; the beneficiaries of the deceased; and then determine distribution of that defined estate amongst the rightful beneficiaries. This, in essence, is the meaning of administration of an estate. All other issues arising in succession should be limited to identification of the estate and beneficiaries, and the administration or distribution thereof.
25.
Indeed, the preamble to the Law of Succession Act indicates that the object of the Act is to:
“
amend, define and consolidate the law relating to intestate and testamentary succession and the administration of estates of deceased persons; and for purposes connected therewith and incidental thereto”
26.
Thus, where an issue arises concerning the acquisition of that estate, the succession court is immediately stripped of its jurisdiction as the question falls within the purview of land law under the jurisdiction of the Environment and Land Court. More importantly, the Law of Succession Act was designed to safeguard the administration of the estate from external issues through the provisions thereof, including Section 76 on revocation of grants. | Allowed | https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/4574/eng@2025-04-08 |
Succession Cause E1331 of 2021 | In re Estate of Samuel Nganga alias Samuel Kimani Nganga (Deceased) (Succession Cause E1331 of 2021) [2025] KEHC 4403 (KLR) (Family) (8 April 2025) (Ruling) | Ruling | High Court at Nairobi (Milimani Law Courts) | High Court | H Namisi | 8 April 2025 | 2,025 | Nairobi | Family | Thomas Kamau Kimani & Nicholas Arthur Kinuthia Kimani v David Nganga Kimani | [2025] KEHC 4403 (KLR) | null | 1.
Before the Court is Summons dated 11 December 2024 seeking the following orders:
i.
Spent
ii.
That this Honourable Court be pleased to orders that the Thomas Kamau Kimani And Nicholas Arthur Kinuthia Nganga be appointed as co administrators of the estate and a grant of Letters of Administration intestate amended accordingly;
iii.
That this Honourable Court be pleased to issue preservative orders restraining the Respondent, his agents, servants, employees or other assigns or representatives from collecting rent, managing, selling, disposal of, sub-dividing, alienating, wasting, leasing and otherwise intermeddling in any way with the property of the deceased known as L.R. Ngong/Ngong/XXXXX pending hearing and determination of this application and issuance of certificate of confirmation of the Grant of the estate of the Deceased;
iv.
That this Honourable Court be pleased to issue an order directing the Respondent to render true and just accounts of all rental income and proceeds so far received by the Respondent in respect of property known as L.R. Ngong/Ngong/XXXXX from the date of death of the previous Administrator, Yuster Nyamwitha Kimani, to date in full account;
v.
That this Honourable court be pleased to order that all the estate income and rent from L.R. Ngong/Ngong/XXXXX be deposited by the tenants directly into the deceased’s Standard Chartered Bank account number 01501057XXXXX pending hearing and determination of the application;
vi.
That L.R. Ngong/Ngong/XXXXX be included as an asset of the Estate and be distributed accordingly;
vii.
Any other orders that are deemed just and expedient that will meet the end of justice.
2.
The Application is supported by the Affidavit sworn by the 1st Applicant and premised on the following grounds:
a.
The Respondent, the eldest brother, was issued with Grant of Letters of Administration of the estate of the Deceased on 25 October, 2021 and rectified on 26 June, 2024;
b.
Being the sole Administrator, the Respondent has been collecting rent due to the Estate from parcel of land L.R. Ngong/Ngong/XXXXX since April 2023 and disposing it of to the detriment of the estate and will continue to do so unless restrained by the Court;
c.
Misappropriation of funds collected by the Respondent from the estate of the Deceased parcel of land L.R. Ngong/Ngong/XXXXX will continue and there will be enhanced accountability by adding the 1st and 2nd Applicants as co-administrators;
d.
The property known as L.R. Ngong/Ngong/XXXXX was not listed as one of the assets of the Deceased as there was an ongoing matter Kajiado ELCA E006 of 2023 at the time of filing the succession cause which has since been determined in favour of the Estate. It is imperative to include and distribute it
e.
For proper and efficient management of the estate, the Applicants wish to be included as co administrators of their father’s estate;
f.
The Respondent has not been accountable on the usage of the funds collected from the estate of the Deceased and any attempts by the Applicants together with the Advocate for the Estate to settle the matter amicably have been futile;
g.
The Respondent has also expressed his intention to dispose off L.R. Ngong/Ngong/XXXXX and disinherit us;
h.
The interests of justice dictate that the orders sought be granted as no prejudice will be occasioned to the estate and/or the beneficiaries. | Analysis and Determination
7.
The Application is brought under section 45, 74 and 95 of the Law of Succession Act and Rules 43, 49, 69 and 73 of the Probate and Administration Rules.
8.
Section 45 of the Act relates to intermeddling and provides as follows:
(1)
Except so far as expressly authorized by this Act, or by any other written law, or by a grant of representation under this Act, no person shall, for any purpose, take possession or dispose of, or otherwise intermeddle with, any free property of a deceased person.
(2)
Any person who contravenes the provisions of this section shall-
(a)
be guilty of an offence and liable to a fine not exceeding ten thousand shillings or to a term of imprisonment not exceeding one year or to both such fine and imprisonment; and
(b)
be answerable to the rightful executor or administrator, to the extent of the assets with which he has intermeddled after deducting any payments made in the due course of administration.
9.
Section 95 relates to offences by personal representatives and provides as follows:
Any personal representative who, as regards the estate in respect of which representation has been granted to him—
(a)
wilfully or recklessly neglects to get in any asset forming part of the estate, misapplies any such asset, or subjects any such asset to loss or damage; or
(b)
wilfully fails to produce to the court any such inventory or account as is required by the provisions of paragraphs (e) and (g) of section 83; or
(c)
wilfully or recklessly produces any such inventory or account which is false in any material particular; or
(d)
knowing or having reason to believe that the estate will prove to be insolvent, continues to administer it without petitioning for administration thereof in bankruptcy, shall be guilty of an offence, and shall be liable to a fine not exceeding ten thousand shillings, or to imprisonment for a term not exceeding one year, or to both such fine and imprisonment.
(2)
Any personal representative who, as regards the estate in respect of which representation has been granted to him if at any time there is a continuing trust and he is the sole surviving administrator, wilfully fails to apply to the court within three months in accordance with section 75A for the appointment of further administrators shall be guilty of an offence and shall be liable to a fine not exceeding five thousand shillings. | Court issues further directions | https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/4403/eng@2025-04-08 |
Succession Cause 457 of 2005 | In re Estate of the Late Jane Kagure King'ori (Deceased) (Succession Cause 457 of 2005) [2025] KEHC 4512 (KLR) (Family) (8 April 2025) (Ruling) | Ruling | High Court at Nairobi (Milimani Law Courts) | High Court | HK Chemitei | 8 April 2025 | 2,025 | Nairobi | Family | Nelson King'ori Gichuhi v Eric Warutere & Eunice Wairimu King'ori & Silvia Wambui King'ori | [2025] KEHC 4512 (KLR) | null |
1.
In his amended summons dated 8th June 2023 the Applicant prays for orders that:-
(a)
The asset LR No Aguthi/Gatitu/3197 be sold and the proceeds equally distributed to all the beneficiaries to complete the distribution of the estate.
(b)
The legal costs associated with the sale of the property to be shared equally among the beneficiaries.
2.
The application is based on the Applicant’s affidavit sworn on the same date and the grounds thereof.
3.
The gist of the application is that the Applicant is the widower and the Respondents are his children. The property namely Aguthi/Gatitu/3197 pursuant to the grant of this court is registered in the names of the four and the Applicant is holding it in trust for them.
4.
The Applicant deponed that he wishes to have the same fully distributed so that each of the children can have their share now that they are of age.
5.
The 1st Respondent Eric Warutere on his behalf and that of his two siblings has opposed the application on the grounds that the Applicant intends to disinherit them and relied on Section 38 of Cap 160. He deponed that the said property ought to be devolved to them and not the Applicant.
6.
That the property is too small to be subdivided into four shares. He therefore prays that the application be dismissed.
7.
The court directed the parties to file written submissions which they did and I have perused the same extensively together with the cited authorities.
8.
It is the submissions of the Respondents that the provisions of Section 38 of Cap 160 preclude the Applicant from dealing with the property and more so as a trustee his interest ends with simply holding the same in trust for the Respondents.
9.
What is evidently clear is that the property in question is registered in the four names and the Applicant is holding it in trust for the children. They have since attained the age of majority and capable of inheriting. That is the basic argument in the Applicants’ submissions. | 10.
From the affidavits on record, it is agreed that the parcel of land is too small to have any meaningful subdivision and I guess that is the reason why the Applicant requested that it be sold and the proceeds divided equally.
11.
The Respondent’s contention is that their father has no right over the same pursuant to Section 38 of the Act. That he simply has a life interest.
12.
The Applicant relied on Section 35 of the Act and argued that he has a life interest in the estate of his wife.
13.
I think the two sections are distinguishable and clear. Section 38 states as hereunder:-
“
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.”
14.
In the above section the Act envisages a situation where the deceased left no surviving spouse. In the case at hand the Applicant is alive and according to Section 35(1) he has a life interest. The same states as hereunder:-
“
Subject to the provisions of section 40, where an intestate has left one surviving spouse and a child or children, the surviving spouse shall be entitled to—
(a)
the personal and household effects of the deceased absolutely; and
(b)
a life interest in the whole residue of the net intestate estate:
Provided that, if the surviving spouse is a widow, that interest shall determine upon her re-marriage to any person.” (Underlining mine)
15.
On the other hand, Section 37 gives the surviving spouse powers to deal with the property subject to the consent of the children and or the court. It goes on to state that:-
“
A surviving spouse entitled to a life interest under the provisions of section 35 or 36, with the consent of all co-trustees and all children of full age, or with the consent of the court, may, during the period of the life interest, sell any of the property subject to that interest if it is necessary for his own maintenance:
Provided that, in the case of immovable property, the exercise of that power shall always be subject to the consent of the court.”
16.
The record of the court confirms the toxic relationship between the Applicant and the Respondents. For reasons best known to them the Respondents have put hurdles on every step their father has attempted to take in regard to the deceased estate. They believe that their father should not have any interest in the estate.
17.
The saving grace however is that he has a life interest provided by the law and they have no right to deny him. They may have their differences but he is insulated. As a matter of fact, they are now adults and the law envisages that they ought to be venting for themselves.
18.
Odero J on 15th May 2023 found that all of them were beneficiaries to the estate and that cannot be wished away. The estate therefore must be distributed and closed and they part ways. Since he has a life interest the Applicants rights must be respected least of all by the Respondents.
19.
What he has sought to do is within the law, namely, distribute the estate so that he does not need to hold it in trust for the Respondents who have since attained the age of the majority. | Allowed | https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/4512/eng@2025-04-08 |
Succession Cause 105 of 2014 | In re Estate of the Late Philip Chabeda (Deceased) (Succession Cause 105 of 2014) [2025] KEHC 4561 (KLR) (Family) (8 April 2025) (Judgment) | Judgement | High Court at Nairobi (Milimani Law Courts) | High Court | HK Chemitei | 8 April 2025 | 2,025 | Nairobi | Family | Denny Naliava Chabeda v Jane Mideva Lomosi & Rose Karegi | [2025] KEHC 4561 (KLR) | null | 1.
The Applicant/Objector who is the son to the deceased filed the objection herein amended and dated 11th January 2017 and asked the court for orders that:-
a.
The court revokes the letters of administration issued to the Respondents on 7th January 2015 as the same was acquired with concealment from the court of material facts.
b.
The cause be consolidated with Cause No. 49 of 2014 in Naivasha and the Naivasha cause be the lead file.
c.
The court do order the 1st Petitioner/Respondent to account for the rent collected in respect to flat number E4 Kibera Highrise since the demise of the deceased on 10th November 2011.
d.
The court do order the 1st Respondent to account for funds collected from Narok County Government since the deceased demise.
2.
When the matter came up for directions the court directed that the same be heard by way of oral evidence. The Applicant/Objector testified and did not call any witness. The Respondent as well testified and did not call any witnesses.
3.
While relying on his affidavits on record the Applicant testified that he was the third child of the deceased and that the 1st Respondent cohabited with the deceased but not as husband and wife. His reason was that the deceased did not introduce her as his wife and that there was no ceremony that was conducted whether civil or customary.
4.
He said that she was enjoying the properties of the estate having began the succession process without his knowledge. He specifically singled out the NHC highrise flat which according to him the 1st Respondent was renting it out. He demanded that the Respondent accounts for all the rent she has been collecting since the deceased demise.
5.
When cross examined, he admitted that in the limited letters of administration filed he sought from the court he included the 1st Respondent as one of the beneficiaries as she was her step mother.
6.
He said that he blamed her for the animosity within the family as there have been camps within the family. The 2nd Respondent who is his step sister had moved to the 1st Respondent’s camp.
7.
He said that by 1999 he was above 18 years and his father did not introduce her as his wife.
8.
In the minutes of the burial committee, he admitted that she was recognised as a wife.
9.
He admitted also that the chiefs letter dated 9.1.2011 identifies her as the deceased wife.
10.
The 1st Respondent admitted in her testimony that the Applicant was his step son and that he was married to the deceased for 18 years having married him in 1992. That by the time of his death he was still living with him.
11.
The Objector lived with her while still in school and that the deceased had 8 children but did not marry their mothers.
12.
As regards the law firm in Narok and the files she said that the same were taken over by advocate Mungai who was currently acting for the Objector despite the protest from the Law Society of Kenya (LSK). The entire results and payments of the legal fees were taken by the said advocate who has failed to account for it.
13.
When cross examined, she said that her marriage with the deceased was customary and that dowry was paid before the deceased was buried as the Luyha customs demands. | 14.
I have perused the rival submissions on record by the parties as well as the cited authorities. They all generally gravitate around the issues raised in their rival affidavits and I need not reproduce them here.
15.
The main issues are whether the 1st Respondent was married to the deceased and a wife for that purpose and secondly and in view of the evidence tendered herein the grant ought to be revoked.
16.
The evidence on record in my view which is uncontroverted is that the deceased lived with the Respondent till his demise. There was no evidence to the contrary.
17.
The other uncontroverted evidence has to do with the Naivasha succession cause which was consolidated with this file. This file therefore became the lead file.
18.
The Objector did not deny the fact the they lived together with the deceased and the 1st Objector in one house while he was still a student and I find ridiculous the argument that his father did not introduce the 1st Respondent as his wife to him. This is absurd and completely out of normal customs and family expectations.
19.
His father had absolutely no reason to introduce his wife or girlfriend to his juvenile son. Neither did the Objector any right to demand such.
20.
I think the Respondent acquitted herself well when she testified that the Luyha customary rites of dowry before burial were performed and thus, she was recognised as a wife. Although there was no direct evidence the newspaper advertisement on record and the eulogy indicated that she was the deceased wife. I reckon that the same was consented to by the family or clan after the above rites.
21.
The Objector did not adduce any evidence to the contrary and in the premises and based on the facts on record and for all intent and purposes the 1st Objector was the deceased wife.
22.
In any case there was no evidence to the contrary that the deceased and the Respondent did not stay together as husband and wife for 18 years.
23.
On the issue of the National Housing house, I do not find any issue that is contrary. The property forms part of the estate. The same ought eventually to be distributed.
24.
As regards the rent collected the explanation that the same was used to rent a bigger house by the Objector was sufficient. Having found that she was the deceased wife, it becomes onerous to demand that she accounts for all the rent collected without any evidence of misuse advanced by the Objector.
25.
The same goes to the legal fees that was collected from the Narok county government. The Law society of Kenya in which the deceased was a member has protocols to be observed when a member dies. If indeed counsel Mungai who represented the Objector herein had issues regarding the management of the office as suggested by the 1st Objector then the Law society will be expected to inquire and ensure that the deceased estate is secured on behalf of his clients as well as the beneficiaries.
26.
In other words, any fees accruing therefrom to the deceased must benefit the estate just like any other assets left behind by the deceased. Nonetheless this is a matter which squarely falls under the ambit of LSK.
27.
The Naivasha file was later brought and consolidated with this file. The issues raised therein were similar, namely the issue relating to the estate of the deceased. The ruling of Meoli J on 21st November 2016 settled it when it revoked the grant dated 4th November 2015.
28.
The next question or issue before me is whether I should revoke the grant in line with Section 76 of the Act, Cap 160. The same states:-
“
A grant of representation, whether or not confirmed, may at any time be revoked or annulled if the court decides, either on application by any interested party or of its own motion—
a.
that the proceedings to obtain the grant were defective in substance;
b.
that the grant was obtained fraudulently by the making of a false statement or by the concealment from the court of something material to the case;
c.
that the grant was obtained by means of an untrue allegation of a fact essential in point of law to justify the grant notwithstanding that the allegation was made in ignorance or inadvertently;
d.
that the person to whom the grant was made has failed, after due notice and without reasonable cause either-
i.
to apply for confirmation of the grant within one year from the date thereof, or such longer period as the court order or allow; or
ii.
to proceed diligently with the administration of the estate; or
iii.
to produce to the court, within the time prescribed, any such inventory or account of administration as is required by the provisions of paragraphs (e) and (g) of section 83 or has produced any such inventory or account which is false in any material particular; or
e.
that the grant has become useless and inoperative through subsequent circumstances.” | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/4561/eng@2025-04-08 |
Probate & Administration E151 of 2025 | In re Estate of Wilfred Akhonya Mutubwa (Deceased) (Probate & Administration E151 of 2025) [2025] KEHC 4402 (KLR) (Family) (8 April 2025) (Ruling) | Ruling | High Court at Nairobi (Milimani Law Courts) | High Court | H Namisi | 8 April 2025 | 2,025 | Nairobi | Family | Virginia Wanjiku Njoki & Kennedy Mwinamo Ashimosi | [2025] KEHC 4402 (KLR) | null | 1.
The Deceased herein, who was an Advocate, passed away on 26 November 2024 in Nairobi. He died intestate. The Petitioners have presented a Petition for Letters of Administration ad colligenda bona dated 14 March 2025 under section 67 of the Law of Succession Act. The same is presented seeking that the Grant of Letters of Administration ad colligenda bona be issued to Virginia Wanjiru Njoki And Kennedy Mwinamo Ashimosi and that the same be limited to accessing and obtaining information relating to accounts held by the Deceased at Stanbic Bank, ABSA Bank Kenya and Equity Bank Limited.
2.
The Petition is supported by an Affidavit sworn by Virginia Wanjiru Njoki And Kennedy Mwinamo Ashimosi. Virginia Wanjiru Njoki is the widow to the Deceased, while Kennedy Mwinamo Ashimosi is a family friend.
3.
Dosiana Olivia Mukwilu, a named Beneficiary and mother to the Deceased, has presented a consent dated 14 March 2025 for the issuance of the limited Grant to the Petitioners. She confirms that she fully understands that the same is intended solely for purposes of addressing urgent financial obligations such as rent, utilities, household expenses, medical bills, family upkeep and legal expenses of the Estate.
4.
The 1st Petitioner appeared before the Court and confirmed that there are 4 beneficiaries of the Estate; herself, two daughters and the Deceased’s mother, Dosiana Olivia Mukwilu. She indicated that she requires money for school fees, the medical cover, utilities and household expenses, insurance cover for the family car and legal fees for the Advocate representing her. She stated that she did not know the amount held in the accounts since such information is not forthcoming from the various banks without a grant of representation.
5.
Similarly, Kennedy Mwinamo Ashimosi appeared before the Court. He undertook to provide full accounts for the funds accessed from the various bank accounts
6.
The Petitioners presented a copy of the Certificate of Marriage between the 1ST Petitioner and the Deceased. In documents presented to this Court, there is a letter dated 25 February 2025 from the Senior Assistant Chief, Parklands Location, Nairobi confirming 4 beneficiaries of the estate. The extent of the estate is yet to be established.
7.
Further, there is a renewal notice from APA insurance for motor vehicle registration number KCP 794B for the period January 2025 to January 2026. The premium amount is Kshs 135,105. A second renewal notice is attached for motor vehicle registration number KDE 999T for the period April 2025 to April 2026. | null | Allowed | https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/4402/eng@2025-04-08 |
Family Miscellaneous Application E006 of 2025 | In re JGM (Subject) (Family Miscellaneous Application E006 of 2025) [2025] KEHC 4521 (KLR) (Family) (8 April 2025) (Judgment) | Judgement | High Court at Nairobi (Milimani Law Courts) | High Court | HK Chemitei | 8 April 2025 | 2,025 | Nairobi | Family | null | [2025] KEHC 4521 (KLR) | null | 1.
This ruling relates to the application dated 14th January, 2025 filed by the Applicant, Agnes Muthoni Matu seeking for Orders That:-
a.
Spent.
b.
Spent.
(c)
This honourable court be pleased to issue an ex parte order appointing A. M. as J. G. M’s Guardian ad litem limited to giving instructions with regards to ongoing litigation at Milimani Law Courts, namely; (i) Chief Magistrates Court at Milimani Civil Case No. E3XXX of 2023 [JGM v Family Bank Ltd & Others] and (ii) Chief Magistrates Court at Milimani Civil Case No. 6XXX of 2024 [RKD v Duramed healthcare Limited & Others];
d.
J. G. M be and is hereby adjudged to be a person suffering from mental sickness under the Mental Health Act;
e.
A. M. M be appointed as J. G. M’s Guardian duly authorised to manage his affairs;
d.
The court be pleased to issue any other orders to meet the ends of justice.
2.
The application is supported affidavit sworn by Agnes Muthoni Matu on 14th January, 2025.
3.
She avers inter alia that she is the former wife of J.G.M., with whom they have four children. Although their marriage was officially dissolved on 4th April, 2022, she has remained involved in his care due to his declining health. J.G.M. has a history of serious health issues, including diabetes diagnosed in 2010, which progressed to high blood pressure, glaucoma (now at end stage with complete vision loss) and recurrent strokes - four since 2019 with the latest two in 2023 and 2024 classified as severe cerebrovascular accidents.
4.
These conditions have significantly impacted his mental capacity, leaving him unable to comprehend basic instructions or perform simple cognitive tasks. Despite efforts to maintain his mental health through treatment at Mathari Teaching and Referral Hospital, his condition continues to decline.
5.
In 2024, based on medical advice, she sought a forensic mental assessment for him, which requires a court order due to hospital privacy standards. J.G.M. also suffers from kidney complications and sees a nephrologist regularly. Since 2023, he has been living with her and their children, during which time she has witnessed firsthand the extent of his mental and physical challenges. He now requires continuous care, including specialized medical and nursing attention.
6.
In addition, he is involved in the following legal proceedings: Milimani CMCC No. E3XXX of 2023 against Family Bank Ltd concerning the attempted sale of his assets and a suit filed against him by a co-director in Duramed Healthcare Ltd - Milimani CMCC No. E6XXX of 2024. Given his incapacity and the legal matters at hand, the applicant seeks to be appointed as guardian ad litem to manage his affairs, provide instructions to his legal counsel and ensure the protection of his interests. She assures the court of her readiness to serve in good faith, emphasizing that his wellbeing directly affects their children's future.
7.
The application is unopposed and there are no written submissions filed. | 8.
I have carefully considered the application and the annexed medical reports on record.
9.
Though the applicant and the ward have had a very interesting history and it appears that she is coming in to aid him at these difficult times.
10.
I am satisfied with the medical history provided and in the premises find the application meritorious.
11.
In In re WKM (Subject) (Miscellaneous Application E138 of 2023) [2023] KEHC 22202 (KLR) (7 July 2023) (Ruling) the court pronounced itself as follows:-
“
6.
Section 2 of the Mental Health Act cap 248 provides as follows;
“A person suffering from mental disorder” means a person who has been found to be suffering under this Act and includes a person diagnosed as a psychopathic person with mental illness and suffering from mental impairment due to alcohol or substance abuse.”
7.
On empowering the court to grant orders as sought by the applicant, section 26 of the Mental Health Act cap 248 provides as hereunder:-
“(1) The court may make orders:
a)
For the management of the estate of any person suffering from mental disorder, and
b)
For the guardianship of any person suffering from mental disorder by any near relative or by any other suitable person
c)
Where there is no known relative or other suitable person, the court may order that the Public Trustee be appointed manager of the estate and guardian of any such person.
d)
Where upon inquiries it is found that the person to whom the inquiry relates is suffering from mental disorder to such an extent as to be incapable of managing his affairs, but that he is capable of managing himself and is not dangerous to himself or to others or likely to act in a manner offensive to public decency, the court may make such orders as it may think just for the management of the estate of such person, including proper provision for his maintenance and for the maintenance of such members of his family as are dependent upon him for maintenance, but need not, in such case, make any order as to the custody of the person suffering from mental disorder.”
In making reference to section 26 and 27 of the Mental Health Act, Charles Kariuki J in the case of Re SWM (Patient) [2022] eKLR stated as follows:-
“The court in Re N M K [2017] eKLR considered what should guide the court when applying Section 26 and 27 of cap 248. The held as follows:-
“In considering an application brought under sections 26 and 27 of the Mental Health Act, the court is guided by three main factors:
There must be medical evidence warranting the determination by the court that the Subject suffers from mental disorder;
The person to be appointed to be either a Guardian or Manager must be fit to be so appointed;
The court must be satisfied that a proposed Manager will utilize her powers for the benefit and welfare of the Subject.”
Similarly, in re Estate VFM (Patient) [2020] eKLR, the court held that:
a)
For the court to grant the application for appointment of a manager of the estate and guardian to the patient, the petitioner/applicant is duty bound to prove that:
b)
There exists medical proof by show of evidence confirming that the subject suffers from mental disorder.
c)
The petitioner/applicant seeking to be appointed as manager or guardian must be legally fit to be so appointed.
d)
That due to the subject’s mental disorder, he or she is incapable of managing his/her own affairs independently and responsibly.
e)
That the proposed manager/guardian will manage the subject’s property effectively and efficiently for the benefit of the estate and welfare of the subject.
The court in in Re N M K [supra] stated that the overall guiding principle in applying all these factors must be the welfare and best interests of the subject.”
12.
The application is therefore allowed as prayed and the Applicant directed to comply with all the provisions of the Mental Act.
13.
Costs in the cause. | Allowed | https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/4521/eng@2025-04-08 |
Miscellaneous Civil Application E003 of 2025 | In re WKAL (Subject) (Miscellaneous Civil Application E003 of 2025) [2025] KEHC 4536 (KLR) (8 April 2025) (Ruling) | Ruling | High Court at Kapsabet | High Court | JR Karanja | 8 April 2025 | 2,025 | Nandi | Family | GC & WCK | [2025] KEHC 4536 (KLR) | null | 1.
The chamber summons dated 10th February 2025, is an application by GC and WCK [Applicants] made under Section 26 of the Mental Health Act and Order 32 Rule 15 of the Civil Procedure Rules seeking orders to the effect that: -
a.
WKAL [subject] be produced in court for the purposes of an inquiry by the Court to establish whether by reason of mental infirmity he is incapable of protecting his interests.
b.
GC and WCK be appointed guardian ad litem of WKAL.
2.
The application is based on the grounds that the Applicants are the daughters of the subject WKAL who was medically evaluated and diagnosed with dementia likely secondary to normal pressure hydrocephalus and is currently in a poor state as to make judgement and is reliant on other persons for self-care including cleaning, feeding and movement. Further that, owing to his medical condition, the subject is incapable of defending his interests resulting to mismanagement of his property and finances.
The averments in the supporting affidavits of the applicants dated 10th February 2025 serve to enhance and solidify the supporting grounds with a contention that parcels of land being Nandi/Kipsigak/1X8 and Nandi/Kaboi/1X0 belonging to the subject are on the verge of being transferred without his consent.
3.
Order 32 of the Civil Procedure Rules provides for suits by or against minors and person of unsound mind and Rule 15 of the Provision provides for application of rules to persons of unsound mind in the following terms: -
“
The provisions contained in rules 1 to 14, so far as they are applicable, shall extend to persons adjudged to be of unsound mind and to persons who though not so adjudged are found by the court on inquiry by reason of unsoundness of mind or mental infirmity, to be incapable of protecting their interest when suing or being sued.”
4.
The Mental Health Act [Cap 248 Laws of Kenya], “inter-alia” provides for treatment and general management of persons with mental illness and for connected purposes. Its purpose and scope includes ensuring that the rights of persons with mental illness are protected and safeguarded.
Section 26[1] of the Act states that: -
“
An application for an order for the management and administration of the estate of a person with mental illness may be made to the court, in the following order of priority by: -
a.
A supporter of the person with mental illness, or
b.
The representative of the person where the person with mental illness has not appointed a supporter”.
5.
Under Section 2 of the Act, a “supporter” means a person appointed under Section 31 by the person with mental illness to make decisions on behalf of the person with mental illness according to the will and preference of the person with mental illness.
Part XII of the Act provides for care and administration of property of persons with mental illness. Section 26 of the Act falls under this part together with Section 27 which provides that: -
“
(1)
The court may make such an order as it considers necessary for the administration and management of the estate of any person with mental illness including: -
(a)
An order making provision for the maintenance of the person.
(b)
An order making provision for the maintenance of members of the person’s immediate family who are dependent upon the person, and
(c)
An order making provision for payment of the person’s debts.
(2)
The Court may appoint, a manager of the estate of a person with mental illness for the purposes of safeguarding the property of that person.
(3)
The Court may for the purposes of Section [1], appoint the supporter or the representative of the person with mental illness as the manager of the estate of the person under subsection [2]. | null | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/4536/eng@2025-04-08 |
Originating Summons 49 of 2007 | JRKN v RGN (Originating Summons 49 of 2007) [2025] KEHC 4596 (KLR) (Family) (8 April 2025) (Judgment) | Judgement | High Court at Nairobi (Milimani Law Courts) | High Court | HK Chemitei | 8 April 2025 | 2,025 | Nairobi | Family | JRKN v RGN | [2025] KEHC 4596 (KLR) | null | 1.
In the Originating Summons dated 16th October 2007 the Plaintiff seeks orders that she is entitled to 50% share in the properties mentioned therein namely:-
(a)
LR Mainland North /Section 1/ 7X3,7X4,1XX6
(Apartment 242).
(b)
LR No. 209/ 1XX54 .
(c)
LR No. 209/1XX55.
(d)
Kajiado/Kaputiei North 1XX5.
(e)
LR No. 1XX54/3 Maragua.
(f)
Nginda/Samar/Block 2XX6.
(g)
Nginda/Samar Block 2XX5.
(h)
LR No. 2X9/8XX6/2X4.
(i)
Kajiado/Kaputiei North/1XX0.
(j)
Kajiado/Kaputiei North1/1XX5.
(k)
Beach plot in Likoni Mombasa.
(l)
Kajiado/Kaputiei/6XX4.
(m)
Other properties in Juja and Mombasa.
(n)
Motor vehicles registration numbers KAK 0X4 Z m/benz, KAM 2X9 pick up, KAH 7X7 range rover, KAD 9X2 M/BENZ.
(0)
Shares in Themis Investment limited, Rural Assets Credit Limited, Themis Industrial Limited and Intra Trade (UK).
2.
The Respondent in response swore a replying affidavit dated 29th November 2007.
3.
The matter after a long period proceeded to a full trial where the Plaintiff testified and called one witness. The Defendant on his part testified and did not call any witness.
4.
Both parties adopted their statements which are on record in establishing their case.
5.
What can easily be cleaned from the entire spectrum of the evidence by both sides is that they cohabited as husband and wife from the year 1984 and they were blessed with two children. The third child however was sired by the Defendant in another relationship but she was brought in under their care and custody. | 31.
I have carefully gone through the proceedings conducted by my earlier colleagues as well as the submissions on record and the cited authorities.
32.
What is evident is that the Plaintiff and the Defendant were husband and wife for all intent and purposes. The divorce proceedings under Case Number 100 of 2013 states as much.
33.
The Defendant acknowledges that they parted ways in January 2004 and save for the children whom both of them attended to, they lived separately till the divorce proceedings went through on 16th June 2017.
34.
Looking therefore at the whole spectrum from 1984 to 2004, a period of close to 20 years it is not in doubt that they lived as husband-and-wife contrary to the assertion by the Defendant that they lived intermittently. It means therefore that whatever decisions taken at that time whether to purchase or to sale properties were made during coverture and the only issue for this court to determine is the contribution by each of them.
35.
I have no doubt in my mind that LR No. 209/8336/244 Loresho Nairobi is a matrimonial home just as it was admitted by the parties. There is sufficient evidence that that is where they stayed and raised their children.
36.
The same was purchased through the loan /mortgage taken by the Defendant. The repayment of the loan was undertaken during coverture and the Plaintiff as a wife in her own way contributed to the repayment albeit indirectly.
37.
The business of taking care of the family, the children and the Defendant in ensuring comfort at home in many ways may not be quantified but it is now considered and generally accepted as a contribution to the family property acquisition.
38.
Section 14 of the Act provides as hereunder:-
“
Where matrimonial property is acquired during marriage—
(a)
in the name of one spouse, there shall be a rebuttable presumption that the property is held in trust for the other spouse; and
(b)
in the names of the spouses jointly, there shall be rebuttable presumption that their beneficial interests in the matrimonial property are equal.”
39.
To this extent therefore I find that though the Loresho home is registered in the name of the Defendant acquired through a mortgage I hold that the Plaintiff played a part in its acquisition.
40.
Taking the whole issue into consideration I find that in totality the Plaintiff is entitled to 35% thereof.
41.
As regards the rest of the properties especially those enumerated on the face of the OS I agree with the Plaintiff that although she was not a director of the companies I find for instance that Themis Investments Limited was registered on 6th October 1985 and the directors are the Defendant and one Mureka Gatheca, she however gave the Defendant the opportunity to undertake such ventures like running the said company without any let or hinderances.
42.
In other words, although he is insulated by the company laws, he cannot however wish away the contribution by the Plaintiff. A classic example which is not disputed is the contract to airlift the Kenyan soldiers to Yugoslavia which brought in substantial sum of income to the company. As a result of the said earnings, it is evident that the couple through the said company managed to accumulate property.
43.
As for the other companies I find that most of them were acquired after the year 2004 when the couples had parted ways. It will be remiss for this court to deal with the said companies without any evidence of contribution by the Plaintiff post 2004.
44.
The same goes for the bank accounts. There was no sufficient evidence to suggest or prove to the court that the Defendant or the company for that matter held accounts in the banks suggested in the oral evidence.
45.
It will not be reasonable and equitable to allow the Defendant under the guise of the company law to hide whatever he owned when the marriage was subsisting. What he holds under the company is on trust for and on behalf of his former wife.
46.
In the premises the Defendant’s entitlement whether through shares or shareholding in Themis Investments Limited constitute 35% of the Plaintiff’s contribution.
47.
In Mradula Suresh Kantaria v. Suresh Nanalal Kantaria (2007) eKLR the court extensively stated that:-
“
Charlesworth and Morse: Company Law (14th Edition) at paragraph 27 – 28, lays down the applicable principle of law thus:
“
It was established in Solomon versus Solomon and Co. Ltd that a registered company is a legal person separate from its members. This principle may be referred as ‘the veil of incorporation’. In general the law will not go behind the separate personality of the company to the members, so that, for example in Macaura Versus Northern Assurance Co. Ltd, ante, it was held that the largest shareholder had no insurable interest in the property of the company. Similarly an employee cannot bring an action for unfair dismissal against the majority shareholder of a company, which employed him. However there are exceptions to the principle in Solomon’s case where the veil is lifted and the law disregards the corporate entity and pays regard instead to the economic realities behind the legal façade. In these exceptional cases the law either goes behind the corporate personality to the individual members, or ignores the separate personality of each company in favour of the economic entity constituted by a group of associated concerns.”
Applying the above principal in the case of Corporate Insurance Co. Ltd V. Savemax Insurance Brokers (2002) IEA 41, Ringera, J (as he then was) stated at p.46: -
“
And it is a well known principle of company law that the veil of incorporation may be lifted where it is shown that the company was incorporated with or was carrying on business as no more than a cloack, mask or sham, a devise or stratagem for enabling the directors to hide themselves from the eye of equity. That may well be so if on the evidence it is clear that the directors have dealt with the assets and resources of the company as their personal bounty for use for their own purposes. Such facts may well be disclosed in the examination of the directors or in affidavits filed… On principle I see no reason why the veil cannot be lifted at the execution stage ….”
Considering the same principle as applied in the case above Mbaluto, J also in Caneland Ltd V. Dolphin Holdings Ltd and another (1999) I EA, 29 stated thus –
“
As shown above, the courts have refused to permit the logic of the principle laid down in Solomon’s case to apply ‘where it is too flagrantly opposed to justice, convenience or interests of the Revenue (Gower- Ed at 112) and will disregard the fundamental principle of corporate personality if justice warrants it. Equity will not permit a statute or indeed law to be a cloak for fraud. In my judgment this is one of those cases where the corporate veil ought to be lifted because given the special circumstances of this case, it would be tantamount to allowing a debtor to hide behind the cloak of corporate identity to avoid meeting its legal obligations…”
48.
In view of the above findings, I therefore hold that in the matrimonial property proved in this court the Plaintiff holds 35% and the Defendant 65 %. The higher percentage in my view is for the simple reason that the Defendant was hands on all along and several loans were obtained by him to sustain the same and by extension the education and upkeep of the children.
49.
The only unproven fact is the registration of the properties. I have perused the records and it appears to me that there are no much records indicating the registered proprietors of the said assets. Nothing however is lost to the parties as they shall be at liberty to apply. | Allowed in part | https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/4596/eng@2025-04-08 |
Criminal Appeal E179 of 2023 | Kadenge v Republic (Criminal Appeal E179 of 2023) [2025] KEHC 4541 (KLR) (8 April 2025) (Judgment) | Judgement | High Court at Nairobi (Milimani Commercial Courts) | High Court | Cj Kendagor | 8 April 2025 | 2,025 | Nairobi | Criminal | Philadephia Kadenge v Republic | [2025] KEHC 4541 (KLR) | null | 1.
The Appellant was charged with the offence of Defilement contrary to Section 8 (1), read together with Section 8 (2) of the Sexual Offences Act. He had an alternative count of committing an indecent act with a child contrary to Section 11 (1) of the said Act. He was found guilty of defilement and was convicted. He was sentenced to 2 years of placement, with one year being non-custodial, but to be placed in a custodial facility in the year 2024.
2.
He was dissatisfied with the conviction and the sentence and appealed to this Court through a Petition of Appeal dated 13th June, 2023. He listed the following Grounds of Appeal;
1.
That the Honourable Magistrate erred in law and fact in failing to appreciate that no case had been demonstrated by the Prosecution to warrant a finding of guilt on the Appellant.
2.
That the Honourable Magistrate erred in making sweeping findings devoid of any analysis of the material evidence, issues and facts presented before her.
3.
That the Honourable Magistrate erred in law and fact in failing to consider and analyze the testimony by the Appellant, his witness and the submissions made by the Appellant.
4.
That the Honourable Magistrate erred in law and fact in rendering a judgment that only contained an introduction and a finding and completely lacking of a reason(s) for the findings.
5.
That the Honourable Magistrate erred in law and fact in dealing with the trial before her in a very casual manner devoid of elaborate reasoning as required in judicial decisions.
6.
That the Honourable Magistrate erred in law and in fact in concluding that the offense of defilement was proved without considering and analyzing the evidence of the Clinical Officer.
7.
That the Honourable Magistrate erred in law and fact in overlying on an unsworn testimony by PW1 which was also not corroborated.
8.
That the Honourable Magistrate erred in law and fact in assuming that the presence of a broken hymen was complete evidence and proof of defilement.
9.
That the Honourable Magistrate erred in law and fact in failing to appreciate that the casual approach she adopted in failing to deliver the judgment for almost eight (8) months since the close of Defence case was a violation of Article 50 and 53 (2) of the Constitution and the principle of the Best Interests of the Child.
10.
That the Honourable Magistrate erred in law and fact in unnecessary detaining the Appellant from the 28th April 2023 to the 29th May 2023 awaiting for a Placement Ruling which approach was a violation of Article 50 of the Constitution.
11.
That the Learned trial Magistrate erred in law and fact in dealing with the matters before her arbitrarily, casually and on whims rather than on analysis of evidence as by law required.
12.
That the Honourable Magistrate erred in law in her insistence of detaining the minor after he sits of National Exams and her total disregard of the social inquiry report prepared by the Probation Office.
13.
That the finding of guilt in the present circumstances is dangerous and against the weight of the evidence.
3.
He requested this Court to set aside the conviction and sentence of the subordinate court and acquit him. The Appeal was canvassed by way of written submissions. The Respondent did not file submissions despite being given the opportunity to. | 5.
Upon consideration of the facts of this case, the Grounds of Appeal and the submissions made by the Appellant, I find that there are two issues for determination;
a.
Whether the offence of defilement was proved to the required standard;
b.
Whether the Appellant was identified as the perpetrator;
c.
Whether the sentence imposed was appropriate.
6.
The role of this Court as the first appellate Court is well settled. In Okeno vs. Republic (1972) EA 32, the East Africa Court of Appeal gave an authoritative observation on the duty of the first Appellate court. It stated as follows;
“
An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination (Pandya v. R., [1957] E. A. 336) and to the appellate court's own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusions. (Shantilal M. Ruwala v. R., [1957] E.A. 570). It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court's findings and conclusions; it must make its own findings and draw its own conclusions. Only then can it decide whether the magistrate's findings should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses, see Peters v. Sunday Post, [1958] E. A. 424.”
7.
The above authority has since been adopted and affirmed more recently by the Court of Appeal in Peter Kifue Kiilu & another v Republic [2005] eKLR, where the Court held that the role of the first Appellate Court is not merely to scrutinize the evidence to see whether there was some evidence in support of the trial Court’s decision.
8.
Based on these authorities, this Court shall undertake a wholesome review of the evidence with a view to reaching its own conclusion. As I undertake this cause, I appreciate that the trial Court had the advantage of observing the demeanor of the witnesses and hearing them give evidence and give allowance for that.
9.
I have reviewed the testimonies of all the witnesses and I have summarized them as follows;
10.
The Complainant gave unsworn evidence, the trial Court opined from the viva voce evidence that she did not understand the solemnity of being in Court and the significance of swearing. She stated that the Appellant took her to the bathroom, closed the bathroom and removed her clothes. She stated that the Appellant then inserted his dudu to hers. She stated that she did not cry/shout because the Appellant told her to shut up. She stated that the Appellant’s mother found them in the bathroom and beat them both. On cross-examination she stated that the Appellant did tabia mbaya to her.
11.
The second witness was the Complainant’s mother. She stated that she took the Complainant to the hospital the same day. She mentioned that the child had not bathed when she got home and that they went to the hospital in that condition. She indicated that the child was examined at Nairobi Women’s Hospital. She produced the P3 form from Muthangari Police Station and filled out a PRC form at Nairobi Women’s Hospital. She also provided the Complainant’s birth notification. PW2 denied asking for money from the Complainant’s family in exchange for settling the matter.
12.
The Prosecution also called a Clinician from Nairobi Women’s Hospital. The clinician came to produce the medical report on behalf of her colleague, who had left the facility. He stated that she had worked with her former colleague for more than 2 years and that she was familiar with her colleague’s handwriting. He stated that the Complainant was examined on 16th November, 2021 at 1.20 am, and that the alleged defilement was reported to have happened on 15th November 2021 at 11pm. He stated that, according to the examination, the Complainant’s hymen was torn and had a laceration at 10 O’clock and that they had formed the opinion that there was penal-vaginal penetration with injury. In cross-examination, he stated that the hymen had injuries and that the injury from the tissue hymen was noticeable.
13.
The Appellant gave unsworn evidence in his defence. He admitted playing hide and seek with the Complainant and other kids but denied defiling the Complainant. He stated that they were not found in the bathroom, which he mentioned is far away and used by many people. He also stated that he thinks the Complainant was coached. According to the Appellant, they were beaten by their mother (DW2) for playing outside at night.
14.
The defence also called the Appellant’s mother. She stated that she did not find the Appellant and the complainant in the bathroom as alleged. She said that she did not know what happened and that she did not find the children naked. She told the Court that she did not know whether the Complainant was defiled. She said she beat the Appellant and the Complainant because they were playing at night, chasing each other in hide and seek. DW2 stated that the Complainant’s mother came to her house, quarrelling and demanding to know why DW2 had assaulted the Complainant. According to DW2, she explained that the children were playing hide and seek at night, and the mother (PW2) began to accuse the appellant of defiling the complainant.
15.
Section 8 of the Sexual Offences Act defines defilement as;
8(1)
A person who commits an act which causes penetration with a child is guilty of an offence termed as defilement.
Penetration is defined as;
“
means the partial or complete insertion of the genital organs of a person into the genital organs of another person.’
16.
In C.W.K v Republic [2015] eKLR, the Court highlighted the ingredients forming the offence of defilement;
“
The critical ingredients forming the offence of defilement are the age of the complainant, proof of penetration, and positive identification of the assailant.”
17.
The burden of proof rests with the prosecution to prove its case against the Appellant beyond reasonable doubt. In Stephen Nguli Mulili vs Republic [2014] eKLR, it was held that: -
“
It is not in doubt that the burden of proof lies with the prosecution. The locus classicus on this is the case of DPP V Woolmington, (1935) UKHL 1 where the court eloquently stated that the “golden thread” in the “web of English common law” is that it is the duty of the prosecution to prove its case. The Kenyan Courts have upheld this position in numerous cases. See Festus Mukati Murwa vs. R, [2013] eKLR.”
18.
Age - I am satisfied that the Complainant’s minority age was proven to the required standard.
19.
Recognition – The Complainant and the Appellant know each other well as neighbours. On the material night, they were playing hide-and-seek, and there is evidence of an incident that occurred that night involving both of them and their parents, which led to the subsequent interventions and the case now before the Court. | Allowed | https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/4541/eng@2025-04-08 |
Matrimonial Cause E089 of 2022 | LWK aka LWG v OGM (Matrimonial Cause E089 of 2022) [2025] KEHC 4552 (KLR) (Family) (8 April 2025) (Judgment) | Judgement | High Court at Nairobi (Milimani Law Courts) | High Court | HK Chemitei | 8 April 2025 | 2,025 | Nairobi | Family | LWK AKA LWG v OGM | [2025] KEHC 4552 (KLR) | null | 1.
The Plaintiff and the Defendant marriage was dissolved and a decree absolute issued on 21st February 2020.
2.
During the coverture they had the following properties,
(a)
Nairobi block 82/XXXX
(b)
Kajiado/Kitengela/1XXX
(c)
Kajiado/Kitengela/19XXXX
(d)
Embu property
3.
The Plaintiff filed this suit seeking orders that the said properties which are registered in the Defendant’s name be declared matrimonial and the same be divided among the two.
4.
The Defendant though served did not prefer any defense. The matter went for formal proof where the Plaintiff testified and did not call any witnesses.
5.
In her testimony she said that they registered two companies namely Total Plus Bureau Company Limited while in Kenya and Total Plus Transport Inc. in the United States of America. | null | Allowed | https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/4552/eng@2025-04-08 |
Miscellaneous Application E171 of 2025 | Karanu v Registrar of Companies & another (Miscellaneous Application E171 of 2025) [2025] KEHC 4658 (KLR) (Civ) (8 April 2025) (Ruling) | Ruling | High Court at Nairobi (Milimani Law Courts) | High Court | NW Sifuna | 8 April 2025 | 2,025 | Nairobi | Civil | Richard Kamau Karanu v The Registrar of Companies & Attorney General | [2025] KEHC 4658 (KLR) | null | 1.
This ruling is from an Application by Dr Ann Muthoni Kamanu, and in which she is seeking to be joined in this Miscellaneous Cause as an Interested Party. The main reason she has stated for her proposed joinder, is that she is the Administrator and also beneficiary of the Late George Karanu who was her father.
2.
Order 1 Rule 10(2) of the Civil Procedure Rules allows for joinder of a party whose presence and or participation in the suit, is necessary to enable the court effectually adjudicate the issues in the suit. The proposed Interested Party being a beneficiary and Administrator of the Estate of George Karanu who was her father. The Applicant in the main cause has also mentioned her as part of the household of the deceased.
3.
This joinder Application has been considered by this Court in terms of the legal threshold for joinder stated in Order 1 Rule 10 of the Civil Procedure Rules, as well as the principles set by the Supreme Court of Kenya in the Mumo Matemu case.
4.
Cardinal among the requirements for such joinder is that the Applicant should demonstrate having a legally recognizable stake in the matter the subject of the suit, or is a necessary party whose presence and/or participation in the suit is necessary for the court to effectively adjudicate the issues in the suit; or is such a person as shall be affected by orders sought in the suit or likely to granted to the suit.
5.
Upon considering this joinder Application together with its Supporting Affidavit and the Response to it, I am satisfied that there is need to join the said Dr Anne Muthoni Karanu to this Miscellaneous Cause as an Interested Party.
6.
Consequently, her Application for joinder is hereby allowed; and she is consequently hereby joined in this Miscellaneous Cause, as an Interested Party. There shall be no orders as to the costs. | null | Allowed | https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/4658/eng@2025-04-08 |
Civil Appeal E066 of 2024 | Kassamali v Muteti (Civil Appeal E066 of 2024) [2025] KEHC 4591 (KLR) (8 April 2025) (Ruling) | Ruling | High Court at Voi | High Court | AN Ongeri | 8 April 2025 | 2,025 | Taita Taveta | Civil | Taher Kassamali v Rose Katunge Muteti | [2025] KEHC 4591 (KLR) | null | 1.
The application coming for considering in this Ruling is the one dated 3rd December 2024 brought under Section 1A, 1B, 3A, 63(e), 79G and 95 of the Civil Procedure Act, Order 42 Rule 6 and Order 51 Rule 1 of the Civil Procedure Rules 2010 seeking the following orders:-
i.
The application be and is hereby certified as urgent and service be dispensed with in the first instance.
ii.
There be a stay of execution of the Judgment and decree entered herein against the Appellant on 15th November 2024 pending the hearing and determination of this application.
iii.
There be a stay of execution of the Judgment entered against the Appellant on 15th November 2024 pending the hearing and determination of the arguable appeal herein.
iv.
The warrants of attachment and warrants of sale dated 25th November 2024 together with the proclamation notice be hereby set aside and or lifted.
v.
The costs of this application be provided for.
2.
The application is based on the following grounds:-
i.
That the Appellant is dissatisfied with the Judgment of the Court entered on 15th November 2024.
ii.
That the Appellant has lodged the instant appeal herein against the said judgment herein and if the Plaintiff is allowed to execute against the Appellant, the said appeal will be rendered nugatory and will be nothing short of an academic exercise.
iii.
The Respondent herein has proceeded to secure unlawful and irregular warrants of attachment and warrants of sale yet there is already an interim stay of execution of thirty (30) days that was granted by the occur ton 15th November 2024.
iv.
That the said stay is set to lapse on 14th December 2024; the warrants of attachment and sale are dated 25th November 2024.
v.
The Appellant’s appeal herein is arguable with overwhelming chances of success based on points of law.
vi.
That the Appellant is more than ready to abide by any conditions that this Honourable court will impose upon it as the court may deem fit and reasonable.
vii.
The Respondent’s financial ability to refund the decretal sum in the event the arguable appeal succeeds is unknown.
viii.
That the Appellant has sufficient cause for seeking the orders sought.
3.
It is supported by the affidavit of SUSAN KEMUNTO MONARI in which she deponed as follows:-
i.
That I am an advocate of the High Court of Kenya practicing under the firm of Mogaka Omwenga & Mabeya Advocates herein having conduct of this matter and conversant with the matter in issue and hence competent to swear this affidavit.
ii.
That I am aware that the Appellant is dissatisfied with the judgment delivered on 15th November 2024 and has filed the instant appeal herein.
iii.
That I am aware that on 15th November 2024 when I attended court to collect the subject judgment in Voi SCCOMM NO. E001 of 2024, there was a Ms. Nira for the Respondent herein and she did not object to my oral application for a thirty days stay, which was then granted.
iv.
That I am also aware that having been issued stay of execution on 15th November 2024 the same is set to expire on 14th December 2024; therefore the stay order is still in force.
v.
That I am aware that on 3rd December 2024 my client was served via whatsapp with illegal and unlawful warrants of attachment and warrants of sale both issued on 25th November 2024 by the trial court.
vi.
That I am also aware that the Applicant herein was also served with a proclamation dated 3rd December 2024 and an invoice of Kshs. 151,821.08 dated 3rd December 2024.
vii.
That if the Respondent is allowed to continue with the unlawful execution, the same will greatly be prejudicial to the appellant herein who has already lodged an appeal which has very high chances of success and a very bad precedent will have been set for auctioneers/advocates/litigants to carry out illegal and unlawful execution in blatant disregard of court orders.
viii.
That I verily believe that unless a stay of the unlawful execution of the said judgment is granted, the Appellant stands to suffer irreparably.
ix.
That it is only fair and reasonable that stay orders be granted and the lodged appeal is heard and determined to finality.
x.
That I verily believe that the Appellant’s appeal as filed herein is arguable with overwhelming chances of success.
xi.
That the Appellant is bound to lose substantially should the orders sought not be granted and the judgement sum will be beyond the Appellant’s reach in the event that the appeal is successful.
xii.
That the Respondent’s financial ability to refund the decretal sum if paid out is unknown.
xiii.
That the Appellant is ready to comply with any such conditions/terms as may be determined by this Honourable court for granting the orders sought.
xiv.
That I swear this affidavit while urging this Honourable court to further exercise its discretionary powers in favour of the Appellant and grant the orders sought in the application herein as prayed. | null | Allowed | https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/4591/eng@2025-04-08 |
Commercial Appeal E228 of 2024 | Kenya Commercial Bank Limited v Ndung’u & another (Commercial Appeal E228 of 2024) [2025] KEHC 4500 (KLR) (Commercial and Tax) (8 April 2025) (Ruling) | Ruling | High Court at Nairobi (Milimani Commercial Courts) | High Court | BM Musyoki | 8 April 2025 | 2,025 | Nairobi | Commercal and Tax | Kenya Commercial Bank Limited v Joseph Karanja Ndung'u & Africa Merchant Assurance Company Limited | [2025] KEHC 4500 (KLR) | null | 1.
On 2nd August 2024, Honourable V.M. Mochache delivered a ruling allowing the 1st respondent’s application dated 25th April 2024. The court had on 1-05-2024 issued a decree nisi in favour of the 1st respondent attaching funds in the 2nd respondent’s bank accounts numbers 111XXXX867, 120XXXX558, 130XXXX595 and 1312XXXX233 held in the appellant’s bank and paybill account number 59XXXX99 and 545400 held with Safaricom PLC. The prayer for making the decree nisi absolute had been opposed by the appellant on the grounds that the accounts held with it had negative balances owing to locking of funds therein pursuant to earlier court orders in small claims court commercial cases numbers E3144 of 2023, E1336 of 2023 and E1281 of 2023 among others. The appellant in compliant with the court order also filed a further affidavit dated 16th July 2024 giving the updated status of the accounts.
2.
The appellant has raised an issue of jurisdiction claiming that the small claims court had no jurisdiction to hear and determine the suit. I don’t know why the appellant whose duty in this matter is to pay out the debt is so concerned with the suit to the extent that it wants the court to reopen it and go back to issues of jurisdiction which should have been determined before the suit was concluded. There is already a judgement in place against the judgment debtor and not against the appellant. The matter is at the execution stage whose procedure is governed by Order 22 of the Civil Procedure Rules. A decree of the court should by law be executed by the court which passed the decree and that is what the honourable adjudicator did in issuing the garnishee orders. In my view the issue of jurisdiction cannot be raised during execution more so by a person who was not a party to the case. This objection has no basis and the same is overruled.
3.
This appeal was disposed of by way of written submissions where the appellant filed submissions dated 19th November 2024 and the respondent filed its dated 2-12-2024. I have read the submissions by the both parties and the record of appeal and in my considered view, the only question for determination is whether the trial court was justified to issue decree absolute in the circumstances of the status of the 2nd respondent’s accounts.
4.
The effect of an order nisi is to block movement of funds from the judgment debtor’s account until the court in the specified matter either discharges the order nisi or a subsequent order absolute is issued. If the bank or the person so served with an order nisi moves the funds out of account without the leave of the court or the same being discharged, they would be in contempt of court. The appellant had produced statements showing several entries which had locked the funds in the account for various reasons including legal fees and others which are not explained. In her ruling, the Honourable Adjudicator held that unless the sums were locked to comply with any other previous orders nisi, there was nothing else that would take the sums away from the court’s reach. I do agree with the adjudicator that setting aside money for legal fees or unexplained reasons could not prevent issuing of order absolute.
5.
The appellant had in the replying affidavit admitted that the 2nd respondent held the mentioned account but explained that the order absolute could not issue because the accounts were encumbered as follows;
1.
Account number 111XXXX867 had a credit balance of Kshs 3,871,243.75 but a sum of Kshs 4,492,964.56 was locked leaving a balance of -621,720.81.
SUBPARA 2.
Account number 120XXXX558 had a credit balance of 260,811.87 but a sum of Kshs 261,231.87 was locked leaving a balance of Kshs -420.00.
3.
Account number 130XXXX595 had a credit balance of 2,376.35 but a sum of Kshs 2,343.35 was locked leaving a balance of Kshs 33.00.
4.
Account number 131XXXX231 had a credit balance of 4,105,985.80 but a sum of Kshs 3,474,387.00 was locked leaving a balance of Kshs 631,598.70.
5.
The credit balance of Kshs 631,598.70 in 4 above was locked by other decrees in small claims commercial cases numbers E3144 of 2023, E1336 of 2023 and E1281 of 2023. The total amount in these three orders which were exhibited as annexures CM5a, b, c and d was Kshs 741,280.00. | null | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/4500/eng@2025-04-08 |
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The Sheria Corpus v1 is a curated collection of Kenyan legal case summaries from both the High Court and the Supreme Court, organized to support legal research, data analysis, and natural language processing applications in the legal domain. For complete access of the dataset, visit http://datalab.datawiseafrica.com/
Contents: Case metadata: Includes case number, case name, category (e.g., Judgement, Ruling), and decision date.
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Legal categorization: Filing county, legal domain (e.g., Civil, Family, Commercial), and case outcome.
Textual sections:
Summary Text: A brief overview (where available).
Introduction and Background: Describes the origins of the case.
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