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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 |
Criminal Appeal E136 of 2024 | Kibisu & another v Republic (Criminal Appeal E136 & E137 of 2024 (Consolidated)) [2025] KEHC 4467 (KLR) (8 April 2025) (Judgment) | Judgement | High Court at Kibera | High Court | DR Kavedza | 8 April 2025 | 2,025 | Nairobi | Criminal | Alex Kibisu & Simon Peter Kimani v Republic | [2025] KEHC 4467 (KLR) | null | 1.
The appellants were jointly charged and after a full trial convicted of three counts of robbery with violence contrary to section 296(2) of the Penal Code. After a full trial, they were both sentenced to death.
2.
Being aggrieved, they filed the present appeal challenging their conviction and sentence. In their respective petitions of appeal, the appellants’ challenged the totality of the prosecution’s evidence against which they were convicted. They complained that the trial magistrate erroneously failed to consider their defence. They urged the court to quash their conviction and set aside the sentence imposed.
3.
This being a first appeal, it is the duty of this court as the first appellate court, to reconsider, re-evaluate, and re-analyse the evidence afresh and come to its own conclusion on that evidence. The court should however bear in mind that it did not see witnesses testify and give due consideration for that. (See Okeno v Republic [1972] EA 32).
4.
The prosecution called four (4) witnesses in support of their case. PW1, Caroline Wakio Mugo, testified that on the night of the incident at around 7:00 p.m., she was walking near Uhuru Gardens with two friends when they were accosted by three men on a boda boda. Two of the men were armed and ordered them to lie down while demanding their belongings. After robbing them, the assailants fled. The victims immediately reported the matter at Lang’ata Police Station and recorded statements.
5.
Later, PW1 was called for an identification parade, where she recognised the 1st appellant by a distinctive scar she had clearly seen during the well-lit incident. She also identified the 2nd appellant from the identification parade. PW2, Nyambura Wahome, and PW3, Virginia Wainaina, gave consistent accounts, confirming they were together during the robbery and also identified the appellants.
6.
PW4, Corporal Daniel Opiyo, the investigating officer, stated that after receiving the report, he visited the scene. He later traced the suspects when they were arrested for a different offence and held at Riruta Police Station. Their photos, circulated online, led to their identification by the complainants. He confi | null | Allowed in part | https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/4467/eng@2025-04-08 |
Miscellaneous Civil Application E012 of 2024 | Kimathia & 2 others v James Onkundi Omakori t/a Lifewood Traders Aucitioneers (Miscellaneous Civil Application E012 of 2024) [2025] KEHC 4439 (KLR) (8 April 2025) (Ruling) | Ruling | High Court at Kitale | High Court | RK Limo | 8 April 2025 | 2,025 | Trans-Nzoia | Civil | David Kimathia & 2 Others & 2 Others v James Onkundi Omakori T/A Lifewood Traders Aucitioneers | [2025] KEHC 4439 (KLR) | null | 1.
David Kimathia & 2 Others not identified have moved this court through a Notice of Motion dated 8/3/2024 for the following orders;
i.
Spent
ii.
That this Hon. Court do grant the applicants leave to appeal out of time against judgment delivered on 26/2/24 vide Kitale CMCC Misc. Application No.39 of 2023.
iii.
That there be stay of execution of the decree and judgment in Kitale CMCC Misc. Application No.39 of 2023 pending determination of this application.
iv.
That there be a stay of execution of judgment and decree in Kitale CMCC Misc. Application No.39 of 2023 pending determination of the intended appeal.
v.
That costs be in the intended appeal.
2.
The grounds upon which this is based on application are listed as follows;
a.
That the respondent filed a suit claiming auctioneers fees via a bill dated 31/10/2023 against the appellants.
b.
That the applicants were unaware of the matter till later in January 2024 when they instructed an advocate to defend them and object to the bill by auctioneers as the proclamation and execution was carried out after the applicants had paid the full decretal amount to Gacathi Advocate in Kitale CMCC No.456 of 2016.
c.
That the instructed counsel thought the matter was coming for taxation only for a ruling to be delivered on 26/2/2024 and decree issued.
d.
That on 29/2/2024 the trial court issued warrant of attachment of movable property in execution of decree through Lifewood Auctioneers to remove the decrial sum of Kshs.78,609/-.
e.
That the respondent has started execution.
f.
That the applicants intend to appeal as they are aggrieved by the judgment entered on 26/2/2024.
g.
That this application has been filed timely and the applicants stand to suffer irreparable loss unless the prayers sought herein are granted.
h.
That the applicants have a good arguable appeal with high chances of success and the respondents will not suffer prejudice if the application is allowed.
3.
The applicants have supported the above grounds with an affidavit sworn on 8/3/2024 by David Kimathia where he has majorly reiterated the above listed grounds | null | Struck Out | https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/4439/eng@2025-04-08 |
Criminal Appeal E150 of 2024 | Kinoti v Republic (Criminal Appeal E150 of 2024) [2025] KEHC 4423 (KLR) (8 April 2025) (Judgment) | Judgement | High Court at Kibera | High Court | DR Kavedza | 8 April 2025 | 2,025 | Nairobi | Criminal | Lawrence Kinoti v Republic | [2025] KEHC 4423 (KLR) | null | 1.
The appellant Lawrence Kinoti was jointly with others not before this court charged and convicted on two counts of offences namely: Being in possession of wildlife trophy contrary to section 95 of the Wildlife Conservation and Management Act 2013 and dealing in Wildlife Trophy Contrary to section 84(1) as read with section 92 of the Wildlife Conservation and Management Act, 2013. He was sentenced to pay a fine of Kshs. 1 million in default to serve 5 years imprisonment in count I, and a fine of Kshs. 20 million in default to serve 3 years imprisonment. The sentences were to run consecutively.
2.
Aggrieved, the appellant filed the present appeal challenging his conviction and sentence. The appellant challenged the totality of the prosecution's evidence against which he was convicted. He complained that the defence was not considered and the sentence imposed was harsh and excessive. He urged the court to quash the conviction and set aside the sentence imposed.
3.
Before grappling with the grounds of appeal aforesaid, I am mindful that the first appellate court is under duty to re-evaluate the evidence presented at trial and draw its own independent conclusions. Except, it must bear in mind that it neither saw nor heard the witnesses give their testimonies. Thus, matters of demeanour are best observed by the trial court. (See Okeno v Republic [1972] E.A 32.)
4.
Assistant Warden Said Kurera (PW4) testified that he received information from Abdi Hassan regarding individuals dealing in wildlife trophies near the Rio Hotel in Nairobi West. He was provided with a description of two suspects. Upon arrival at the scene around 10:30 AM, he observed three individuals matching the given description. He also noticed that they were carrying a green paper bag containing what appeared to be ivory. As they approached the suspects, one individual fled while the officers attempted to verify the contents of the bag.
5.
During cross-examination, PW4 stated that the appellant, was the one carrying the bag. He further noted that the suspects were walking away from the Rio Hotel. However, he could not directly link the third accused, Kipkoech Cheruiyot, to the recovered ivory. Despite some commotion during the arrest, no alarm was raised. | null | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/4423/eng@2025-04-08 |
Miscellaneous Succession Application 6 of 2014 | Kinyua v Kuthua & 4 others (Miscellaneous Succession Application 6 of 2014) [2025] KEHC 4572 (KLR) (8 April 2025) (Ruling) | Ruling | High Court at Kerugoya | High Court | RM Mwongo | 8 April 2025 | 2,025 | Kirinyaga | null | Domitiria Wangui Kinyua v Margaret Wambere Kuthua & Teresia Wanjiru & James Njiru Kuthua & Catherine Muthoni & Esther Micere | [2025] KEHC 4572 (KLR) | null | 1.
Before this court is a notice of motion dated 05th February 2020, pursuant to Rule 63 Probate and Administration Rules and order 45 Rule 1 of the Civil Procedure Rules. Through it the 3rd respondent/applicant seeks the following orders:
a.
That this honorable court be pleased to review/ set aside the ruling and consequential orders emanating from the ruling dated 20th December 2019;
b.
That the cost of this application be borne by the 1st, 2nd, 4th and 5th respondents.
2.
The 3rd respondent/applicant bases his prayers on the grounds that:
a)
The 3rd respondent/applicant neither acted fraudulently nor failed to disclose material facts that would warrant him to be punished by revoking the grant and having the estate redistributed;
b)
No plausible explanation has been tendered by the applicant on why she had not participated in the proceedings especially considering that she had all along been resident in the country and even worse lived in the same village;
c)
The affidavits sworn by Margaret Wambere Kuthua, Teresiah Wanjiru, Catherine Muthoni and Esther Michere dated 28th January 2015 point at deliberate attempt to hood wink the honourable court that all except the first born knew of the proceedings of Succession Cause Number 237 of 1998;
d)
That the 3rd respondent/applicant having inherited four acres of Title Number Mutira/Kanyei/283 has since conferred beneficial interests to his children. The applicant is therefore estopped from claiming any interest belatedly to the detriment of the 3rd respondent/applicant and his children; and
e)
That in any case the 1st respondent has a life interest in the two acres given to her which she can pass to the applicant as it is abundantly clear that save for her claim of one acre, no other beneficiary is laying a claim.
Background
3.
The 3rd respondent/applicant is aggrieved by the ruling of this court delivered on 20th December 2019 in which the grant issued to the 1st respondent was revoked. The court found that the proceedings to obtain the grant were defective and were obtained through concealment from the court of something material to the case. The concealed matter was found to be that the applicant/respondent was not involved in the proceedings.
4.
The 3rd respondent/applicant’s case now is that following the 1st respondent’s petition for the grant, there was no objection filed even though the matter was gazetted. That the applicant/respondent, who is the 1st respondent’s first-born daughter was not involved in the proceedings, something that the 1st respondent and all her other children stated in a strange turn of events during revocation proceedings which were conducted 26 years after death of the deceased. | 12.
The core issue for determination is whether the court should review/ set aside the ruling and consequential orders emanating from the ruling delivered on 20th December 2019.
13.
Rules 49 and 63(1) of the Probate & Administration Rules make way for the application of the Civil Procedure Rules. Here, Order 45 Rule (1) of the Civil Procedure Rules was invoked, pursuant to which a court may review its orders on the following grounds:
a.
Where there is discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed: or
b.
Where there has been some mistake or error apparent on the face of the record; or
c.
Where there is any other sufficient reason.
14.
In In re Estate of Saverio Ruri Njuiri (Deceased) [2021] KEHC 3851 (KLR) the court stated as follows:
“
25.
Review of decisions of a probate court is governed by Rule 63 of the Probate and Administration Rules, which imports Order 45 of the Civil Procedure Rules in probate matters. An application for review in succession proceedings can be brought by a party to the proceedings, a beneficiary to the estate or any interested party. However, the application must meet the substantive requirements of an application brought for review set out in the said Order 45 of the Civil Procedure Rules (See John Mundia Njoroge & 9 Others vs. Cecilia Muthoni Njoroge & Another [2016] eKLR).
26.
The requirements under Order 45 are to the effects that, to be successful, the applicant must demonstrate to the court that; -
i.
There has been discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed; or
ii.
That there has been some mistake or error apparent on the face of the record; or
iii.
That there is any other sufficient reason.”
15.
The 3rd respondent/applicant stated that there is an error apparent on the face of the record, in that the court should have noted that the applicant/respondent knew about the proceedings culminating into the impugned ruling. He stated that the grant was revoked in error and that this order should be set aside. In the case of In re Estate of Simoto Omwenje Isaka (Deceased) [2020] KEHC 1641 (KLR) the learned judge held that an error apparent on the face of the record is determined judicially on the facts of each case. The error must be self-evident. It was held thus:
“
From the above, it is clear that the error the subject of the application ought to be so glaring that there can possibly be no debate about it. An error which has to be established by a long-drawn out process of reasoning on points where there may conceivably be two opinions can hardly be said to be an error apparent on the face of the record.”[Emphasis added]
16.
The position of 3rd respondent/applicant was rebutted by the respondent whose arguments were that the court has now become functus officio, thus lacking capacity to entertain an application for review in the manner presented herein. That the application intends to have this court sit on appeal in its own decision. The revoked grant was issued through Kerugoya SRM Succession Cause No.237 of 1998. The revocation proceedings were conducted in the High Court being instituted vide summons for revocation of grant dated 06th March 2014. The court took viva voce evidence and considered it. It found that the grounds under section 76 of the Law of Succession Act had been met.
17.
The grounds for the application herein demand that the court should re-open that evidence adduced at the revocation hearing and reevaluate the same. Needless to say, to do such a thing makes this an appellate court where re-examination of evidence is demanded. If the court should review its ruling, it cannot take an in-depth look at the arguments made and the evidence adduced; rather, there should be an error apparent on the face of the record. A glaring error that the court can see at a glance.
18.
The doctrine of functus officio allows for litigation to come to an end. It was discussed in the case of John Gilbert Ouma v Kenya Ferry Services Limited [2021] KEHC 7107 (KLR) where the court stated:
“
The doctrine of functus officio was considered by the Court of Appeal in Telkom Kenya Limited v John Ochanda (Suing On His Own Behalf and on Behalf Of 996 Former Employees of Telkom Kenya Limited) [2014] KECA 600 (KLR), where the court held that -
“Functus officio is an enduring principle of law that prevents the re-opening of a matter before a court that rendered the final decision thereon. The general rule that final decision of a court cannot be re-opened derives from the decision of the English Court of Appeal in re-St Nazarire Co, (1879), 12 Ch. D 88. The basis for it was that the power to rehear was transferred by the Judicature Acts of the appellate division. The rule applied only after the formal judgment had been drawn up, issued and entered, and was subject to two exceptions.””
19.
Further, in the case of Odinga v Independent Electoral & Boundaries Commission & 3 others [2013] KESC 8 (KLR), the Supreme Court cited with approval an excerpt from an article by Daniel Malan Pretorius entitled, “The Origins of the Functus Officio Doctrine, with Special Reference to its Application in Administrative Law” (2005) 122 SALJ 832 which reads: -
“
The functus officio doctrine is one of the mechanisms by means of which the law gives expression to the principle of finality. According to this doctrine, a person who is vested with adjudicative or decision-making powers may, as a general rule, exercise those powers only once in relation to the same matter...The [principle] is that once such a decision has been given, it is (subject to any right of appeal to superior body or functionary) final and conclusive. Such a decision cannot be reviewed or varied by the decision maker.” | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/4572/eng@2025-04-08 |
Civil Suit E046 of 2022 | Kiplagat v Kiplagat (Civil Suit E046 of 2022) [2025] KEHC 4555 (KLR) (Family) (8 April 2025) (Directions) | Civil Suit E046 of 2022 | null | null | null | null | null | null | null | null | [2025] KEHC 4555 (KLR) | null | null | null | null | https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/4555/eng@2025-04-08 |
Commercial Appeal E177 of 2024 | Kivunira v Capital Markets Authority (Commercial Appeal E177 of 2024) [2025] KEHC 4441 (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 | Commercial and Tax | Wycliffe Lidonga Kivunira v Capital Markets Authority | [2025] KEHC 4441 (KLR) | null |
1.
The appellant was an employee of the National Bank of Kenya (hereinafter referred to as ‘the bank’) where from 1-04-2015, he was appointed as the acting Chief Finance Officer a position he held until 13th April 2016 when he was terminated amid allegations of breach of financial and fiduciary duties. The respondent, is a statutory body established under Section 5 of the Capital Markets Act whose functions include to promote, regulate and facilitate the development of an orderly, fair and efficient capital market in Kenya.
2.
After the appellant was terminated, the respondent initiated its own investigations and called upon the appellant to provide information on financial management at the bank. Following the investigations, the respondent issued a notice to show cause to the appellant to answer changes which it framed as follows;
i.
Willfully preparing and publishing false and misleading financial statement for the bank by reporting a gain in disposal of assets of Kshs 847,920,000.00 for the quarter ended 30th June to 30th September 2015.
ii.
Irregularly restructuring and rebooking loans without informing and seeking approval of the board of directors, in order to avoid bank obligations to make provisions for non-performing loans amounting to Kshs 2,595,303,848.00 and recognizing interest subsequently written off amounting to Kshs 680 million contrary to provisions of the guidelines on corporate governance practices by public listed companies.
iii.
Potential involvement in the embezzlement of funds through commissioning a deposit mobilization exercise in 2014 and 2015.
3.
The appellant responded to the notice to show cause but asked to be supplied with several documents and information then held by the bank to enable him prepare his defence. In response to the request, the respondent wrote to the bank asking it to supply the documents requested by the appellant. After several back and forth correspondences of the request, the respondent informed the appellant that the bank had declined the request for some of the documents citing protection of confidentiality under the Banking Act and Prudential Guidelines by the Central Bank of Kenya. The respondent nevertheless completed its investigations by hearing the appellant without the appellant having been supplied with the documents and on 3-04-2018 reached the following decisions;
a.
The appellant acted in contravention of Regulation B.06 of the 5th Schedule of the Capital Markets (Securities) (Public Offers, Listing and Disclosure) Regulations 2002 by failing to prepare interim accounts for the period 30th June 2015 in accordance with International Financial Reporting Standards (IFRS);
b.
The appellant acted in contravention of Article 2.1.3 of the Guidelines on Corporate Governance Practices by Public Listed Companies in Kenya, 2002 by failing to supply the board with relevant, accurate and timely information to enable the board discharge its duties;
c.
There was no evidence to link the appellants to the alleged embezzlement scheme; and
d.
The appellant was slapped with a penalty of Kshs 1,000,000.00 | null | Allowed | https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/4441/eng@2025-04-08 |
Miscellaneous Criminal Application E468 of 2024 | Kotani v Director of Public Prosecutions (Miscellaneous Criminal Application E468 of 2024) [2025] KEHC 4505 (KLR) (Crim) (8 April 2025) (Ruling) | Ruling | High Court at Nairobi (Milimani Law Courts) | High Court | K Kimondo | 8 April 2025 | 2,025 | Nairobi | Criminal | Erick Kotani v Director of Public Prosecutions | [2025] KEHC 4505 (KLR) | null | 1.
On 24th November 2023, Erick Kotani (hereafter the applicant), was convicted by the lower court for the offence of stealing contrary to section 268 (1) as read with 275 of the Penal Code. He was fined Kshs 400,000 in default to serve three years in prison. Those proceedings were in the Chief Magistrates Court at Nairobi in Criminal Case No. 33 of 2016: Republic v Erick Kotani & Nixon Ogongo Otieno.
2.
He paid the fine and obtained his freedom. He now craves leave to lodge an appeal out of time. The notice of motion is dated 13th December 2024 and predicated upon his deposition of even date.
3.
The grounds are three-pronged: Firstly, that his counsel was absent during the delivery of the judgment and sentence which “left him exposed, vulnerable and to his own devises”. Secondly, that he is a pastor and the conviction is “prejudicial to his reputation and the same is now being used to prosecute a civil case filed against the applicant’s company”. Thirdly, that the conviction was based on weak circumstantial evidence and failed to take into account exculpatory facts. He contends that in light of the annexed “draft memorandum of appeal”, the appeal has high chances of success.
4.
The motion is ardently opposed by the respondent through grounds of opposition dated 19th March 2024. In a nut shell, the respondent contends that there has been lengthy and ill-explained delay; and, that the motion is an afterthought or abuse of court process. | null | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/4505/eng@2025-04-08 |
Civil Case E002 of 2022 | Langat v Langat (Civil Case E002 of 2022) [2025] KEHC 4546 (KLR) (8 April 2025) (Ruling) | Ruling | High Court at Kapsabet | High Court | JR Karanja | 8 April 2025 | 2,025 | Nandi | Civil | SKL v WKL | [2025] KEHC 4546 (KLR) | null | 1.
The application vide the Notice of Motion dated 23rd July 2024 basically seeks an order of stay of execution of the judgment delivered herein on 10th July 2024 pending hearing and determination of an intended appeal by the Applicant/Defendant, WKL, who had been sued by the Respondent/ Plaintiff, SKL for division of their matrimonial property upon dissolution of their marriage.
2.
The application was essentially brought under Order 42 Rule 6 of the Civil Procedure Rules and is based on the grounds stipulated in the Notice of Motion and which are fortified by the Applicants averments in the supporting affidavit dated 23rd July 2024 and the supplementary affidavit dated 3rd December 2024, which are countered by the Respondent in opposition vide her replying affidavit dated 8th October 2024.
3.
The application was heard by way of written submissions which were filed herein by both parties through their respective legal counsels.
Clearly, from the pleadings and submissions the issue arising for determination is whether the application is competent and proper before this court and if so, whether the Applicant has satisfied the necessary requirements or conditions for an order of stay of execution pending appeal, hence deserving the exercise of this court’s discretion in his favour.
4.
As regards the propriety and competence of the application it is presupposed that the application would be founded on the existence of an appeal by way of filing a memorandum of appeal. The Applicant being aggrieved by the impugned judgment ought to demonstrate that he has already preferred and filed the appeal. A notice of appeal does not constitute the filing or institution of an appeal which ordinarily has to be within a period of thirty [30] days after delivery of a judgment and/or ruling. | null | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/4546/eng@2025-04-08 |
Criminal Appeal E106 of 2024 | Machani & another v Republic (Criminal Appeal E106 & E107 of 2024 (Consolidated)) [2025] KEHC 4469 (KLR) (8 April 2025) (Judgment) | Judgement | High Court at Kibera | High Court | DR Kavedza | 8 April 2025 | 2,025 | Nairobi | Criminal | Tonny Machani & John Musyoka Otieno v Republic | [2025] KEHC 4469 (KLR) | null | 1.
The appellants were jointly charged and convicted of the offence of robbery with violence contrary to section 296(2) of the Penal Code. The particulars are that on 29th December 2022, the appellants jointly with others not before court, at Gatwekera Area in Kibra Sub-county within Nairobi County robbed Anthony Onyango of cash Kshs. 400,000, scratch cards valued at Kshs. 2,100, six phones, five POS bank machines, three POS chargers, and one Bluetooth radio property of Alloys Okello, and immediately before that robbery assaulted the said Anthony Okello causing him injuries. They were each sentenced to death.
2.
Being aggrieved, the appellants filed their respective appeals challenging their conviction and sentence which were consolidated by this court. In their petition of appeal, they challenged the totality of the prosecution’s evidence against which he was convicted. They urged the court to quash his conviction and set aside the sentence imposed.
3.
As this is a first appeal, I am required to re-evaluate the evidence tendered in the trial Court and come to an independent conclusion as to whether or not to uphold the convictions and sentences. This task must have regard to the fact that I never saw or heard the witnesses testify (see Okeno v Republic [1973] EA 32).
4.
The prosecution’s case was as follows: PW1, Antony Onyango, testified that on 29th December 2022 at around 10:00 p.m., while closing his shop, he was attacked by a gang of armed robbers who covered his face with his jacket and stabbed his hand multiple times. The attackers stole items including five bank agent machines (for KCB, Equity, and Cooperative Bank), six Mpesa phones, a Tecno Camon 8 smartphone, PW2’s driving license and Huduma card, and Kshs. 400,000 in cash, all stored in three bags. He was later taken to Mbagathi Hospital and reported the matter at Kibera Police Station. In court, he identified some recovered items but stated none of the appellant were among the attackers, although he saw them under security lights. | null | Allowed | https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/4469/eng@2025-04-08 |
Miscellaneous Civil Application E002 of 2025 | Malombo v Kibumba (Miscellaneous Civil Application E002 of 2025) [2025] KEHC 4557 (KLR) (8 April 2025) (Ruling) | Ruling | High Court at Voi | High Court | AN Ongeri | 8 April 2025 | 2,025 | Taita Taveta | Civil | Mwahe Malombo v Atanus Kilenge Kibumba | [2025] KEHC 4557 (KLR) | null | 1.
The application coming up for consideration in this Ruling is dated 28th January 2025 brought under Section 1A, 1B and 3A and 18(1)(b) of the Civil Procedure Act Cap 21 Laws of Kenya and Order 51 of the Civil Procedure Rules, 2010 Articles 159 of the Constitution of Kenya and all enabling provisions of the Law seeking the following orders:-
i.
That this application be certified urgent and service thereof be dispensed within the first instance.
ii.
That this honourable court be pleased to stay the proceedings of Voi SCCC No. E009 of 2024 (Mwahe Malombo =versus= Atanus Kilenge) pending the hearing and determination of this application inter partes.
iii.
That this Honourable Court be pleased to transfer Voi SCCC No. E009 of 2024 (Mwahe Malombo v Atanus Kilenge) from the Small Claims Court at Voi to Voi Magistrate’s Court.
iv.
That the Applicant be granted leave to restate the claim upon transfer of the suit before the Voi Magistrate’s Court.
v.
That the costs of this application be provided for.
2.
The application is based on the following grounds:-
i.
That on 23rd January 2025 the Applicant was granted leave by the Small Claims Court to file a medical report.
ii.
That the medical report provided that the Applicant will require treatment amounting to Kenya Shillings One Million (Kshs. 1,000,000/=)
iii.
That the Applicant will be seeking special damages above Kenya Shillings One Million which is above the Small Claims Court pecuniary jurisdiction.
iv.
That the matter is slated for hearing before Hon. Stephen Musili on 30th January 2025.
v.
That this Honourable Court has powers to have the matter transferred to a court equipped with the proper jurisdiction to hear and determine the matter.
vi.
That no prejudice will be occasioned to the Respondent by the said transfer.
vii.
That it is in the interest of justice that this matter be transferred to Magistrates Court at Voi for it to be heard and determined.
3.
The application is supported by the affidavit of Walegwa Mwasawain which he deponed as follows:-
i.
That I am and Advocate of the High Court of Kenya, practicing as such in the firm of Rajab & Mbogo Advocates and I have conduct of this matter on behalf of the Applicant;
ii.
That the Applicant herein has filed the suit SCCC E009 OF 2024 (Mware MalombovAtanus Kilengebefore the Voi Small Claims Court where she is seeking inter alia special damages of Kenya Shillings Two Hundred and Sixty Thousand Nine Hundred and Thirteen (Kshs. 260,913/)
iii.
That on 23rd January, 2025 the matter came up before the Small Claims Court and the Applicant herein was granted leave to file a medical report as the Honourable Court's records will show and support.
iv.
That upon receipt and perusal of the medical report from Dr. HANIF the conclusion from the doctor was that the Applicant would require a medical procedure costing approximately Kshs. 1,000,000/-
v.
That as a result, the Applicant's claim for special damages exceeds Kenya Shillings One Million, which exceeds the pecuniary jurisdiction of the small claims court.
vi.
That the Applicant wishes to transfer her claim from the Small Claims Court to the Magistrates Court which· has pecuniary jurisdiction to hear and determine it;
vii.
Thatthe matter is slated for hearing before Hon. Stephen Musili on 30'h January, 2025 as the Honourable Court's records will show and support;
viii.
That owing to the requirement that all matters before the Small Claims must be determined within 60 days of filing, the Applicant is apprehensive that the trial Court will not be in a position to grant further adjournment of the matter.
ix.
That if the matter was to proceed for the scheduled hearing on 30c& January, the Applicant's application will be rendered nugatory as any orders issued after the hearing of the Small Claim suit will be overtaken by event and unenforceable.
x.
That this H.o. nourable Court has powers to have the matter transferred to a court equipped with the proper jurisdiction to hear and determine the matter;
xi.
That once the matter is transferred there is a need for the Applicant to restate the claim as the pleadings in. the Small Claims Court are different than those of the Magistrates Courts;
xii.
That no prejudice will be occasioned to the Respondent by the said transfer.
xiii.
That I pray that this Honourable Court do make an order to transfer the proceedings in Voi SCCC E009 OF 2024 (Mwahe Malombo v Atanus Kilengefrom the Small Claims Court at Voi to Voi Magistrates law Courts.
xiv.
That it is in the interest of justice that this matter be transferred to Vol Magistrates Law Courts, for it to be heard and determined.
xv.
That the Applicant undertakes to expeditiously prosecute the claim in a timely manner, so as not to prejudice the Respondent;
xvi.
That unless the orders sought arc granted, the Applicant stands to suffer irreparable damage;
xvii.
That there has been no delay in bringing this application;
xviii.
That no prejudice will be suffered by the Respondent if this application is allowed;
4.
The Respondent filed grounds of opposition as follows:-
i.
That the Applicant expressly admits that the suit was filed in a court without jurisdiction hence in law there exists no suit worthy transfer to another court with jurisdiction.
ii.
That a null and void suit is dead and does not in law exist and as such it cannot be breathed life and/or cured by being taken from one court to another as this Honourable Court is being asked to do.
iii.
That the only available option to the Applicant is to withdraw the suit altogether and file the suit afresh in the competent court of law.
iv.
That the only other available option is for the court to have the suit dismissed for want of the jurisdiction.
v.
That the application is bad in law and fatally defective and is a clear case of the abuse of the process of the court.
vi.
That the application should be dismissed with costs. | null | Allowed | https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/4557/eng@2025-04-08 |
Petition E006 of 2025 | Mango v Omondi, Principal Butere Girls High School; Executive Secretary, The Kenya National Drama and Film Festival Committee & 2 others (Interested Parties) (Petition E006 of 2025) [2025] KEHC 4565 (KLR) (8 April 2025) (Ruling) | Ruling | High Court at Kisii | High Court | WA Okwany | 8 April 2025 | 2,025 | Kisii | Constitutional and Human Rights | Anifa Mango v Mrs Jennipher Omondi, Principal Butere Girls High School; Executive Secretary, the Kenya National Drama and Film Festival Committee; The Principal Secretary, Ministry of Education, Department of Basic Education & The Honourable Attorney General | [2025] KEHC 4565 (KLR) | null | 1.
The Petitioner herein filed the Petition dated 2nd April 2025 seeking the following prayers: -
1.
A declaration that the decision to bar the Drama Students at Butere Girls High School from performing at the Kenya National Drama Festival Nationals is unconstitutional, unlawful, and null and void.
2.
A declaration that the Respondent be compelled to reinstate the Drama Students at Butere Girls High School’s participation in the Kenya National Drama Festival Nationals.
3.
A declaration that the Respondent provide the cast and the teachers in charge of the drama club with adequate security during the entire national festival.
4.
A declaration that the Respondent facilitate and ensure the students of Butere Girls High School perform the Play in its original form at the National level festival as scheduled.
5.
An Order awarding costs of the Petition to the Petitioner.
6.
Any other or further orders, writs, and directions this Court considers appropriate and just to grant for the purpose of the enforcement of the Drama Students at Butere Girls High School’s fundamental rights and freedoms; the enforcement and defence of the Constitution pursuant to Article 23 (3) of the Constitution.
2.
Concurrently with the Petition, the Petitioner filed an Application (Notice of Motion) dated 2nd April 2025 that is the subject of this ruling. The Applicant seeks the following orders in the said Application: -
1.
Spent
2.
Spent
3.
That the Honourable Court be pleased to issue an order that incase the Principal has received any formal communication from the interested parties banning and/or barring the Butere Girls from participating, the same be stayed.
4.
That the Honourable Court be pleased to issue an order compelling the Respondent to facilitate and ensure the 50 students of Butere Girls High School perform the Play in its original form at the National level festival as scheduled.
5.
That the Honourable Court be pleased to issue any other relief it may deem just and expedient to grant in the circumstances.
6.
That the costs of this Application be borne by the Respondents.
3.
The Application is supported by the Applicants Affidavit and is premised on the grounds that: -
a.
That this Honourable Court has the jurisdiction to hear, determine, and issue the Orders sought in this Application.
b.
That the Petitioner/Applicant is an alumnus of Butere Girls High School, a former drama member in the said school and currently a lawyer by training practicing law within the Republic of Kenya.
c.
That the Respondent and Interested Parties are public officers and entities responsible for the administration, regulation, and oversight of education and co-curricular activities in Kenya, including the Kenya National Drama and Film Festival.
d.
That on or about 22nd February 2025, 50 Drama Students at Butere Girls High School presented a play that was adjudicated at Sub County levels by adjudicators of high standing and professional repute who collectively found the play to be fit to proceed to the County levels Drama Festival.
e.
That on or about 11th March 2025 the 50 Drama Students at Butere Girls High School presented same play which was adjudicated at County levels by adjudicators of high standing and professional repute who collectively found the play to be fit to proceed to the Regional levels Drama Festival.
f.
That on or about 22nd March 2025 the same students presented the play which was then adjudicated at Regional levels by adjudicators of high standing and professional repute who collectively found the play to be fit to proceed to the National levels Drama Festival.
g.
That, the Respondent, made the arbitrary decision to bar the 50 Drama Students at Butere Girls High School from performing their play at the National Drama Festival to be held between 7th April 2025 and 15th April 2025, without justifiable cause.
h.
Thatthe Principal, Respondent herein, acting on verbal instructions from an undisclosed source, has refused to allow students to perform at the national level festival, claiming that the play has political undertones, which it does not.
i.
That, the 50 Drama Students at Butere Girls High School are barred from performing their play at the National Drama Festival to be held between 7th April 2025 and 15th April 2025, despite them having paid school fees which in part caters for extracurricular activities.
j.
Thatthe drama committee organized a winners' Gala on the 29th and 30th of March 2025, to the exclusion of Butere Girls High School's play from the program.
k.
Thatthe decision was made in an opaque and unfair manner, depriving the 50 Drama Students at Butere Girls High School of their legitimate expectation to participate in the festival.
l.
Thatthe exclusion of the 50 Drama Students at Butere Girls High School from the festival has caused them emotional distress, humiliation, and a loss of opportunity to showcase their talent on a national stage.
m.
Thatthe balance of convenience tilts in the Petitioner/Applicant’s favour as the students of Butere Girls High School stand to be prejudiced should they not have an opportunity to be heard and participate in the drama festivals at the national level.
n.
Thatthe 50 Drama Students at Butere Girls High School will suffer irreparable damages if the Respondent is not compelled to allow them to perform their play in its original form.
o.
Thatunless this Honourable Court intervenes and hears the matter urgently, the Respondent will proceed to illegally exclude the students of Butere Girls High School from performing at the Drama Festival, which opportunity they earned fair and square through their dedication and hard work.
p.
Thatthe Respondent stands to suffer no harm if the interim orders sought are granted.
q.
Thatit is in the interest of justice to grant orders sought and admit the Application for priority hearing in view of the nature of the matter.
r.
Thatunless the Honourable Court intervenes, the rights of the 50 Drama Students at Butere Girls High School and the public at large protected and recognized by the Constitution of Kenya 2010 are likely to be denied, violated, infringed or threatened. | 31.
I have carefully considered pleadings filed herein and the arguments made, by both sides. I find that the main issue for determination is whether the Applicant has made out a case for the granting of the orders sought in the Application. I note that the main prayer sought is in the nature of a mandatory injunction. Besides seeking to stay any alleged formal communication from the Interested Parties banning and/or barring the School from participating in the Festival, the Applicant also seeks orders to compel the Respondent to facilitate and ensure the that the 50 students of the School perform the Play, Echoes of War, in its original form at the Festival as scheduled.
32.
In determining this Application, this court will be required to determine whether the decision to exclude Butere Girls from participating in the National Festivals was arbitrary and unlawful or if the same was in accordance with the governing regulations and discretionary powers vested in the relevant bodies.
33.
At the core of this Application is the issue of whether Butere Girls’ qualified to participate in the 2025 National schools Drama Festivals. While the Applicant argued that the school qualified for the said Festival, the Respondent and the Interested Parties were of the contrary opinion. Parties were also not in agreement on the applicable rules governing the criteria for participation in the Festivals as while the Applicant maintained that the Ministry of Education Kenya National Drama and Film Festival Rules and Regulations 2025 are applicable, the Respondent and the Interested Parties relied on the 2024 Rules.
34.
The Respondent argued that the selection of schools to proceed to the national level was conducted transparently and in accordance with the Kenya National Drama and Film Festival Regulations 2024, specifically Rule 21:3 which provides that: -
“
Where all top plays are performed in one language, due consideration and affirmative action is to be given to plays in Kiswahili or indigenous languages."
35.
The Respondent and Interested Parties contended that, contrary to the Applicant’s claim that the 2024 Rules were revoked by the 2025 Rules, there was no formal or express revocation of the said Regulations. According to the Respondent and the Interested Parties, the 2025 Rules operate as a supplement or update to the existing framework, rather than an abrogation of prior rules. They added that in the absence of express repeal, the previous provisions remain operative and binding.
36.
Rule 21.3 of the Ministry of Education Kenya National Drama and Film Festival Rules and Regulations 2024 stipulates that: -
“
Of the Three winning plays, in the Primary Junior and Secondary School categories, at least one should be in Kiswahili or an indigenous Language. In case none is in Kiswahili/indigenous, the best play in Kiswahili/ indigenous Language with a score of not less than 75% shall be performed at the National Level on the recommendation of the Adjudicators.
37.
Rule 21.3 of the Ministry of Education Kenya National Drama and Film Festival Rules and Regulations 2025, on the other hand, provides as follows:
“
Of the Three winning plays, in the Primary Junior and Secondary School categories, at least One should be in Kiswahili/ indigenous Language. In case none is in Kiswahili/ indigenous Language, the best play in Kiswahili/ indigenous Language with a score of not less than 78% shall be performed at the National Level on the recommendation of the Adjudicators. The play should also have been ranked among the top Four overall.” [Emphasis added]
38.
A simple reading of the two versions of Rule 21.3 reveals several variations in the Rules as while the 2025 Rule sets the cut off qualification score for Kiswahili/indigenous language play at not less than 78%, the 2024 Rule sets the score at 75%. In addition to the scores, the 2025 Rule requires the Kiswahili/indigenous play to have been ranked top four overall while in the 2024 Rule, the play only needs to be the best in the Kiswahili/indigenous language category.
39.
Considering the marked variations/difference in the above Rules I find that the Respondent’s and Interested Parties’ claim that the 2025 Rules operate as a supplement or update to the existing 2024 Regulations misleading and untenable. It is clear that the two Regulations, which appear to be a replica of each other save for the noted variations, were developed to govern the Drama Festivals in each given year in which case, the 2024 Rules cannot be applied to the 2025 Festival. This means that according to the 2025 Rules, the selection of a Kiswahili/Indigenous Play must meet the following threshold: -
a.
Must be in Kiswahili or Indigenous Language
b.
Must attain a score of 78% and above
c.
Must be ranked at the Top Four Overall Plays position
d.
Must be recommended by the Adjudicators
40.
My understanding of Rule 21.3 of the 2025 Regulations is that where the 3 winning plays are in English language, as was the case in the instant Application, then best play in Kiswahili/indigenous Language with a score of not less than 78% shall be performed at the National Level on the recommendation of the Adjudicators as long as the play is ranked among the top Four overall.
41.
This court further holds the view that if indeed the 2025 Rules were to supplement the 2024 Rules, then the said Rules would have expressly stated so and would not have been drafted to conflict with the previous Rules. Instead the Rules would be bridging any gaps in order to supplement the existing 2024 Rules. This was not the case in the present Application. It is my finding that parties cannot refer to previous rules where a new set of rules have been promulgated.
42.
In the instant case, looking at the list of the top ten (10) performing schools that was presented by the Respondent and Interested Parties, it is clear that St. Mary’s Kibabii School, that was purportedly nominated by the Interested Parties’ deponent did not qualify in the top four overall position as envisaged by Rule 21.3 of the 2025 Regulations. It is instructive to note that the said school was in position 9 overall thereby failing to meet the qualification criteria set in the Regulations. No material was placed before this court to show that the said school got the adjudicators’ approval to perform at the National level.
43.
Even assuming, for argument’s sake that the 2024 Regulations were still applicable in 2025, I find that nowhere in the said Rule 21.3 is it stated that the qualified Kiswahili/indegenous play will bump off/take the place of or replace the school that is number 3 overall position in ranking. My understanding of the said Rule is that while the 3 winning English plays automatically qualify for the National Festival, the best Kiswahili/indigenous language play would only be allowed to perform alongside the three (3) winning plays if it meets the threshold of 78%, attains the fourth overall position and gets the adjudicators’ approval.
44.
I therefore find that the explanation given by the Interested Parties’ deponent, for excluding Butere Girls’ from participating in the National Festival and substituting it with a school that ranked in the 9th overall position is neither convincing nor supported by the Rules governing the said Festival.
45.
It is my further finding that the action taken by the Western Regional Director of Education to exclude Butere Girls’ from the National Festival lends credence to the Applicant’s claim that there may have been more than meets the eye in the school’s disqualification. I therefore find that the Regional Director of Education (Western) did not exercise his discretion fairly, properly and lawfully.
46.
Turning to the prayer for mandatory injunction to compel the Respondent to ensure that Butere Girls’ participate at the National Festival, I am alive to the fact that it is now trite that the court can only grant a mandatory injunction under the provisions of section 3A of the Civil Procedure Act and not under Order 40 of the Civil Procedure Rules. (See Belle Maison Ltd. v Yaya Towers Ltd. Nairobi HCCC No. 2225 of 1992).
47.
In the case of Kenya Breweries Limited & Another v Washingtone O. Okeyo Civil Appeal No. 332 of 2000 [2002] 1 EA 109 the Court of Appeal stated as follows:
“
A mandatory injunction can be granted on an interlocutory application as well as at the hearing but in the absence of special circumstances, it will not normally be granted. However if the case is clear and one which the Court thinks it ought to be decided at once, or if the act done is a simple and summary one which can be easily remedied, or if the defendant attempted to steal a march on the plaintiff, a mandatory injunction will be granted on an interlocutory application…A mandatory injunction ought not to be granted on an interlocutory application in the absence of special circumstances, and then only in clear cases either where the Court thought that the matter ought to be decided at once or where the injunction was directed at a simple and summary act which could be easily remedied or where the defendant had attempted to steal a march on the plaintiff. Moreover, before granting a mandatory injunction the Court had to feel a high degree of assurance that at the trial it would appear that the injunction had rightly been granted, that being a different and higher standard than was required for a prohibitory injunction.”
48.
Similarly, in Dickson Mwangi v Braeburn Limited T/A Braeside School Civil Appeal No. 12 of 2004 [2004] 2 EA 196 the Court of Appeal held that interlocutory mandatory injunctions should only be granted with reluctance and only in very special circumstances. In Gusii Mwalimu Investment Company Ltd. & 2 Others v Mwalimu Hotel Kisii Ltd. Civil Appeal No. 160 of 1995 [1995-1998] 2 EA 100 the same Court (Lakha, JA) held that:
“
Whereas the court does have jurisdiction to grant a mandatory injunction even on an interlocutory application, the granting of a mandatory injunction on interlocutory relief is a very exceptional form of relief to grant. A mandatory injunction can be granted on an interlocutory application as well as at the hearing, but, in the absence of special circumstances, it will not normally be granted. However, if the case is clear and one which the court thinks it ought to be decided at once, or if the act done is a simple and summary one which can be easily remedied, or if the defendant attempted to steal a march on the plaintiff a mandatory injunction will be granted on an interlocutory application. On motion, as contrasted with the trial, the court is far more reluctant to grant a mandatory injunction than it would be to grant a comparable prohibitory injunction. In a normal case the court must inter alia feel a high degree of assurance that the injunction was rightly granted; and this is a higher standard than is required for a prohibitory injunction. Each case must depend on its own facts.”
49.
Courts have also made a distinction between prohibitory injunctions as was espoused in the locus classicus case of Giella v Cassman Brown (1973) E.A. at page 358 and mandatory injunctions. While the former seeks to stop a party form acting or taking certain steps towards realizing an action, the latter refers to authorizing a party to act or take positive steps towards realizing a particular action.
50.
In Kamau Mucuha v The Ripples Ltd. Civil Application No. Nai. 186 of 1992 [1990-1994] EA 388; [1993] KLR 35 the Court of Appeal expressed itself as hereunder:-
“
Whereas a prohibitory injunction requires abstention from acting, a mandatory injunction requires the taking of positive steps, and may require the dismantling or destruction of something already erected, or constructed. This will result in a consequent waste of time, money and materials if it is ultimately established that the defendant was entitled to retain the erection…Historically, the principles laid down with regard to temporary mandatory injunctions are that they will only be granted in exceptional and clearest cases. The grant of a mandatory injunction on interlocutory relief is a very exceptional form of relief to grant, but it can be granted. If a mandatory injunction is granted on motion, there will normally be no question of granting a further mandatory injunction at the trial; what is done is done and the plaintiff has, on motion, obtained once and for all the demolition or destruction that he seeks. Where an injunction is prohibitory, however, there will often still be a question at the trial whether the injunction should be dissolved or contained…A court is far more reluctant to grant a mandatory injunction than it would be to grant a comparable prohibitory injunction. In a normal case the Court must, inter alia, feel a high degree of assurance that at the trial it will appear that the injunction was rightly granted and that is a higher standard than is required for prohibitory injunction.”
(See also Megarry J.’s decision in Shepard Homes v Sandham [1970] 3 WLR Pg. 356)
51.
Applying the principles governing the granting of orders of mandatory injunction, as stated in the above cited cases to the present case, I find that the Applicant’s case presents the special circumstances envisaged in the said authorities for the following reasons: Firstly, I have already found that Butere Girls’ was not only qualified to participate in the National Festival having emerged at position 3 overall, but was also unfairly and arbitrarily excluded from the contest. Secondly, the contest was set to begin yesterday 7th April 2025 which means that any further delay in allowing their participation, pending the determination of the Petition, will mean that by the time the main suit will be determined, the prayers in the Application and Petition would have been overtaken by events. In such an eventuality, the School will have been completely locked out from this year’s competition, thereby suffering irreparable loss that cannot be compensated by way of damages.
52.
This court cannot ignore the fact that the students at Butere Girls’, their teachers and the entire school have invested in their time, talents and resources in preparing for the prestigious National Festivals. I find that in the circumstances of this case, denying the said students the opportunity to showcase their talents would be tantamount to an infringement to their freedom of expression as provided under Article 33 of the Constitution.
53.
I find that the Applicant has established a prima facie case for the granting of conservatory orders. I find guidance in the decision in the case of The Centre for Human Rights and Democracy & Others v The Judges and Magistrates Vetting Board & Others Eldoret Petition No. 11 of 2012, where the court held as follows: -
“
In our view where a legal wrong or a legal injury is caused to a person or to a determinate class of persons by reason of violation of any Constitutional or legal right or any burden is imposed in the contravention of any Constitutional or legal provision or without the authority of the law or any such legal wrong or injury is threatened, the High Court has powers to grant appropriate reliefs so that the aggrieved party is not rendered, helpless or hapless in the eyes of the wrong visited or about to be visited upon him or her. This is meant to give an interim protection in order not to expose others to preventable perils or risks by inaction or omission.” [Emphasis added]
54.
For the reasons that I have stated in this ruling, I find that the Application dated 2nd April 2025 is merited and hereby allow it in the following terms: -
a.
Thatan order is hereby issued to stay any order to ban, exclude and/or bar the Butere Girls from participating in the 2025 Drama and Music Festivals at National Level.
b.
Thatan order is hereby issued compelling the Respondent to facilitate and ensure the 50 students of Butere Girls High School accompany their drama teachers and/or playwright to perform the Play, Echoes of War, in its original form, at the National Drama Festival in Nakuru as scheduled.
c.
The costs of this Application will be in the cause. | Allowed | https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/4565/eng@2025-04-08 |
Civil Appeal 42 of 2014 | MAS v ALM (Civil Appeal 42 of 2014) [2025] KEHC 4595 (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 | MAS v ALM | [2025] KEHC 4595 (KLR) | null |
1.
Before this court are two matters for determination. The first is the main appeal herein and the second is the notice of motion by the Respondent dated 12th March 2024.
2.
The motion seeks orders among others that:-
(a)
The court varies the ruling dated 22nd July 2014
(b)
The court directs that a fifty - fifty (50%-50%) maintenance by both parents.
(c)
An order that Respondent pays an amount of Kshs. 275000 being arrears. | null | Allowed | https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/4595/eng@2025-04-08 |
Commercial Suit E313 of 2024 | Match Electricals Limited v China Railway No 10 Engineering Group Company Limited (Commercial Suit E313 of 2024) [2025] KEHC 4473 (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 | Commercial and Tax | Match Electricals Limited v China Railway NO 10 Engineering Group Company Limited | [2025] KEHC 4473 (KLR) | null | 1.
The plaintiff filed this suit against the defendant claiming a total of Kshs 37,543,578.12 being sum due from the defendant for works done by the plaintiff pursuant to a subcontract for supply, installation, testing and commissioning of street lights from junction of Garsen-Lamu Road to New Lamu Port. The plaintiff completed the works as per the contract and claimed to have undertaken extra works which was not covered by the contract at a cost of Kshs 6,325,169.12.
2.
The defendant entered appearance on 29-07-2024 but before filing defence, it filed notice emotion dated 29-07-2024 praying that this court be pleased to stay the proceedings and refer the dispute for arbitration as provided for in the contract between the parties. This is the application which is subject of this ruling.
3.
The application by two affidavits sworn by Victoriah Mukiiri. One is the supporting affidavit sworn on 25th July 2024 and the other is a supplementary affidavit sworn on 28-10-2024. In the affidavits, the defendant contends that under the contract, the parties envisioned that any dispute arising from the performance of the contract should be referred to arbitration and that the intention of the parties which was clear should be respected. According to the defendant, since the issue in dispute is nonpayment of the contract price which is part of performance of the contract, the matter should be referred to arbitration and failure to do so would amount to rewriting the contract for the parties. The defendant adds that the court lacks jurisdiction to entertain the matter by virtue of the arbitration agreement. It contends further that it has not admitted any debt as claimed by the plaintiff and this court should not interrogate the circumstances giving rise to the claim because doing so would be going into the merits of the suit which is not desirable at this stage.
4.
The plaintiff has opposed the application through a replying affidavit sworn by its director one Christopher Theuri Maina on 17th September 2024. He depones that the defendant admitted the debt through signed performance certificates and recorded minutes of a meeting held on 18th July 2023 and refusal to pay the debt is not a dispute contemplated under the contract. According to the plaintiff, upon completion of the contracted works, the original scope was measured and certified by the defendant at Kshs 63,975,995.20 inclusive of VAT through three performance certificates and the site handed over to the defendant on 15-05-2023 where both parties signed a final performance certificate. It is averred that at the time of handing over, the defendant had paid a sum of Kshs 27 million out of the certified Kshs 63,975,995.20. The plaintiff adds that the defendant later made a further payment bringing the amount paid to Kshs 32,757,586.00. This left a balance of Kshs 31,218,409.00. This together with value of extra work of Kshs 6,325,169.12 is what the plaintiff is claiming in this suit. | null | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/4473/eng@2025-04-08 |
Environment and Land Judicial Review Miscellaneous Application 7 of 2023 | Mohammed v Rent Restriction Tribunal, Nairobi & 2 others; Attorney General & another (Interested Parties) (Environment and Land Judicial Review Miscellaneous Application 7 of 2023) [2025] KEHC 4558 (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 | Steve Gatoto Mohammed v Rent Restriction Tribunal, Nairobi & 2 others; The Attorney General & Law Society of Kenya | [2025] KEHC 4558 (KLR) | null | 1.
A brief history of this matter is as important as the decision itself. The matter was first initiated before the Constitutional and Human Rights Division vide Constitutional Petition No. 20 of 2023, before being transferred to this Division by L. N. Mugambi J on 6/7/2023.
2.
When the matter landed in this Court, on 7/9/2023, J. Ngaah J gave directions by way of a ruling dated the even date in the presence of the applicant herein Steve Gatoto Muhammed to the effect that the application was not certified urgent, that the application was not seeking judicial review orders or leave to apply for judicial review orders. He observed that the dispute arising from the Rent Restriction Act would best be handled in the Environment and Land Court. He nonetheless directed that the application be served upon the respondents for inter partes directions on 18/10/2023.
3.
On 13/9/2023, the applicant had filed another application which the learned Judge gave directions on to the effect that the applicant seemed to have misconstrued the directions given on 7/9/2023 for 18/9/2023 and found no reasons to depart from the Court’s directions given on 7/9/2023. He directed the matter to be mentioned on the 18/9/2023 as earlier directed.
4.
On 18/9/2023, only the applicant and the 2nd respondent’s counsel appeared and the 2nd respondent’s counsel, Mr. Ngaira informed the court that his client had been served via WhatsApp on 14/9/2023 with incomplete documents and sought leave to obtain the application and pleadings from the court and 21 days to respond to the applicant’s application.
5.
The court in its directions granted the 2nd respondent leave to obtain proceedings from the court file and to file a response within 14 days of that date and directed the application dated 5/9/2023 to be heard on 18/10/2023. On the latter date, the applicant was online and he sought time to serve the 1st respondent while Ms Onkundi who stated that he had just been instructed sought for more time to respond and the other party’s counsel Ms Wanjohi stated that she was not ready to proceed. The court fixed the matter for hearing on 6/12/2023. On the latter date, the applicant was not present and the court fixed the hearing for 6/3/2024 and the Deputy Registrar was directed to serve the rest of the parties who were not present. On the latter date, the presiding Judge was on leave. | 19.
I have considered the applications by the applicant and his written and oral submissions. The issue for consideration is whether the application seeking the calling into this court the Rent Restriction case for purposes of quashing those proceedings and orders that had the applicant’s property taken and sold on account of rent arrears to his landlady and further, the order for calling into this court the criminal proceedings from Ngong Law Courts where he is charged with the offence of assaulting his alleged landlady who distrained for rent are merited prayers.
20.
I first appreciate the applicant for his industry and intelligence in matters the law and his right to access justice. I do not know what level of education he has but he impressed the court as an extremely intelligent and educated person. He may however not be that knowledgeable in matters jurisdiction of the court but he understands why he is before the court and he expressed himself very eloquently.
21.
The applicant laments that he was never given the opportunity to be heard by the rent restriction tribunal before the distress for rent orders were made against him. He blames the Milimani High Court Registry staff and the staff of the ELC at Milimani in ELC Petition 6 of 2023 for being extortionists in the name of assisting him yet they were sabotaging the course of justice due to alleged institutionalized corruption that debilitates the Kenyan Judiciary which led to him and his family being displaced and dispossessed of the place he called home, a three bedroomed mansionate which had been demolished and instead of the police containing the situation, they had instead arrested and charged him in Ngong court thereby subjecting him to torture and making him an internally displaced person. He accuses the Rent Restriction Tribunal of acting without jurisdiction in issuing orders that led to his eviction and loss of all his property thereby rendering him destitute.
22.
That much is what I can gather in summary, from the applicant’s written submissions.
Determination
23.
Having considered all the above, I note that the respondents are the Rent Restriction Tribunal, the applicants’ Landlady and the auctioneers who distrained for rent and carted away the property of the applicant in a rent dispute between the applicant tenant and his landlady the 2nd respondent, who obtained orders from the 1st Respondent Tribunal.
24.
My attention is also drawn to the order of 13th March 2023 issued by the chairman of the Rent Restriction Tribunal Hon. Hillary K. Korir granting leave to the alleged landlady Rosemary Waithera Boru to distress for rent from the applicant herein in RRT Case no. E197 of 2023, using a licensed auctioneer and also directing the OCS Ongata Rongai Police Station to provide security or assistance to the auctioneers.
25.
Later, the landlady in question filed an application seeking orders directing the applicant to remove from the landlady’s premises, some unserviceable motor vehicles not belonging to the applicant and which could not be distraint to recover rent.
26.
The applicant complained against the OCS Ongata Rongai Police Station to the Internal Affairs Unit Director, National Police Service following the distress for rent which he considered to be unlawful eviction from the premises. He copied the correspondence to Independent Policing Oversight Authority, (IPOA) and complained that he had also been verbally assaulted by the police during the eviction process.
27.
In the said complaint letter dated, 19/6/2023, the applicant also acknowledged that there was a suit pending before the Environment and Land Court on the same dispute and directions were due on 25th May, 2023, the same day that he was invaded by the purported landlady Rosemary Waithera and her Aunt who also assaulted the applicant and on 26/5/2023, she returned with police officers and forcibly evicted him from the premises and arrested him claiming that the previous day he had assaulted the landlady.
28.
It is the above scenario that led to the applicant being charged with assault at Ngong law Courts and his approaching the Court for remedies. The Investigating Diary in respect of the criminal charges is part of the documents filed in this court by the applicant. He also filed the charge sheet in Ngong Law Courts where he was released on cash bail of Kshs 20,000. The applicant also filed statements of witnesses in the criminal case before Ngong Law Courts in which the landlady claimed to be managing her father’s rental premises with power of Attorney and had served the applicant notice to vacate the premises for non-payment of rent from 2022 and when he failed to move out, she served him with suit papers from the Tribunal which issued distress for rent orders. That the applicant had filed a case in the High Court to stop his eviction, which case was dismissed on 25th May 2023.
29.
The question I pose is whether this court has jurisdiction to hear and determine the merits of any of the prayers sought before this court by the applicant.
30.
Jurisdiction is the power conferred on a court of law to hear and determine disputes and it is conferred by the Constitution and statutes. Parties cannot confer jurisdiction on a court and neither can a court of law arrogate itself jurisdiction that it is devoid of. In some instances, the Constitution expressly bars courts from entertaining certain disputes.
31.
Jurisdiction of the High Court is derived from Article 165 of the Constitution and from statutes. The same Article 165(5)(b) of the Constitution also limits the jurisdiction of the High Court in the following terms:
(5)
The High Court shall not have jurisdiction in respect of matters—
(a)
reserved for the exclusive jurisdiction of the Supreme Court under this Constitution; or
(b)
falling within the jurisdiction of the courts contemplated in Article 162 (2).
32.
Article 162(2) of the Constitution which is referred to in Article 165(5) (b) above establishes the specialized courts namely, the (a) Employment and Labour Relations Court and the Environment and Land Court. The latter court is to hear and determine disputes relating to (b) the environment and the use and occupation of, and title to, land.
33.
This, the Constitution which is the supreme law of the land expressly ousts jurisdiction of the High Court in hearing and determining disputes stated therein. That being the case, this court cannot arrogate itself such jurisdiction.
34.
In that regard, concerning matters landlord and tenant and therefore rent restriction and distraint for rent, section 8 of the Rent Restriction Act is on appeals from the Rent Restriction Tribunal and provides that:
Appeals:
8
(1)
Except as provided by subsection (2), every decision, determination and order of the tribunal under the provisions of this Act shall be final and conclusive, and no appeal shall lie therefrom to any court.
(2)
An appeal shall lie to the Environment and Land Court from any such decision, determination or order in the following cases—
(a)
in the case of an order under subsection (5) of section 6(b)or
(b)
on any point of law; or
(c)
in the case of premises whereof the standard rent exceeds one thousand shillings a month, on any point of mixed fact and law.
35.
Section 8 (1) of the Rent Restriction Act provides that no appeal shall lie from any decision of the Rent Tribunal except as provided by sub-section (2) of the section. Section of 8 (2) of the Rent Restriction Act, herein guarantees a Right of Appeal to any party, who is aggrieved and/or dissatisfied with the ruling and/or decision of the tribunal.
36.
Additionally, Section 13(2) of the Environment and Land Court Act outlines the disputes which the Environment and Land Court has powers to hear and determine, and subsection 4 further confers the ELC with the appellate jurisdiction over the decisions of subordinate courts or local tribunals in respect of matters falling within the jurisdiction of the Court.
37.
In the instant case, the appellant moved this court to challenge the decision of the Rent Restriction Tribunal after his Petition vide Mohammed v Rent Restriction Tribunal, Nairobi & 2 others (Environment & Land Petition 6 of 2023) [2023] KEELC 17673 (KLR) (25 May 2023) (Judgment) was struck out on 25/5/2023 for non-exhaustion of remedies available at the Rent Restriction Tribunal. In the said petition dated March 19, 2023, the applicant sought the following reliefs:
i.
That this honourable court finds that the 1st respondent as having no jurisdiction over the suit premises and declares the proceedings in Rent Restriction Tribunal No 197 of 2023 a nullity.
ii.
That as a consequence of relief (i) this honourable court issue orders vacating the 1st respondent’s orders of March 13, 2023 against the petitioner.
iii.
That this honourable court issues an injunction against the 1st, 2nd and 3rd respondents barring them, their agents, servants and representatives from taking any action meant, connected or relating to the levying of rent on the premises plot Ngong/Ngong/ 6646 without the express authority of Mr Nelson Bolly Boru.
38.
Contemporaneous with the filing of the petition, the petitioner filed an application dated March 20, 2023 seeking orders staying and or vacating the 1st respondent’s orders of March 13, 2023.
39.
I have accessed the full decision from the Environment and Land Court through the Kenya Law Case Search engine and read the decision in full. E.K WABWOTO J who heard and determined the petition filed by the present applicant had this to say when striking out the petition and notice of motion for want of jurisdiction to hear and determine the petition and the notice of motion:
a.
The exhaustion doctrine is a sound one and serves the purpose of ensuring that there is a postponement of judicial consideration of matters to ensure that a party is first of all diligent in the protection of his own interest within the mechanisms in place for resolution outside the courts.
b.
In the instant case, the petitioner seeks reliefs which can be adequately addressed by the Rent Restriction Tribunal. The tribunal has powers to hear and determine the dispute at hand. On the basis of the foregoing, this court finds that the court’s jurisdiction has been prematurely invoked. The petitioner ought to pursue his claim fully through the tribunal and in compliance with the law.
c.
Having so found, a consideration of the rest of the issues in this matter will not aid the petitioner in any way. The court also declines to award costs and opts to end this matter here.
d.
In the end, the petition dated March 19, 2023 and notice of motion dated March 20, 2023 are hereby determined as follows: -
a.
The petition dated March 19, 2023 and the notice of motion dated March 20, 2023 are hereby struck out
b.
Each party to bear own costs.
c.
Orders accordingly.
40.
The Environment and LAND Court declined jurisdiction on account of exhaustion of remedies doctrine stating that the Rent Restriction Tribunal had powers to set aside its orders or to stay the same and to hear the applicant’s complaint. Further, the law is clear that decisions of the Rent Restriction Tribunal are appealable to the Environment and Land Court. | Struck Out | https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/4558/eng@2025-04-08 |
Commercial Suit E185 of 2024 | Muhia & 9 others v East African Breweries Limited (Commercial Suit E185 of 2024) [2025] KEHC 4491 (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 | Commercial and Tax | Alex Mwania Muhia & 9 others v East African Breweries Limited | [2025] KEHC 4491 (KLR) | null | 1.
By a notice of motion dated 23rd July 2024, the defendant has asked this court to strike out the plaint with costs for reason that it does not disclose any reasonable cause of action. As expected under dictate of Order 2 Rule 15(1)(a) of the Civil Procedure Rules, the application was not accompanied by a supporting affidavit. The plaintiffs have responded to the application through an affidavit of the 9th plaintiff sworn on 7th October 2024. The defendant filed submissions dated 17th February 2025 while the plaintiff chose to rely on their replying affidavit without filing any submissions.
2.
For the court to strike out a plaint for disclosing no reasonable cause of action, the defendant must convince the it that the same is so hopeless that it cannot stand even with evidence being adduced and it cannot be cured by way of amendment. It must be a pleading that does not identify any violation of any rights of the plaintiff. The pleaded facts must be off the mark that they do not relate to a known identifiable claim against the defendant. In D.T. Dobie & Company (Kenya) Limited v Joseph Mbaria Muchina & another (1980) KECA 3 (KLR) the Court of Appeal held that;
‘No suit ought to be summarily dismissed unless it appears so hopeless that it plainly and obviously discloses no reasonable cause of action, and is so weak as to be beyond redemption and incurable by amendment. If a suit shows a mere semblance of a cause of action, provided it can be injected with real life by amendment, it ought to be allowed to go forward for a court of justice ought not to act in darkness without the full facts of a case before it.’
3.
In Yaya Towers Limited v Trade Bank Limited (In Liquidation) (2000) eKLR, the Court of Appeal explained the parameters of the court’s exercise of power to strike out a plaint for disclosing no reasonable cause of action thus;
‘On an application to strike out a plaint under order VI rule 13(1) (a) of the Civil Procedure Rules (the Rules) on the ground that it discloses no reasonable cause of action (which the present case is not) the truth of the allegations contained in the plaint is assumed and evidence to the contrary is inadmissible (see order VI rule 13(2) of the Rules). This is because the Court is invited to strike out the claim in limine on the ground that it is bound to fail even if all such allegations are proved. In such a case the court’s function is limited to a scrutiny of the plaint. It tests the particulars which have been given of each averment to see whether they support it, and it examines the averments to see whether they are sufficient to establish the cause of action. It is not the Court’s function to examine the evidence to see whether the plaintiff can prove his case, or to assess its prospects of success.’
4.
The plaintiffs claim that the defendant used their images to promote its products and activities without their consent. They aver that their rights under Articles 11(2)(c), 22(1), 23(1), 23(3), 28, 31, 40(5) and 33(3) of the Constitution were infringed by the defendant’s acts complained of. They have pleaded particulars of breach and violation of their rights. The prayers in the plaint seek declarations of that the plaintiff’s rights have been violated and compensation in form of damages. It is claimed that the defendant promoted its business at the expence of the plaintiffs which in my view is actionable. | null | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/4491/eng@2025-04-08 |
Civil Appeal E220 of 2024 | Mulei v Ndung’u; Stephen Kariuki t/a Jostel Auctioneers (Interested Party) (Civil Appeal E220 of 2024) [2025] KEHC 4502 (KLR) (8 April 2025) (Ruling) | Ruling | High Court at Thika | High Court | TW Ouya | 8 April 2025 | 2,025 | Kiambu | Civil | Paul Mulei v Charity Mbaire Ndung'u; Stephen Kariuki T/A Jostel Auctioneers | [2025] KEHC 4502 (KLR) | null | 1.
This is a notice of motion application for stay of execution of the decree or orders issued by the Small Claims Court in Thika SCCCOM E695 of 2024 in respect of default judgement entered by Hon. Kamau (RM/Adjudicator) on 24th June 2024.
2.
The Appellant has stated that the reason for the application is that the notice of mention was not served on the Appellant being that the first mention slated for mention was 17th June 2024 did not take place as the day was declared a public holiday and the matter was redirected to 24th June 2024 but the Appellant was not informed. That the appellant only learnt of the matter when confronted with a decree when he got to know that the matter had proceeded ex-parte and judgement issued by the court.
3.
The grounds advanced in support of the application are that the Applicant has an arguable appeal with a high probability of success; that the applicant was not served with the pleadings in the lower court case; and that no evidence of such service was provided by the respondent. The Applicant also argues that if stay of execution is not granted, the appeal will be rendered nugatory and the applicant will suffer irreparable damage. That the applicant was not aware of the suit as he was not served with any court documents and disputes the respondent’s allegations that service was effected upon the applicant.
4.
The application is supported by an affidavit by Paul Mulei the Applicant sworn on 22nd August 2024 with a copy of memorandum of appeal annexed.
5.
The Applicant prays for orders that:
i.
Spent
ii.
Spent.
iii.
That this court be pleased to grant leave to the applicant to lodge this appeal out of time.
iv.
That this court set aside the default judgement delivered on 24th June 2024 by the Small Claims Court in SCCCOMM E695 of 2024 and issue any other appropriate orders, relief or declaration that it may deem fit and just to safeguard the applicant’s rights and basic fundamental freedoms. | 13.
The considerations to be made in granting stay of execution are laid down 42 Rule 6 of the civil procedure rules which were restated in the case of Hamisi Juma Mbaya v Amakecho Mbaya [2018] eKLR where it was held: -
“
The appellants need to satisfy the Court on the following conditions before they can be granted the stay orders:
1.
Substantial loss may result to the applicant unless the order is made.
2.
The application has been made without unreasonable delay, and
3.
Such security as the Court orders for the due performance of the decree or order as may ultimately be binding on the applicant has been given by the applicant.
14.
In the case of Butt v Rent Restriction Tribunal [1979] eKLR it was posited that the court considers the circumstances of each case before granting an order for stay of execution and emphasizes that the overarching principle guiding the court in deciding whether to grant stay is whether such an order would serve the ends of justice.
15.
Be that as it may, the issue of likelihood to suffer substantial loos cannot be addressed in isolation from the issue of protection of the substratum of an appeal. In RWW v EKW (2019)eklr the court laid down the principle that:
“
The purpose of an application for stay of execution pending an appeal is to preserve the subject matter in dispute so that the rights of the appellant who is exercising the undoubted right of appeal are safeguarded and the appeal if successful. is not rendered “
16.
As stated earlier, the substratum of this appeal revolves around an allegation that service of the court pleadings was not effected upon the applicant and if so , no such evidence was furnished. This court notes that respondent did not file any replying affidavit to discount this allegation and has also failed to put across any sound argument to the contrary.
17.
This court is satisfied that the allegations by the applicant have substance warranting the granting of the orders for stay of execution which are sought herein, to set aside the default judgement and also to give the applicant a chance to file his defence.
18.
The court holds that prayer four is not for consideration at this juncture as it is the main prayer to be considered during the appeal. Indeed a glimpse of the memorandum of appeal is a prayer for judgement/decree issued at the Small Claims court at Thika in SCCOMM E695 OF 2024 to be set aside.
Determination
19.
It is hereby ordered that:
i.
Stay of execution the judgement entered against the applicant by the Adjudicator in Thika SCCCOM E695 on 24th June 2024 is granted pending the hearing and determination of the applicant’s appeal
ii.
That leave is granted to the applicant to file appeal out of time
iii.
That the applicant to deposit the entire decretal sum in court within 30 days from the date hereof failure to which the stay herein shall automatically expire. | Allowed | https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/4502/eng@2025-04-08 |
Criminal Appeal E009 of 2024 | Muriithi v Republic (Criminal Appeal E009 of 2024) [2025] KEHC 4470 (KLR) (8 April 2025) (Ruling) | Ruling | High Court at Kibera | High Court | DR Kavedza | 8 April 2025 | 2,025 | Nairobi | Criminal | Dr Kinyua Muriithi v Republic | [2025] KEHC 4470 (KLR) | null | 1.
The appellant was charged and after a full trial convicted for the offence of carrying on the business of a Pharmacist in premises not registered by the Pharmacy and Poisons (4) Board C/S to Section 23(1) as read with Section 23 (6) of the Pharmacy and Poisons Act. He was sentenced to serve three (3) years imprisonment by the trial court. His appeal this court on conviction was dismissed but partially allowed on sentence. This court substituted the sentence of three years with a fine of Kshs. 20,000 in default to serve 3 months imprisonment.
2.
The applicant filed a notice of motion dated 6th June 2024 seeking a review of this court’s decision. The application is supported by an affidavit sworn on the same date. The applicant argues that the court made an error apparent on the face of the record by holding that the Certificate of Registration for Watson Pharmacy’s premises had expired at the end of 2017. He contends that Section 23 of the Pharmacy and Poisons Act does not provide for expiration of such certificates. Instead, it sets out only two circumstances under which a certificate becomes void: upon change of ownership or if the premises become unsuitable for pharmacy business.
3.
The applicant further asserts that the court failed to consider submissions by the respondent, which emphasized that the law does not require annual renewal of registration certificates. He maintains that the statutory registration fee remains Kshs. 100 as set by Parliament, and that the lower court correctly found this to be the applicable amount. However, this court erred by upholding the Pharmacy and Poisons Board’s unilateral increase of the fee to Kshs. 10,000, an action the applicant claims was arbitrary and unlawful.
4.
The applicant argues that this constituted a mistake or error of law apparent on the face of the record, and he therefore seeks a review of the decision pursuant to the applicable provisions of the Civil Procedure Rules. He urges the court to correct the error and set aside the finding that supported the revised fee. | null | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/4470/eng@2025-04-08 |
Criminal Revision E032 of 2025 | Musya v Republic (Criminal Revision E032 of 2025) [2025] KEHC 4559 (KLR) (8 April 2025) (Ruling) | Ruling | High Court at Kibera | High Court | DR Kavedza | 8 April 2025 | 2,025 | Nairobi | Criminal | James Kinyoo Musya v Republic | [2025] KEHC 4559 (KLR) | null | 1.
The applicant filed the present notice of motion application dated 18th February 2025 together with a certificate of urgency of similar date, seeking leave to appeal out of time against his sentence.
2.
The lower court file has been submitted. The records indicate that the applicant filed a similar appeal at Milimani under Criminal Case Number 164 of 2014 and that the appeal was heard and dismissed.
3.
It is my view that this court does not have jurisdiction to hear and determine the present application. The application should be made to the Court of Appeal since the High Court has rendered its decision on 10th September 2017. | null | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/4559/eng@2025-04-08 |
Criminal Case E029 of 2025 | Muturi v Republic (Criminal Case E029 of 2025) [2025] KEHC 4466 (KLR) (8 April 2025) (Ruling) | Ruling | High Court at Murang'a | High Court | TW Ouya | 8 April 2025 | 2,025 | Murang'a | Criminal | Grace Wangui Muturi v The Republic | [2025] KEHC 4466 (KLR) | null | 1.
Before this court is an application for bail pending appeal emanating from the judgement of Hon. Susan Mwangi, PM delivered on 13th March 2025 in MCCR E622 of 2023. The application was brought under certificate of urgency dated 26th March 2025 for orders that:
i.
Spent.
ii.
That the honourable court be pleased to admit the applicant to bail pending hearing and determination of the instant appeal.
iii.
That the applicant be released on the same bond terms similar to the bond terms ordered at the trial court.
iv.
That costs of this application be borne by the Respondent.
2.
The application is supported by the following grounds and affidavit to the effect that the applicant is a mother to a 7 year old and a sole breadwinner to her father who is sickly. That she has a fixed abond within Murang’a County and is not a flight risk among other grounds.
3.
The matter was canvassed through oral submissions by the Applicant’s counsel for the state. Counsel for the state reiterated the grounds stated above and in addition added that the applicant has an arguable appeal which raised triable issues and that she is likely to spend a considerable amount of time incarcerated during the pendency of the appeal and the time of the sentence may be substantially served and that would prejudice the applicant. | null | Allowed | https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/4466/eng@2025-04-08 |
Miscellaneous Civil Application E053 of 2024 | Mwakima v Solfin Solutions Limited (Miscellaneous Civil Application E053 of 2024) [2025] KEHC 4589 (KLR) (8 April 2025) (Ruling) | Ruling | High Court at Voi | High Court | AN Ongeri | 8 April 2025 | 2,025 | Taita Taveta | Civil | Margaret Wawuda Mwakima v Solfin Solutions Limited | [2025] KEHC 4589 (KLR) | null | 1.
The Applicant Margaret Wawuda Mwakima filed HCMISC No. E053 OF 2024 against Solfin Solutions Ltd seeking orders that the Arbitrator’s Final Award dated 6th November 2024 be recognized and enforced in accordance with the provisions of Section 36(1) of the Arbitration Act, 1995 and that the decree to issue accordingly.
2.
The Respondent Solfin Solutions Limited also filed HCMISC Case No. E004 of 2025 seeking orders that the said Arbitral Final Award dated 6th November 2024 be set aside in accordance with the provisions of the Arbitration Act 1995.
3.
Both parties also prayed that costs of the applications be provided for.
4.
The two suits were consolidated and will be considered in the holding file HCMISC No. E053 of 2024.
5.
The applicant in HCMISC No. E053 of2024 filed a supporting affidavit dated 13/11/2024 in which she deposed that by virtual of Financing Agreements entered into on 16/8/2023 and on 30/9/2023, the parties agreed that in the event of a dispute, the same shall be referred to Arbitration after a mediation attempt. | null | Allowed | https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/4589/eng@2025-04-08 |
Miscellaneous Criminal Application E035 of 2024 | Mwithiga v Republic (Miscellaneous Criminal Application E035 of 2024) [2025] KEHC 4453 (KLR) (8 April 2025) (Ruling) | Ruling | High Court at Nyeri | High Court | DKN Magare | 8 April 2025 | 2,025 | Nyeri | Criminal | Robert Wanjohi Mwithiga v Republic | [2025] KEHC 4453 (KLR) | null | 1.
This is a ruling over a Notice of Motion application filed on 31.5.2024 by the Applicant seeking a reconsideration of sentence to take into account time spent in custody.
2.
The application is supported by the affidavit of the Applicant and it was deposed in material as follows:
a.
The Applicant was charged with attempted defilement contrary to Section 9(1) as read with 9(2) of the Sexual Offences Act whereupon he was convicted on 28.10.2021 and sentenced to serve 10 years imprisonment.
b.
The Applicant was arrested on 28.10.2020 and time spent in remand up to conviction date was not considered as required under Section 333(2) of the Criminal Procedure Code.
3.
The Respondent did not oppose the application only referring to the court file to confirm the allegations. | 4.
The issue is whether the trial court failed to take into account the time the Applicant spent in custody in computing the sentence.
5.
Sentencing is a matter of discretion of the trial court and may be interfered only in exceptional circumstances. In the case of MMI v Republic [2022] eKLR, the Court referred to the case of Mokela vs. State (135/11) [2011] ZASCA 166 where the Supreme Court of South Africa held that:
“
It is well-established that sentencing remains pre-eminently within the discretion of the sentencing court. This salutary principle implies that the appeal court does not enjoy carte blanche to interfere with sentences which have been properly imposed by a sentencing court. In my view, this includes the terms and conditions imposed by a sentencing court on how or when the sentence is to be served.”
6.
This court will not alter a sentence unless the trial court has acted upon wrong principles or overlooked some material factors. The Court of Appeal in Ogolla s/o Owuor vs. Republic [1954] EACA 270, held that “The Court does not alter a sentence unless the trial Judge has acted upon wrong principles or overlooked some material factors.”
7.
This court may also interfere if the sentence is excessive and therefore an error of principle has occurred. In the case of Shadrack Kipkoech Kogo vs R, Eldoret Criminal Appeal No. 253 of 2003 the Court of Appeal held that:
“
Sentence is essentially an exercise of discretion by the trial court and for this court to interfere it must be shown that in passing the sentence, the sentencing court took into account an irrelevant factor or that a wrong principle was applied or that short of these, the sentence itself is so excessive and therefore an error of principle must be interfered (see also Sayeka-vs-R. (1989 KLR 306))
8.
The trial court is required to take into account the time spent in custody. This is also anchored in the Sentencing Guidelines. The Sentencing Guidelines (2023) provide thus:
2.3.18 Section 333(2) of the Criminal Procedure Code obligates the court to take into account the time already served in custody. Failure to do so impacts the overall period of detention which may result in a punishment that is not proportionate to the seriousness of the offence committed. This also applies to those who are charged with offence that involve minimum sentences as well as where an accused person has spent time in custody because he or she could not meet the terms of bail or bond.
2.3.19 Upon determining the period of imprisonment to impose upon an offender, the court must then deduct the period spent in custody identifying the actual period to be served (see GATS at Part V). This period must be carefully calculated- and courts should make an enquiry particularly with unrepresented offenders- for example, there may be periods served where bail was interrupted and a short remand in custody was followed by a reissuance of bail e.g., where a surety is withdrawn, and a new surety is later found. This calculation must include time spent in police custody.
2.3.20 An offender convicted of a misdemeanour and who had been in custody throughout the trial for a period equal to or exceeding the maximum term of imprisonment provided for that offence, should be deemed to have served their sentence and be released immediately.
9.
The Applicant was arrested on 18.11.2020 and remained in custody after he was convicted on 25.10.2021 and sentenced on 28.10.2021. The trial court erroneously failed to indicate that it had considered the period from the date of arrest on 18.11.2020 being 11 months and 19 days which was not applicable to the Applicant’s case. There is therefore no record that the period in custody was taken care of. In the circumstances Section 333(2) of the Criminal Procedure Code provides:
(2)
Subject to the provisions of section 38 of the Penal Code (Cap. 63) every sentence shall be deemed to commence from, and to include the whole of the day of, the date on which it was pronounced, except where otherwise provided in this Code. Provided that where the person sentenced under subsection (1) has, prior to such sentence, been held in custody, the sentence shall take account of the period spent in custody.
10.
The trial court had the duty to show that it considered the time spent in custody and it was not enough to state without justification that the time had been considered without the record confirming such consideration. In Ahamad Abolfathi Mohammed & Another v Republic [2018] eKLR, the Court of Appeal held that the court is obliged to consider the period an accused person has spent in custody before they were sentenced. The Court held thus:
“
Although the learned judge stated that he had taken into account the period the appellants had been in custody, he ordered that their sentence shall take effect from the date of their conviction by the trial court. With respect, there is no evidence that the court took into account the period already spent by the appellants in custody. “Taking into account” the period spent in custody must mean considering that period so that the imposed sentence is reduced proportionately by the period already spent in custody. It is not enough for the court to merely state that it has taken into account the period already spent in custody and still order the sentence to run from the date of the conviction because that amounts to ignoring altogether the period already spent in custody.”
11.
Consequently, the period between 18.11.2020 and 28.10.2021 that the Applicant spent in custody is to be taken into account in computing the sentence.
Determination
12.
In the upshot, I make the following orders: -
a.
The sentence meted out is retained save that the sentence shall run from the date of arrest, that is, 18.11.2020.
b.
The file is closed. | Allowed in part | https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/4453/eng@2025-04-08 |
Criminal Appeal E008 of 2024 | Njeri v Republic (Criminal Appeal E008 of 2024) [2025] KEHC 4656 (KLR) (8 April 2025) (Judgment) | Judgement | High Court at Garissa | High Court | JN Onyiego | 8 April 2025 | 2,025 | Garissa | Criminal | Joseph Muriithi Njeri v Republic | [2025] KEHC 4656 (KLR) | null | 1.
The appellant was charged with the offence of defilement contrary to Section 8(1) as read with Section 8(4) of the Sexual Offences Act No. 3 of 2006. The particulars of the charge were that on diverse dates between July 2020 and 09th August, 2023 at unknown location within the republic of Kenya he intentionally caused his penis to penetrate into the anus of JM, a child aged 15 years.
2.
The appellant faced an alternative charge of committing an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act. The particulars of the charge were that on 09.08.2023 at [particular withheld] Wajir Township, within Wajir County he intentionally touched the anus of JM, a child aged 15 years with his penis.
3.
He pleaded not guilty to the charge and a full hearing was conducted. The prosecution called four (4) witnesses in support of its case while the appellant gave a sworn testimony without calling any witness.
4.
At the close of the prosecution’s case, the trial court ruled that a prima facie case had been established against the appellant thereby placing him on his defence.
5.
The trial court found him guilty and subsequently convicted him. He was consequently sentenced to 60 years in jail.
6.
Being aggrieved by the determination of the trial court, the appellant, through his Advocates M/S Stephen Wanyoike & Co Advocates filed an amended petition of appeal on 21.11.2014. In summary, the following grounds were cited.
i.
That the learned magistrate erred in law and facts by convicting him notwithstanding the fact that the prosecution did not prove its case.
ii.
The learned magistrate did not provide the appellant an opportunity for a fair hearing,
iii.
That the learned magistrate did not provide the appellant with the opportunity to call witnesses and in particular the court denied him an opportunity to call four witnesses to his defence.
iv.
That the sentence meted out was harsh and excessive having regard to the circumstances of the case. | null | Dismissed (with further directions) | https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/4656/eng@2025-04-08 |
Petition E017 of 2024 | Nyaga v Republic (Petition E017 of 2024) [2025] KEHC 4404 (KLR) (8 April 2025) (Ruling) | Ruling | High Court at Kibera | High Court | DR Kavedza | 8 April 2025 | 2,025 | Nairobi | Criminal | Edward Muriuki Nyaga v Republic | [2025] KEHC 4404 (KLR) | null | 1.
The applicant was charged and convicted for the offence of murder contrary to Section 203 as read with 204 of the Penal Code in Criminal case No.109 of 2009. He was sentenced to serve a death sentence. Upon appeal, his sentence was reviewed from death sentence to 30 years imprisonment, which was computed from 2nd November 2017; the date of sentence by the High Court in Criminal Appeal No. 74 of 2019.
2.
He has now filed a petition seeking revision of sentence to comply with Section 333(2) of the Criminal Procedure Code.
3.
He filed an affidavit in support of his petition. The arguments raised are that the trial court failed to consider the time he spent in remand custody during the computation of sentence.
4.
I have considered the application, the affidavit in support and the applicable law. I have also considered the trial court record. The issue for consideration is whether the trial court considered the time the applicant spent in remand custody.
5.
The proviso to section 333 (2) of the Criminal Procedure Code obligates the court to take into account the time already spent in custody. The duty to take in account the period an accused person had remained in custody in sentencing under the proviso to section 333(2) of the Criminal Procedure Code which is couched in mandatory terms was acknowledged by the Court of Appeal in Ahamad Abolfathi Mohammed & Another v Republic [2018] eKLR and Bethwel Wilson Kibor v Republic [2009] eKLR and more recently in the High Court case of Vincent Sila Jona & 87 others v Kenya Prison Service & 2 others [2021] eKLR.
6.
From the record, the applicant was arrested on 2nd September 2009 and was never released on bail/bond. He was convicted on 2nd November 2017. He, therefore, spent eight (8) years two (2) months in remand custody. | null | Allowed | https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/4404/eng@2025-04-08 |
Family Appeal E003 of 2023 | Odhiambo v Ooko (Family Appeal E003 of 2023) [2025] KEHC 4576 (KLR) (8 April 2025) (Judgment) | Judgement | High Court at Busia | High Court | WM Musyoka | 8 April 2025 | 2,025 | Busia | Family | Benedict Otieno Odhiambo v Fredrick Onyango Ooko | [2025] KEHC 4576 (KLR) | null | 1.
The appeal herein arises from a decision of the trial court, in Busia CMCSC No. 151 of 2017, of 15th November 2022. The grounds of appeal revolve around the trial court not appointing an administrator in place of the previous administrator; cancelling title deeds of persons who were not party to the proceedings; entering into the domain and jurisdiction of the land court; addressing the issue of customary law rights without jurisdiction; and not appreciating that the estate had been distributed after due consideration to the interests of the grandmother of the respondent.
2.
The cause, in Busia CMCSC No. 151 of 2017, was in the estate of Philip Ondus Titus Odhiambo, who had died sometime in 2002. The cause was at the instance of Benedict Otieno Odhiambo, the appellant herein, who styled himself as a son of the deceased. He listed 8 individuals as the survivors of the deceased, being himself, Enos Oluoch Omuok, Johanes Omuok Apondi, Martin Ogonda Oluoch, Paulo Ratula, Jackim Oduor Nyambal and Ramlus Ahenda Owino. Their relationship with the deceased was not disclosed. The deceased was said to have died possessed of Samia/Butabona/579.
3.
Letters of administration intestate were duly made on 28th February 2018, to the appellant, and a grant was subsequently issued, dated 12th March 2018.
4.
The appellant sought confirmation of the grant, vide an application, dated 15th October 2018, where Samia/Butabona/579 was proposed for distribution amongst 10 individuals, being himself, Enos Oluoch Omuok, Johanes Omuok Apondi, Martin Ogonda Oluoch, Paulo Ratula, Jackim Oduor Nyambalu, Ramlus Ahenda Owino, Onyango Obeyi, Fredrick Onyango Ooko and Patrick Otieno Oduory. Benedict Otieno Odhiambo, Enos Oluoch Omuok, Johanes Omuok Apondi, Martin Ogonda Oluoch, Paulo Ratula, Jackim Oduor Nyambal and Ramlus Ahenda Owino were identified as son and grandsons of the deceased, while Fredrick Onyango Ooko and Patrick Otieno Oduory were categorised as dependants. The grant was confirmed on 11th April 2019, for the estate to be distributed in the manner proposed, and a certificate of confirmation of grant was issued, dated 11th April 2019. | null | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/4576/eng@2025-04-08 |
Criminal Appeal E060 of 2024 | Okello v Republic (Criminal Appeal E060 of 2024) [2025] KEHC 4490 (KLR) (8 April 2025) (Judgment) | Judgement | High Court at Kibera | High Court | DR Kavedza | 8 April 2025 | 2,025 | Nairobi | Criminal | Robert Okello v Republic | [2025] KEHC 4490 (KLR) | null | 1.
The appellant was charged and after full trial convicted by the Subordinate Court of the offence of defilement contrary to section 8(1) as read with 8(3) of the Sexual Offences Act No. 3 of 2006. The particulars are that on 11th of November 2022 at [particulars withheld] in [particulars withheld] Sub-county within Nairobi County the appellant intentionally and unlawfully caused his penis to penetrate the vagina of J.C. a child aged 15 years. He was sentenced to serve twenty (20) years imprisonment.
2.
Aggrieved, he filed an appeal challenging the totality of the prosecution's evidence against which he was convicted. He urged the court to quash his conviction and set aside the sentence imposed.
3.
This is the first appellate court and in Okeno v R [1972] EA 32, the Court of Appeal for East Africa laid down what the duty of the first appellate court is. It is to analyse and re-evaluate the evidence which was before the trial court and come to its own conclusions on that evidence without overlooking the conclusions of the trial court but bearing in mind that it never saw the witnesses testify.
4.
The prosecution called five (5) witnesses in support of their case. The complainant, JC (PW4), testified under oath that she was born in 2007 in Uganda and arrived in Kenya in October 2022. Three days later, she moved into her aunt’s house, the appellant’s wife. She alleged that the appellant took her to his room, removed her underwear, and inserted his penis into her vagina. Afterwards, he wiped blood from her vagina with a handkerchief and warned her not to tell anyone. She immediately confided in her neighbour, Mama [particulars withheld] (PW2, Diana Muya), who advised her to stay silent, saying the appellant would eventually be caught.
5.
Three days later, the appellant allegedly assaulted her again. This time, her screams brought Mama [particulars withheld] to the house. Mama [particulars withheld] took her to the hospital, and then to Muthangari Police Station to give statements. The complainant was later moved to a safe house in [particulars withheld]. She identified the appellant in court, and her account matched Mama [particulars withheld]’s testimony, who also identified him. | null | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/4490/eng@2025-04-08 |
Criminal Appeal E006 of 2025 | Okuku v State (Criminal Appeal E006 of 2025) [2025] KEHC 4464 (KLR) (8 April 2025) (Ruling) | Ruling | High Court at Kisumu | High Court | A Mabeya | 8 April 2025 | 2,025 | Kisumu | Criminal | Brian Okoth Okuku v State | [2025] KEHC 4464 (KLR) | null | 1.
The appellant was charged with the offences of burglary contrary to section 304(2) of the Penal Code and stealing contrary to section 279 (b) of the Penal Code.
2.
The appellant pleaded guilty to both charges. After considering the appellant’s mitigation as well as the probation report and the fact that the appellant was a 1st time offender who had been in custody awaiting the probation report for one month, the Court proceeded to sentence the appellant to serve a period of five years on each charge. The trial court directed that both sentences run concurrently.
3.
Aggrieved by the said sentence, the appellant filed a petition of appeal dated the 4/2/2025 in which he raised the following grounds: -
a.
The learned trial court magistrate erred in both law and in facts in not considering the appellant’s sentence in criminal case no. E510 OF 2024 and E511 of 2024 ought to run concurrently but not consecutively since they both originated/committed in the same transaction and connection.
b.
The learned trial magistrate erred in both law and in facts in not considering the 10 years’ sentence is excessive and harsh.
c.
The learned trial magistrate erred in both law and in facts in failing to consider that the appellant’s plea of guilty was a sincere act of remorseful deserving a commensurate lenient sentence.
4.
When the appeal came up before this Court for the first time on the 7/4/2025, the appellant applied to withdraw the appeal. There was no appearance for the state and thus the application for withdrawal was unopposed. | null | Withdrawn | https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/4464/eng@2025-04-08
|
Miscellaneous Criminal Application E017 of 2024 | Okumu v Republic (Miscellaneous Criminal Application E017 of 2024) [2025] KEHC 4539 (KLR) (8 April 2025) (Ruling) | Ruling | High Court at Busia | High Court | WM Musyoka | 8 April 2025 | 2,025 | Busia | Criminal | Maryanne Patricia Okumu v Republic | [2025] KEHC 4539 (KLR) | null | 1.
The applicant herein was convicted of murder, contrary to section 203, as read with section 204, of the Penal Code, Cap 63, Laws of Kenya, and was sentenced to 18 years imprisonment, by Karanjah J, in Busia HCCRC No. E005 of 2022.
2.
She has now come before me, by an undated Motion, filed on an unknown date, seeking reduction of sentence, premised on various provisions of the Constitution.
3.
Once the High Court pronounces itself on a conviction and sentence, in a murder case that it has tried to conclusion, it has no jurisdiction to revisit the matter to reduce the sentence it imposed. The court with jurisdiction, to tinker with the sentence imposed, is the Court of Appeal.
4.
That is where the applicant should have headed, for she had a right to appeal against the sentence, within 14 days after it was pronounced. I cannot exercise a jurisdiction or power or mandate which I do not have.
5.
The applicant has cited several provisions of the Constitution, as justification for her application. I have read and re-read those provisions, and I see nothing there which grants me any jurisdiction to do that which she invites me to do. | null | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/4539/eng@2025-04-08 |
Criminal Petition 36 of 2023 | Ombok v Republic (Criminal Petition 36 of 2023) [2025] KEHC 4506 (KLR) (8 April 2025) (Ruling) | Ruling | High Court at Siaya | High Court | DK Kemei | 8 April 2025 | 2,025 | Siaya | Criminal | Moses Omondi Ombok v Republic | [2025] KEHC 4506 (KLR) | null | 1.
The Petitioner herein Moses Omondi Ombok filed the present petition seeking for review of sentence. His gravamen is inter alia; that he had been charged together with others in Bondo SPM’s Court vide Cr. No. 729 pf 2016 in regard to two counts of robbery with violence contrary to Section 296 (2) of the Penal Code; that he was inter convicted of the two counts and ordered to serve fifty (50) years’ imprisonment which were ordered to run concurrently; that he later lodged an appeal before the High Court vide Siaya HCCRA No. 12 of 2018 which was later dismissed; that he has since reformed; that the merits a non-custodial sentence; that he is now aged 55 years and he deserves to be given the benefit of the remaining years in prison being waived; that he has acquired several certificates while in prison and which prove that he has really been rehabilitated and merits to be given a chance to be released back to the society.
2.
The Respondent did not file a response to the said application.
3.
The application was canvassed by way of oral submissions.
4.
The Applicant submitted that after his appeal was concluded by the High Court. his attempt to move to the Court of Appeal for redress were thwarted by the High Court which declined to grant leave to lodge appeal out of time unless he paid certain costs towards filing of appeal. He submitted that he was left with no option but to come back to this court for sentence review. | null | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/4506/eng@2025-04-08 |
Civil Appeal E1375 of 2023 | Omwega v Kendagor & another (Civil Appeal E1375 of 2023) [2025] KEHC 4455 (KLR) (Civ) (8 April 2025) (Ruling) | Ruling | High Court at Nairobi (Milimani Law Courts) | High Court | TW Ouya | 8 April 2025 | 2,025 | Nairobi | Civil | Duncan Nyachoti Omwega v William Kemboi Kendagor & Linus Kiprop | [2025] KEHC 4455 (KLR) | null | 1.
The present appeal challenges the ruling delivered by the trial court on the 8th of December 2023, setting aside the interlocutory judgement that was entered against the 1st respondent on the 29th of July, 2022.
2.
The background to the appeal, is that the appellant instituted a suit at the lower court against the respondents, claiming general damages for pain, suffering and loss of amenities, special damages together with costs of the suit; for the injuries that he sustained following an accident that occurred on the 2nd of December, 2020, involving him as a pedestrian walking along Mfangano Street and Motor Vehicle registration no. KCV 708 B (the suit vehicle), belonging to the 1st respondent.
3.
In the plaint dated the 29th of April, 2021, it is alleged that on the 2nd of December,2020, at around 8:30PM, as the plaintiff was walking along Mfangano Street, the respondents, their driver and/or agent so negligently controlled Motor Vehicle registration no. KCV 708 B, causing it to lose control, veer off the road and hit the plaintiff; as a result, he sustained serious bodily injuries. | 7.
After considering the evidence placed before the court, the learned trial magistrate made a finding that there was no evidence to confirm that the 1st respondent was duly served with the summons and the suit papers as alleged; as such, the learned trial magistrate found that the interlocutory judgment was irregular, and proceeded to set it aside.
8.
Aggrieved by the trial court’s decision, the appellant filed the instant appeal vide a Memorandum of Appeal dated the 11th of December, 2023, citing six (6) grounds of appeal which can be summarised as follows; that the learned trial magistrate erred in fact and in law: in allowing the 1st respondent’s application dated the 19th of September, 2023; in setting aside the judgement duly entered against the 1st respondent on the 29th of July, 2022; in failing to consider the 1st respondent’s blatant acts of evasion and refusal to participate in the trial proceedings at the lower court which led to the interlocutory judgement being entered against him; by failing to consider and properly evaluate the appellant’s submissions thereby arriving at a wrong conclusion; in failing to properly evaluate the evidence on record and applying wrong principles of law, thereby arriving at a wrong conclusion; and that the ruling by the learned trial magistrate was not only unjust against the weight of evidence, but that it was based on misguided points of fact and wrong principles of law, thereby occasioning a miscarriage of justice.
9.
On the above grounds, the appellant prayed that the ruling delivered by the lower court on the 8th of December, 2023, be set aside and annulled.
10.
The appeal was prosecuted by way of written submissions following the direction issued on the 13th of June, 2024. I have duly considered the appellant’s submissions dated the 24th of June, 2024, filed on his behalf by his learned counsel Owino K’Ojwando & Co. Advocates. The respondents did not file their written submissions.
11.
I have also carefully considered the grounds of appeal together with the appellant’s written submissions as well as the evidence on record and the impugned ruling by the learned trial magistrate. Having done so, I find that the only issue for determination in this appeal is whether the trial court erred in setting aside the interlocutory judgement entered against the 1st respondent on the 29th of July, 2022.
12.
As stated herein above, the learned trial magistrate set aside the interlocutory judgement entered against the 1st respondent on grounds that it was irregular, as there was no evidence on the court’s record to show that the 1st defendant was duly served with summons to enter appearance and the suit documents.
13.
It is well settled that the issue of service in litigation is crucial, as such, this court must satisfy itself that the 1st respondent was duly informed of the suit at the trial court but failed to enter appearance. Considering that service upon the 2nd respondent is not disputed; the appellant was required to demonstrate by way of evidence that the 1st respondent was either personally or through their authorized agents served with the summons to enter appearance, before he moved the court to enter an interlocutory judgement against him.
14.
The guiding law on service of summons is found in Order 5 of the Civil Procedure Rules. Order 5 rule 7 makes it clear that where there are several defendants, service of summons must be effected on each defendant separately. The said provision of law stipulates thus: “Save as otherwise prescribed, where there are more defendants than one, service of the summons shall be made on each defendant.”
15.
Order 5 Rule 8 (1), however allows a plaintiff in a suit to effect service of summons to an agent authorized to accept service on behalf of a defendant, where the plaintiff is unable to serve the summons personally upon a defendant. The said provision of law states thus: “Wherever it is practicable, service shall be made on the defendant in person, unless he has an agent empowered to accept service, in which case service on the agent shall be sufficient.”
16.
This rule was reiterated by the Court of Appeal, in the case of John Akasirwa versus Alfred Inai Kimuso (C.A. NO. 164 OF 1999) (UR); which was cited with approval by the High Court in National Bank of Kenya limited versus Puntland Agencies Limited & 2 others [2006] KEHC 2040 (KLR) as follows: “ In the case of JOHN AKASIRWA – V – ALFRED INAI KIMUSO (C.A. NO. 164 OF 1999) (UR) the court of appeal indicated the proper mode of service on individual as follows: “Proper service of summons to enter appearance in litigation is a crucial matter in the process whereby the court satisfied itself that the other party to litigation has notice of the same and therefore chose to enter appearance or not. Hence the need for strict compliance with order 5 Rule 9 [1]. The ideal form of service is personal service, it is only when the defendant cannot be found, that service on his agent empowered to accept service is acceptable.”
17.
Having stated that, I have thoroughly scrutinized the affidavit of service sworn by the process server on the 21st of January, 2022. In the said affidavit, the process server indicated in paragraph 4 that he was instructed by the 2nd respondent to call the 1st respondent to confirm his place of residence so as to be able to effect service on him. The process server then indicates that he proceeded to call the 1st respondent through his registered number and after introducing himself to him and his reason for calling, the 1st respondent instructed him to take the documents to the Eldoret Shuttle Sacco offices in Eldoret town so that he could pick them from there.
18.
In paragraph 6 of the said affidavit, the process server indicates that he then boarded a matatu belonging to the Sacco from Nairobi heading to Eldoret; and upon his arrival, he was received by the manager of the Eldoret office who instructed him to leave the documents in the office for onward transmission to the 1st respondent.
19.
One of the reasons advanced by the learned trial magistrate for finding that there was no evidence to demonstrate that the 1st respondent was served with the affidavit of service, was that the process server did not indicate in his affidavit of service, the name of the manager that he served the summons to.
20.
Order 5 rule 15 of the Civil Procedure rules, which sets out what should be contained in an affidavit of service, states as follows: “The serving officer in all cases in which summons has been served under any of the foregoing rules of this Order shall swear and annex or cause to be annexed to the original summons an affidavit of service stating the time when and the manner in which summons was served and the name and address of the person (if any) identifying the person served and witnessing the delivery or tender of summons. The affidavit of service shall be in Form No 4 of Appendix A with such variations as circumstances may require.”
21.
My interpretation of the wordings of the aforementioned provision of law, is that although it is crucial that the names and address identifying the person being served with the summons is indicated in the affidavit of service, the same is not mandatory but it is included where the said information is available; and that is why, in my view, the said provision of law indicates “if any”.
22.
The inclusion of the words “if any”, to the said provision of law, is in my view, necessary because, there are instances where the person served with the summons to enter appearance or any court documents may refuse to sign the documents or even identify themselves to the process serves; and that is why in most cases the affidavit of a process server is admissible in evidence and where the same is uncontested it is considered sufficient evidence of service.
23.
Furthermore, where service is denied by a defendant, Order 5 rule 16 of the Civil Procedure rules empowers the court to make an order for the process server to be cross examined to determine whether or not service was effected on a party denying service of any court documents.
24.
This position was reiterated by the Court of appeal in the case of Shadrack Arap Baiywo versus Bodi Bach [1987] eKLR; as follows: “There is a presumption of services as stated in the process server’s report, and the burden lies on the party questioning it, to show that the return is incorrect. But an affidavit of the process server is admissible in evidence and in the absence of contest it would normally be considered sufficient evidence of the regularity of the proceedings. But if the fact of service is denied, it is desirable that the process server should be put into the witness box and opportunity of cross examination given to those who deny the service.”
25.
Again, the court in William K. Langat versus Joseph K. Sindai [2021] eKLR; stated thus: “Under Order 5 Rule 16 where there is allegation that a summons had not been properly served, the court may have the process server summoned to be cross examined on the service. A reading of this Rule suggests the court may at its own motion make an order for the process server to be examined. One would however expect that the applicant who disputes service to be on the frontline in seeking to have the process server summoned to be examined. The court it appears did not make any order for the examination of the process server and no request was made by the applicant to have the process server summoned for examination. The trial court however upheld the service as proper.”
26.
Based on the above, I am of the considered view that the learned trial magistrate was in error for concluding that the service of summons to enter appearance and other suit documents upon the 1st respondent was not effected simply because the process server did not indicate the name of the manager who he effected service on or that the summons did not indicate the name or signature of the person served. This is more so because, the learned trial magistrate had the option of ordering that the said process server be examined by the 1st respondent to determine whether or not service was effected on the said manager.
27.
Being that as it may, whereas the process server indicated that he called the 1st respondent using his registered line; no evidence was tendered before the trial court demonstrating that the mobile number indicated in the process server’s affidavit of service, and which he allegedly used to call the 1st respondent actually belongs to the 1st respondent.
28.
Furthermore, in as much as Order 5 rule 8 (1) allows for service to be effected on an agent of a defendant; the said rule makes it clear that the said agent must be empowered or authorized to accept such service. This in my view means that summons to enter appearance can only be served on those agents that have been confirmed to be agents of a defendant and those that have been authorized to accept service on behalf of the said defendant.
29.
This position was restated by the court in the case of Kimeu versus Kasese (1970) KLR 32; as follows: “…It is not the relationship of the person served to the defendant but that he was in fact authorized to receive service. Also, that the affidavit of service should specifically state that that person was authorized to receive service”
30.
In this case, although the process server indicated that the he served the summons together with the suit documents on the Manager of Eldoret Shuttle Sacco in Eldoret town offices, there was no evidence to show that the said manager was in fact employed by Eldoret shuttle Sacco or that he was an agent of the 1st respondent, or that he had been authorized by the 1st respondent to accept service of the said summons and other court documents on his behalf.
31.
Considering that the manager introduced himself as the manager of Eldoret Shuttle Sacco, there was need to show by way of evidence that the said manager apart from working for Eldoret Shuttle Sacco, he was also an authorised agent of the 1st respondent for purposes of accepting service of court documents.
32.
Based on the above, I am of the considered view that the manager who accepted the court documents on behalf of the 1st respondent was not an agent authorized to accept service of court documents on his behalf, as such, the purported service was not proper service. I am therefore of the considered view that the interlocutory judgement entered by the lower court against the 1st respondent was regular.
33.
Flowing from the foregoing, I am of the considered view that the present appeal lacks in merit and the same is hereby dismissed. As regards costs, it is trite that costs follow the event and are awarded at the discretion of the court. In this case, considering that the respondents did not file their written submissions in regards to this appeal, each party should bear their own costs.
Determination
34.
This appeal is hereby dismissed. Each party to bear their own costs. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/4455/eng@2025-04-08 |
Miscellaneous Application E249 of 2024 | Opondo v Odebero (Miscellaneous Application E249 of 2024) [2025] KEHC 4562 (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 | Wilfred Barasa Opondo v Camilita Akinyi Odebero | [2025] KEHC 4562 (KLR) | null | 1.
The chamber summons application dated 30th March 2023 by the Applicant seeks the following orders:-
(a)
(a), (b), (c), (d) and (c) spent
(b)
The decision of the Taxing Master delivered on 24th March 2023 in so far as the same related to the reasoning and determination pertaining to the taxation of the bill of costs dated 14th October 2022 be set aside.
(c)
The court be pleased to refer the matter back for re-taxation by a different Taxing Master of the bill of costs and with proper directions thereof.
(d)
In the alternative the court exercises its inherent jurisdiction and be pleased to retax the bill of costs dated 14th October 2022 afresh and or make directions to a fresh taxation.
2.
The application is based on the grounds thereof and the Applicant’s sworn affidavit dated even date.
3.
The application has been opposed by the Respondent vide the replying affidavit sworn on 2nd May 2023.
4.
The issues herein emanate from the matrimonial proceedings by this court wherein Musyoka J delivered a judgement dated 11th December 2014. It appears that the judge directed the parties to agree on how to split the properties equally and in the event of any disagreement a valuation be undertaken and they be sold in a public auction.
5.
The parties disagreed and the valuation was done and, in the ruling, dated 28th September 2017 the court agreed with the valuation which placed the four properties at a value of Kshs.103,500,000.
6.
The Respondent based on the above proceeded to tax the bill and the Taxing Master on 24th March 2023 awarded the party and party costs at Kshs.2,040,985.
7.
The contentious part was the instruction fees which totaled Kshs. 1,399500.
8.
The Applicant has therefore challenged the same through the application herein. I respectfully do not find the application what one can call a Reference in the manner prescribed under Rule 11 of the Advocates Remuneration Order. There is no for instance a request to the Taxing Master for reasons which led to the findings of the sum complained of.
9.
Neither has the Taxing Master responded to any such request by way of explanation.
10.
Nevertheless, and taking into consideration the time this matter has been in the corridors of justice and exercising the powers donated by Article 159 of the Constitution namely expeditious disposal of justice I shall proceed to determine the same procedural lapse notwithstanding. | 11.
I have perused the two competing affidavits and the ruling by the Taxing Master. Although it is the argument by the Applicant that there was no basis for the figures arrived at by the Taxing Master, the valuation by M/s Petrum Valuers sanctioned by the court was the basis. The ruling of the court I have alluded to above is crystal clear, namely that the total value of their matrimonial properties was Kshs.103,500,000.
12.
That ruling of 28th September 2017 remains unchallenged. I suppose the Applicant was happy with the outcome.
13.
Based on the said amount and from the reading of the Taxing Masters ruling I do not find any reason to interfere with it. The figures speak for themselves. The scale used by the Taxing Master of the year 2009 was the appropriate one.
14.
The other issues in the bill are basically routine matters and I doubt whether the Applicant has any significant challenge over the same. I do not see any reasons to interfere with any of them.
15.
For the above reasons I do not find the application/reference meritorious and the same is hereby dismissed with costs. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/4562/eng@2025-04-08 |
Civil Appeal E736 of 2022 | Pacis Insurance Company Limited & another v Pacis Insurance Company Limited & another (Civil Appeal E736 of 2022) [2025] KEHC 4433 (KLR) (8 April 2025) (Judgment) | Judgement | High Court at Nairobi (Milimani Law Courts) | High Court | LP Kassan | 8 April 2025 | 2,025 | Nairobi | Civil | Pacis Insurance Company Limited v Chongqing International Construction Corporation | [2025] KEHC 4433 (KLR) | null | 1.
This judgment is in respect to the Appeal and the Cross-Appeal in this matter. The main appeal was preferred by Pacis Insurance Company Limited, whereas the Cross-Appeal was instituted by Chongqing International Construction Corporation.
2.
The suit before the trial court related to a material damage claim by the Respondent vide their plaint dated 18.09.2019 seeking:
a.
A declaration that the Defendant is in breach of the insurance policy
b.
Special damages of Kshs 7,394,585/=
c.
A declaration that the Plaintiff be indemnified by the Defendant against all risks covered by the insurance policy for the period in question
d.
Interest on (b) above at court rates until payment
e.
Such or further orders as this Honourable Court may deem fit to grant.
3.
The Appellant filed a counterclaim dated 03.02.2020 seeking:
a.
A declaration that it is not bound to satisfy the purported policy no. 010/070/01400/2018 as the same was void for lack of payment of premiums to the Defendant now the Plaintiff
b.
A declaration that the Plaintiff now Defendant did not pay insurance premium to the Defendant, and as such the insurance policy no. 010/070/01400/2018 is not enforceable against the Defendant now Plaintiff
c.
A declaration that the Defendant now the Plaintiff is not bound to indemnify the Plaintiff now the Defendant over purported loss over motor vehicle registration no. KCQ 443L under policy no. 010/070/01400/2018 on 1/7/2018 as the said policy was not enforced due to non-payment of premiums to the Defendant
d.
A declaration that under a contract of insurance the insurer does not pay the total loss but pays only the sum assured as total loss, subject to loss adjustment
e.
A declaration do issue that the declared sum assured declared to their agent was Kshs 1,000,000/= and that premiums were not paid to the Defendant hence the insurance policy was void and unenforceable
f.
Costs of the counterclaim
4.
The Respondent called three witnesses in support of its case at the trial court.
5.
PW1, police officer, stationed at Lokichoggio police station, testified that on 12.07.2018 at 5 pm at Natira area along Kakuma-Lokichoggio road, a self-involving accident of a motor vehicle registration KCQ 443L owned by the Respondent caused fatal injuries to 2 of the 3 on board. The said motor vehicle was fully insured and had a sticker C12213143 policy/0XX0/010 Policy no. 010/0070/0XX00/2018 comprehensive cover commencing 14/04/2018 and expiry 13/04/2019 issued by Appellant.
6.
PW2, valuation manager, testified that on 03/07/2019, he prepared a report in respect of motor vehicle KCQ 443L, make Toyota Hilux Double Cabin, year of manufacture 2017. He opined that the said motor vehicle to be a constructive total loss. He assessed the pre-accident value at Kshs 6,280,000/= with a salvage value of Kshs 1,500,000/=. On cross-examination, he testified that there was no way the pre-accident value could have been Kshs one million.
7.
PW3, manager of the Respondent’s company, testified that on 01.07.2018 their vehicle was involved in a road accident that caused two fatalities. The accident was reported at Lokichoggio police station and the Appellant on 02.07.2018. She filled a claim form and submitted it to the Appellant. On 26.09.2018, the Appellant rejected the claim. She testified there was no notice of cancellation of the policy prior to the accident. The insurance documents were handled by Paradigm Insurance Agency. They were not issued any policy documents. The sticker for the subject vehicle was issued. She testified that no valuation of the vehicle was done as it was brand new. They settled the claims with the families of the victims, and the Appellant was informed but didn’t respond.
8.
DW1, the Appellant’s manager, stated that the Respondent was unknown to them as the subject vehicle was not insured by them. The claim opening document was dated 10.07.2018 of 3 vehicles, inclusive of the subject vehicle. The amount paid was Kshs 105,513/=, the sum insured for each vehicle was Kshs 35,000/= for Kshs 1,000,000/= respectively. That the premiums were never received by the Appellant. That a claim of this nature required proposal forms and policy documents. The sum insured was Kshs 1,000,000/=. That no valuation was done. The money paid to Paradigm was never remitted to them. The receipt by paradigm was dated 14.08.2018. The payments of the alleged deceased families were made without the involvement of the Appellant. That Paradigm was the agent of the Plaintiff and not their agent.
9.
On cross-examination, she testified that Paradigms were issued insurance stickers by the Appellant. That there was no presumption of payment by the Respondent if they were holding a certificate of insurance. She confirmed that all the certificates held by the Respondent were genuine. That the policy for KCQ 443L had been cancelled due to non-payment of the premium. That the claim form was generated by the Appellant, showing no policy was in existence. They had not made the agent a party to the suit.
10.
On re-examination, he stated that the letter offering settlement at Kshs 1,000,000/= was not an admission of liability.
11.
After the hearing, a judgment was rendered on 19.082022 against the Appellant. It was decreed that:
a.
A declaration that the Defendant is in breach of the insurance policy
b.
The counterclaim by the Defendant fails as the contract which the Defendant breached was properly entered into and they had records of all transactions between the Plaintiff and their agent
c.
Special damages of Kshs 6,280,000/= for loss of motor vehicle KCQ 443L
d.
Interest on (c) above at court rates from the date of filing suit until full payment is made
e.
The costs of the suit and the counterclaim are hereby awarded to the Plaintiff
12.
Both Pacis Insurance Company Limited (hereinafter referred to as ‘Pacis Insurance’) and Chongqing International Construction Corporation (hereinafter referred to as ‘Chongqing Corporation’) were aggrieved by the judgment. Pacis Insurance filed the main appeal and Chongqing Corporation filed a Cross-Appeal. | 17.
This Court has duly considered the entire record and the parties’ submissions as well as the decisions referred to.
18.
The High Court, as the first appellate Court, is enjoined 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).
19.
This Court nonetheless recognizes the trite and firmly established doctrine that an appellate court ought not to interfere with the findings of fact rendered by a trial court, save in instances where such findings are shown to be unsupported by any evidence on record, are predicated upon a fundamental misapprehension or misapplication of the evidence adduced, or are demonstrably founded upon erroneous principles of law. This was the holding in Mwanasokoni -versus- Kenya Bus Service Ltd. (1982-88) 1 KAR 278 and Kiruga -versus- Kiruga & Another (1988) KLR 348).
20.
Bearing the above in mind, this Court has come up with the following issues for determination: -
i.
Whether the trial court erred in holding that the alleged agent acted on behalf of the Appellant, and whether such a finding was contrary to the legal limits governing agency relationships in insurance.
ii.
Whether the trial court erred in finding that there existed a valid and enforceable contract of insurance between the parties in the absence of a signed policy document, and whether the court failed to properly appreciate that payment and receipt of premium was a condition precedent to the insurer’s liability under the policy.
iii.
Whether the trial court erred in holding that the subject motor vehicle, KCQ 443L, was validly insured under policy/0XX0/010 Policy No. 010/0070/0XX00/2018, and in failing to find that the said policy was neither valid nor in force under the Insurance Act.
iv.
Whether the trial court erred in finding the Appellant liable under the alleged insurance policy despite the Appellant’s denial of insuring the subject vehicle or receiving premium in relation thereto.
v.
Whether the trial court erred in awarding a sum exceeding the insured value, and in failing to find that the claimed amount of Kshs. 6,280,000/= was not covered or insured by the Appellant.
vi.
Whether the trial court erred in awarding damages that were not specifically pleaded and proved by the Respondent.
vii.
Whether the trial court erred in finding that the Appellant had breached a contract of insurance, and whether such finding was supported by the evidence on record.
viii.
Whether the trial court erred in dismissing the Appellant’s counterclaim.
ix.
Who should bear the costs of the suit and of this appeal. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/4433/eng@2025-04-08 |
Civil Appeal E223 of 2024 | Pizrada Motors Limited v Adisa & another (Civil Appeal E223 of 2024) [2025] KEHC 4437 (KLR) (8 April 2025) (Ruling) | Ruling | High Court at Eldoret | High Court | E Ominde | 8 April 2025 | 2,025 | Uasin Gishu | Civil | Pizrada Motors Limited v Esther Adisa & Ephrahim Onyiego Juma | [2025] KEHC 4437 (KLR) | null | 1.
By a Notice of Motion dated 22/10/2024, the Appellant/Applicant seeks the following orders:
1.
Spent.
2.
Spent.
3.
That this Honourable Court be pleased to stay proceedings of the Small Claims Court in Case No. E1150 of 2023 and subsequently the judgment delivered on 20/09/2024 together with all consequential orders pending the hearing and determination of this Appeal.
4.
That this Honourable Court be pleased to vary and set aside orders of the judgment dated 20/09/2024 pending the hearing of this Appeal.
5.
That this Honourable Court be pleased to make such other orders as the interest of justice may demand in the circumstances.
6.
That costs of this Application be provided for.
2.
The Application is anchored on the grounds therein and it is further supported by the Affidavit sworn by Waseem Shakir, the Manager of the Applicant on the same date.
3.
He deposed that the Plaintiffs/ Respondents filed suit against the Appellant/Applicant and prayed for general and special damages for injuries which were allegedly caused by the Appellant/Applicant's motor vehicle KDB 724N. The Appellant/Applicant adduced evidence that at the time of the alleged accident, he had already sold and transferred the said motor vehicle to the 3rd Party/Respondent herein. He furnished the court with a sale agreement dated 20/01/2021. It is therefore his contention that at the time of the accident the 1st Appellant/Applicant was neither the owner nor in physical possession of the subject motor vehicle registration number KDB 724N. That pursuant to the purchase, the Appellant/Applicant handed over the said motor vehicle to the 3rd party/ Respondent who was to take control, possession and liability thereof.
4.
He further deposed that the Appellant/Applicant's advocate pursuant to the orders of the court issued on 9/06/2023 filed a third-party notice which was allowed. That the same was to join the buyer of the motor vehicle who had actually caused the accident to the suit so as to bear the liability of causing the accident. That on 17/06/2024, the Honourable entered judgment against the third-party. That the Appellant/Applicant was therefore perplexed when on 20/09/2024 judgment was entered against the Appellant/Applicant by the Learned Magistrate. That this judgement contradicted her initial judgment entered as against the 3rd party. That being dissatisfied with the decision of the Honourable Magistrate, the Appellant/Applicant intends to file an appeal against the said decision. He contended that execution is imminent unless orders of stay of execution sought herein are granted by this Honourable Court and that the Appeal is arguable and raises a prima facie case for determination by the High Court as evinced by the grounds in the Memorandum of Appeal attached herewith.
5.
He deposed that the Judgment delivered by the Magistrate is unfair as it contradicts her previous judgment which vests liability upon the third party and not their company and that it is trite law that an arguable Appeal is one that raises issues worthy of ventilation before the Honourable Court. He states that he stands to suffer great prejudice and irreparable harm should this Application not be granted and further that if the stay sought is not granted, the appeal will be rendered nugatory and the exercise futile. That he has demonstrated that he has a prima facie case; that the Application was filed expeditiously and that the Application has established sufficient cause to the satisfaction of the court that it is in the interested of justice to grant the orders sought and that he is willing to abide by any conditions that will be issued by this Honourable Court. | 28.
I have carefully considered the application, the supporting affidavit thereto, the Respondents’ Replying Affidavit and the parties’ respective submissions. The only issue for determination is
Whether the Appellant/Applicant has met the conditions necessary for the grant of stay of execution.
29.
The principles guiding the grant of a stay of execution pending appeal are well settled. These principles are provided under Order 42 rule 6(2) of the Civil Procedure Rules which provides as follows:
No order for stay of execution shall be made under subrule (1) unless—
(a)
the Court is satisfied that substantial loss may result to the Applicant unless the order is made and that the Application has been made without unreasonable delay; and
(b)
such security as the Court orders for the due performance of such decree or order as may ultimately be binding on him has been given by the Applicant
30.
On the ground that the applicant should have made its Application in the lower court first, I am persuaded by the holding of the court case of Patrick Kalaya Kulamba & Another vs Philip Kamosu and Roda Ndanu Philip (Deceased) [2016] eKLR and Equity Bank Limited vs. West Link Mbo Limited [2013] eKLR that as long as an appeal from the substantive decision of the lower court has been lodged, an application under Order 42 Rule 6(1) of the Civil Procedure Rules can be entertained afresh in the High Court which in that capacity exercises what can be termed “original jurisdiction” and that the said jurisdiction is not dependent on whether or not a similar application had been made in the lower court, or the fate thereof.
31.
The factors to consider in stay pending appeal is set out in the Court of Appeal decision in Butt v Rent Restriction Tribunal [1982] KLR 417. The Court gave guidance on how a Court should exercise discretion in such an Application and held as follows: -
1.
The power of the Court to grant or refuse an Application for a stay of execution is a discretionary power. The discretion should be exercised in such a way as not to prevent an appeal.
2.
The general principle in granting or refusing a stay is; if there is no other overwhelming hindrance, a stay must be granted so that an appeal may not be rendered nugatory should that appeal Court reverse the judge’s discretion.
3.
A judge should not refuse a stay if there are good grounds for granting it merely because in his opinion, a better remedy may become available to the Applicant at the end of the proceedings.
4.
The Court in exercising its discretion whether to grant [or] refuse an Application for stay will consider the special circumstances of the case and unique requirements. The special circumstances in this case were that there was a large amount of rent in dispute and the Appellant had an undoubted right of appeal.
5.
The Court in exercising its powers under Order XLI rule 4(2)(b) of the Civil Procedure Rules, can order security upon Application by either party or on its own motion. Failure to put security for costs as ordered will cause the order for stay of execution to lapse.
32.
In the instant case, all considered, I am satisfied that the applicant has an arguable case, has come to court timeously and that upon a prima facie consideration of his main ground of appeal I am also satisfied that he stands to suffer substantial loss if the stay sought is not granted. I have considered his submission that because it is the third party and not him that caused the accident, the court should not condemn him to provide security. On this ground, it is enough for the court to state that this assertion is precisely his main ground of appeal and so he cannot be a judge in his own cause for the simple reasons that his appeal is yet to be heard and determined. Further, as was held in the case Arun C Sharma Vs. Ashana Raikundalia T/A Raikundalia & Co. Advocates & 2 Others (2014) eKLR which decision I agree with entirely, the purpose of the security to be provided under Order 42 Rule 6(2) of the Civil Procedure Rules is to guarantee the due performance of such decree or order as may ultimately be binding on the applicant. It is not to punish the judgment debtor.
33.
On the prayer seeking that the judgement of the Hon Magistrate be varied and or set aside, I agree with the submission by Counsel for the respondent that that is a determination that the court can only make after the hearing of the appeal filed by the applicant and cannot be granted at this stage of the stay proceedings. The above said, the appellant/applicant Application is now hereby allowed as follows:
a.
That the proceedings of the Small Claims Court in Case No. E1150 of 2023 and the judgment delivered on 20/09/2024 together with all consequential orders thereto be and is now hereby stayed pending the hearing and determination of this Appeal.
b.
That the Applicant/Appellant is to file the record of Appeal within 60 days from the date of this Ruling.
c.
That the Applicant/Appellant is to deposit the entire decretal sum in a joint interest earning account in the names of both Advocates for the parties within the next 45 days from the date of this Ruling failure to which the stay orders herein issued shall be deemed to have lapsed.
d.
The Applicant/Appellant is to bear the cost of the Application. | Allowed | https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/4437/eng@2025-04-08 |
Criminal Case E008 of 2025 | Republic v Adanje (Criminal Case E008 of 2025) [2025] KEHC 4393 (KLR) (8 April 2025) (Ruling) | Ruling | High Court at Kakamega | High Court | AC Bett | 8 April 2025 | 2,025 | Kakamega | Criminal | Republic v Dancan Adanje | [2025] KEHC 4393 (KLR) | null | 1.
The Accused Dancan Andaje was initially charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code with the particulars being that on 16th day of June 2024 at Shibeye Sub-location in Kakamega County, he murdered Lillian Andayi.
2.
The charge against the Accused was later reduced to manslaughter following a plea bargain agreement dated 10th February 2024. Upon the court being satisfied on the factual basis of the plea agreement and that the Accused was competent, of sound mind and acted voluntarily as in Section 137H and 137G of the Criminal Procedure Code, the court adopted the plea agreement and the new charge of manslaughter contrary to Section 202 as read with Section 205 of the Penal Code was read over and explained to the Accused who unequivocally admitted both the charge and the facts.
3.
The facts of the offence were set out in paragraph 4 of the Plea Agreement. The deceased is Lilian Andayi aged 13 years old. She was found deceased in a maize plantation on 28th June 2024 by which time the body was decomposed. Prior to that, the mother had called Tom Mulama to report that the deceased was missing. The mother was reported to the chief and a search ensued resulting the discovery of the body. The police were called and collected the body then commenced investigations. On 4th July 2024, the deceased was buried and after her burial, the Accused presented himself at Butere Police Station where he confessed that he was the one who had strangled the deceased. The report was booked and the Accused arrested and charged. A post-mortem was done on the body of the deceased where the Doctor concluded that the cause of death was asphyxia due to manual strangulation. The post mortem report was produced as an exhibit.
4.
The court called for a pre-sentence report to assist it in the sentence.
5.
At the sentence hearing, Mr. Mondia for the Accused submitted that the Accused is remorseful as clearly demonstrated by his actions.
6.
Ms. Chala for the prosecution submitted that Accused was not a first offender as he had a previous conviction for which he spent two years in jail for stealing a motor cycle. Regardless of the conviction, she pointed out that the Accused had saved the court’s time by entering into a plea agreement at the earliest opportunity thereby saving judicial time. She however stated that the Accused had taken away one’s life and deserved punishment and that the parties had agreed to a fifteen (15) year sentence.
7.
In the pre-sentence report dated 18th February 2025, it is stated that the Accused demonstrates a degree of remorse for his actions as evidenced by his voluntary surrender to the police. He is said to accept full responsibility for his actions although he said that he was not aware that the victim had died.
8.
An interview with the victim’s family established that her guardian, who is an Uncle was in profound pain and bitterness. According to the Uncle, the victim underwent severe physical and emotional trauma as she was brutally defiled then murdered and the thought of this experience has caused immense psychological and emotional distress to the family of the victim whose father is deceased. The severity of the offence has left a lasting impact on the deceased’s family who are not ready to forgive and reconcile with the Accused. The pre-sentence report recommends a custodial sentence for the Accused since even the community is hostile towards him.
9.
The Accused accosted a defenceless thirteen (13) years old girl and defiled then strangled her to death in a maize plantation. Thereafter, he appears to have suffered so much guilt that he voluntarily came back from Eldoret where he had fled and voluntarily surrendered himself.
10.
From the outset the Accused pleaded guilty to killing the deceased. He however, claimed that the killing was not intentional.
11.
In the case of Charo Ngumbao Gugudu v. Republic [2011] eKLR, the Court of Appeal held as follows:-
“
Further, the law is that sentence imposed on an accused person must be commensurate to the moral blameworthiness of the offender and that it is thus not proper exercise for the court to fail to look at the facts and circumstances of the case in their entirety before settling for any given sentence. See Ambani Vs R [1990] eKLR.”
12.
From the post mortem report, the deceased died from asphyxia secondary to manual strangulation. The deceased was killed while the Accused was in the course of defiling her, which is in itself an offence. The acts of the Accused are morally reprehensible and call for a custodial sentence as a deterrence and as a punishment. | 13.
I have considered the fact that there appears to have been no eye witness to the offence and the fact that the body of the deceased was discovered about four (4) days after she disappeared when it was decomposed. There is a strong possibility that had the Accused not confessed to the offence, no one would ever have known how the deceased met her death. I have also considered the fact that by voluntarily choosing to enter into a plea bargain agreement, he has saved the state some resources, and saved judicial time.
14.
Considering all the aggravating and mitigating circumstances, I hereby sentence the Accused person to fifteen (15) years imprisonment to run from the date of his arrest which is 27th January 2025. | Convicted | https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/4393/eng@2025-04-08 |
Criminal Revision E103 of 2024 | Republic v Amoth (Criminal Revision E103 of 2024) [2025] KEHC 4507 (KLR) (8 April 2025) (Ruling) | Ruling | High Court at Siaya | High Court | DK Kemei | 8 April 2025 | 2,025 | Siaya | Criminal | Republic v John Jura Amoth | [2025] KEHC 4507 (KLR) | null | 1.
Learned counsel for the Applicant has sought for revision of the lower court’s orders dated 25/11/2024. The request has been made through a letter dated 17/12/2024 wherein the learned counsel has raised complaints inter alia; that the trial court made an error when it discharged the Respondent under Section 35 of the Penal Code; that the trial court misused the discretion granted to it under Section 35 aforesaid when it ought to have made a different order in view of the fact that the Respondent had pleaded guilty to an offence of assault causing actual harm contrary to Section 251 of the Penal Code; that there was a miscarriage of justice since the offences of assault are rampant in the area warranting the court to sent out severe warning as a form of deterrence but not to condone it; that the sentence passed was illegal as the same did not reflect the gravity of the offence committed by the Respondent; that this court should invoke its revisionary powers under Section 364 of the Criminal Procedure Code and reverse the order and impose a more appropriate sentence.
2.
Revisionary power of the High Court is granted is donated to the High Court under Article 165 (6) and (7) of the Constitution which provides as follows:
(6)
The High Court has supervisory jurisdiction over the subordinate courts and over every person, body or authority exercising a judicial or quasi -judicial function but not a superior court.
(7)
For the purposes of clause (6), the High Court may call for the record of any proceedings before any subordinate court or person or authority referred to in clause (6) and may make orders or give any direction it considers appropriate to ensure the fair administration of justice.
Revisionary power is also donated to the High Court under Section 362 and 364 of the Criminal Procedure Code which are as follows:
362 (1) – The High Court may call for and examine the record of any criminal proceedings before any subordinate court for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed, and as to the regularity of any proceedings of any such subordinate court.
364 – (1) In the case of a proceeding in a subordinate court the record of which has been called for or which has been reported for orders or which otherwise comes to its knowledge, the High Court may –
a.
In the case of a conviction, exercise a case of any of the powers conferred on it as a court of a court of Appeal by Section 354, 357 and 358, and may enhance the sentence;
b.
In the case of any other order other than an order of acquittal, altar or reverse the order.
c.
In proceedings under Section 203 or 296 (2) of the Penal Code the Prevention of Terrorism Act, the Narcotic Drug and Psychotropic Substances (Control) Act, the prevention of Organized Crimes Act, the Proceeds of Crime and Anti Money Laundering Act, the Sexual Offences Act and the Counter -Trafficking in Persons Act, where the subordinate court has granted bail to an accused person, and the Director of Public Prosecution has indicated his intention to apply for review of the order of the court, the order of the subordinate court may be stayed for a period not exceeding fourteen days pending the filing of the application for review.
(2)
No order under this Section shall be made to the prejudice of an accused person unless he had had an opportunity to being heard either personally or by an advocate in his own defence; provided that this subsection shall not apply to an order made where a subordinate court has failed to pass a sentence which it was required to pass under the written law creating the offence concerned.
(3)
Where the sentence dealt with under this section has been passed by a subordinate court, the High Court shall not inflict a greater punishment for the offence which in the opinion of the High Court the accused has committed than might have been inflicted by the court which imposed the sentence.
(4)
Nothing in the Section shall be deemed to authorize the High Court to convert a finding of acquittal into one of conviction.
(5)
When an appeal lies from a finding, sentence or order, and no appeal is brought, no proceedings by way of revision shall be entertained at the instance of the party who could have appealed.
3.
Being guided by the above provisions, it is necessary to reproduce the proceedings of the lower court which are now called into question. Indeed, the Respondent pleaded guilty to a charge of assault contrary to Section 251 of the Penal Code with the particulars being that on 18/7/2024 at around 2300 hrs at Chore village, East Asembo Location, North Ramba Sub Location in Rarieda Sub County within Siaya County assaulted Elias Ouma Opiyo causing him actual bodily harm. The facts were that on 18/7/2024 at 11.00 pm Chore village East Asembo Location complainant Elias Ouma Opiyo was heading home from his shamba when he was accosted by accused and his two sons who started assaulting him and that he got injured on the head, neck and lower limb. He reported at Ndori police station. He went to Akala Health Centre where he was treated. The treatment note that was issued by Akala Health Centre was produced as Exhibit 1 while the P3 form issued by police at Ndori was produced as Exhibit 2.
4.
Upon the Respondent pleading guilty to both the charge and the facts, the learned trial magistrate entered a plea of guilty upon the accused’s unequivocal plea of guilty. The Respondent was duly convicted. The learned trial magistrate called for a presentence report which was duly availed by the Probation department. After receiving the mitigation and the presentence report, the learned trial magistrate ruled as follows: “I have considered the circumstances of the offence in the presentence report dated 25/11/2024; I have considered the character of the accused and the fact that the complainant was the aggressor; I hereby discharge absolutely accused person pursuant to Section 35 of the Penal Code; file closed.”
5.
It is from the foregoing order of the learned trial magistrate that the Applicant was aggrieved and lodged the present revision. | I have considered the revision aforesaid together with record and the provisions of the Constitution and Criminal Procedure Code. the issue for determination is whether the revision application has merit.
7.
it is noted that the Respondent had been charged with an offence of assault causing actual bodily harm contrary to Section 251 of the Penal Code which provides that any person who commits an assault occasioning actual bodily harm is guilty of a misdemeanor and is liable to imprisonment for five years. The trial court called for a pre-sentence report which was duly availed and which recommended the Respondent to be placed under probation for a period of six months. The report further indicated that the Respondent acted in self defence after the complainant attacked him in his home at night. The report also indicated that the parties had an unresolved boundary dispute. The Respondent upon pleading guilty to the charge sought for leniency. The learned trial magistrate appears to have been persuaded by the sentiments of the probation officer but it seems she was carried away by the fact that the probation officer indicated that the Respondent had acted in self-defence. I find that it was erroneous on the part of the learned trial magistrate to have discharged the Respondent under Section 35 of the Penal Code. It is clear that the trial magistrate went into error when she made the following observation “having considered the character of the accused and the fact that the complainant was the aggressor..” yet the Respondent had pleaded to the charge. Indeed, the Respondent had the opportunity to qualify the charge by raising the issue that he had acted in self defence so as to call for a full trial in the matter. It is also clear that the Respondent having failed to raise such a defence, then the eventual conviction upon a plea of guilty should have attracted a sentence commensurate with his blameworthiness. Hence, the order made by the learned trial magistrate led to a miscarriage of justice in that the least that she could do was to place the Respondent under probation as proposed by the probation officer. It is obvious that the learned trial magistrate failed to capture the sentiments of the complainant who sustained injuries and that no evidence whatsoever was presented to the court to the effect that the Respondent sustained any injuries while acting in self defence. The trial court in discharging the Respondent was akin to a slap on the wrist as it were. The unconditional discharge aforesaid did not reflect the gravity of the offence committed by the Respondent.
8.
In view of the foregoing observations, it is my finding that the Applicant’s revision dated 17/12/2024 has merit. The same is allowed. The order made by the learned trial magistrate dated 25/11/2024 discharging the Respondent under Section 35 of the Penal Code is hereby set aside and substituted with an order that the Respondent be and hereby ordered to serve a probationary sentence of six (6) months from the date hereof. | Allowed | https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/4507/eng@2025-04-08 |
Criminal Appeal 99 of 2023 | Republic v Gitau & 2 others (Criminal Appeal 99 of 2023) [2025] KEHC 4420 (KLR) (8 April 2025) (Judgment) | Judgement | High Court at Kibera | High Court | DR Kavedza | 8 April 2025 | 2,025 | Nairobi | Criminal | Republic v Jesse Mburu Gitau & Jared Oduor Osodo & Crispus Munene | [2025] KEHC 4420 (KLR) | null | 1.
The respondents were acquitted by the Subordinate Court after the close of the prosecution’s case on eight counts, including forgery of a document of title to land (Counts I, VI, VII, and VIII) contrary to Section 350(1) of the Penal Code; procuring execution of a document by false pretences (Counts III, IV, and V) contrary Section 355 as read with Section 349; and uttering a false document (Count II) contrary to Section 353. Dissatisfied with the acquittal, the appellant filed an appeal, arguing that the prosecution had established a prima facie case on all counts and that the trial court erred in failing to put the respondents on their defence.
2.
This is the first appellate court and in Okeno v. R [1972] EA 32, the Court of Appeal for East Africa laid down what the duty of the first appellate court is. It is to analyse and re-evaluate the evidence which was before the trial court and come to its own conclusions on that evidence without overlooking the conclusions of the trial court but bearing in mind that it never saw the witnesses testify.
3.
The prosecution availed twelve (12) witnesses in support of their case.PW1, Habib Omar Kongo, the CEO of Aviton Enterprises Limited, testified that the company owned a 24-acre plot in Umoja Estate (Title No. Umoja/Block 83/530), allotted by the Nairobi City Council on 4th September 1992. He adduced various ownership documents including the allotment letter, title deed, lease documents, land fee receipts, and a registrar’s memorandum dated 30th November 1995 confirming the title’s authenticity. Aviton later applied for subdivision, supported by a demand notice dated 23rd April 1995 and a plan dated 6th April 2001, culminating in approval on 15th May 2001 and issuance of a subdivision certificate and reference number 144024/36. A total of 324 titles were subsequently issued.
4.
The subdivision process involved surveyors PW2, Livingstone Gitau, and PW7, Jacob Oyato, and was confirmed by PW5, Isaac Nyaga, a City Council officer. However, in March 2006, PW1 was informed that the Wazee Makadara self-help group presented documents at the chief's office claiming to have purchased the same land. Mr Omar denied selling it and reported the matter to Buru Buru Police Station and later CID HQ. PW12, Sgt Joseph Kiragu, confirmed investigations showed Aviton's legitimate ownership.
5.
The respondents had filed a civil suit against Aviton, despite the company having surrendered the former land title (83/580) for a new one (83/530). In 2010, plot number 83/580 suspiciously re-emerged with a new survey map indicating mosque ownership. The self-help group allegedly sold plots (including 83/899) to a church, but Aviton had already transacted with the church through an agreement dated 25th May 2000.
6.
PW3, Peter Njoroge, testified that in 2015 he was asked to provide a survey plan and found duplication of plot numbers. PW4, Reverend Simon Muhuku, confirmed that his church, KAG Umoja, purchased the land from Aviton in 2000 and held proper documentation. PW6, George Mugenyo, testified that a 1992 survey plan prepared by Jacob Oyato was genuine and had been approved, but another forged version existed.
7.
PW8 (Polly Gitimu), PW9 (Baptista Kihungo), and PW10 (Adv. Gildine Karani) all supported the authenticity of Aviton’s ownership through official land records and lease documents.
8.
A prima facie case has been defined in the case of Bhat vs Republic [1957] EA 532 as follows:
‘’It may not be easy to define what is meant by a prima facie case but at least it must mean one which a reasonable tribunal properly directing its mind to the law and the evidence could convict if no explanation is offered by the defence.’ | 9.
Upon reviewing the record, it is clear that the prosecution’s case predominantly relied on circumstantial evidence. Notably, the testimony of PW1, Habib Omar Kongo, confirmed the legitimate ownership of land by Aviton Enterprises. The prosecution further presented evidence regarding the subsequent discovery of fraudulent land transactions allegedly involving the respondents. However, despite the allegations, no direct evidence was tendered to establish that the respondents were responsible for the forgery of documents or that they knowingly used fraudulent documents to obtain property.
10.
Concerning the charge of forgery of documents (Counts I, VI, VII, and VIII), although the respondents were implicated in the suspicious re-emergence of plot number 83/580, with a new survey map suggesting mosque ownership, there was an absence of conclusive evidence directly linking the respondents to the forgery of these documents. Furthermore, the documents themselves were not produced in court to substantiate the forgery allegations.
11.
Regarding procuring the execution of a document by false pretences (Counts III, IV, and V), the prosecution suggested that the respondents sold land to third parties, including a church. However, the prosecution failed to present direct evidence proving that these transactions were procured by fraudulent means. Although the respondents filed a civil suit concerning the land, the prosecution did not adduce sufficient evidence to prove their fraudulent intent.
12.
In relation to uttering a false document (Count II), there is no direct evidence to demonstrate that the respondents knowingly passed off forged documents as genuine.
13.
While the evidence tendered by the prosecution supports the authenticity of Aviton’s land ownership, it fails to establish a direct link between the respondents and the offences with which they were charged. The trial court’s decision to acquit the respondents was grounded on the absence of direct evidence linking them to the alleged crimes.
14.
Courts are bound by the principle of deciding cases based solely on the evidence presented, free from fear or favour. In this case, I find that the trial court properly considered the evidence, and its hands were tied in reaching a verdict based on the available facts. The appellant has failed to prove the grounds of appeal and has not demonstrated that it established a prima facie case against the respondents.
15.
Consequently, it is my considered finding that the appellant’s appeal lacks merit and is hereby dismissed. The ruling of the trial court, dated 6th October 2022, is upheld.
Orders accordingly. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/4420/eng@2025-04-08 |
Judicial Review Miscellaneous Application E030 of 2024 | Republic v Insurance Regulatory Authority; Old Mutual General Insurance Kenya Limited (Exparte Applicant); Tropic Air Limited (Interested Party) (Judicial Review Miscellaneous Application E030 of 2024) [2025] KEHC 4570 (KLR) (Judicial Review) (8 April 2025) (Judgment) | Judgement | High Court at Nairobi (Milimani Law Courts) | High Court | JM Chigiti | 8 April 2025 | 2,025 | Nairobi | Judicial Review | Republic v Insurance Regulatory Authority; Old Mutual General Insurance Kenya Limited; Tropic Air Limited | [2025] KEHC 4570 (KLR) | null | 1.
The application before this Court is the Notice of Motion dated 3rd April, 2024. The application is brought Under Order 53 Rule3(1) of Civil Procedure Rules 2010.It seeks the following orders:
1.
That an order of Certiorari, to remove and bring to this High Court for the purposes of quashing, the decision by the Respondent dated 3rd November, 2023 directing the Applicant to pay a claim within thirty (30) days of the decision.
2.
That an order of prohibition directed against the Respondent and the interested party, prohibiting them through their servants and/or agents or directly from in any way enforcing the decision dated 3rd November, 2023.
3.
That costs be provided for.
2.
The application is supported by a statutory statement dated 18th March, 2024 and a Verifying Affidavit by Franklin Nyaga sworn on 18th March, 2024.
3.
It is the Applicant’s case that the interested party approached Infiniti Aviation of South Africa through the interested party's brokers (LFV) in2014 and purchased Aviation Hull and Liability Insurance and the contracting and policy documentations were handled between the interested party and Infiniti.
4.
Infiniti then approached Old Mutual General Insurance (then UAP) through the interested party's brokers (LFV) to participate in the risk which we accepted a share of 12.5% for Aviation Hull and 1% for Liability resulting to a facultative reinsurance business.
5.
This resulted in a facultative obligatory reinsurance facility which was then filed with the Respondent in 2015 for its review and approval. The same was later reviewed and approved.
6.
According to them the risk assessment, underwriting and claims control was retained by Infiniti Insurance as evidenced by the wordings of the Claims Control and the Cut through clauses in the acceptance documents received and signed off by the interested party on 25th October 2021.
7.
On 4th August 2022, the Helicopter 2012 Eurocopter AS350 B3E 5Y-CCP (hereafter the Helicopter) was involved in an accident in Turkana.
8.
The accident was reported to the lead insurer in South Africa, Infiniti and the Interested Party's agent's (Stefan Potgienter) proceeded to notify the Applicant of the accident on 4th August 2022.
9.
It is contended that the lead re insurer advised the Applicant that the claim was not admissible and that the Applicant should decline the same which the Applicant proceeded to decline the claim on inter-alia two grounds: -
a.
Material non-disclosure in breach of the insurance principle of uberimmae fidei to wit; that it regularly and as a matter of business practice flew scenic flights below 500 ft AGL and fairly regularly, at less than 100ft AOL;
b.
The interested party flew its aircraft below 500 feet contrary to Section I0(l)(e) of the Civil Aviation (Rules of Air) Regulations,2018 (Rules of Air).
10.
The interested party approached the Respondent who via a letter dated 14th March, 2023 informed the Applicant that it had received a request to investigate and determine a complaint from. Tropic Air Limited pursuant to Section 204A of the Insurance Act. On 20th March, 2023 vide a letter, the Applicant responded explaining the reasons for declining to pay the Claim.
11.
The Respondent responded to the letter via an email dated 22nd March, 2023 indicating that the Applicant should avail evidence of the primary insurer/insurers including insurers including how Infiniti, Nature, MUA, and UAP participated in the risk.
12.
It is averred that the Applicant responded to this email on 4th April, 2023 explaining and the Respondent responded on the same date requesting requested the Applicant to avail the approvals which the Applicant did on the same day.
13.
It is its case that on 12th April, 2023 the Respondent invited the Applicant for a meeting during which meeting various issues were raised by the Respondent around the on boarding process, regulatory aspects and whether the claim was properly declined or not.
14.
It is contended that it addressed the onboarding process vide email of 18th April, 2023.
15.
It is averred that subsequent follow up meetings were held between the Respondent and Applicant on 2nd May, 2023 and 5th June, 2023.
16.
It is the Applicant’s case that they were never invited to a hearing on the issue of whether it was right in declining to pay the Claim thus violating their legitimate expectation. | 69.
Upon perusing the pleadings, the supporting documents, the rival submissions and authorities cited by counsel the following are the issues for determination;
i.
Whether this court has jurisdiction.
ii.
Whether or not the applicant has made out the case for the grant of the order sought.
iii.
Who shall bear the costs.
Whether this court has jurisdiction;
70.
In the case of Owners of the Motor Vessel “Lillian S” v. Caltex Oil (Kenya) Ltd [1989] eKLR, where the Court held that jurisdiction is a fundamental prerequisite, and any proceedings conducted without it are null and void.
71.
In order to determine whether or not this court has jurisdiction, the Applicant submitted that it is entitled to question the impugned decision dated 3rdNovember, 2023 notwithstanding existence of execution proceedings in Insolvency Cause No. E004 of 2024 and Civil Appeal No. E058 of 2024 which is an Appeal filed by the Interested Party questioning jurisdiction of the Insurance Appeal's tribunal to (i) extent time within which to file an Appeal (ii) Holding the Interested Party in Contempt is misplaced.
72.
The Applicant admits that Section 204A(iii) of the Insurance Act states that any party dissatisfied with the decision of the Respondent may within thirty (30) days appeal to the tribunal, the tribunal is not the appropriate forum to resolve the question of whether the decision dated 3rdNovember, 2023 is marred with procedural impropriety having been made in complete breach and/ or disregard of inter-alia Articles 47 & 50 of the Constitution as read together with Section 4 of the Fair Administrative Actions Act as the tribunal is not empowered to determine violation of constitutional rights.
73.
This court is in agreement with the holding in the case of Nicholus v Attorney General & 7 others; National Environmental Complaints Committee & 5 others (Interested Parties) (Petition E007 of 2023) [2023] KESC 113 (KLR) (28 December 2023) where the court held thus:
“
Having considered the above complaints, we reiterate our earlier finding in this judgment that the mandate and jurisdiction to determine these questions lie with the ELC under Articles 22, 23(3) and 162(2)(b) of the Constitution as read with Section 4(1) of the Environment and Land Act. We say so because neither the NET, EPRA nor EPT have the jurisdiction to determine alleged violations of the Constitution. That right to access the court for redress of alleged constitutional violations, should not be impeded or stifled in a manner that frustrates the enforcement of fundamental rights and freedoms. We say this persuaded by the elegant reasoning in William Odhiambo Ramogi & 3 others v Attorney General & 6others; Muslims for Human Rights & 2 others (Interested Parties) [2020] eKLR where the High Court (Achode (as she then was), Nyamweya (as she then was), & Ogola, J) stated: “In the instant case, the Petitioners allege violation of their fundamental rights. Where a suit primarily seeks to enforce fundamental rights and freedoms and it is demonstrated that the claimed constitutional violations are not mere "bootstraps" or merely framed in Bill of Rights language as a pretext to gain entry to the Court, it is not barred by the doctrine of exhaustion. This is especially so because the enforcement of fundamental rights or freedoms is a question which can only be determined by the High Court."
We agree with the above reasoning and find that the availability of an alternative remedy does not necessarily bar an individual from seeking constitutional relief. This is because the act of seeking constitutional relief is contingent upon the adequacy of an existing alternative means of redress. If the alternative remedy is deemed inadequate in addressing the issue at hand, then the court is not restrained from providing constitutional relief. But there is also a need to emphasize the need- for the court to scrutinize the purpose for which a party is seeking relief, in determining whether the granting of such constitutional reliefs is appropriate in the given circumstances. This means that a nuanced approach to the relationship between constitutional reliefs for violation of rights and alternative means of redress, while also considering the specific circumstances of each case to determine the appropriateness of seeking such constitutional reliefs, is a necessary prerequisite on the part of any superior court”.
74.
This court is persuaded that there are peculiar circumstances in this suit that call for consideration in the existence of Appeal No. 10 of 2023 - Old Mutual Insurance Kenya Limited vs Insurance Regulatory Authority and Tropic Air Limited before the Insurance Appeals Tribunal. The Applicant herein obtained exparte orders and subsequently procured contempt of court orders against the Interested Party. There is High Court Civil Appeal No. E047 and High Court Civil Appeal No. E058 of 2024 - Tropic Air Limited vs Insurance Regulatory Authority & Old Mutual Insurance Kenya Limited.
75.
Further to this, the court notes that The High Court stayed further proceedings before the Insurance Appeals Tribunal pending the determination of High Court Civil Appeal No. E47 of 2024. The decision of the Insurance Appeals Tribunal precipitated proceedings under the Insolvency Act being Insolvency Cause No. E004 of 2024 - Tropic Air Limited vs Old Mutual General Insurance Kenya Limited in which the Applicant herein obtained stay orders.
76.
The court in the instant suit is satisfied that the foregoing clearly fits into what would invite a nuanced approach to the relationship between constitutional reliefs for violation of rights and alternative means of redress and it is clear that the above cases present special and specific circumstances that have an impact and sway on the court in determining the approach that the Applicant should have adopted.
77.
This invites the court to determine whether or not the Applicant is bound by the doctrine of exhaustion. In the case of Council of County Governors v Attorney General & 12 others [2018] eKLR where it was held that applying and exhausting alternative dispute resolution mechanisms, is a condition precedent to filing of court action by either of the units of government. Only after applying and exhausting the available dispute resolution mechanisms should parties resort to judicial intervention.
78.
The doctrine of avoidance is primarily viewed by courts from the position that although a court could take up a matter and hear it, it would still decline to do so if there is another mechanism through which the dispute could be resolved.
79.
In the case Communication Commission of Kenya & 5 others v Royal Media Services Ltd & 5 Others [2014] eKLR it was held that: the principle of avoidance means that a Court will not determine a constitutional issue when a matter may properly be decided on another basis. The doctrine interrogates whether there are other ways of resolving a dispute outside a constitutional petition.
80.
The doctrine is at times referred to as the Constitutional-Avoidance Rule. Black’s Law Dictionary, 10th Edition at page 377 defines it as:
“
The doctrine that a case should not be resolved by deciding a constitutional question if it can be resolved in some other fashion”.
81.
In S v Mhlungu, [1995] (3) SA 867 (CC) a South African case, Kentridge AJ, stated in the dissenting opinion respecting the principle of avoidance (at paragraph 59), that he would lay down as a general principle that where it is possible to decide any case, civil or criminal, without reaching a constitutional issue, that is the course which should be followed.
82.
In the case of Geoffrey Muthinja Kabiru & 2 Others v Samuel Munga Henry & 1756 others [2015] eKLR the Court of Appeal stated that: -
“
It is imperative that where a dispute resolution mechanism exists outside Courts, the same be exhausted before the jurisdiction of the Courts is invoked. Courts ought to be of last resort and not the first port of call the moment a storm brew… The exhaustion doctrine is a sound one and serves the purpose of ensuring that there is a postponement of judicial consideration of matters to ensure that a party is first of all diligent in the protection of his own interest within the mechanisms in place for resolution outside the Courts...These accords with Article 159 of the Constitution which commands Courts to encourage alternative means of dispute resolution."
83.
In Mohamed Ali Baadi & Others v The Attorney General & 11 others it was held that while our jurisprudential policy is to encourage parties to exhaust and honor alternative forums of dispute resolution where they are provided for by statute the exhaustion doctrine is only applicable where the alternative forum is accessible, affordable, timely and effective. Thus, in the case of Dawda K. Jawara vs Gambia, it was held that:
“
A remedy is considered available if the Petitioner can pursue it without impediment, it is deemed effective if it offers a prospect of success and is found sufficient if it is capable of redressing the complaint [in its totality]...the Governments assertion of non-exhaustion of local remedies will therefore be looked at in this light ...a remedy is considered available only if the applicant can make use of it in the circumstances of his case."
84.
The principle running through the above cases is that where there is an alternative remedy or where Parliament has provided a statutory appeal process, it is only in exceptional circumstances that an order for Judicial Review would be granted, and that in determining whether an exception should be made and Judicial Review granted, it is necessary for the Court to look carefully at the suitability of the appeal mechanism in the context of the particular case and ask itself what, in the context of the internal appeal mechanism is the real issue to be determined and whether the appeal mechanism is suitable to determine it.
85.
In the case Mark Ndumia Ndungu -Versus- Nairobi Bottlers Limited & Another (2018) eKLR (supra) the High court cited with approval the case of Dawda K Jawara v Gambia 147/95-149/96 on availability of effective alternative remedies, where it was held that:
“
A remedy is considered available if the petitioner can pursue it without impediment, it is deemed effective if it offers a prospect of success, and it is found sufficient if it is capable of redressing the complaint... The government’s assertion of non-exhaustion of local remedies will therefore be looked at in this light... a remedy is considered available only if the applicant can make use of it in the circumstance of his case.” (emphasis added)
86.
Hon. Justice Mativo in Republic v Paul Kihara Kariuki, Attorney General & 2 others Ex parte Law Society of Kenya [2020] eKLR stated as follows:
“
The uncompromising manner in which courts have consistently enforced the sub judice rule was best explained in Thiba Min Hydro Co. Ltd v Josphat Karu Ndwiga,[13] which held that it is not the form in which the suit is framed that determines whether it is sub judice, rather it is the substance of the suit (emphasis ours). The court went further and stated that in determining whether or not sub judice applies, it is the substance of the claim that ought to be looked at rather than the prayers sought.”
87.
It is my finding that Appeal No. 10 of 2023 - Old Mutual Insurance Kenya Limited vs Insurance Regulatory Authority and Tropic Air Limited, High Court Civil Appeal No. E047 and High Court Civil Appeal No. E058 of 2024 - Tropic Air Limited vs Insurance Regulatory Authority & Old Mutual Insurance Kenya Limited and Insolvency Cause No. E004 of 2024 - Tropic Air Limited vs Old Mutual General Insurance Kenya Limited are substantially related to the suit before this court.
88.
Issuing the orders, sought will no doubt have an impact these suits or have an impact on the subsisting or pending activities in the said files thereby occasioning an embarrassment to the court. In any event the Applicant has not demonstrated why it did not seek redress within these suits.
89.
The applicant has not exhausted the redress avenues available within the above legal avenues that are at its disposal. In any event, the applicant has not made an application to be exempted from the doctrine of exhaustion.
90.
Having found as I have above, this court has to down its tool in line with the principles as settled in the Supreme Court Case of Dickson Ngigi Ngugi v Commissioner of Lands S.C Petition No. 9 of 2019 [2019/ eKLR, /36) wherein it was observed that,
“
Jurisdiction goes to the root of any cause or dispute before a court of law. A court must exercise restraint to avoid overstepping its constitutional role in order to maintain its legitimacy. If a court has no jurisdiction, a judgment rendered therein does not adjudicate the dispute. It does not bind the parties, nor can it be made the foundation of any right. It is a nullity without life or authority. In short, it is coram non judice and amounts to a millity because, as Nyarangi, JA famously said in the locus classicus, Owners of the Motor Vessel
"Lillian S" Caltex Oil, (Kenya) Ltd [1989) KLR 1, "jurisdiction is everything. Without it, a court has no power to make one more step"
Disposition;
91.
The applicant has not made out a case fit for the grant of the orders within the principles of judicial review.
Order;
The suit is hereby dismissed with costs.
| Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/4570/eng@2025-04-08 |
Judicial Review Miscellaneous Application E002 of 2025 | Republic v Kenya Wildlife Service & 2 others; Lesimbasele & another (Exparte Applicants) (Suing as the Legal Representative of the Estate of Iltelesian Ortowa - Deceased) (Judicial Review Miscellaneous Application E002 of 2025) [2025] KEHC 4450 (KLR) (8 April 2025) (Judgment) | Judgment | High Court at Marsabit | High Court | FR Olel | 8 April 2025 | 2,025 | Marsabit | Judicial Review | Republic v Kenya Wildlife Service & 2 others; Lesimbasele & another | [2025] KEHC 4450 (KLR) | null | 1.
The Judicial review-notice of motion application under consideration is the one dated 17th January 2025, filed under provisions of Order 53 Rule 3(1) of the Civil Procedure Rules, Section 8 & 9 of the Law Reform Act, Cap 26, and seeks for orders that;
a.
That the Honourable court be pleased to grant an order of judicial Review by way of Mandamus compelling the Respondents and specifically the 1st Respondent through the 2nd Respondent (CMCC) to deliberate upon the Ex parte Applicant’s claim lodged on 30th March 2023 within the next 30 days pursuant to Regulation 27(1) of the wildlife conservation and Management compensation Regulations 2017.
b.
That the 1st Respondent do report to this Honourable court its decision and/or deliberations under prayer (1) above on or before the Expiry of 30 days from the date of issuance of this order.
c.
An order of Mandamus be issued to compel the respondents and specifically the 1st Respondent to pay the Exparte Applicant the sum of Kshs 5,000,000/= recommended, verified by the 2nd Respondent and approved by the 3rd Respondent as compensation to the estate of the deceased in compliance with Regulation 27(1),(2) & 30(1).
d.
That the 1st Respondent be and is hereby ordered to comply by paying the Ex parte Applicant the said approved sum within 14 days from the date of issuance of the order of Mandamus.
e.
That costs and incidentals to the Application be provided for.
f.
Such further and other reliefs that this Honourable court may deem just and expedient to grant.
2.
This application is supported by the grounds advanced on the face of the said Application, the statutory statement, verifying and further Affidavit of the Applicant. The respondent did oppose this Application through the Replying Affidavit sworn by their legal office, Leon Kalisto | 21.
I have considered all the pleadings filed and respective submissions filed by both parties. The issues which arise for determination are whether the 1st respondent is wrongly sued, and secondly, if the mandamus order sought should issue and to what extent.
(i) Liability of the 1st Respondent and whether they are a Necessary party to these proceedings.
22.
The 1st respondent’s role and duties are well defined under Section 7(c), 7(m), 18, 19 and 25 of the wildlife conservation and Management Act, 2013 and since the import of judicial review application is to scrutinize the decision-making process or dispute resolution process, statutorily undertaken by the 1st respondent, they then become a necessary party to these proceedings.
23.
Secondly, the 1st respondent’s contention that the statutory obligation to settle the Ex parte Applicant's claim lay with the Cabinet Secretary for Tourism and Wildlife also holds no water, and is an issue which has been settled by the Court of Appeal in Kenya wildlife service Vrs Joseph Musyoka Kalonzo (2017) Eklr where they held that;
“
The appellant admits the duty to manage and conserve wildlife. That duty comes with the attendant responsibility to shoulder any claims of loss or damage caused by the breach of that duty. The law on this point was succinctly pronounced in Joseph Boru Ngera & Another v Kenya Wildlife Service & Rift Valley Agricultural Contractors Limited (2014)eklr amongst others, is still good law on this point. The cabinet secretary referred to in the Act pays money on behalf of the appellant. Neither the court nor the parties should concern themselves with the internal arrangement of the appellant as to whether it is the CEO of the appellant or the cabinet secretary who should disburse the money.
iii. Whether Orders of Madamus should issue as sought herein
24.
In Republic vs Kenya National Examinations Council ex parte Gathenji and 9 Others, [1997] e KLR. The said Court held as follows in this regard:
“
The next issue we must deal with is this: What is the scope and efficacy of an Order of Mandamus? Once again we turn to Halsbury’s Law of England, 4th Edition Volume 1 at page 111 from paragraph 89. That learned treatise says:-
“
The order of mandamus is of a most extensive remedial nature, and is, in form, a command issuing from the High Court of Justice, directed to any person, corporation or inferior tribunal, requiring him or them to do some particular thing therein specified which appertains to his or their office and is in the nature of a public duty. Its purpose is to remedy the defects of justice and accordingly it will issue, to the end that justice may be done, in all cases where there is a specific legal right and no specific legal remedy for enforcing that right; and it may issue in cases where, although there is an alternative legal remedy, yet that mode of redress is less convenient, beneficial and effectual.”
At paragraph 90 headed “the mandate” it is stated:
“
The order must command no more than the party against whom the application is made is legally bound to perform. Where a general duty is imposed, a mandamus cannot require it to be done at once. Where a statute, which imposes a duty leaves discretion as to the mode of performing the duty in the hands of the party on whom the obligation is laid, a mandamus cannot command the duty in question to be carried out in a specific way.”
What do these principles mean? They mean that an order of mandamus will compel the performance of a public duty which is imposed on a person or body of persons by a statute and where that person or body of persons has failed to perform the duty to the detriment of a party who has a legal right to expect the duty to be performed….”
25.
The requirements for an order of mandamus to issue were further explained by Mativo J. in Republic vs Principal Secretary, Ministry of Internal Security & another ex parte Schon Noorani & Another [2018] eKLR as follows:
“
Mandamus is an equitable remedy that serves to compel a public authority to perform its public legal duty and it is a remedy that controls procedural delays. The test for mandamus is set out in Apotex Inc. vs. Canada (Attorney General), and, was also discussed in Dragan vs. Canada (Minister of Citizenship and Immigration).The eight factors that must be present for the writ to issue are:-
(i)
There must be a public legal duty to act;
(ii)
The duty must be owed to the Applicants;
(iii)
There must be a clear right to the performance of that duty, meaning that:
a.
The Applicants have satisfied all conditions precedent; and
b.
There must have been:
i.
A prior demand for performance;
ii.
A reasonable time to comply with the demand, unless there was outright refusal; and
iii.
An express refusal, or an implied refusal through unreasonable delay;
iv.
No other adequate remedy is available to the Applicants;
v.
The Order sought must be of some practical value or effect;
vi.
There is no equitable bar to the relief sought;
vii.
Ona balance of convenience, mandamus should lie
26.
The 1st and 2nd respondents have a statutory duty imposed by sections 18 and 25 of the Wildlife Conservation & Management Act, 2013, to receive, verify, and recommend appropriate payment for persons who have suffered bodily injury or are killed by wildlife. The deceased was killed by a rogue elephant on 05.03.2023, and subsequently, the Ex parte Applicants officially lodged their claim with the respondents through the Marsabit county wildlife office on 30.03.2023.
27.
At the time of filing this claim, about 22 months later, the said claim had not been acted upon, yet regulation 27(1) of the Wildlife Conservation and Management Compensation Regulations 2017 provides that the same must be determined within a period of 30 days from the date the incident was reported to the respondents.
28.
The Ex parte Applicants have a right under Articles 47 and 50 of the Constitution of Kenya to have their claim expeditiously dealt with, and also to have their dispute resolved in a fair manner. The respondents have failed to do so and further have not offered any explanation as to why there has been a delay in undertaking their statutory duty. To the extent that the Ex parte Applicants have proved that there has been a dereliction of duty on the part of the 1st and 2nd respondents and are entitled to be granted the prayers sought under prayers (1) and (2) of their application under consideration.
29.
The Ex parte Applicants also sought for an order of mandamus be issue compelling the 1st respondent to pay them the sum of Kshs 5,000,000/= as verified and recommended by the 3rd respondent based on the provisions of Regulations 27(1)(2) & 30(1) of the Wildlife Conservation and Management Compensation Regulations 2017. This prayer is premature as it involves the implementation of a decision not yet arrived at, and may be subject to an Appeal by a party not satisfied with the recommendation. | Allowed in part | https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/4450/eng@2025-04-08 |
Criminal Case 1 of 2017 | Republic v Kimindu (Criminal Case 1 of 2017) [2025] KEHC 4411 (KLR) (8 April 2025) (Sentence) | Sentence | High Court at Murang'a | High Court | TW Ouya | 8 April 2025 | 2,025 | Murang'a | Criminal | Republic v Dominic Mutuku Kimindu | [2025] KEHC 4411 (KLR) | null | 1.
The convict was found and convicted of the offence of Manslaughter contrary to section as read with 202 as read with section 205 of the Penal Code after he pleaded guilty to two counts of the offence of Manslaughter having entered into a plea bargain agreement with the prosecution dated 17th October 2017.
2.
The particulars of the offence of Count 1 were that on the 20th day of December 2016 at Kaguku Centre, within Gatanga sub-county, Murang’a County Unlawfully caused the death of Ann Ndume. The particulars of count II were that on the 20th day of December 2016 at Kaguku Centre, within Gatanga sub-county, Murang’a County Unlawfully caused the death of Martha Mukonyo Mutuku. The former was his estranged wife while the latter was his three-year old daughter.
3.
In mitigation the convict stated that he is 60 years old and has been in remand for eight years and two months since 9th January 2017. That he has a family of five children ranging from 30 to 25 years of age. That he was previously a casual laborer due to which he developed back complications. He is remorseful and would like to go back to the society. He prayed to the court to give him a non-custodial sentence so that he can support his children who are also unemployed.
4.
In compliance with the Bond and Bail Policy Guidelines and the Supreme Court Directions on the Muruatetu I, the Court called for pre-sentencing report, where it was stated that the offender had a troubled marriage with his wife, the first victim and had separated severally. At the time of the incident the first victim had separated from the offender and was cohabiting at the shopping Centre, within the community with another man.
5.
The first victim was the offender’s 4th Wife (the offender) having separated from others for what he termed as extra marital affairs. He had six children with the deceased, the last born of which is the second victim in this case.
6.
The report indicates that the lifestyle of the first victim was a source of pain and embarrassment to the offender. He felt provoked and his judgement was impaired considering that the first victim did not even hide her new boyfriend from the community which provoked him into committing the offence.
7.
The report states further that the Offender’s attitude towards the offence is that of remorse and he pleads with the court for a non-custodial sentence. He regrets his actions and has realized that there were other ways of resolving the issues between him and the first victim. He seeks forgiveness of court, family and the society.
8.
The offender’s family have forgiven him and they look forward to receiving him back in their midst. The offender owns up to the offence and is receptive towards a non-custodial sentence. It is noted however that he still requires guidance and counseling to help him accept and live with the consequences of his actions. A non- custodial sentence will make the above possible.
9.
The report concludes that the offender is suitable for a non-custodial sentence for a period of three years on an individualized treatment plan to address his current psycho-social challenges. | 10.
The objectives of sentence are:
i.
Retribution – to punish the offender in a just manner for his criminal conduct
ii.
Deterrence – to deter the offender from committing a similar offence
iii.
Rehabilitation – to enable the offender to reform
iv.
Restorative –to address the needs arising from the criminal conduct such as loss and damages
v.
Community protection – to protect the community by incapacitating the offender
vi.
Denunciation – to communicate the community condemnation.
11.
In this matter the offender has owned up to the offence by pleading guilty albeit to a lessor charge of manslaughter on the basis upon which he was convicted.
12.
I have also taken into account the seriousness of the offence in that the offender caused the death of not one but two victims the second of which was an innocent 3-year-old child who was not party to the alleged disputes between the offender and the first victim. This court also notes that two of the convict’s other children suffered severe burn wounds but luckily survived.
13.
Based on the social inquiry report on the offender, his remorseful attitude and the fact that his family has forgiven him, the most appropriate sentence for the convict is a probation sentence of three (3) years. This court takes into account that the offender has been in custody for 8 years and 2 months since 9th January 2017.
14.
The convict has a right of appeal on both conviction and sentence. | Allowed | https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/4411/eng@2025-04-08 |
Criminal Case 26 of 2010 | Republic v M’mbo (Criminal Case 26 of 2010) [2025] KEHC 4427 (KLR) (8 April 2025) (Ruling) | Ruling | High Court at Kakamega | High Court | AC Bett | 8 April 2025 | 2,025 | Kakamega | Criminal | Republic v Silas M'mbo | [2025] KEHC 4427 (KLR) | null | 1.
On the 21st February 2015, the Accused was convicted of the offence of murder and sentenced to death.
2.
The Accused was aggrieved by the death sentence and lodged an appeal which was heard and determined in his favour.
3.
On 16th October 2023, the Court of Appeal allowed the Accused’s appeal against the death sentence, set aside the sentence and remitted the matter to this court for re-sentencing.
4.
When the matter came up or re-sentencing, the State urged the court to call for a sentence review report from the Probation Office. The Probation report was filed after which the Accused, who had filed written submissions asked the court for a date for ruling.
5.
In his submissions, the Accused states that he has undergone rehabilitation programmes while in prison and was now a reformed person. Notably, he says that he has undergone counselling and has repented and sought forgiveness from God. According to him, he has served a significant portion of the sentence and in the process, acquired skills in tailoring and agriculture that would not only make him self-reliant but also help him contribute to nation building.
6.
As an auxiliary to his submissions, the Accused filed a letter of recommendation from the Officer-in-Charge, Kibos Maximum Security Prison detailing the courses and skills that the Accused has acquired while in prison. From the letter, it is evident that the Accused has undergone spiritual trainings severally. He has also attained a Grade III certificate in Tailoring and is stated to be a reliable tailor in the prison industry.
7.
The Officer-In-Charge of the prison commends the Accused for good behavior and leadership skills. He is said to be disciplined, passionate about his tailoring work, and an active member of the Prison’s church who spends his free time ministering the gospel to his fellow inmates.
8.
The Accused prays for a rehabilitative approach in the re-sentencing.
9.
The State did not file any submissions.
10.
The sentence review report confirms that the Accused has done extensive training while in prison. It notes that the Accused is remorseful for his actions and acknowledges the gravity of the offence that he committed.
11.
The social inquiry done for purposes of the sentence review report established that the Accused’s home is fraught with tension due to deep-seated inheritance disputes after the Accused father’s demise. The inheritance was exacerbated by the move by three of the Accused’s step-brothers to take possession of the family land.
12.
The report further points out that the prolonged incarceration of the Accused has resulted in a strained relationship between the Accused and his wife and son who are reluctant to have him back home, perhaps as a result of the latent tension that is fueled by the inheritance dispute.
13.
According to the report, re-integration of the Accused into the society may prove difficult given the current division in the family. Since the Accused’s victim was his father, the ambivalent community stand, and the cultural norms that render him at risk of homelessness. The report suggests a cautious approach to the Accused person’s release.
14.
Turning to the circumstances under which the offence was committed, the deceased killed his father. He was seen assaulting the deceased with a stick because he was not happy that his deceased father had allowed the Accused’s sister’s son whom he perceived to be a stranger, to be circumcised in their homestead.
15.
In killing his father over a minor disagreement, the Accused acted in a most heinous manner that deserves to be denounced. A custodial sentence is most appropriate in this case. | 16.
I have taken into account the guiding principles of sentencing as laid down in the Judiciary Sentencing Policy Guidelines (2023). I have also taken into account the Muruatetu re-sentencing Guidelines.
17.
In the case of Francis Karioko Muruatetu & Another v. Republic & Katiba Institute & 5 others (Amicus Curiae) [2021] eKLR, the Supreme Court issued the following guidelines:-
“
9.
To obviate further delay and to avoid confusion, the court issued the following guidelines: -
1.
The decision of Muruatetu and the guidelines herein were applicable to sentences of murder under sections 203 and 204 of the Penal Code only.
2.
The Judiciary Sentencing Policy Guidelines were to be revised in tandem with the new jurisprudence enunciated in Muruatetu.
3.
All offenders who had been subject to the mandatory death penalty and desired to be heard on sentence were entitled to a re-sentencing hearing.
4.
Where an appeal was pending before the Court of Appeal, the High Court would entertain an application for re-sentencing upon being satisfied that the appeal had been withdrawn.
5.
In the re-sentencing hearing, the court had to record the prosecution’s and the appellant’s submissions under section 329 of the Criminal Procedure Code, as well as those of the victims before deciding on a suitable sentence.
6.
An application for re-sentencing arising from a trial before the High Court could only be entertained by the High Court, which had jurisdiction to do so and not the subordinate court.
7.
In a sentence re-hearing for the charge of murder, both aggravating and mitigating factors such as the following, would guide the court: -
i.
Age of the offender;
ii.
Being a first offender;
iii.
Whether the offender pleaded guilty;
iv.
Character and record of the offender;
v.
Commission of the offence in response to gender-based violence;
vi.
The manner in which the offence was committed on the victim;
vii.
The physical and psychological effect of the offence on the victim’s family;
viii.
Remorsefulness of the offender;
ix.
The possibility of reform and social re-adaptation of the offender; and,
x.
Any other factor that the court considered relevant.
8.
Where the appellant had lodged an appeal against the sentence alone, the appellate court would proceed to receive submissions on re-sentencing.
9.
The guidelines would be followed by the High Court and the Court of Appeal in ongoing murder trials and appeals. They would also apply to sentences imposed under section 204 of the Penal Code before the decision in Muruatetu.”
18.
This court is obliged to take into account both the aggravating and the mitigating factors as it considers the suitable sentence to be imposed.
19.
I have perused the records of the trial court. When the Accused person was called upon to present his mitigation, his advocate said that they had nothing to say in mitigation. The only conclusion I can draw from the record is that the Accused was not remorseful even after having caused his father’s death. However, it appears that after imprisonment, the Accused further reflected on the consequences of his actions and therefore took responsibility for the same and has expressed remorse.
20.
I have taken into account the submissions by the Accused and the pre-sentence report, as well as the principles of re-sentencing set out in the Muruatetu case. I have also considered the circumstances of the case and the fact that the deceased succumbed to a raptured spleen that appears to have been caused by one blow as the post mortem revealed no other injuries. It is my considered view that the Accused deserves a deterrent sentence geared towards rehabilitation.
21.
I therefore sentence the Accused to seventeen (17) years imprisonment. The said sentence shall run from the date the trial began which is 13th August 2010.
22.
Those are the orders of the court. | Convicted | https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/4427/eng@2025-04-08 |
Criminal Case 57 of 2015 | Republic v Mulupi & 2 others (Criminal Case 57 of 2015) [2025] KEHC 4408 (KLR) (8 April 2025) (Judgment) | Judgment | High Court of Kakamega | High Court | AC Bett | 8 April 2025 | 2,025 | Kakamega | Criminal | Republic v Boniface Mulupi & 2 others | [2025] KEHC 4408 (KLR) | null | 1.
The Accused persons, Boniface Mulupi, Alex Mulupi and Lewis Mulupi were charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code. The particulars being that on the 25th and 26th August 2015 at Lunyu village in Manda Sub-location they jointly willingly and unlawfully murdered one Charles Shitemu Juma.
2.
The Accused persons pleaded not guilty to the offence and the case proceeded to hearing in which the Prosecution called six witnesses.
3.
PW1, Alfred Juma Shitemi recalled that on 25th August 2015 at 8.00 a.m., he was taking tea at home while his wife was working near the deceased’s house. A child was sent to call the deceased to take tea but the deceased was found with a rope on his neck. PW1’s daughter Grace, who had gone to call the deceased, and his wife informed him of the discovery. He went into the house and confirmed that his son had died. He observed that the deceased had a rope on his neck which rope was from a net and ran upto the beam of the roof. He further observed that the deceased was kneeling down and had a cut on the side of the cheek and on his head. PW1 stated that he called the Chief and the Chief advised him not to disturb the scene.
4.
PW1 further recollected that the Assistant Chief came and told him that the deceased had reported to him the previous night that the three Accused persons and their mother Grace had assaulted him when he had gone to ask for his phone from Alex Mulupi, the 2nd Accused. The report was that the deceased had given his phone to the 2nd Accused to charge but the 2nd Accused had removed its battery and put another one therefore leading to the dispute. According to PW1, the Assistant Chief told him that he advised the deceased to report to him in the morning, and that Grace and her children had also gone to his home at night and he told them to report in the morning. The witness said that he knew the Accused persons as they are family members and live about 1Km away from him.
5.
PW1 further recounted that the police came and collected the body of the deceased after taking photographs of the scene. The body was taken to Webuye District Hospital and the suspects were arrested as the body was being taken to the mortuary.
6.
On cross-examination, the witness said that what he mentioned concerning the Assistant Chief were not in the statement neither were Alex Mulupi and Boniface.
7.
PW2 was Anjela Kambua Shisutia who stated that on 25th August 2015 at about 8.00 p.m., she was asleep in her home when she heard shouts. She and her husband Fedha who is the Assistant Chief got up and went out. They found the three Accused persons and Grace beating Charles. Charles was saying that he wanted his phone that he had given to Alex. The witness said that they told them to go and come back in the morning.
8.
PW2 further narrated that Charles complained that the people had injured him. He was bleeding from the back of the head. He requested for a letter to go for medical treatment. Her husband advised him to go and come back in the morning. They all went away and the next morning at about 10.00 a.m., her husband received a phone call that Charles had passed away. She then went to Charles home where she found the body as narrated by PW1. PW2 said that she had known the Accused persons for more than fourteen (14) years as they were her in-laws. She stated that she had no differences with them.
9.
PW3, Omoyo Masafu testified that on 25th August 2015 at 8.00 p.m. he was at his home alone when he heard shouts at his gate. He went there and found two children quarrelling. He knew them, it was Bonny and Charles. Charles was demanding his phone from Bonny. They were holding each other and punching. He separated them and advised them to go to the Assistant Chief and they went away. The next day at midday, he heard that Charles had died.
10.
PW4 was Fedha Chisutia who was the Assistant Chief Monda Sub-location and husband to PW2. He recalled that on 25th August 2015, he was at home when he heard noises outside. On going out, he found Alex Mulupi, Lewis Mulupi, Charles Shitemu and Grace Barasa. They had different complaints. Charles claimed that sometimes back he had given Alex Mulupi his phone battery for charging and it got lost. Alex complained that Charles had threatened to cut him with a slasher. Charles complained that Boniface Mulupi had assaulted him. According to the witness, Charles had blood stains on the front of his top clothes. He told the persons to meet him at the office the following day and they went away.
11.
PW4 said that the following day he received a call from the village elder that Charles had died. He went to the scene and found Charles’ body kneeling on the ground with a mosquito net rope around his neck. The body was next to the bed. He phoned the OCS Malava and the police came, took the body to Webuye district hospital.
12.
PW4 said that the Accused persons are brothers and that his father and their father are brothers.
13.
On cross-examination, PW4 said that the group was shouting when they came but left peacefully and he saw blood stains on the deceased clothes and small injuries on the left hand. He further stated that the deceased was a son to this Uncle.
14.
PW5 was Dr. Simon Kisaka who was based at Webuye District Hospital. He recalled that he performed an autopsy upon the body of Shitemi Juma. On examination, he found that the deceased had a small superficial wound on the occipital region which was about 1cm in length. There was a circular mark on the neck and internally, the lungs were reduced in size. The other systems were essentially normal and he formed the opinion that the cause of death was asphyxia due to strangulation.
15.
PW5 was the Investigating Officer who took over form the initial Investigating Officer who is since deceased. He recounted the statement of the deceased investigating officer and produced the signal confirming the death of the said Investigating Officer. He also produced as P.Exh.3, a panga which was suspected to have been used in committing the offence as well as a photo of the scene.
16.
On cross-examination, PW5 said that there was no evidence from the autopsy that the deceased was assaulted nor was there any evidence as to who placed the rope/mosquito net on the neck of the deceased.
17.
At the close of the prosecution’s case, the court found that the Accused persons had a prima facie case and therefore placed them on their defence.
18.
At this point, the prosecution successfully sought to withdraw the charges against the 3rd Accused who had escaped from Juvenile Remand and had never been re-arrested. The case had proceeded in his absence and the court allowed the prosecution to withdraw its case against him and an amended Information was admitted and substituted with the earlier information. The remaining two Accused persons took a fresh plea and once more, pleaded not guilty.
19.
The Accused persons gave unsworn statements and did not call any evidence.
20.
The 1st Accused stated that on 25th August 2015, he was at home when he heard screams at around 8 p.m. He woke up and went to check and found the deceased screaming on the road near his house. Fedha Chisutia (PW4) who is the Assistant Chief also woke up and so did Omoyo Masafu (PW3). PW4 asked the deceased what was going on and the deceased complained that he had been provoked. PW4 advised the deceased to go home until the next morning wherefore he left for his home which was about 500 metres away. Everyone dispersed and the 1st Accused went to his house to sleep. The next day, he woke up to his normal duties only to be fetched from his house by the brothers to the deceased who informed him that the Chief was calling him. At the Assistant Chief’s office, he was arrested and taken to Malava Station where he was arrested and later charged.
21.
The 2nd Accused denies killing the deceased. His defence was similar to the 1st Accused’s and he basically reiterated what the 1st Accused said safe to add that after his arrest, he was kept in custody for 14 days during which he was tortured and forced to sign a document whose contents he did not know. | 22.
For the offence of murder to be established beyond reasonable doubt, the key elements to be proven are as follows:-
a.
That the person alleged to be murdered is indeed dead.
b.
That the death was caused by an unlawful act or omission.
c.
That the Accused was responsible for the unlawful act or omission.
d.
That the Accused had the intent to cause the death or grievous harm of the deceased, or acted with reckless disregard for his life which is, malice aforethought – See Anthony Ndegwa Ngari v. Republic [2014] eKLR.
23.
There was sufficient evidence from the prosecution witnesses that the person named Charles Shitemu Juma had died. The death was confirmed by the Doctor who performed the autopsy and issued burial permit No. 784952. He confirmed that the person identified to him as Charles Shitemu Juma had died. It is therefore evident that the death of the deceased was not in doubt.
24.
On the second element that the cause of death was unlawful act or omission of the Accused persons, the prosecution sought to rely on the “last seen with” doctrine as enunciated in the case of Musimbi v. Republic [2023] KECA 287 (KLR) where the court stated:-
“
Regarding the “last seen with” doctrine, its applicability has been explained by various courts. For instance, in the Nigerian case of Moses Jua vs The State (2007) LPELR-CA/IL/42/2006 it was held as follows:
“
Even though the onus of proof in criminal cases always rests squarely on the prosecution at all times, the last seen theory in the prosecution of murder or culpable homicide cases is that where the deceased was last seen with the accused, there is a duty placed on the accused to give an explanation relating to how the deceased met his or her death. In the absence of any explanation, the court is justified in drawing the inference that the accused killed the deceased.””
25.
The prosecution submitted that the Accused persons were last seen with the deceased at around 8.00 p.m. and they therefore bore the responsibility of explaining to the satisfaction of the court what happened to the deceased since the Accused persons had been seen assaulting the deceased and the deceased had complained that the Accused persons had assaulted him.
26.
On their part, the Accused persons submitted that the medical evidence was wanting as it said that there was no evidence that the deceased had suffered any bodily injuries inflicted by the Accused. The post mortem report stated that the deceased died of asphyxia and according to the Accused, no evidence was adduced to connect them to the rope that strangled the deceased to death.
27.
It cannot be gainsaid that the standard of proof in a criminal offence is “beyond reasonable doubt”, a phrase that signifies a high standard of proof that requires the prosecution to adduce compelling evidence that leaves no doubt in the mind of the court that the person accused of committing the offence did so.
28.
In the celebrated case of Woolmingthon v. DPP [1935] AC 462 pp 481, Viscount Lankey S.C. held as follows:
“
Throughout the web of the English Criminal law one golden thread is always to be seen, that is the duty of the prosecution to prove the prisoner’s guilt subject to what I have already said as to the defence of insanity and subject also to any statutory exception. If at the end of and on the whole of the case, there is reasonable doubt, created by the evidence given either by the prosecution or the prisoner, as to whether (the offence was committed by him), the prosecution has not made out the case and the prisoner is entitled to an acquittal. No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained.”
29.
The evidence was that the deceased was found in his house dead on 26th August 2015. There was no evidence to suggest that the Accused persons had followed the deceased to his house the night before. Furthermore, the Doctor who performed the autopsy on the deceased testified and stated that on examination of the body of the deceased, he found a circular mark with indentation around the neck. This mark was definitely formed by the rope that was found tied around the deceased’s neck. The cause of death was confirmed by the Doctor to be respiratory failure secondary to asphyxiation. The only other injury on the deceased was noted to be superficial occipital wound that was not significant.
30.
By the end of their case, the prosecution had not produced any evidence that the death by asphyxiation or simply put, strangulation as suffered by the deceased, was caused by a third party. It may as well be that the deceased was the author of his own death. It is common knowledge that suicidal people hang themselves to death using all manner of ropes, including improvised ones.
31.
For the doctrine of “last seen with” to apply in respect to the Accused persons herein, it was imperative that evidence was led connecting the cause of death to the unlawful actions of the Accused persons against the deceased. It may be true that the Accused persons assaulted the deceased. However, the injury sustained by the deceased from the assault was said to be a superficial wound on the head. The said wound did not lead to the death of the deceased.
32.
No matter how much the prosecution wish the Accused persons to explain how the deceased met his death, it is my view that such an explanation would only be called for if the prosecution had demonstrated that the deceased’s death was caused by injuries to his body which would lead to the inevitable conjecture that since the deceased had been caught up in an altercation with the Accused persons and went away together on the material date at the request of the Assistant chief who asked them to report to him the next morning, then the Accused persons may have subsequently inflicted the fatal injuries on the deceased. However, the cause of death was something that is open to several possibilities, one of them being that the deceased could have committed suicide.
33.
The prosecution submitted that the Accused persons defence, which was through unsworn evidence, was the weakest form of defence. However, it must be noted that the prosecution’s case was weak at its best. Being based on circumstantial evidence, the prosecution’s case against the Accused persons should have been such that it unerringly pointed to the guilt of the Accused. The chain of circumstantial evidence was broken once the deceased and the Accused persons left the Assistant Chief’s place. No evidence was led to show that the Accused persons followed the deceased to his house which incidentally was a few meters from his parent’s house, and killed him then stage managed a suicide scene.
34.
In the end, I find that there was no evidence that the deceased’s death was caused by an unlawful act or omission. I also find that there was no evidence to conclusively connect the Accused persons to the death, lawful or unlawful.
35.
The upshot is that the prosecution failed to prove its case against the Accused persons beyond reasonable doubt and the Accused persons are therefore acquitted.
36.
The Accused persons shall forthwith be set free unless otherwise lawfully held. | Allowed | https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/4408/eng@2025-04-08 |
Criminal Case 2 of 2020 | Republic v Ndwiki (Criminal Case 2 of 2020) [2025] KEHC 4632 (KLR) (8 April 2025) (Ruling) | Ruling | High Court at Kitui | High Court | LW Gitari | 8 April 2025 | 2,025 | Kitui | Criminal | Republic v Musyoki Ndwiki | [2025] KEHC 4632 (KLR) | null | 1.
The accused is charged with murder contrary to Section 203 as read with Section 204 of the Penal Code. He denied the charge and the matter proceeded before Justice Limo who heard the evidence of Seven (7) witnesses. The prosecution closed its case and the accused was put on his defence. Unfortunately, Justice Limo was transferred from this court station and could not hear the defence case.
2.
The matter is to proceed in this court under the provisions of Section 200 of the Criminal Procedure Code Cap 75 of the Laws of Kenya. The accused thro’ his learned counsel has applied to recall PW1 and the Investigating Officer. The provisions of Section 200 Civil Procedure Code applies ‘Mutatis Mutandis’ to the proceedings in the High Court. Section 20(2) of the Criminal Procedure Code provides:
“ | 6.
The court is supposed to ensure that the right of the accused person to a fair trial is not violated. The court of Appeal in the case of Abdi Adan Mohamed -vs- Republic 2017 eKLR it was held:
“
Where in the language of Section 200(3) the accused demands that any witness be resummoned and re-heard, the demand must be subject to availability of witnesses sought to be resummoned and re-heard, the demand must be subject to availability of witnesses sought to be re-summoned. It of course will be impractical where it is demonstrated the witness sought be re-summoned is deceased, to insist on calling such a witness.
Similarly, if a witness cannot be traced and it is demonstrated to the satisfaction of the court that efforts to trace him have failed, the Magistrate or Judge may adopt and rely on evidence on record previously recorded by the out-going Magistrate or Judge. That is why in demanding the re-summoning of any witness must be done in good faith.”
7.
The court further went on to state that some of the considerations under Section 200 of the Criminal Procedure Code include whether it is convenient to commence the trial de novo how far has the trial reached, availability of witnesses, the time that had lapsed since the commencement of the trial and prejudice likely to be suffered by either the prosecution or the accused. See Joseph Kamau Gichuki -vs- R. C. Appeal No. 523 Polo cited in Nyabutu -vs- R (2009) KLR 409 where the court stressed that:
“
By dint of Section 200(1)(b) of the Criminal Procedure Code a succeeding Judge may act on the evidence recorded wholly by his predecessor. However, Section 200 aforesaid is a provision of the Law which is to be used sparingly and only in cases where the exigencies of the circumstances, not only are likely but will defeat the ends of justice if a succeeding Judge does not, or is not allowed to adopt and continue a criminal trial started by predecessor owing to the latter becoming unavailable to complete trial. See Ndegwa -vs- R 1985 KLR 535. In this case the trial Judge passed on after having fully recorded evidence form seven (7) witnesses and from the two appellants and hand in fact summed up to the assors. The trial moreover, was not short one which had taken over fie years to conclude. The passage of time militated against the trial being started de novo. Though the prosecution witnesses might have been available locally, re-hearing might have prejudiced the prosecution and possibly also, the appellant because of accountable loss of memory on the part of either the prosecution witnesses or the appellants. Musinga J in our view acted in an attempt to dispatch justice speedily and cannot be faulted because the law permitted him to do so. It cannot be lost in mind that public policy demands that justice be swiftly concluded.”
8.
It follows that the right of the accused to fair trial should be promoted and where the trial is to proceed before another Magistrate or Judge, the consideration is whether the attendance of the witness may be secured without an amount of delay or expense which would in all fairness be un reasonable. The court has to consider whether it will be possible to recall the witness by reason of unavailability, due to death or simply that he cannot be found or is incapable of giving evidence. The burden is on the prosecution to proof that it will not be possible to procure the attendance of the witness.
9.
In this case, there are seven witnesses who testified before Justice Limo. Though the accused had applied to have the case start de novo so that the judge can see them and assess their demeanor, he softened that stance when the prosecution stated that there is no guarantee that the witnesses will be traced. He now wants two witnesses to be recalled, that is PW1 and the investigating officer. The record shows that PW1 testified on 26/06/2023. The Investigating Officer PW7 testified on 23/7/2024. I find that the lapse of time since they testified is not too long. The Investigating Officer is a Police Officer who can be easily traced while Pw1 can be traced as her particulars are well known.
10.
The prosecution has not proved that the witnesses cannot be traced. In line with Court of Appeal decisions which I have cited, I should give the accused the right to have the two witnesses recalled for the purpose of further cross-examination by the defence. I allow the application to recall PW1 & PW7. Summons shall issue to the two witnesses and the matter shall be given a date for hearing. | Allowed | https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/4632/eng@2025-04-08 |
Criminal Case E030 of 2024 | Republic v Odaha & another (Criminal Case E030 of 2024) [2025] KEHC 4454 (KLR) (8 April 2025) (Ruling) | Ruling | High Court at Siaya | High Court | DK Kemei | 8 April 2025 | 2,025 | Siaya | Criminal | Republic v Peter Muhua Odaha & Leonard Ouma Obala | [2025] KEHC 4454 (KLR) | null | 1.
Both accused herein Peter Muhua Odaha and Leonard Ouma Ogola have been charged with an offence of murder contrary to Section 203 as read with Section 204 of the Penal Code. The particulars are that on the 31st day of May, 2024 at Honge Beach Village in Usenge Sub-Location, Bondo Sub-County within Siaya County, jointly with others not before court murdered George Onyango Marango.
2.
The prosecution called nine (9) witnesses in support of its case. The prosecution’s case is that the deceased who had been a fisherman at Usenge Beach is reported to have disappeared. Apparently, the deceased had visited one of his customers whom he frequently supplied fish and whom he had a love affair with. PW1 who is a brother to the deceased went in search of him. He teamed up with other relatives (PW2, PW3) and went to Usenge Beach and met the deceased’s friend (PW4) and together they went to Usenge police station but were turned away. They went to the home of a certain lady PW6 who was claimed to have been the deceased’s friend and managed to recover the deceased’s pair of sandals and a black belt produced as exhibits by PW9. That they managed to get the area Clan Elder (2nd Accused herein) who informed them that the deceased had been killed because of having a love affair with PW6. That they later learnt that the deceased had been assaulted as soon as he left the home of PW6 by certain villagers who were relatives of the husband of PW6. That later, the body of the deceased which had decomposed was discovered by the 1st Accused who went to report at Usenge Police Station but who was locked in the cells. The scene was visited by PW9 and had the remains taken to the mortuary and later established that the deceased had had a love affair with PW6 and that the in-laws of PW6 were angry about it and attacked him. After the autopsy had been conducted, the two accused were thereafter charged with the offence.
3.
At this stage of the proceedings, the prosecution is under a duty to establish a prima facie case against the accused persons so as to be called upon to make a defence. A prima facie case is one in which a reasonable tribunal directing its mind to the law and evidence placed before it could convict an accused if no evidence to the contrary is offered by the defence. Se BHATT VS. R [1957] EA 334. | 4.
After an analysis of the entire evidence at his stage of the proceedings, I find that the two accused persons were placed at the scene of crime and thus they must now offer an explanation as to how the deceased met his death.
5.
In view of the foregoing, I find that a prima facie case has been made out by the prosecution against both accused herein to require them to be placed on their defence. Consequently, I find each accused has case to answer and are now called upon to elect to make their defence in accordance with the provisions of Section 306 (2) of the Criminal Procedure Code. | Case to answer | https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/4454/eng@2025-04-08 |
Criminal Case 61 of 2019 | Republic v Ogutu (Criminal Case 61 of 2019) [2025] KEHC 4447 (KLR) (8 April 2025) (Ruling) | Ruling | High Court at Kakamega | High Court | AC Bett | 8 April 2025 | 2,025 | Kakamega | Criminal | Republic v Brasia Otieno Ogutu | [2025] KEHC 4447 (KLR) | null | 1.
The Accused Brasia Otieno Ogutu was charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code. It was stated that on the 20th day of September 2019 at Lusheya Village, Lusheya Sub-location, Musanda Location in Mumias West Sub-County within Kakamega County, the Accused murdered Felix Omondi.
2.
The Accused, who was arrested on 20th September 2019 was arraigned in court on 8th October 2019 where the Deputy Registrar of the court noted that the medical report indicated that the Accused was unfit to take plea.
3.
After several appearances in court for Mention, the Accused was committed to Mathari Mental Hospital for treatment vide an order dated 22nd December 2019.
4.
Despite the order committing the Accused to Mathari Mental Hospital, the Accused was not committed as directed and on 18th October 2021, the Principal Secretary, State Department for Correctional Services invoked the powers vested upon him by Section 162 (5) of the Criminal Procedure Code and directed the Officer-in-Charge, Kakamega Prison to remove the Accused from Kakamega G.K. Prison and deliver him into the custody of the Chief Consultant Psychiatrist in-Charge Mathari Hospital, Nairobi for treatment.
5.
Further to the said directive, the court delivered a ruling on 15th March 2023 in which it made the following orders:-
“
(1)
The Officer in Charge Kakamega Main G.K. Prison shall personally ensure that the Accused, Brasia Otieno Oguti is transported from Kakamega Main G.K. Prison to Mathare Teaching and Referral Hospital in Nairobi.
(2)
As soon as the Accused arrives at Mathare Teaching and Referral Hospital, he shall be placed in the custody and care of the Chief Consultant Psychiatrist in Charge, Mathare Teaching and Referral Hospital (“hereinafter referred to as “the Hospital”).
3.
During his stay at the Hospital, the Accused shall be detained as a Criminal Mental Patient for treatment until further order. Such further orders may be made on the Application of the Accused, his family and/or next of kin, the Office of the Director of Public Prosecution and the Consultant Psychiatrist.”
6.
After the orders of the court, the Accused was committed to Mathari Mental Hospital under Section 162 of the Criminal Procedure Code where he underwent treatment and on 29th June 2022, the Medical Superintendent, Mathari National Teaching and Referral Hospital forwarded a certificate of capability to make defence under Section 163 (1) of the Criminal Procedure Code to the ODPP asking that the ODPP seeks directions on the matter.
7.
On 25th October 2022, the Accused was presented before the court which made an order that the Accused be taken to Kakamega County Referral Hospital for mental assessment to ascertain whether the Accused was mentally fit to take plea.
8.
Mental assessment was not undertaken until 18th July 2023 when the Psychiatrist Consultant, Kakamega County General Hospital did perform a mental assessment and filed a report in which she stated that in her opinion, the Accused was not fit to stand trial. She noted that the Accused had been re-initiated on medication. My conclusion is that the cause of the relapse in the Accused person’s mental condition was the failure to adhere to the prescribed ymedication.
9.
Faced with the dilemma of an Accused person who is mentally unstable, the prosecution on 31st October 2024 urged the court to invoke Section 162 of the Criminal Procedure Code in dealing with the Accused.
10.
In order to assist me make an appropriate determination, I called for a social inquiry report, which was prepared and filed on 14th January 2025.
11.
Although Mr. Munyendo for the Accused said that he would file written submissions to the prosecution’s application, he did not do so.
12.
Section 162 of the Criminal Procedure Code provides that:-
“
(1)
When in the course of a trial or committal proceedings the court has reason to believe that the accused is of unsound mind and consequently incapable of making his defence, it shall inquire into the fact of unsoundness.
(2)
If the court is of the opinion that the accused is of unsound mind and consequently incapable of making his defence, it shall postpone further proceedings in the case.Powers delegated to the Cabinet Secretary and to the Principal Secretary of the Ministry for the time being responsible for prisons, by L.N. 579/1963.
(3)
If the case is one in which bail may be taken, the court may release the accused person on sufficient security being given that he will be properly taken care of and prevented from doing injury to himself or to any other person, and for his appearance before the court or such officer as the court may appoint in that behalf.
(4)
If the case is one in which bail may not be taken, or if sufficient security is not given, the court shall order that the accused be detained in safe custody in such place and manner as it may think fit, and shall transmit the court record or a certified copy thereof to the Cabinet Secretary for consideration by the President.
(5)
Upon consideration of the record the President may by order under his hand addressed to the court direct that the accused be detained in a mental hospital or other suitable place of custody, and the court shall issue a warrant in accordance with that order; and the warrant shall be sufficient authority for the detention of the accused until the President makes a further order in the matter or until the court which found him incapable of making his defence orders him to be brought before it again in the manner provided by sections 163 and 164.”
13.
The social inquiry established that the Accused’s family is prepared to embrace him and reintegrate him to the society. To that end, they have renovated his parent’s house. The family members expressed their commitment to ensure that the Accused adheres to his prescribed medication and attends regular clinic appointments. The Probation Officer who conducted the social inquiry opines that there appears to be a conducive environment to facilitate his rehabilitation and minimize the risk of re-offending.
14.
The victim’s family, though still grieving the loss of their loved one, are said to acknowledge the need for the Accused’s rehabilitation. The community is also willing to support the rehabilitation efforts and are not opposed to the Accused’s reintegration to the society albeit with some cautious reservations.
15.
Article 27 of the Constitution provides that:-
“
(1)
Every person is equal before the law and has the right to equal protection and equal benefit of the law.
(2)
Equality includes the full and equal enjoyment of all rights and fundamental freedoms.”
16.
Looking at the proceedings, the Accused has been in custody since 2019 yet he has never taken plea due to the finding that he is not mentally fit to plead. His right to a speedy trial as provided in Article 50 (1) (e) and his right to be released on bond as provided by Article 49 (1) (h) of the Constitution, have been breached by reason of the delay. To that extent, the right of the Accused to equal treatment has also not been observed. Be that as it may, it is evident that the procedure set out in Section 162 of the Criminal Procedure Code is aimed at protecting both the Accused and the public. | 17.
I have considered the prosecution’s application while paying careful attention to the social inquiry report. I have also considered the fact that the Accused had undergone treatment at the Mathari Hospital and was considered to have recovered but on being transferred back to Kakamega, was found to have relapsed. It is common knowledge that persons with mental disabilities require constant clinical review and medication.
18.
Sadly, the County Assembly of Kakamega enacted a statute in the year 2024 that had the effect of denying all remandees and prisoners access to free medical treatment. The continued retention of the Accused in custody will therefore deny the Accused access to treatment for his condition which he would otherwise access for free if he was out on bond.
19.
While the court has the option of committing the Accused to Mathari Hospital for further treatment, I have perused the report by the National Council on Administration of Justice on the status of persons with mental illness which paints a sad picture of the state of the hospital which is suffering from inadequate and dilapidated infrastructure, serious congestion and inadequate modern medicine. In my view, the said hospital should be the last call for a person liked the Accused herein.
20.
Moreover, referring the Accused to Mathari Hospital may be a precursor to an endless cycle of referrals due to the high possibility of relapse as a result of inability to access medication. Such a move is likely to result in the Accused being held in custody for an extended indeterminate period and that would amount to subjecting the Accused to cruel, inhumane and degrading treatment contrary to Articles 25 and 29 of the Constitution.
21.
As observed earlier, the Accused should not be treated differently from the other persons who do not have mental disability.
22.
Having painstakingly considered the Accused persons’ condition and having determined that in his current mental state, he is of unsound mind and consequently incapable of taking plea or making any decision, I therefore postpone further proceedings herein as provided by Section 162 (2) of the Criminal Procedure Code.
23.
Pursuant to Section 162 (3) of the Criminal Procedure Code, I hereby admit the Accused to bail on the following terms and conditions:-
a.
That the Accused shall be released on a personal bond of Ksh. 300,000/= with one surety of similar amount.
b.
That the surety shall execute an undertaking to ensure that the Accused attends a Psychiatric Clinic monthly and that he strictly adheres with medical prescriptions until further orders of the court.
c.
That the surety shall produce the Accused, alongside evidence of monthly clinical attendance and review to this court every three (3) months until further orders of the court. | Allowed | https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/4447/eng@2025-04-08 |
Criminal Case E003 of 2025 | Republic v Okoth alias Sisco alias Govins & 2 others (Criminal Case E003 of 2025) [2025] KEHC 4400 (KLR) (8 April 2025) (Ruling) | Ruling | High Court at Siaya | High Court | DK Kemei | 8 April 2025 | 2,025 | Siaya | Criminal | Republic v Victor Ouma Okoth Alias Sisco Alias Govins & 2 others | [2025] KEHC 4400 (KLR) | null | 1.
Learned counsel for the 3rd accused herein Samuel Onyango Ongweso alias Ja Boda has sought for the release of the accused on bail pending trial on the ground that the offence is bailable under the Constitution and that the pre-bail report is favourable. Learned counsel added that the 3rd accused should be allowed to enjoy the presumption of innocence until proved guilty and that this court should reject the contents of the affidavit by the investigating officer and grant bail to the said 3rd accused.
2.
Learned counsels for the prosecution and family of the deceased have urged this court not to grant bond until all the witnesses have testified. They further urged the court to consider the averments in the affidavit of the investigating officer which reveals that the family of the deceased is apprehensive of their security and are still traumatized by the death of their kin. It was also urged that all accused should be treated equally on matters regarding bail. | 2.
Learned counsels for the prosecution and family of the deceased have urged this court not to grant bond until all the witnesses have testified. They further urged the court to consider the averments in the affidavit of the investigating officer which reveals that the family of the deceased is apprehensive of their security and are still traumatized by the death of their kin. It was also urged that all accused should be treated equally on matters regarding bail.
3.
I have considered the submissions of learned counsels regarding the issue of whether the 3rd accused herein should be granted bail pending trial. There is an affidavit by the investigating officer filed on 24/3/2025 as well as a pre-bail report dated 21/3/2025.
4.
The pre-bail report dated 21/3/2025 indicates inter alia; that the widow of the deceased is apprehensive for the safety of her family as the accused is likely to intimidate the witnesses; that the local administration is of the view that his close association with criminal elements in the locality remains a great issue by many; that his abusive use of alcohol is a risk to his chances to compliance with bond terms; that the court can consider granting bond with surety.
5.
The investigating officer Joseph Owenga has filed an affidavit on 24/3/2025 wherein he has averred inter alia; that the 3rd accused is a flight risk going by the fact that he went into hiding until his arrest; that he is likely to interfere with witnesses some of whom are his relatives; that the release will disturb public peace and order and thus will affect the security of the area; that the release is likely to interfere with the integrity of the judicial process.
6.
Under Article 49(1) (h) of the Constitution, an accused person has a right to be released on bond pending a charge or trial unless there are compelling reasons by the prosecution not to be released. Once an accused person denies the charge, he is ipso facto deemed innocent until proved guilty and shall continue to enjoy the presumption of innocence until the contrary is proved. At this stage therefore, the 3rd accused is entitled to be released on bond pending trial unless there are compelling reasons to be furnished by the prosecution. Already, the pre- bail report and the affidavit by one of the investigating officers have been filed for consideration. Again, the pre-bail reports in respect of 1st and 2nd accused persons have proposed that bond terms be deferred until the witnesses have testified on the ground that witnesses who are from their neighbourhoods are likely to be interfered with and or intimidated.
7.
It is noted that the 3rd accused herein also hails from the same area just like the 1st and 2nd accused and that the witnesses talked of also come from the same locality. I find that the circumstances obtaining merit a denial of bond to the 3rd accused herein until the witnesses who hail from his locality have testified. Indeed, the pre-bail reports were made by the same probation officer and that the contents are similar regarding the circumstances obtaining on the ground regarding the three accused persons.
8.
Looking at the circumstances holistically, I am satisfied that sufficient reasons have been furnished by the prosecution which are compelling enough to justify denial of bond to the 3rd accused herein at this stage of the proceedings. The request for bond by the said 3rd accused is hereby declined and that the issue of bond be revisited once the key prosecution witnesses have testified. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/4400/eng@2025-04-08 |
Criminal Case E042 of 2023 | Republic v Owuor (Criminal Case E042 of 2023) [2025] KEHC 4399 (KLR) (8 April 2025) (Sentence) | Sentence | High Court at Siaya | High Court | DK Kemei | 8 April 2025 | 2,025 | Siaya | Criminal | Republic v Richard Otieno Owuor | [2025] KEHC 4399 (KLR) | null | 1.
The accused herein Richard Otieno Owuor has been charged with an offence of murder contrary to Section 203 as read with Section 204 of the Penal Code. Vide the judgment of this court dated 24/3/2025, the accused was found guilty of a lesser charge of manslaughter contrary to Section 202 as read with Section 205 of the Penal Code and convicted accordingly.
2.
Sentencing hearing took place on 7/4/2025. Mr. Mshindi, learned counsel for the defence submitted inter alia; that the accused is a first offender who prays for leniency; that the accused seeks for a non-custodial sentence so that he can join the community even though the said community is mad with him at the moment; that if the court considers a custodial sentence then the period spent in custody be factored.
3.
Mr. Mwangi learned counsel for the prosecution urged the court to consider the contents of the pre-sentence report.
4.
This court called for a pre-sentence report. The same is dated 4/4/2025. The report indicates inter alia; that the deceased who served as a bar attendant had disagreed with the accused herein and that the accused in anger left the bar went to his house, came back while armed and attacked the deceased; that the accused is not remorseful and still insists that he did not commit the offence; the family of the deceased is still bitter to the lose of their kin who was the bread winner; that community members are also still bitter with the actions of the accused and that they have vowed to deal with him accordingly if he is spotted around; the probation officer was of the view that the accused needs time to reflect on his life all over again and therefore a custodial rehabilitation is suitable. | 5.
I have considered the mitigating submissions by both learned counsels for the parties herein. I have also considered the pre-sentence report filed by the probation department. Under Section 205 of the Penal Code, the maximum sentence for manslaughter is life imprisonment. However, following the decision of the Supreme Court in Francis Karioko Muruatetu & 2 Others (2017) eKLR, the mandatory nature of sentence was declared as unconstitutional and that the courts should receive mitigating circumstances from the offender before imposing an appropriate sentence thereafter. However, the court could as well impose the maximum sentence if circumstances warrant it.
6.
As regards the sentence to be imposed, the Court of Appeal in the case of Charo Ngumbao Gugudu Vs. R (2011) eKLR, held as follows:
“
Further, the law is that sentence imposed on an accused person must be commensurate to the moral blameworthiness of the offender and that it is thus not proper exercise for the court to fail to look at the facts and circumstances of the case in their entirety before settling for any given sentence. See Ambani Vs. R (1990) eKLR.”
It is noted from the autopsy report prepared by PW5 that the cause of death was obstructive/cardiogenic shock due to penetrating wound on the heart. The said pathologist went on to add that the deceased suffered a severe penetrating stub wound. From the injuries indicated on the autopsy report it is clear that the deceased died a painful death. The accused herein did not give the deceased a chance to survive due to the severe injuries inflicted. The accused should have resorted to other channels of redress. It has also transpired from the pre-sentence report that the accused is violent individual who has had a tumultuous marriage with his two wives one of whom deserted him prior to the incident while the second one left him after the incident. The report has also indicated that community members are still bitter over the incident and have vowed to deal with him if he ever sets foot there. This then calls for a custodial rehabilitation for the accused as the members of the community might lynch him if he shows around. The custodial rehabilitation will help to mould him into a better individual before being released back to the society.
7.
It is noted that the accused herein remained in custody throughout the trial. Any period spent in custody will be considered during the sentencing in line with the provisions of Section 333(2) of the Criminal Procedure Code.
8.
In the result, I order the accused herein Richard Otieno Owuor to serve a sentence of fifteen (15) years’ imprisonment which shall commence from the date of arrest namely 29/11/2023. | Sentenced | https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/4399/eng@2025-04-08 |
Miscellaneous Application E165 of 2024 | Rotich v Obiri (Suing as the Legal Representatives of the Estate of Ambrose Magoma Nyachweya (Deceased)) (Miscellaneous Application E165 of 2024) [2025] KEHC 4618 (KLR) (8 April 2025) (Ruling) | Ruling | High Court at Nakuru | High Court | HI Ong'udi | 8 April 2025 | 2,025 | Nakuru | Civil | Philip Kipkorir Rotich v Magdaline Moraa Obiri | [2025] KEHC 4618 (KLR) | null | 1.
This ruling is in respect of two applications. The first one is dated 18th May, 2024 while the second one is dated 16th September, 2024.
2.
In the application dated 18th May, 2024 the applicant prays for the following orders;
i. & ii
Spent.
iii.
That this honourable court pleased to enlarge time for lodging an appeal arising out of the ruling in Molo Chief Magistrate Civil Suit No. 78 of 2020 delivered on 9th May, 2024.
iv
That the draft Memorandum of Appeal dated 18th June, 2024 be deemed as duly and properly filed subject to payment of requisite fees.
v.
That this honourable court be pleased to grant an order of stay of execution and/or further execution of the Judgment dated 12th May, 2022 and the consequential decree and/or orders in Molo Chief Magistrate’s Court Civil Suit No 78 of 2020 pending the hearing and determination of the intended appeal.
vi.
That cost of this application be provided for.
3.
The application is based on the grounds on its face and the applicant’s affidavit sworn on even date. He deponed that being dissatisfied with the ruling delivered on 9th May, 2024 his advocates wrote a letter dated 13th May, 2024 requesting for a copy of the ruling and proceedings. The said letter did not elicit any response from the court until the 14th of June, 2024 when his advocates got a copy of the ruling. Further, that despite his advocates receiving a copy of the ruling after the required time lines of filing an appeal, they have drafted a draft memorandum of appeal. He urged the court to extend time within which the same could be filed to enable him prosecute an appeal against the aforementioned ruling.
4.
He further deponed that his advocates on record had learnt that the respondent was in the process of commencing full execution of the judgment and had sought for warrants of attachment to issue against him vide the letter dated 17th May, 2024.Thus, unless the court intervened and issued an order of stay of execution pending the intended appeal, the respondent would proceed with execution and the appeal would be rendered nugatory as the decretal amount would have been settled.
5.
In response to the said application the respondent filed a replying affidavit dated 20th September 2024. She averred that the applicant’s application was bad in law, made in bad faith, inept, lacked merit, an afterthought and otherwise amounts to an abuse of the court process. Further, that the applicant had not given any sufficient reason for failure to file the appeal within the required time to warrant granting of the orders sought. Furthermore, that the applicant had not provided any security. Thus, his application was aimed at delaying and frustrating her from enjoying the fruits of her judgment. She added that there was no sufficient reason given to warrant granting of the orders sought and she would be greatly prejudiced if the application herein is allowed as she was yet to enjoy the fruits of her judgment.
6.
The application dated 16th September 2024 and filed by the applicant and seeks the following orders;
i.
Spent.
ii.
That time within which to comply with the orders made by Justice Nyaga on 13th July 2024 be extended.
iii.
That this court be pleased to vary order Number 4 on the directions issued by Hon. Justice Nyaga Heston Mbogo on 13th July, 2024 and in its place direct that:
“There shall be a stay of further execution of the decree of the lower court on condition that the applicant deposits a security whose value is equivalent to the entire decretal sum in the lower court within 21 days from the date hereof. Evidence of such deposit to be provided.”
iv.
That directions numbers 1-3 to be preserved as they are.
v.
That the cost of this application be in the cause.
7.
The application is based on the grounds on its face and the applicant’s affidavit sworn on even date. He deponed that his application for stay of execution vide the notice of motion dated 18th May 2024 was allowed on condition that deposit the entire decretal sum to the lower court within 21 days from the date of the issue of the directions. That he was willing to comply with the conditional order for stay and had tried all that was humanly possible to raise the entire decretal sum but his efforts have not borne any fruits. He urged the court to vary the orders in place and to allow him deposit security in place of the decretal sum.
8.
In response to the said application the respondent filed a replying affidavit dated 10th October 2025. She averred that the application was bad in law, made in bad faith, inept, lacked merit, an after-thought, and otherwise amounted to an abuse of the court process. That the applicant had failed to satisfy the judgment delivered 12th May 2022 and instead filed an application dated 11th August 2023 seeking stay of execution and setting aside of the said judgment among other orders, which application was dismissed by the trial court vide its ruling on 9th May, 2024.
9.
She further averred that applicant filed an application dated 18th May, 2024 to this honourable court seeking stay of execution and leave to file an appeal on the court's ruling out of time. That the court issued stay of execution orders on condition that the applicant deposits the entire decretal sum in the lower court within 21 days from 13th July, 2024. Further, that the applicant had more than sufficient time to comply with the court’s directions but has deliberately failed to do so. In addition, that the applicant had not taken any steps towards complying with the court’s directions or presented any cogent reason for granting the orders sought.
10.
Both applications were canvassed by way of written submissions. | 19.
I have considered the two applications together with the affidavits sworn in support, the replying affidavits and the submissions by the respective parties. The issue I find falling for determination is whether both applications or either of them is merited.
20.
I will first deal with the one dated 18th May 2024 which seeks for stay of execution orders and enlargement of time for lodging an appeal.
21.
Regarding stay of execution pending appeal, the guiding principles are well settled. The same are provided for under Order 42 rule 6(2) of the Civil Procedure Rules which provides as follows:
No order for stay of execution shall be made under sub rule (1) unless—
(a)
the court is satisfied that substantial loss may result to the applicant unless the order is made and that the application has been made without unreasonable delay; and
(b)
such security as the court orders for the due performance of such decree or order as may ultimately be binding on him has been given by the applicant.
22.
In RWW vs. EKW [2019] eKLR, the court addressed the purpose of a stay of execution order pending appeal as follows;
The purpose of an application for stay of execution pending an appeal is to preserve the subject matter in dispute so that the rights of the appellant who is exercising the undoubted right of appeal are safeguarded and the appeal if successful, is not rendered nugatory. However, in doing so, the court should weigh this right against the success of a litigant who should not be deprived of the fruits of his/her judgment. The court is also called upon to ensure that no party suffers prejudice that cannot be compensated by an award of costs.
Indeed to grant or refuse an application for stay of execution pending appeal is discretionary. The Court when granting the stay, however, must balance the interests of the appellant with those of the respondent.”
23.
From the law and the above decision, it is clear that the purpose of stay of execution is to preserve the substratum of a case pending the hearing and determination of an appeal. Further, a successful litigant has a right and expectation to enjoy the fruits of the decision rendered in his or her favour by the court, and a respondent who has lost a case also has a right of appeal to ventilate his or her displeasure with the said decision of the court. The court has a duty to weigh and balance both situations.
24.
This position was affirmed in the case of Regional Institute of Business Management v Lucas Ondong' Otieno [2020] eKLR where the court observed as follows;
“
20.
Weighing the Applicants' right to have his dispute determined fairly in a court of law or competent tribunal as provided in Article 50(1) of the Constitution of Kenya and the equally important Respondent's fundamental right that justice delayed is justice denied as stipulated in Article 159(2) (b) of the Constitution of Kenya, this court determined that there would be more injustice and prejudice to be suffered by the Applicants if they were denied an opportunity to ventilate their Appeal on merit in the event an order for stay of execution was not granted”.
25.
The application herein was filed on 27th June 2024 after delivery of the impugned ruling on 9th May 2024. There was a delay of approximately one and a half months in the filing of the application. The applicant did not explain the delay and/or proffer a reason why he failed to file the said application timeously. Notably, delay must not only be inordinate, it must also cause prejudice to the opposing party. In my humble view, the delay herein appeared not to be inordinate and it also did not cause the respondent to suffer prejudice or injustice.
26.
On substantial loss, the appellant/applicant argued that if the stay orders are not granted, the said appeal would be rendered nugatory. The respondent on her part argued that no sufficient reason had been given by the applicant to warrant granting of the orders sought. Further, that she would be greatly prejudiced if the application is allowed as she was yet to enjoy the fruits of her judgment.
27.
In the case of Silverstein vs. Chesoni [2002]1 KLR 867, the court observed that substantial loss was the cornerstone of both jurisdictions and the same had to be prevented by preserving the status quo because such loss would render the appeal nugatory.
28.
On security the applicant averred that he was willing to deposit security which whose value is equivalent to the decretal amount. In the directions issued by Justice Nyaga on 13th July 2023 the applicant was required to deposit the entire decretal amount in the lower court within twenty-one (21) days. However, out of the decretal sum which amounts to kshs. 1,000,000/= the applicant has deposited kshs. 300,000/=. He claims to be in a serious financial crisis and that he is undergoing dialysis. He did not produce any financial statements to prove the same but only a letter from the facility where he allegedly goes for dialysis.
29.
As earlier noted, the grant of stay of execution is discretionary and the court will exercise this discretion on a case by case basis depending on the circumstances of the case. This court has the duty to balance rights to ensure that justice is served
30.
The above being the position, I allow the prayer for stay of execution of the Ruling delivered on 9th May, 2024 on condition that the applicant prosecutes his appeal within twelve (12) months from the date of this ruling.
31.
Regarding extension of time to lodge the appeal, In County Executive of Kisumu vs. County Government of Kisumu & 8 Others [2017] eKLR, the Supreme Court expressed itself therein as follows:
“
It is trite law that in an application for extension, the whole period of delay should be declared and explained satisfactory to the court. Further, this Court has settled the principles that are to guide it in the exercise of its discretion to extend time. The court delineated the following as:
1.
Extension of time is not a right of a party. It is an equitable remedy that is only available to a deserving party at the discretion of the court;
2.
A party who seeks for extension of time has the burden of laying a basis to the satisfaction of the court;
3.
Whether the Court should exercise the discretion to extend time, is a consideration to be made on a case to case basis;
4.
Whether there is reasonable reason for the delay. The delay should be explained to the satisfaction of the court;
5.
Whether there will be any prejudice suffered by the respondent of the extension is granted;
6.
Whether the application has been brought without undue delay…”
32.
In view of the above exposition, it is clear that the factors to be taken into consideration when determining an application of this nature are namely; the length of the delay, reasons for the delay, possibility of the arguability of the intended appeal, prejudice to be suffered by the opposite party if the relief sought were granted, any public policy issues that may be involved and the right of access to appellate justice which the current jurisprudential trend crystalizing this position state explicitly that being constitutionally entrenched, it can only be denied in exceptional circumstances
33.
Looking at the first principle as stated above; the length of the delay, the application under consideration was presented one and half (1 ½) months from the date of the delivery of the impugned ruling. The applicant stated that the main reason for failure to timeously comply with the timelines set in the Rules is the delay in receiving a copy of the ruling and proceedings.
34.
I take judicial notice that at times there can be such delays occasioned to a party especially the proceedings due to the workload. I therefore decline to place that fault on the applicant especially when the period forming the length of delay is only one and a half (1½) months and therefore, not inordinate.
35.
Looking at the principle of the arguability of the intended appeal, the applicant has annexed a memorandum of appeal with a number of grounds of appeal. In Sammy Mwangi Kiriethe & 2 Others vs. Kenya Commercial Bank [2020] eKLR the court was of the view that an arguable appeal need not be one that must succeed, but one that not only warrants the court’s interrogation but also demonstrates sufficient basis for the court to invite the opposite party to make a response thereto. My opinion on the grounds of appeal the applicant intends to bring on appeal is that they are all arguable irrespective of their ultimate success or otherwise.
36.
On whether the respondent would suffer prejudice should the relief sought be granted, she argued saying that she would be greatly prejudiced if the application herein is allowed as she was yet to enjoy the fruits of her judgment. The applicant on the other hand contends that his intended appeal is arguable and would therefore be prejudiced if the same is not allowed.
37.
In my humble view, fairness and justice in the circumstances prevailing herein would demand that this court balances the interests of both parties. This principle was enunciated in the decision of the Court of Appeal in Absalom Dova vs. Tarbo Transporters [2013] eKLR, where it stated:
“
The discretionary relief of stay of execution pending appeal is designed on the basis that no one would be worse off by virtue of an order of the court; as such order does not introduce any disadvantage, but administers the justice that the case deserves. This is in recognition that both parties have rights; the Appellant to his appeal which includes the prospects that the appeal will not be rendered nugatory; and the decree holder to the decree which includes full benefits under the decree. The court in balancing the two competing rights focuses on their reconciliation…” (emphasis mine).
38.
The upshot is that the application dated 18th May 2024 is merited and the same is allowed in terms of prayers 3, 4 and 5 on the following terms:
i.
The Appeal to be prosecuted within 12 months from today’s date.
ii.
The deposit of Ksh 300,000/= to remain in place. However, the Applicant shall deposit before the trial court security for the balance of the decretal sum within 21 days.
39.
In consideration of the orders sought in the application dated 16th September, 2024, I find that the same have been subsumed in the findings in the application dated 18th May, 2024. The application is thus overtaken by events.
40.
Each party shall bear its own costs.
41.
Orders accordingly. | Allowed | https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/4618/eng@2025-04-08 |
Civil Appeal E448 of 2024 | Rurwan v Kinyua (Civil Appeal E448 of 2024) [2025] KEHC 4412 (KLR) (Civ) (8 April 2025) (Judgment) | Judgment | High Court at Nairobi (Milimani Law Courts) | High Court | LP Kassan | 8 April 2025 | 2,025 | Nairobi | Civil | Jackson Lotik Rurwan v Wilson Kariuki Kinyua | [2025] KEHC 4412 (KLR) | null | 1.
This appeal emanates from the judgment delivered on 22/03/2024 by the lower Court in Nairobi Milimani CMCC No. E4276 of 2022 (hereafter the lower Court suit). The lower Court suit was instituted via a plaint by Jackson Lotik Rurwan, the plaintiff in the lower court (hereafter the Appellant) as against Wilson Kariuki Kinyua, the defendant in the lower court (hereinafter the Respondent). The Appellant’s claim was for damages founded on negligence as a result of a road traffic accident that occurred on 01/03/2022.
2.
It was averred that at all material times to the suit, the Respondent was the registered, beneficial, insured owner and or owner in possession of motor vehicle registration number KCG 020F (hereinafter suit motor vehicle) which was being driven by him, his authorized driver, servant and or agent. That on the date in question the Appellant was lawfully walking along Dr. Griffins Road when the Respondent’s driver managed, controlled and or drove the suit motor vehicle so carelessly and or negligently at a very high speed that he lost control causing the suit motor vehicle to veer off the road and collide onto the Appellant thereby causing him injuries, loss and damages. The doctrine of Res Ipsa Loquitor was equally relied on.
3.
The Respondent filed a statement of defence that was later amended denying the key averments in the plaint and liability. He went on to aver that in the alternative and without prejudice to the averments in the defence, that the any such occurrence of the accident as the Appellant may prove was caused and or substantially contributed to by the Appellant’s own negligence. The doctrine of Volenti Non-Fit Injuria was pleaded.
4.
The suit proceeded to full hearing, during which both parties called evidence in support of the averments in their respective pleadings. In its judgment, the trial Court failed to see how the Respondent was negligent or could be blamed for the accident and thus proceeded to dismiss the Appellant suit with costs.
5.
Aggrieved with the outcome, the Appellant preferred the instant appeal challenging the finding by the lower Court premised on the following grounds in his memorandum of appeal as itemized hereunder: -
1.
That the learned trial magistrate erred in law and fact in dismissing the suit even when liability has been proved as against the Respondent.
2.
That the learned trial magistrate misdirected herself in totality disregarding the plausible evidence by the Appellant in support of his case on the issue of negligence against the Respondent.
3.
That the learned trial magistrate erred in law and fact by considering only the evidence of the Respondent and his witness and disregarding the Appellant’s evidence and his witness.
4.
That the learned trial magistrate erred in fact and in law in failing to consider the Appellant’s submissions on liability by completely disregarding submissions and authorities of the Appellant and as a result rendered an unjustified decision on liability.
5.
That the trial Court erred in law and fact in finding that the Appellant’s case had not been proved on a balance of probabilities.
6.
That the learned magistrate grossly erred in her evaluation of the evidence before her.
7.
That the learned trial magistrate grossly erred in failing to find that the Respondent wholly or substantially contributed to the occurrence of the accident herein.
8.
That the trial Court manifested clear bias against the Appellant which was unfair and unjust.
9.
That the learned magistrate’s final orders have occasioned a miscarriage of justice. (sic)
6.
Both parties filed submissions. | To contextualize the latter, it would be apposite to quote in extenso the relevant facets of the impugned judgment. The trial Court after restating the evidence tendered before it addressed itself on liability as follows-;
“
5.
I have carefully considered the evidence tendered by the parties. I have read the submissions filed and the authorities cited and it is not in dispute that an accident occurred on the 1st of March 2022…involving the Plaintiff and Defendant who at the time was the registered owner of motor vehicle KCG 020F.
6
….
7
….
8
….
9.
In this case, the Plaintiff claims that he was hit off the road by Defendant. His witness, a police officer testified that as at the time the police abstract was being issued, the case was pending investigations. The Defendant on the other hand produced an investigation report which clearly indicates how the accident occurred and which corroborated the Defendant’s evidence.
10.
The accident occurred along Dr. Griffin Road which has three lanes. It is a dual carriage. The accident occurred on the inner lane as per the photographs produced by the Defendant. There is a foot bridge which is almost 10 meters from where the accident occurred.
11.
From the evidence given, I do not see how the Defendant was negligent or how he can be blamed for the accident. When Plaintiff knowingly faulted the traffic rules. This being the case, I do not find merit in the Plaintiff’s suit and is hereby dismissed with costs.
12
…...” (sic)
10.
The applicable law as to the burden of proof is found in Section 107, 108 and 109 of the Evidence Act. Equally, it is well trodden that the same is on a balance of probabilities meaning that the Court will assess the oral, documentary and real evidence advanced by each party and decide which case is more probable. See Court of Appeal decision in Mumbi M'Nabea v David M. Wachira [2016] eKLR. Hence, the duty of proving the averments contained in the plaint lay squarely on the Appellant vice versa with respect to the averments contained in the Respondent’s statement of defence. See Court of Appeal decision in Karugi & Another v Kabiya & 3 Others (1987) KLR 347.
11.
Further, this Court has continually observed that the mere occurrence of an accident, without more, cannot be proof of negligence. As the Court of Appeal stated in Eastern Produce (K) Ltd v Christopher Atiado Osiro [2006] eKLR, the onus of proof lies upon him who alleges and where negligence is alleged, some form of negligence must be proved against the defendant [Emphasis mine]. The Court in that case cited the famous decision of Kiema Mutuku v Kenya Cargo Hauling Services Ltd [1991] 2KAR 258 where the Court of Appeal, reiterating the foregoing by stated that:
“
There is, as yet no liability without fault in the legal system in Kenya and a plaintiff must prove some negligence against the defendant where the claim is based on negligence.”
12.
In Gideon Ndungu Nguribu & Another v Michael Njagi Karimi [2017] eKLR the Court of Appeal stated that determination of liability in a road traffic case is not a scientific affair and proceeded to quote Lord Reid in Stapley vs Gypsum Mines Ltd (2) [1953] A.C. 663 at Pg. 681 as captured in Paragraph 8 of the impugned decision of the trial Court, therefore this Court will not restate verbatim the rendition of Lord Reid as captured therein.
13.
With the above wisdom in reserve, before the trial Court, PC Jesee Mwololo - No. 88537, testified as PW1. It was his evidence that he was attached to Pangani Police Station and that before the trial Court he had a police abstract dated 15/03/2023, which he adduced into evidence, relating to an accident that occurred on 01/03/2022 along Dr. Griffin Road between the Appellant and the suit motor vehicle. On cross examination he stated that the Police Abstract did not blame any party; that he did not have sketch plan of the scene of the accident; that he did not have the Occurrence Book (O.B) before Court; that he was familiar with road in question; that he did not know the exact point where the accident occurred; and that there was a foot bridge along the said road.
14.
The Appellant testified as PW2. He began by adopting his witness statement and adducing into evidence his list of documents as PExh.1-6. The gist of his witness statement captured that on the date in question he was lawfully walking along the road in question when the driver of the suit motor vehicle negligently drove the same at high speed occasioning it to lose control thus colliding with him. He emphasized at trial that the suit motor vehicle hit him while he was off the road. During cross-examination, he reiterated that he was off the road and that he was not hit while in the middle of the road. He further confirmed that the road had three lanes and had barriers on the road divider. On re-examination, he maintained that he was hit off the road.
15.
The Respondent testified as DW1. He too began by adopting his witness statement and adduced into evidence the documents appearing in the defendant list of documents as DExh.1 -6. It was his evidence that on that date in question he was driving on the inner lane along the said road towards the Karioko Intersection. He confirmed that the road had a barrier on the road divider and there being a foot bridge about 10 meters from where the Appellant was knocked. That he did not expect the Appellant to cross the road at that particular section given the forestated meanwhile despite applying emergency brakes or hooting it was too late. During cross-examination, he stated that the accident occurred at around 10pm and reiterated there being a foot bridge. That the Appellant was crossing from left to right and after the accident a report was done by investigators whom captured pictures of the scene of the accident. He asserted being attentive while driving and that he was not speeding. On re-examination, he iterated that he was driving on the inner most lane.
16.
Evidently, from the totality of the aforecaptioned, it can be concluded by PW1’s evidence, he did not witness the accident. Further, the Police Abstract which was adduced as PExh.6, he was neither the investigating officer nor did he adduce the sketch plan and Occurrence Book (O.B) before Court. Thus, he appears to have merely read into evidence the contents of PExh.6 confirming the occurrence of the accident. He did inveterate that the he was familiar with the road and that the same had a footbridge. It can thus be obstinately stated that his evidence aside from confirming occurrence of the accident and general lay out of the road was not instructive on liability.
17.
Both PW2’s and DW1’s evidence was at variance. With former insisting that he was hit off the road and the latter asserting that the former was hit on the road a few meters from a foot bridge. PW1’s evidence did not aid the PW2’s case on negligence meanwhile he confirmed the existence of a foot bridge along the said road. Aside from PW2 (the Appellant) and PW1, the Appellant did not call any other eye witness to shore up the particulars of negligence pleaded at paragraph 4 of his plaint, in order to infer culpability upon the Respondent. That said, DW1 aside from his oral evidence, relied on an investigation report adduced as DExh.6, which though was prepared after the fact was an attempt to shore up the particular of contributory negligence pleaded as against the Appellant at paragraph 6 of the amended statement of defence. The gist of DExh.6 contradicted the Appellant’s version of events, particularly relating to being hit off the road as in its analysis and deduction was that the Appellant was hit while crossing the road.
18.
The Appellant vide the grounds of appeal has made heavy weather of the fact that the trial Court only considered the Respondent’s evidence with exception to his evidence. The contestation cannot hold in light of the earlier excerpt capturing the trial Court’s analysis on the issue of liability. This Court concurs with the learned Magistrates observation that the accident occurred along the road in question which was a dual carriage highway possessed of a foot bridge. And it appears that Appellant rather than utilize the said footbridge opted to cross the road. However, it must be recollected that corollary to the above reasoning, at all material times onus was on the Appellant to prove his case on a balance of probabilities as against the Respondent in respect of the particulars of negligence pleaded in his plaint.
19.
At the risk of repetition, the Respondent had pleaded contributory negligence at paragraph 6 of his amended defence citing inter alia the Appellant’s failure to use the footbridge to cross the road and walking and or running across a busy super-highway. PW1’s corroborated DW1’s evidence that there was a footbridge along the road. Further, DExh.6. was adduced to shore up the Respondent’s assertions of contributory negligence. Palpably, as rightly observed by the trial Court, the Appellant evidence did not meet the muster as to how the Respondent could be blamed for the accident and given the Appellant’s deliberate negligence by failing to use a designated foot bridge on the said road. By willfully crossing the road in disregard of the latter, the Appellant voluntarily invited risk upon himself of which the Respondent would not have reasonably foreseen in the circumstance, given that the accident occurred at around 10pm whereas the road was a dual carriage highway.
20.
The Appellant questioned the reliance by the trial magistrate on the investigation report in his submission. First, it is clear that this report was produced as an exhibit. The report points out to three key issues as to wit- presence of a foot bridge near the scene of the accident and that the road was a dual carriage with three lanes separated by a barrier. This was corroborated by DW1 and the Plaintiff witness. From the Report, the Respondents Motor Vehicle was bordering the barrier such that to reach its side, a pedestrian had to cross two lanes from left to right. This therefore means that there was no chance of the Respondent (driver) to see a pedestrian who luckily eschews being knocked by vehicles cruising along the first and Second lane (on his left side). Were it that the Respondent was on the first lane, the Court could have taken notice of the fact that the driver could have spotted pedestrians breaching traffic rules by crossing three lanes highway since before crossing, the pedestrian is off the road but in this case the pedestrian was already on the road and perhaps on the run to escape being knocked by vehicles (if any) on the first and second lane. The Report specifies the exact location and if it was doubted, nothing prevented the Appellant from insisting on site visit or preparing another report.
21.
As regards the application of the doctrine of res ipsa loquitur, the Court of Appeal in Keziah & another (Personal Representatives of the late Isaac Macharia Mutunga) v Lochab Transport Limited [2022] KECA 477 (KLR), discussed in brief, its application. It observed in part that; -
“
The question that remains unanswered is who was then on the wrong, or caused and or contributed to the accident? The mere fact that an accident involving the two vehicles occurred does not per se translate into the respondent's driver being culpable. It was the duty of the appellants to call evidence to prove the particulars of negligence or any one of them that they attributed to the respondent's driver. We do not think just like the High Court that they discharged this burden.
22.
The Court proceeded to conclude that: -
“
………….. The police abstract on record showed that the accident was under investigation. The accident involved two motor vehicles and from the evidence adduced, there is nothing to show that the respondent was culpable. There cannot be an assumption of liability as the appellant failed to prove facts which give rise to what may be called the res ipsa loquitur situation or moment. In our view, the doctrine was inapplicable in the circumstances of the case and the High Court was right in so holding.”
23.
Similarly, in this case, beyond proof of the occurrence of the accident, the Appellant failed to prove facts which could give rise to or justify the invocation of the doctrine and or its application in order to attribute negligence as against the driver of the suit motor vehicle. The Court of Appeal decision in David Onchangu Orioki (Suing as personal representative of Anthony Nyabondo Onchangu (Deceased) v Ismael Nyasimi & Charles Michieka Nyoungo [2019] eKLR while discussing the applicability of the foregoing principles stated that;
“
Ordinarily, in a road traffic accident, a claimant must lead evidence to prove not only the occurrence of the accident but how it happened.”
24.
The same court equally stated that;-
“
……in a cause of action founded on negligence, there are two elements in the assessment of liability, namely causation and blameworthiness. See (Baker v Willoughby [1970] AC 467). “…….
25.
The trial Court while making a finding on liability correctly acknowledged that there is no evidence to suggest that the driver of the suit motor vehicle was to blame for the accident. In conclusion, this Court agrees that the Appellant failed to establish on a balance of probabilities that the Respondent was blameworthy and liable for the accident and this Court cannot fault the trial Court for arriving at the decision it did on liability. Under Section 107 of the Evidence Act, the burden of proof lay with the Appellant and if his evidence did not support the facts pleaded, he failed as the party with the burden of proof. See the case of Wareham t/a A.F. Wareham (supra). It would therefore be inconsequential to consider the question of awardable damages in light to the forestated finding on liability. Consequently, the appeal herein lacks merit and is dismissed with costs. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/4412/eng@2025-04-08 |
Miscellaneous Application E273 of 2024 | Rutto & another v Sego (Miscellaneous Application E273 of 2024) [2025] KEHC 4434 (KLR) (8 April 2025) (Ruling) | Ruling | High Court at Eldoret | High Court | E Ominde | 8 April 2025 | 2,025 | Uasin Gishu | null | Abraham Kiptum Rutto & Eldoret Shuttle Sacoo v Alias Frank Kiptoo Sego | [2025] KEHC 4434 (KLR) | null | 1.
By a Notice of Motion dated 18/10/2024, the Applicant seek the following orders:
1.
Spent.
2.
That he Honourable Court be pleased to extend time for lodging of a Memorandum of Appeal against the Judgment of the Hon. Peter Areri delivered on 25th June, 2024 in Eldoret CMCC E594 OF 2022 Francis Koima Sego Alias Frank Kiptoo Sego v Abraham Kiptum Rutto & Eldoret Shuttle Sacco.
3.
That the draft Memorandum of Appeal dated 18/07/2024 be deemed as properly filed.
4.
Spent.
5.
That pending the hearing and determination of the appeal herein, there be a stay of execution of the judgment made on 25/06/2024 in Eldoret CMCC E594 OF 2022 and of all subsequent orders entered against the appellant/applicant emanating therefrom.
6.
That pending the hearing and determination of the intended appeal the Applicant herein do avail security by way of Bank Guarantee from Family Bank for the whole judgment sum of Kshs.1,178,764/=.
7.
That the costs of the present Application be borne by both parties.
2.
The application is anchored on several grounds that are on the face of the application and the Supporting Affidavit of Erick Anyamba Mwale sworn on 18/10/2024.
3.
He deposed that Judgment was delivered in Eldoret CMCC E594 of 2022 on 25/06/2024 whereby the Respondent was awarded a net award of Kshs. 1,178,764/-, that being dissatisfied with the Judgment, he instructed his Advocates to institute an Appeal against the said judgment which they did by lodging a Memorandum of Appeal dated 18/07/2024 and that it was assessed and assigned assessment reference number E3H23A9L. He further deposed that his insurer, Ms Directline Assurance Co. Ltd was undergoing internal strife at management level which strife prompted the intervention and/or an audit by the Insurance Regulatory Authority hence there was difficulty in handling the approval, release and/or payments of any monies and/or smooth running of the company.
4.
He contended that after the Insurance Company sorted its management issues and monies were releases for purposes of filing the Appeal and the Application for stay and extension of time the Applicants’ Counsel's Law firm lost access, to their servers on 10/09/2024 thereby paralysing the running of the firm and that because the law firm is essentially paperless all its files and documents are in a virtual system. That as a result they were not in a position to prepare this instant Application in time. That the Applicants' law firm regained access to their servers on 14/10/2024 whereupon they prepared the instant Application seeking for extension of time to lodge the Appeal and stay of execution pending the hearing and determination of the Appeal and that the time period in which the Judgment dated 25/06/2024 can be appealed according to statute lapsed on 24/07/2024 hence the need to seek an extension of time within which to lodge the instant Appeal.
5.
He further deposed that since stay of execution has lapsed, the Applicants are apprehensive that the Respondent will move to execute the Judgment to the detriment of the Applicant. He maintained that the delay in filing this appeal was not deliberate as has been explained and that the 30 days stay of execution granted by the trial court has since lapsed and unless the stay of Execution herein sought is granted the Appellant/Applicant's Application and consequently the intended Appeal will be rendered nugatory and the Applicants will suffer irreparable loss and damage. He deposed that the Applicants are ready and willing, to either avail a bank Guarantee or Deposit the monies in a joint interest earning account as a condition for stay pending determination of the intended Appeal. That this Application is made in good faith and will not occasion any prejudice to the Respondent.
6.
The Application is opposed. The Respondent filed a Replying Affidavit dated 8/11/2024 wherein he deposed that the Application is an afterthought, lacks merit and thus ought to be dismissed with costs at first instance. That whereas it is true that judgment was delivered in Eldoret CMCC E594 of 2022 on 25/06/2024 in favour of the respondent and the court awarded him general damages of Kshs.1,178,764/=, the trial court granted the Applicants 30 days stay of execution on the same date of 25/06/2024, during the pendency of this Stay, the Applicants did not lodge their Memorandum of Appeal, contrary to provisions of the Civil Procedure Rules and that they have not attached any evidence to show that their accounts were closed and thus unable to pay filing fees for the appeal.
7.
Further, that as far as this case is concerned, Directline Assurance has been operating and there has been no moratorium and/or notice of receivership in place to indicate that it is no longer in business. That he instructed his advocate to apply for execution of decree in Eldoret CMCC E594 OF 2022 on 21st August 2024, close to four weeks after the stay of execution lapsed on 25/07/2024 and that if indeed the Applicants were serious about filing their appeal, they would have already lodged the same during the intervening period and before they applied to court for execution.
8.
The Respondent maintained that as the successful party in the case herein he is entitled to enjoy the fruits of his judgment and that with the above series of events, it is unfair to allow the Applicants to lodge their appeal out of time as they have not given plausible reasons. Further, that the deponent has not attached any evidence to prove that the proclaimed vehicle is his and/or registered in his name. That the delay in filing this application for extension of time is in any case inordinate and the Applicants have not given any reasonable explanations on delaying to file their appeal by 3 (three) months. | 23.
I have considered the application, grounds in support thereof, the respondent’s replying affidavit, submissions by counsel and the applicable law. I have also considered the provisions of the law under which the Application is stated to have been brought. In my considered opinion, the issue for determination is
whether the Applicants have laid any basis upon which time to lodge an appeal can be extended and whether the Applicants have met the prerequisite for grant of stay of execution pending appeal;
24.
Section 79G of the Civil Procedure Act states:-
Every appeal from a subordinate Court to the High Court shall be filed within a period of thirty days from the date of the decree or order appealed against, excluding from such period any time which the lower Court may certify as having been requisite for the preparation and delivery of a copy of the decree or order:
Provided that an appeal may be admitted out of time if the appellant satisfies the Court that he had good and sufficient cause for not filing the appeal in time.
25.
It is clear from the wording of section 79G of the Civil Procedure Act, that before the Court considers extension of time, the Applicant must satisfy the Court that she has good and sufficient cause for seeking extension of time. This principle was enunciated in the case of Diplack Kenya Limited v William Muthama Kitonyi [2018]eKLR. An Applicant seeking enlargement of time to file an appeal or admission of an already filed appeal must show that he has a good cause for doing so.
26.
The threshold for the granting of leave to appeal out of time was set out in the case of Nicholas Kiptoo Salat v Independent Electoral and Boundaries Commission and 7 others (2014) eKLR where the Supreme Court held that:
“
… it is clear that the discretion to extend time is indeed unfettered. It is incumbent upon the applicant to explain the reasons for delay in making the application for extension and whether there are any extenuating circumstances that can enable the Court to exercise its discretion in favour of the applicant.”
27.
The Supreme Court then went ahead to establish the following principles to guide the Courts when entertaining applications for extension of time:
a.
Extension of time is not a right of any party. It is an equitable remedy that is only available to a deserving party at the discretion of the Court;
b.
A party who seeks for extension of time has the burden of laying a basis to the satisfaction of the Court;
c.
Whether the Court should exercise the discretion to extend time, is a consideration to be made on a case by case basis;
d.
Whether there is a reasonable reason for the delay. The delay should be explained to the satisfaction of the Court;
e.
Whether there will be any prejudice suffered by the respondent if the extension is granted;
f.
Whether the application has been brought without undue delay.
28.
It is trite law that an appeal does not operate as an automatic stay of execution. The conditions which a party must establish in order for the court to order stay of execution are provided for under Order 42 Rule 6(2) Civil Procedure Rules which stipulates that: -
“
No order for stay of execution shall be made under sub rule (1) unless—
(a)
the Court is satisfied that substantial loss may result to the Applicant unless the order is made and that the application has been made without unreasonable delay; and
(b)
such security as the Court orders for the due performance of such decree or order as may ultimately be binding on him has been given by the Applicant.”
29.
From the foregoing, it is clear that an Applicant for stay of execution pending appeal must satisfy the above conditions namely, (a) that he will suffer substantial loss unless the order is granted, (b) the Application has been made without unreasonable delay, and (c) such security as the Court orders for the due performance of such decree or order as may ultimately be binding on the Applicant has been given.
30.
As to what encompasses “substantial loss”, I find the case of James Wangalwa & Another v Agnes Naliaka Cheseto [2012] eKLR to be relevant and with regard to security for costs, the court relies on the decision in the case of Absalom Dova vs. Tarbo Transporters [2013] eKLR
31.
On arguability of the intended appeal, the Court herein is guided by the decision in the case of Athuman Nusura Juma Vs. Afwa Mohamed Ramadhan [2016] eKLR wherein the Court held as follows:
“
whether the intended appeal has merits or not is not an issue to be determined by a Court when dealing with an Application of this nature but by the Court dealing with the merits of the appeal, that is why the requirement that the intended appeal be arguable is preferred with the word “possibly”.
32.
All the above considered, I am satisfied that the explanation given by the applicant on the reasons for the delay in filing the Appeal after the same was assessed as herein above summarised has sufficiently explained the delay and which delay in light of these reasons I find was not inordinate for reasons that these circumstances were beyond the control of the applicants. I am also satisfied that the said application has been made without unreasonable delay and that if not granted, the Applicant stands to suffer substantial loss for reasons that the respondent has not in any way demonstrated that he will be able to pay back the decretal sum in the event the applicant is successful on appeal. I am therefore satisfied that the application has merit and the same is allowed as follows;
a.
That the time for the lodging of a Memorandum of Appeal against the Judgment of the Hon. Peter Areri delivered on 25th June, 2024 in Eldoret CMCC E594 OF 2022 Francis Koima Sego Alias Frank Kiptoo Sego v Abraham Kiptum Rutto & Eldoret Shuttle Sacco be and is now hereby granted.
b.
That the draft Memorandum of Appeal dated 18/07/2024 be and is now hereby deemed as properly filed.
c.
That pending the hearing and determination of the appeal herein, an order of stay of execution of the judgment made on 25/06/2024 in Eldoret CMCC E594 OF 2022 and of all subsequent orders entered against the appellant/applicant emanating therefrom be and is now hereby issued.
d.
That the applicant is to deposit the entire decretal amount in a joint interest earning account in the names of both Advocates for the parties within 45 days from the date of this judgement failure to which the orders of stay herein granted shall be deemed to have lapsed.
e.
That the Application is to bear the costs of the Application. | Allowed | https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/4434/eng@2025-04-08 |
Civil Appeal 75 of 2023 | Sakwa v Aminga & another (Civil Appeal 75 of 2023) [2025] KEHC 4432 (KLR) (8 April 2025) (Judgment) | Judgement | High Court at Kitale | High Court | RK Limo | 8 April 2025 | 2,025 | Trans-Nzoia | Civil | Justus Simiyu Sakwa v Malachi Oirigia Aminga & Tobias Muwanga Wafubwa | [2025] KEHC 4432 (KLR) | null | 1.
This is an appeal against the Ruling of Hon S.K. Mutai Senior Principal Magistrate delivered on 30/10/23 vide Kitale CMCC No.205 of 2017.
2.
The said Ruling was a subject of a preliminary objection dated 1/8/2023 raised by the appellant. The basis of the said preliminary objection was that the respondent’s suit was time barred by operation of Section 4(2) of the Limitations of Actions Act.
3.
The trial court entertained the preliminary objection which was canvassed by way of written submissions and found that the suit filed on 15/7/2021 was indeed filed out of time but found at the same time that the respondent had given plausible reason for filing the suit out of time. It also found that allowing the preliminary objection would shut the door of justice to the respondent leading to being condemned unheard, contrary to the rules of natural justice.
4.
The appellant felt aggrieved and filed this appeal raising the following grounds namely;
i.
The learned trial magistrate erred in law and facts in finding that the appellant will be condemned unheard contrary to the rules of natural justice if the preliminary objection dated 1/8/23 was allowed.
ii.
The learned magistrate erred in law in not finding that the suit was time barred.
iii.
That the learned magistrate erred by not finding that the suit was filed in abuse of due court process.
iv.
That the learned magistrate erred in law and fact in finding that the explanation given by the 1st respondent’s counsel was plausible.
v.
That the ruling delivered did not conform with the law and the same is not based on any provision of the law.
vi.
That the learned magistrate misconstrued the facts and law and arrived at a wrong conclusion.
5.
In his written submissions dated 19/3/2024 done through learned counsel M/s R.E Nyamu and Co Advocates the appellant insists that the 1st respondent”s suit by dint of Section 4(2) of Limitation of Actions Act was time barred. He submits the law stipulates that an action founded on tort may not be brought after the end of 3 years from the date on which the cause of action occurred.
6.
He points out that going by the plaint filed the accident occurred on 20/3/2024 and the suit was filed on 15/7/2017 which was more than 3 years after the accident occurred. He relies on the case of Bosire Ogero –vs- Royal Media Services (2015)eKLR where the court held that where an action is statute barred the court has no jurisdiction to entertain it.
7.
He faults the respondents for abuse of court process stating that apart from filing suit out of time, they took out summons which they never served.
8.
He faults the trial court for finding that the respondents had given plausible reason for filing suit out of time when the 1st respondent ought to have sought leave of court first to file suit out of time.
9.
The 1st respondent has opposed this appeal laying blame on counsel. He contends that his counsel sat on his case due to an oversight and led to the case being filed out of time.
10.
He submits that the provisions of Section 4(2) of Limitation of Actions Act are rules of procedure which in his view should not be elevated to defeat substantive justice. According to him Section 4(2) of the Limitation of Actions Act is a technicality.
11.
He pleads with this court not to allow this appeal arguing that he will suffer injustice yet he agreed by consent to set aside an exparte judgment in the lower court adding that the appellant would not suffer prejudice if the appeal is disallowed. | 12.
This court has considered this appeal and the reasons advanced. I have considered the response made by the 1st respondent.
13.
The parties in this appeal are both in agreement that the suit filed in the lower court was filed out of time. The finding of the trial court in that regard was also of a similar view.
14.
The 1st respondent contends that the provisions of Section 4(2) of Limitations of Actions Act is a technicality which should not be elevated to defeat substantial justice but is it? Section 4(2) of Limitation of Actions Act provides as follows;
“
An action founded on tort may not be brought after the end of three years from the date on which the cause of action accrued”.
15.
When a statute stipulates a timeline upon which an action should be taken or filed, it is mandatory to comply with that timeline because compliance in that regard is crucial as it gives the court jurisdiction to entertain the matter. Where the statute gives a window of opportunity for a non-compliant party to seek for extension or enlargement of time as it is in this case, then that opportunity can be utilized. The provisions of Section 27 of Limitation of Actions Act gives a party liberty to apply for extension of limitation period and give good reasons why the court should exercise its discretion in his favour. Without enlargement of time, a suit filed out of time is incompetent and the court lacks jurisdiction to entertain it.
16.
In this instance the trial court appears to have fallen into error by finding that the 1st respondent had given plausible reason for filing suit out of time when the issue before it was whether or not the suit had been filed out of time. The trial erred by proceeding as though he was handling a matter for enlargement of time which issue was not relevant to the issue at hand.
17.
This court notes from the proceedings that the 1st respondent appears to have realized rather belatedly that he had made a big mistake because after the trial court had issued directions on how the preliminary objection was to be canvassed on 28/8/23 and fixed the case to be mentioned on 18/9/23 to find out if parties would have complied, the 1st respondent filed an application dated 8/9/23 for extension or enlargement of time to enable him file his suit out of time.
18.
When the matter came up for mention on 18/9/23, both parties confirmed filing of submissions on the preliminary objection and asked for a ruling date on the preliminary objection and the court gave a ruling date for 2/10/23.
19.
The 1st respondent tried later that afternoon to be heard first on his application for enlargement of time but the trial court overruled him and set a date for the ruling on the preliminary objection for 30/10/23. By declining the attempt by the 1st respondent to have his application for leave heard first, the trial court in effect sealed the fate of the first respondent because of the clear provisions of Section 4(2) of Limitation of Actions Act. The hands of the trial court were tied because what was before it was a suit filed out of time without leave. The suit was incompetent to that extent and it mattered not whether the 1st respondent had good explanation or what he termed “plausible” reasons for filing it out of time. The trial court would have been in order and well directed to make such a finding if it was entertaining an application for enlargement of time but he was not and that is where the misdirection lies. There was no competent suit to be entertained thereafter because the court did not enlarge time.
In the premises this court finds merit in this appeal. The ruling of the trial court delivered on 30/10/2023 flew in the face of the cited clear provisions of the law and must, which I hereby do set aside.
In its place the preliminary objection dated 1/8/23 is sustained. The result of this is that the 1st respondent’s suit filed vide Kitale CMCC NO.205 of 2017 is hereby struck out with costs for being incompetent. The 1st respondent ought to have sought leave of court for enlargement of time first before filing the suit out of time. | Struck Out | https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/4432/eng@2025-04-08 |
Judicial Review Application E034 of 2022 | Sbi International Holdings (Kenya) v Director General Kenya National Highway Authority (Judicial Review Application E034 of 2022) [2025] KEHC 4514 (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 | SBI International Holdings (Kenya) v The Director General Kenya National Highway Authority | [2025] KEHC 4514 (KLR) | null | 1.
This will be one of the shortest Ruling I have ever written on very long pleadings, affidavits and submissions both written and oral. The ruling determines the application dated 9/10/2023, supported by the affidavit of Gilad Mishni sworn on 9/10/2023, the supporting affidavit of Gilad Mishni sworn in support of the application dated 5/12/2024 and the further affidavit. The application is also supported by oral submissions.
2.
The applicant seeks to prosecute the application for contempt of court orders for mandamus issued against the respondents on account that the consent entered into on 19th December, 2023 that halted the hearing of the contempt application was violated. That the respondent had defaulted in settling the balance of the monthly instalments as ordered by the court in the consent.
3.
The respondents oppose the application vide their replying affidavit dated 18th December, 2023 deposing in contention that the application in the series matters was compromised by the consent of 19th December, 2023 which was filed immediately after the filing of the contempt application and the balance was to be settled in six monthly instalments.
4.
It was contended that s at that time, two billion was subject of the Kenya Revenue Agency Notice and a conservatory order in HC Misc Application No. E457 of 2022 between Kenya Revenue Authority and the Applicant herein. That therefore the 2 billion demanded by the applicant to be settled immediately was not part of the consent as it was not available at that time for disbursement.
5.
It was deposed that the six-monthly instalment was paid as per the consent hence there is no contempt and further, that there is no brazen disobedience of the consent order even on the 2 billion as the respondents had asked for additional funding of the said money from the exchequer through the State Department of Roads.
6.
In a rejoinder, the applicant’s counsel submitted that the respondents can still pay from the road levies or dispose of some of its property to settle the decree. That there was no commitment to settle the decree which denies the applicant justice | 7.
I have considered the application and the opposition thereto as submitted orally. The issue is whether there is brazen violation of the order of mandamus and the consent dated 19th December, 2023.
8.
From my reading of the consent, which I did not have the privilege to record or adopt, as at the time of the consent of 19th December, 2023, part of the claim was subject of an agency notice by Kenya Revenue Authority who had filed proceedings in court to attach the said money being 2 billion as outstanding tax payable by the applicant. That money was not available but was nonetheless was subject of litigation. The consent does not disclose how much was the balance and or how much had been settled as at that time of recording the consent.
9.
It follows that although the decretal sum was known, with the agency notice by KRA still in force, the respondent could not have released to the applicant the amount which were not available and which were subject of the agency Notice. Even if the respondent was selling its assets, sale of assets takes time. additionally, there is no contrary evidence that the respondent was depending on the exchequer release. The burden of proof lies on he who alleges. There is no evidence that the respondents had sufficient funds in the Roads levy fund but had refused to utilize those funds to settle the decree.
10.
I therefore find that there was no violation of the terms of the consent which, in any event, did not state what the balance of the amount due was at that time, in view of the Agency notice by Kenya Revenue Authority.
11.
Accordingly, the resuscitation of the application for contempt against the respondent was premature.
12.
The prosecution of the application for contempt of court dated 9th October, 2023 is found to be premature and is hereby dismissed.
13.
Each party to bear their own costs of the application as the respondents have not settled the decree which they are legally bound to settle the remainder of the decretal sum which is colossal and which as at the time of the consent, was held in an agency notice and proceedings initiated by Kenya Revenue Authority vide HC Misc Application No. E457 of 2022.
14.
This ruling to apply to JR E035, E036, E037 and E038 of 2022 as agreed by the parties.
15.
Mention on 10th June, 2025 to confirm payment. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/4514/eng@2025-04-08 |
Matrimonial Cause E070 of 2024 | SEM v III (Matrimonial Cause E070 of 2024) [2025] KEHC 4503 (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 | SEM v III | [2025] KEHC 4503 (KLR) | null | 1.
Before the Court is Notice of Motion dated 10 October 2024 filed under sections 4 and 17 of the Matrimonial Property Act, 2013 and Article 159(2)(d) of The Constitution. The same seeks the following orders:
i.
(spent).
ii.
That this Honourable court be pleased to compel the Respondent to remit the monthly mortgage for the mortgage facility at the rate of Kshs. 93,664/= per month to Kenya Commercial Bank for Title No. Nairobi/Block 32/XXX, Ngumo pending hearing and determination of the application;
iii.
That this Honourable court be pleased to compel the Respondent to remit the monthly mortgage for the mortgage facility at the rate of Kshs. 93,664/= per month to Kenya Commercial Bank for Title No. Nairobi/Block 32/XXX, Ngumo pending hearing and determination of the suit;
iv.
That this Honourable court be pleased to compel the Respondent to remit the monthly mortgage for the mortgage facility at the rate of Kshs. 93,664/= per month to the Defendant or a joint account that can be remitting the payments to Kenya Commercial Bank pending hearing and determination of the application;
v.
That this Honourable court be pleased to compel the Respondent to remit the monthly mortgage for the mortgage facility at the rate of Kshs. 93,664/= per month to the Defendant or a joint account that can be remitting the payments to Kenya Commercial Bank pending hearing and determination of the suit;
vi.
That this Honourable court be pleased to compel the Respondent to remit the monthly mortgage for the mortgage facility at the rate of Kshs. 46,832/= per month to the Defendant for remittance of payments to Kenya Commercial Bank pending hearing and determination of the application;
vii.
That the cost of the application be in the cause.
2.
The Application is premised on the grounds on the face thereof and supported by the Affidavit sworn by the Applicant. The Applicant averred that he and the Respondent contracted a Christian marriage on 28 November 2014 and were blessed with 2 children. Due to the irreversible breakdown of their marriage, the same was dissolved and a Decree Absolute issued on 16 August 2021.
3.
During their marriage, the Applicant, secured a mortgage facility to purchase Title Number Nairobi Block 32/XXX, Ngumo under the Civil Servants Housing Scheme by Kenya Commercial Bank. The property was registered in joint names of the Applicant and Respondent. The Respondent issued a Personal Deed of Guarantee and Indemnity of Kshs 13,050,000/=.
4.
The Applicant pleaded that both he and the Respondent were in formal employment during their marriage and were capable of providing for and contributing to the wellbeing and welfare of their family. The Applicant undertook the monthly repayments of the mortgage, at the rate of Kshs 93,664/= from 23 January 2017.
5.
The Applicant averred that he had since left the property, which is occupied by the Respondent and their two children. That notwithstanding, the Applicant continues to make the mortgage repayments to date. Additionally, the Applicant shoulders some of the responsibility of providing for the children, including but not limited to, paying school fees and school-related expenses. The children visit the Applicant every weekend at his current residence, where the Applicant pays rent of Kshs 70,000/- monthly.
6.
The Applicant averred that on various occasions he has requested the Respondent to take part in the payment of the mortgage but the same has become a bone of contention for both parties without any resolution in sight. Due to the default in payment, the Applicant now has a bad credit report. The Applicant averred that he has even gone to an extent of requesting the Respondent to consider selling the house by way of private treaty in order settle the mortgage and the Respondent to find alternative accommodation, but the Respondent has declined. The Applicant averred that his payslip is over burdened and it has become apparent that he cannot service the mortgage, pay his own rent and cater for his daily needs while the Respondent continues to enjoy the property without any form of contribution.
7.
It is the Applicant’s contention that the liability of the mortgage repayments ought to be shared by both parties. He pleaded that he is not interested in the division of the said property and wished to transfer the same to the Respondent. Therefore, it follows that the liability must be transferred to the Respondent as he will not have any legal interest over the property.
8.
In response to the Application, the Respondent filed a Replying Affidavit as well as the following Grounds of Opposition:
i.
That the Application as drawn and taken out is misconceived, bad in law and is devoid of merit as it is based on speculations bereft of any supporting evidence to warrant the grant of the Orders sought as against the Respondent;
ii.
That the Orders sought in the Application are misconceived, vexatious and not anchored in any law as Sections 1, 2 and 3 of the Civil Procedure Act relied on by the Applicant as read together with Order 40 Rules 1, 2, and 3 of the Civil Procedure Rules and Sections 4, 6, 10 and 17 of the Matrimonial Property Act do not in any way envisage a scenario where this Honourable Court can compel the Respondent to undertake the fulfilment of any liability incurred by the Applicant prior to, during the subsistence of or even after marriage. Any liability incurred in this regard remains the sole responsibility of the spouse who incurred it and has to be treated as such;
iii.
That in any event, a mortgage is a contract between a mortgagee and a mortgagor. The Respondent, being a third party, is not privy to such a contract and cannot therefore be compelled to meet the liability incurred by the Applicant;
iv.
That be that as it may, the doctrine of legitimate expectation clearly stipulates that the Respondent legitimately expects the Applicant to meet his liabilities without necessarily and unjustifiably shifting the burden to the Respondent.
v.
That in the upshot, the Respondent prays that the instant Application be dismissed with costs to her for being incurably bad in law, ill-conceived, vexatious, scandalous, and for abusing this Honourable Court's processes
9.
In her Replying Affidavit, the Respondent termed the Application as an illegal, irregular and unjustifiable attempt by the Applicant to compel her to take responsibility for the liability incurred by the Applicant. The Respondent averred that the mortgage facility was secured by the Applicant solely and her only involvement was in consenting to the creation of the charge since the property is registered in joint names. The Applicant argued that although she was in formal employment at the time when the Applicant secured the mortgage facility, does not mean that she should be compelled to incur the liability of repayment. Furthermore, the Applicant has parental responsibility obligations to meet and the present applicant is a guise for the Applicant to abdicate his parental responsibilities.
10.
It was the Respondent’s contention that the law does not in any way envisage a scenario where the Court can compel the Respondent to undertake the fulfilment of any liability incurred by the Applicant prior to, during the subsistence of or even after marriage. The Respondent pleaded that any liability incurred in this regard remains the sole responsibility of the spouse who incurred it and shall be treated as such and that the Court cannot be used as a venue to enable abdication of liability and responsibility.
11.
The Applicant filed a Further Affidavit refuting the Respondent’s averments.
12.
Parties were directed to file written submissions. The Applicant filed his submissions while the Respondent indicated that they would rely on their Replying Affidavit and Grounds of Opposition. | 13.
I have keenly read the Application, Affidavits and submissions filed herein.
14.
First and foremost, it is not in dispute that the property was acquired during the subsistence of the marriage between the parties and is registered in their joint names. It is also not disputed that the Respondent resides on the said property with the children, while the Applicant resides elsewhere. It is not disputed that the Applicant continues to pay Kshs. 93,664/= per month towards the mortgage repayment.
15.
That being said, the only issue for determination by this Court at this juncture is whether the Applicant is deserving of the orders sought and the Respondent ought to be compelled to participate in the mortgage repayments.
16.
It is common ground that the Applicant approached the Bank and secured a mortgage facility for purchase of the suit property, which property was subsequently registered in the names of the Applicant and Respondent. Both parties resided on the suit property, with their children, until the point when the Applicant left. A charge was registered over the property, with the consent of the Respondent. The Applicant has been making the mortgage repayments to date.
17.
The Applicant pleaded that he is unable to continue servicing the monthly repayments for the loan due to financial constraints. In addition to the mortgage repayments, the Applicant has to pay school fees and other expenses relating to the children, as well his own rent. It is his prayer that the Respondent, who now occupies the property, should be the one compelled to service the loan repayments. The Respondent has neither denied the monthly mortgage repayments made by the Applicant nor the expenses towards the upkeep of their children.
18.
The fact of the matter is that the Applicant is currently repaying a loan on a property from which he no longer derives any real benefit. Instead, it is the Respondent who is in occupation and who derives benefit from the same.
19.
Article 45(3) of the Constitution of Kenya, 2010 provides that:
“
Parties to a marriage are entitled to equal rights at the time of the marriage, during the marriage and at the dissolution of the marriage"
20.
In interpreting Article 45(3) the Court of Appeal in the case in Agnes Nanjala v Jacob Petrus Nicolas Vander Goes [2011]eKLR, held as follows:-
“
This Article clearly gives both parties to a marriage equal rights before, during and after the marriage ends. It arguably extends to matrimonial property and is a Constitutional statement of the principle that matrimonial property is shared 50%, 50% in the event that the marriage ends.”
21.
On the issue of spousal liability, section 10(3) of the Matrimonial Property Act provides thus:
Parties to a marriage shall share equally any—
(a)
liability incurred during the subsistence of the marriage for the benefit of the marriage; or
(b)
reasonable and justifiable expense incurred for the benefit of the marriage.
22.
Faced with similar facts, in the case of MWG v DGW [2021] eKLR, the Court held as follows:
“
The suit property had been utilized on the matrimonial home before the parties herein divorced. The Applicant has now left the home. It cannot be fair that she continue to shoulder the burden of meeting the entire loan repayment. The property is registered in the joint names of the Applicant and the Respondent. In the circumstances it is only fair and just that pending the final determination of this Originating Summons, the parties should equally bear the burden of meeting the loan repayments.”
23.
I hold a similar view to that expressed in the case cited hereinabove. There is no reason why the Applicant should be saddled with the mortgage repayments, yet both parties enjoy equal rights before, during and after the marriage. Further, the Applicant has clearly indicated that he has no interest in the property.
24.
Accordingly, I allow the Application dated 10 October 2024 and make the following orders:
i. That the Applicant and Respondent be equally liable on 50:50 basis for any outstanding arrears on the mortgage facility from Kenya Commercial Bank in respect of the property known as Title No. Nairobi/Block 32/873, Ngumo;
ii. Pending the hearing and determination of the Originating Summons herein, the Respondent, who is the current occupant of Title No. Nairobi/Block 32/873, Ngumo is directed to meet half (50%) of the loan repayments as demanded by Kenya Commercial Bank in respect of the said property;
iii. There will be no orders as to costs. | Allowed | https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/4503/eng@2025-04-08 |
Miscellaneous Civil Application E003 of 2025 | Shwashwaa v Kibumba (Miscellaneous Civil Application E003 of 2025) [2025] KEHC 4588 (KLR) (8 April 2025) (Ruling) | Ruling | High Court at Voi | High Court | AN Ongeri | 8 April 2025 | 2,025 | Taita Taveta | Civil | Hilton Mwakio Shwashwaa v Atanus Kilenge Kibumba | [2025] KEHC 4588 (KLR) | null |
1.
The application coming up for consideration in this Ruling is dated 30th January 2025 brought under Section 1A, 1B and 3A and 18(1)(b) of the Civil Procedure Act Cap 21 Laws of Kenya and Order 51 of the Civil Procedure Rules, 2010 Articles 159 of the Constitution of Kenya and all enabling provisions of the Law seeking the following orders:-
i.
That this application be certified urgent and service thereof be dispensed within the first instance.
ii.
That this Honourable Court be pleased to transfer Voi SCCC No. E010 of 2024 (Hilton Mwakio Shwashwaa =versus= Atanus Kilenge) from the Small Claims Court at Voi to Voi Magistrate’s Court.
iii.
That the Applicant be granted leave to restate the claim upon transfer of the suit before the Voi Magistrate’s Court.
iv.
That the costs of this application be provided for.
2.
The application is based on the following grounds:-
i.
That on 23rd January 2025 the Applicant was granted leave by the Small Claims Court to file a medical report.
ii.
That the medical report provided that the Applicant had incurred compound multiple fractures.
iii.
That when the matter came up before Hon. Stephen Musili on 30th January 2025 the court noted that due to the injuries stated on the report it will be prudent for parties to apply in the High Court to have the matter transferred to a court equipped with the proper jurisdiction to hear the matter.
iv.
That this Honourable Court has powers to have the matter transferred to a court equipped with the proper jurisdiction to hear and determine the matter.
v.
That no prejudice will be occasioned to the Respondent by the said transfer.
vi.
That it is in the interest of justice that this matter be transferred to Magistrates Court at Voi for it to be heard and determined.
3.
The application is supported by the affidavit of Walegwa Mwasawa in which he deponed as follows:-
i.
That I am and Advocate of the High Court of Kenya, practicing as such in the firm of Rajab & Mbogo Advocates and I have conduct of this matter on behalf of the Applicant;
ii.
That the Applicant herein has filed the suit SCCC E010 of 2024 (Hilton Mwakio Shwashwaa Vs Atanus Kilenge before the Voi Small Claims Court.
iii.
That on 23rd January, 2025 the matter came up before the Small Claims Court and the Applicant herein was granted leave to file a medical report as the Honourable Court's records will show and support.
iv.
That upon receipt and perusal of the medical report from Dr. Hanif the report stated that the Applicant had incurred compound multiple fractures..
v.
That consequently when the matter came up on 30th January 2025 before Hon. Stephen Musili, the court directed that noting the findings on the medical report, parties to apply in the High Court to have the matter transferred to a court equipped with the proper jurisdiction to hear the matter;
vi.
That this H.o. nourable Court has powers to have the matter transferred to a court equipped with the proper jurisdiction to hear and determine the matter;
vii.
That once the matter is transferred there is a need for the Applicant to restate the claim as the pleadings in. the Small Claims Court are different than those of the Magistrates Courts;
viii.
That no prejudice will be occasioned to the Respondent by the said transfer.
ix.
That I pray that this Honourable Court do make an order to transfer the proceedings in Voi SCCC E010 of 2024 (hilton Mwakio Shwashwaa Vs Atanus Kilenge from the Small Claims Court at Voi to Voi Magistrates law Courts.
x.
That it is in the interest of justice that this matter be transferred to Vol Magistrates Law Courts, for it to be heard and determined.
xi.
That the Applicant undertakes to expeditiously prosecute the claim in a timely manner, so as not to prejudice the Respondent;
xii.
That unless the orders sought are granted, the Applicant stands to suffer irreparable damage;
xiii.
That there has been no delay in bringing this application;
xiv.
That no prejudice will be suffered by the Respondent if this application is allowed;
4.
The Respondent filed grounds of opposition as follows:-
i.
That the Applicant expressly admits that the suit was filed in a court without jurisdiction hence in law there exists no suit worthy transfer to another court with jurisdiction.
ii.
That a null and void suit is dead and does not in law exist and as such it cannot be breathed life and/or cured by being taken from one court to another as this Honourable Court is being asked to do.
iii.
That the only available option to the Applicant is to withdraw the suit altogether and file the suit afresh in the competent court of law.
iv.
That the only other available option is for the court to have the suit dismissed for want of the jurisdiction.
v.
That the application is bad in law and fatally defective and is a clear case of the abuse of the process of the court.
vi.
That the application should be dismissed with costs.
5.
The parties filed written submissions which I have duly considered. | 6.
The sole issue for determination is whether this suit should be transferred to Voi Magistrate’s Courts for hearing.
7.
I find that the application to transfer the case to the magistrate’s court for reasons that it is beyond the pecuniary jurisdiction of the SCC is a procedural issue and no prejudice will be suffered by the respondent.
8.
In the case of John Mwangi Karanja v Alfred Ndiangui [2011] eKLR, the Court held as follows;
“
With the enactment of sections 1A and 1B of the Civil Procedure Act, the time has perhaps now come for this matter of transfer of suits to be looked at afresh...It appears to me that transfer of suits from one court to another is essentially a procedural issue that has been elevated to the status of jurisdiction. If a suit finds itself in the wrong court, surely it is in the interests of justice and in the interests of all concerned that the suit be forwarded to the appropriate court with jurisdiction so that the issues in dispute can be properly and finally adjudicated. What prejudice would an party suffer in that invent? After all, the overriding objective of the Civil Procedure Act and Rules is to facilitate the just, expeditious, proportionate and affordable resolution of the civil disputes governed by the Act (section 1A(1).The court itself is enjoined by subsection (2) of that section to seek to give effect to the said overriding objective in exercise of its powers under the Act or the interpretation of any of its provisions.”
9.
The Application dated 30th January 2025 is accordingly allowed. Each party to bear its own costs of the application. | Allowed | https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/4588/eng@2025-04-08 |
Civil Appeal E279 of 2023 | Sujal Construction Ltd v Medicross Kenya Ltd (Civil Appeal E279 of 2023) [2025] KEHC 4478 (KLR) (Civ) (8 April 2025) (Judgment) | Judgement | High Court at Nairobi (Milimani Law Courts) | High Court | LP Kassan | 8 April 2025 | 2,025 | Nairobi | Civil | Sujal Construction LTD v Medicross Kenya LTD | [2025] KEHC 4478 (KLR) | null | 1.
This appeal emanates from the ruling delivered on 09/03/2023 by the lower Court in Nairobi Milimani CMCC No. 1065 OF 2018 (hereafter the lower Court suit). The germane history of the matter leading to the instant appeal is that Sujal Construction Ltd, (hereinafter the Appellant), the plaintiff before the lower Court, initiated suit by way of plaint as against Medicross Kenya Ltd, (hereinafter the Respondent), the defendant before the lower Court seeking inter alia special damages in the sum of Kshs.1,636,260/-, costs of the suit and interest on the former at Court’s rate from date of filing suit until judgment.
2.
Pursuant to an order of lower Court, the Respondent filed a defence denying the key averments in the plaint meanwhile contemporaneously filed a counter-claim seeking inter alia that the Appellant was in breach of contract, damages for breach of contract, set-off of Kshs. 650,000/- and costs of the suit and counterclaim.
3.
On 17/08/2020, the suit came up for hearing before the trial Court however given the absence of the Appellant and or its counsel duly on record, the Court proceeded to dismiss the suit for want of prosecution.
4.
The latter thus prompted the Appellant to move the lower Court vide a motion dated 20/12/2021 expressed to the brought among others pursuant to Section 1A, 1B, 3A & 63(e) of the Civil Procedure Act (CPA), Order 9 Rule 9 and Order 12 Rule 7 of the Civil Procedure Rules (CPR) seeking inter alia that the honorable Court be pleased to set aside its orders dated 17/08/2020 dismissing the suit and to reinstate the same for hearing and final determination. The grounds on the face of the motion were amplified in the supporting affidavit sworn by Irene N. Shikuku, whose gist was that the suit was fixed for hearing on 17/11/2020 and service of the notice duly effected on the Respondent advocate. However, on the latter date the suit did not proceed as the matter was not listed in the days causelist. That on 11/08/2021 the Appellant’s advocate drew a notice of change of advocates and concurrently sought a mention date for purposes of fixing a hearing date.
5.
It was further deposed that efforts to procure a mention date for the suit was unsuccessful and a follow up with the lower Court registry on the issue of retrieval, was met with a response that file could not be traced. She goes on to depose that the Appellant’s request to have the matter mapped on the Case Tracking System (CTS) took time however the same was only managed on November, 2021, to wit, it was discovered that the suit had come up for hearing on 17/08/2020 and was dismissed for want of prosecution. She deposes that it was an honest belief that the hearing of the matter was mis-diarized as 17/11/2020 instead of 17/08/2020 hence failure by the Appellant’s advocate to attend Court on the latter date. That failure to attend Court was inadvertent whereas the Appellant has always been willing and ready to prosecute its case to its logical conclusion. She concluded by stating that the motion has been filed without unreasonable delay whereas any prejudice to the Respondent may be compensated by way of costs.
6.
In retort the Respondent filed grounds of opposition whose essence was that the Appellant had failed to demonstrate that it had approached the Court at the earliest opportunity with a request for reinstatement; that the Appellant’s inaction made it guilty of laches; that the Appellant had failed to provide sufficient reasons to have the decision dismissing the suit for want of prosecution set aside; and that it was in the interest of justice that the trial Court dismisses the motion with costs.
7.
The Appellant’s motion was disposed of by way of written submissions. By way of a ruling delivered on 09/03/2023, the trial Court found the Appellant’s motion lacking in merit and proceeded to dismiss the same with costs.
8.
Aggrieved with the outcome, the Appellant preferred the instant appeal challenging the finding by the lower Court premised on the following grounds in its memorandum of appeal as itemized hereunder: -
1.
The Learned Trial Magistrate erred in law and in fact in failing to consider the Appellant’s Advocates’ reason for non-attendance on the date the suit was dismissed and therefore arrived at a wrong decision in law in dismissing the Appellant’s Application dated 21st December 2021.
2.
The Learned Trial Magistrate erred in law and in fact in failing to consider that the Appellant’s advocates have actively sought to prosecute the suit in the subordinate court.
3.
The Learned Trial Magistrate erred in law and in fact in failing to consider the Appellant’s explanation for the delay in filing the Application dated 21st December 2021 hence arriving at a finding that was against the weight of the evidence.
4.
The Learned Trial Magistrate erred in law and in fact in finding that the fact that the Respondent was in court on the hearing date cannot excuse the Appellant’s absence.
5.
The Learned Magistrate erred in law in failing to consider and apply the express provisions of Sections 1A, 1B, and 3A of the Civil Procedure Act and Articles 50(1) and 159(2)(d) of the Constitution of Kenya.
6.
That the Learned Trial Magistrate erred in law in failing to exercise his discretion to avoid occasioning injustice to the Appellant due to an inadvertent or excusable mistake or error on the part of the Appellant’s Advocates.
7.
The Learned Trial Magistrate erred in fact and in law in failing to consider the triable issues raised by the Appellant, which merited a full hearing and determination of the Appellant’s case.
8.
The Learned Trial Magistrate erred in law by awarding costs to the Respondent herein.” (sic)
9.
Before this Court, directions were taken on disposal of the appeal by way of written submissions of which this Court has duly considered alongside the record of appeal, the pleadings before the lower Court as well as the submissions by the respective parties. The duty of this Court as a first appellate Court is to re-evaluate the evidence adduced in the lower Court and to draw its own conclusions, but always bearing in mind that it did not have an opportunity to see or hear the witnesses testify. See Kenya Ports Authority v Kusthon (Kenya) Limited (2000) 2EA 212, Peters v Sunday Post Ltd (1958) EA 424; Selle and Anor. v Associated Motor Boat Co. Ltd and Others (1968) EA 123 and Abok, James Odera t/a A. J. Odera & Associates v John Patrick Machira t/a Machira & Co. Advocates [2013] eKLR.
10.
The Appellant’s motion before the lower Court was expressed to be brought inter alia pursuant to Section 3A of the CPA and Order 12 Rule 7 of the CPR. The trial Court in dismissing the Appellant’s motion stated inter alia that-:
“
I have considered the application, the grounds of opposition and the rival submissions. If the hearing date of 17th August 2020 date was fixed by the Applicant and the applicant genuinely failed to diarize the same, I find no basis for having taken over one year to make the current application. The fact that the defendants were in Court on the said date cannot excuse the Applicant’s absence. The application dated 20th December 2021 is too late in the day and the same is disallowed as it is an abuse of the Court process. Costs shall be borne to the Plaintiff.” (sic)
11.
As earlier captured in this judgment, the Appellant’s suit was dismissed for want of prosecution upon the Appellant and or its counsel failure to attend to the matter when it came up for hearing. In seeking to have the latter order set aside, the Appellant relied on Sections 3A of the CPA alongside Order 12 Rule 7 of the CPR, the latter which specifically states that
“where ……… judgment has been entered or the suit has been dismissed, the court, on application, may set aside or vary the judgment or order upon such terms as may be just.”
12.
That said, it is settled that the power to grant or refusal to set aside or vary an order, judgment or any consequential decree or order, is discretionary, wide, and unfettered. However, the discretion must be exercised judicially and justly. The rationale for the discretion to set aside conferred upon the Court was spelt out in the case of Shah –vs- Mbogo and Another [1967] E.A 116:
“
The discretion to set aside an ex-part judgment is intended to be exercised to avoid injustice or hardship resulting from accident, inadvertence or excusable mistake or error but it is not designed to assist a person who has deliberately sought whether by evasion or otherwise to obstruct or delay the cause of justice.”
13.
The Appellant while calling to aid the decision in Fatuma Hamisi Mwarasi v Orini Limited, Reefview Investments Ltd & 3 others [2020] eKLR, Ibrahim Mohamed Leo & Another v Hussein Mohamed Leo & 4 others [2020] eKLR and Wachira Karani v Bildad Wachira [2016] eKLR submitted that failure to attend Court was due to misdiarization which mistake of counsel ought not be visited on the innocent litigant. It was further posited that from the record the Appellant was not indolent and had taken active steps towards prosecution of the suit whereas timely prosecution of the same was hindered by the Covid-19 pandemic. Counsel went on to argue that there was no inordinate delay in filing the motion meanwhile any delay was satisfactorily explained and that the Appellant or counsel lacked control over delayed mapping. The decisions in Richard Ncharpi Leiyagu v Independent Electoral Boundaries Commission & 2 others (2013) eKLR and Peter Mwaura Kanyoro v Ndungu Mwangi & Another (2018) eKLR were relied on in the forestated regard.
14.
On prejudice, the Appellant restated the exhortation in Philip Keipto Chemwolo v Augustine Kubende (1982-1988)1 KAR 1036 and Cape Suppliers Limited v Sinohydro Corporation Limited (Civil Case 848 of 2010) [2022] KEHC 16878 (KLR) to assert that failure to allow the appeal is more likely to visit prejudice upon the Appellant meanwhile any prejudice meted on the Respondent can reasonably be compensated by an award of costs. In summation, counsel urged this Court ought to uphold the Appellant’s right to a fair hearing by allowing the appeal in the interest of justice. The decisions in Richard Ncharpi Leiyagu (supra) and John Nahashon Mwangi v Kenya Finance Bank Limited (in Liquidation) [2015] eKLR were relied on.
15.
On the part of the Respondent, counsel called to aid the decision in Wachira Karani (supra), Caroline Mwirigi v African Wildlife Foundation [2021] eKLR and Invesco Assurance Co. Ltd v Onyange Barrack [2018] eKLR to submit that setting aside a dismissal order involves discretion whereas the Appellant had failed before the trial Court to sufficiently explain the delay and or why the Court ought to exercise discretion in its favour. On failure to prosecute the suit, it was summarily submitted that it was not enough for the Appellant to simply blame counsel without showing any tangible steps taken by it towards follow up of the matter. The decision in Netta Gohil v Fidelity Commercial Bank Ltd [2019] eKLR was cited in the latter regard. In conclusion, the Court was urged to dismiss the appeal with costs. | 23.
Having analyzed the test in which the Court ought to apply before reinstatement of a suit, I wish to make the following notes that will ultimately determine this matter;
a.
This Suit was dismissed on its first hearing. It is imperative for Courts to take into account the demeanor of a party seeking reinstatement of a suit by looking at the previous records. For example, if the records show that such a party occasioned numerous adjournments before, that would certainly act as a red flag for dismissal. In fact, at the time when the matter was in Court before the hearing date was taken, there was no full compliance or in other words, the matter was not ripe for hearing.
b.
Covid-19, delayed mapping and Misdiarizing the matter. There is no doubt that this case was active at the heart of Covid-19 and during this time ,some Courts were closed and policies hurriedly developed to break the impasse. Creation and effectualization of Virtual hearings was not a mean feat. I happen to have worked as a head of station in this time (Eldoret) and I can confirm that that period was very difficult. In fact, i had to create a separate cause list for many matters "hanging" without dates and send notices to respective advocates. At the time, we developed a policy of "non dismissal of matters" without ensuring that advocates are properly notified of their respective dates and in case a matter is dismissed for a non-attendance, results were to be relayed immediately to respective advocates for you would not know who was in isolation at the time of hearing (whether client or advocate) as a results of Covid. Today, the issue of "mapping" although has improved still faces challenges. I can only imagine how difficult it was at the time when 'virtual hearing was cutting milk teeth' especially the upper incisors. The issue of misdiarizing is a common phenomenon not just in this case. I have seen a hearing notice for 17th of November 2020 with a stamp next to the Respondent's address meaning that it was received by the Respondent unless that stamp does not belong to the respondent as it is ineligible. Since the matter was dismissed on 17th August 2020, it would have been courteous for the respondent's advocate to inform the Appellant instead of letting the Appellant chase a wild goose. The fact that such hearing notice was served, demonstrates that indeed the matter was misdiarized.
c.
Change of advocates:
The former advocate has not been afforded an opportunity to explain why he did not follow up the matter. I know that this cannot be practicably possible but the reality is that the said advocate is supposed to be in a clear position to shed light on developments after 17th August 2020. No one knows the reason as to why the Applicant decided to change advocates.
d.
I have read the pleadings and I am convinced that this is a matter that is supposed to be heard and determined for the interest of justice.
e.
Dismissal of cases for want of prosecution. In many instances, cases filed in Courts are akin to dark hovering clouds above the surface of the Earth which signifies possible rain- an expectation of a Plaintiff. It is only when a defence is filed and full trial done that the truth comes out because a defence can act as a strong wind that blows away the dark clouds and prevent the rain drops. Sometimes, it is rational to allow the wind (defence evidence) to blow through dark water laddened clouds (plaintiff evidence) to see if it will rain or not -and this only comes in inte-rpartes hearing and is oftenly referred to fair hearing/ substantive justice without due regard to procedural technicalities. If the wind is feeble or small, the rain will certainly drop and so is the opposite.
The upshot of the above is that the Application has merit and is allowed. Since fair trial was faulted, each party shall bear own costs. | Allowed | https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/4478/eng@2025-04-08 |
Civil Appeal E098 of 2023 | Too v Mbaka (Civil Appeal E098 of 2023) [2025] KEHC 4484 (KLR) (8 April 2025) (Judgment) | Judgement | High Court at Eldoret | High Court | E Ominde | 8 April 2025 | 2,025 | Uasin Gishu | Civil | Duncan Kipruto Too v Nicholas Mbae Mbaka | [2025] KEHC 4484 (KLR) | null | 1.
This appeal arises from the judgment in Eldoret Small Claims Court Case No. 98 of 2023 The Respondent had instituted a suit against the appellant vide a statement of claim dated 21/02/2023 seeking a refund from the appellant of Kshs. 800,000/- which he claimed to have lent him pursuant to a mutual agreement. The claim was occasioned by the failure of the appellant to refund him despite having agreed that the same would be repaid within 6 months from 20/11/2019.
2.
The trial court considered the claim, documentary evidence and testimonies of the parties and vide the judgement delivered on 22/05/2023, the trial magistrate entered judgement in favour of the respondent herein. Being aggrieved with the whole judgement, the appellant instituted the present appeal vide a memorandum of appeal dated 06/06/2023 premised on the following grounds;
i.
That the learned Magistrate erred in law and in fact by failure to consider that the appellant was not involved in a friendly loan agreement dated 28th November, since the same was a forgery and he does not owe any money to the claimant/respondent.
ii.
That the learned Magistrate considered irrelevant and extraneous factors in reaching his decision and judgment that was erroneous vis-a-vis the facts of the case.
iii.
That the learned Magistrate erred in law and in fact in closing the respondent case hence prejudicial to his right to be heard.
iv.
That the learned Magistrate erred in law and in fact in failing to take into account the history, full facts and circumstances in which the appellant was not involved in the alleged loan agreement.
v.
That the learned Magistrate erred in law and in fact in rendering a judgment that was contrary to the law, since the appellant was not accorded the right to be heard.
vi.
That the learned Magistrate erred in law and in fact in applying the wrong principles applicable in the circumstances in arriving at his decision. | 18.
Section 38 of the Small Claims Court provides:
38.
(1)
A person aggrieved by the decision or an order Appeals. of the Court may appeal against that decision or order to the High Court on matters of law.
(2)
An appeal from any decision or order referred to in subsection (1) shall be final.
19.
In considering the grounds of appeal filed, it is my finding that the issue for consideration is
whether this appeal raises points of law
20.
In the case of Peter Gichuki King'ara v IEBC & 2 Others, Nyeri Civil Appeal No. 31 Of 2013, (Court of Appeal) (Visram, Koome & Odek, JJA), the Court of Appeal stated as follows: -
“
It was held that it is trite law that the exercise of judicial discretion is a point of law and that the trial court in denying a prayer of scrutiny is exercising judicial discretion. The Court concluded that it would not be feasible for the Court of Appeal to order for a recount and scrutiny as this would involve matters of fact that were within the jurisdiction of the trial court. The court further held that the question of whether the trial judge properly considered and evaluated the evidence and arrived at a correct determination that is supported by law and evidence – with the caveat that the appeal court did not see the witness demeanour – is an issue of law.”
21.
Further, in the case of Mwangi v Kihiu (Civil Appeal 16 of 2023) [2023] KEHC 18643 (KLR) (28 April 2023) (Judgment) when handling an Appeal emanating from the Small Claims Court, Kizito Magare J stated as follows:
“
Even on the normal legal lingua, a point of law must clearly arise out of the pleadings. In case of appeal, it should arise out of the memorandum of appeal vis-à-vis the pleadings in the court below …”
22.
Regarding evidence, the trial court is bound by section 32 of the Small Claims Court Act, which provides: -
32.
Exclusion of strict Rules of evidence
(1)
The Court shall not be bound wholly by the Rules of evidence.
(2)
Without prejudice to the generality of subsection (1), the Court may admit as evidence in any proceedings before it, any oral or written testimony, record or other material that the Court considers credible or trustworthy even though the testimony, record or other material is not admissible as evidence in any other Court under the law of evidence.
(3)
Evidence tendered to the Court by or on behalf of a party to any proceedings may not be given on oath but that Court may, at any stage of the proceedings, require that such evidence or any part thereof be given on oath whether orally or in writing.
(4)
The Court may, on its own initiative, seek and receive such other evidence and make such other investigations and inquiries as it may require.
(5)
All evidence and information received and ascertained by the Court under subsection (3) shall be disclosed to every party.
(6)
For the purposes of subsection (2), an Adjudicator is empowered to administer an oath.
(7)
An Adjudicator may require any written evidence given in the proceedings before the Court to be verified by statutory declaration.
23.
I have read the impugned judgement. I have also discerned from the Record of Appeal all the pleadings that were filed in the lower court. I note from that record that the appellant did file a Response to the Statement of Claim dated 29th March 2023 on 31st March 2023. The appellant also filed a Written Statement dated the same day. From the record of proceedings, it is indeed correct that the appellant through his Counsel participated in the trial when the respondent put forth his case and an adjournment was granted due to his physical non-attendance to another date so that he may come at another date to present his case. He did not appear on the given date and the trial court proceeded to close his case and render its judgement.
24.
All the above notwithstanding, in its judgement the Hon Magistrate stated that there was no evidence challenging that of the claimant, and proceeded to consider the evidence of the appellant only and entered judgement in favour of the respondent. Even as the appellant had failed to turn up in court on the date of the hearing of his case, there were pleadings filed by him that the court ought to have considered vis-a-vis the evidence adduced by the claimant. It is clear from the judgement that the Hon Magistrate did not at all in the address herself to the appellant’s response to the claim that was on record or even to the issues raised by Counsel for the appellant in the cross examination of the claimant before reaching her determination.
25.
In this regard and in light of the finding of the Court of Appeal in the case of Peter Gichuki King'ara v IEBC & 2 Others, Nyeri Civil Appeal No. 31 Of 2013 (Supra) where the court held that the question of whether the trial judge properly considered and evaluated the evidence and arrived at a correct determination that is supported by law and evidence is an issue of law, then I am satisfied that there was indeed a miscarriage of justice and the appellant was prejudiced. This in my considered opinion amounts to a mistrial and I now hereby so find. In this regard, I am satisfied that the Appeal has merit and I allow the same in its entirety with costs to the applicant. The entire proceedings of the lower court and including the judgement delivered on 22nd May 2023 in now hereby set aside and the file is referred back to the small claims court for a re-trial. | Allowed | https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/4484/eng@2025-04-08 |
Civil Appeal E192 of 2024 | Transpares Kenya Limited v Kibiego & another (Suing as the Legal Representatives of the Estate of Julius Kipkering) (Civil Appeal E192 of 2024) [2025] KEHC 4436 (KLR) (8 April 2025) (Ruling) | Ruling | High Court at Eldoret | High Court | E Ominde | 8 April 2025 | 2,025 | Uasin Gishu | Civil | Transpares Kenya Limited v Hudson Samuel Kibiego & Mirriam Chepngeno | [2025] KEHC 4436 (KLR) | null | 1.
By a Notice of Motion dated 6/11/2024 brought under Sections 1A, 1B, 3A and 63(e) of the Civil Procedure Act and Orders 42 Rule 6 (1) and 51 Rule (3) of the Civil Procedure Rules, the Applicant seeks the following orders:
1.
Spent.
2.
Spent.
3.
That there be stay of proceedings and/or further proceeding and/or writing and/or delivery of the judgment and/or taking any action in Eldoret CMCC No. E157of 2023 and/or any action pending the hearing and determination of this appeal.
4.
That costs of this application be in the cause.
2.
The application is anchored on the grounds on the face of it and it is further supported by the Affidavit dated 6/11/2024, sworn by Advocate Anne Halwenge Odwa.
3.
She deposed that the subordinate court matter, Eldoret CMC No. E157 of 2023 came up for defence hearing on 13/03/2024 when the Subordinate Court closed the defence case in the absence of the counsel for the Appellant/ Applicant, that the Appellant/Applicant immediately moved the court vide an application dated 18/03/2024 seeking to set aside the orders of the court closing the defence case, that the subordinate court delivered its ruling on 28/08/2024 and dismissed the Appellant/Applicant's application on the ground that no sufficient cause had been shown and/or advanced by the Appellant/Applicant to warrant setting aside the orders closing the defence case.
4.
That the Appellant/Applicant being aggrieved by the said ruling and/or decision of the court sought leave to appeal against the said decision which request the court granted hence the instant appeal, that the Appellant/Applicant similarly filed an application dated 16/9/2024 seeking stay of proceedings pending the hearing and determination the appeal before the subordinate court, that the subordinate court delivered its ruling on 30/10/2024 dismissing the said application, that at the time of dismissing the application dated 16/9/2024 the matter was pending filing of submissions to the main suit and that the subordinate court has directed parties to file submissions within 21 days and fixed the matter for judgment on 29/1/2025.
5.
She further deposed that this Court's decision on the appeal will have a direct impact and/or effect on this matter hence the need for this Court to halt action and/or stay the proceedings in Eldoret CMCC No. E157 of 2023 pending the hearing and determination of the Appeal, that the Appellant/Applicant stands to suffer loss should the subordinate court matter proceed before this Court pronounces itself on the weighty legal issues raised in the appeal hence the need to grant stay of proceedings in subordinate court matter to await this Court's decision and that the Appellant/Applicant stands to be prejudiced should this matter proceed for writing of the judgment yet the Appellant/Applicant's witness has not been heard on the matter and that the orders sought ought to be granted to prevent this appeal from being rendered nugatory. Counsel contended that this this Court has power to grant the orders sought in the interest of justice and in the spirit of Article 50 and 159 of the Constitution of Kenya, 2010. In the end, she deposed that this this Application has been brought timeously and in good faith. | 23.
I have considered the Application, the Replying affidavit and the written Submissions filed by both parties as well as the authorities cited. The sole issue for determination is
Whether this Court ought to grant the Applicant herein stay of proceedings pending the hearing and determination of the appeal.
24.
Order 42 Rule 1 that Counsel for the Applicant has submitted is the applicable provision in applications of this nature is titled Form of appeal and it provides as follows;
1.
Every appeal to the High Court shall be in the form of a memorandum of appeal signed in the same manner as a pleading. (2) The memorandum of appeal shall set forth concisely and under distinct heads the grounds of objection to the decree or order appealed against, without any argument or narrative, and such grounds shall be numbered consecutively
25.
Order 42 rule 6(1) of the Civil Procedure Rules which Counsel in her submissions is emphatic is not the relevant applicable provision on the other hand provides that:
“
(1)
No appeal or second appeal shall operate as a stay of execution or proceeding under a decree or order appealed from except in so far as the court appealed from may order but, the court appealed from may for sufficient cause order stay of execution of such decree or order, and whether the application for such stay shall have been granted or refused by the court appealed from, the court to which such appeal is preferred shall be at liberty, on application being made, to consider such application and to make such order thereon as may to it seem just, and any person aggrieved by an order of stay made by the court from whose decision the appeal is preferred may apply to the appellate court to have such order set aside.
26.
Because the applicant is seeking not only for the stay proceedings in which there is a decision of the Court dismissing the applicant’s Application to open the proceedings and allow the applicant to present her defense, it follows then that the applicant then is seeking for stay of proceedings as well as a stay of the court’s determination. Clearly therefore, the provisions of Order 42 Rule 1 are irrelevant in the circumstances and the relevant provision of the Rules is Order 42 Rule 6(1) and the court shall proceed under this provision.
27.
When determining an Application seeking stay of proceedings, the Court is required to exercise its discretion after due consideration of the merits of the case and the likely effect that such an order may have on the need to ensure that the ends of justice are met. The exercise of the court’s discretion must be grounded on judicious principles as the Hon. Justice Ringera held in the case of Global Tours & Travels Limited, Nairobi HC Winding Up Cause No. 43 of 2000 (Supra) as hereunder:
“
As I understand the law, whether or not to grant a stay of proceedings or further proceedings on a decree or order appealed from is a matter of judicial discretion to be exercised in the interest of justice …… the sole question is whether it is in the interest of justice to order a stay of proceedings and if it is so, on what terms it should be granted. In deciding whether to order a stay, the Court should essentially weigh the pros and cons of granting or not granting the order. And in considering those matters, it should bear in mind such factors as the need for expeditious disposal of cases, the prima facie merits of the intended appeal, in the sense of not whether it will probably succeed or not but whether it is an arguable one, the scarcity and optimum utilization of judicial time and whether the application has been brought expeditiously.”
28.
Similarly, I also fully associate myself with the guidelines to be met in Applications for stay of proceedings set out in the Halsbury’s Law of England, 4th Edition, Vol. 37 page 330 and 332 which I have herein below reproduced as follows:
“
The stay of proceedings is a serious, grave and fundamental interruption in the right that a party has to conduct his litigation towards the trial on the basis of the substantive merits of his case, and therefore the Court’s general practice is that a stay of proceedings should not be imposed unless the proceedings beyond all reasonable doubt ought not to be allowed to continue.
This is a power which, it has been emphasized, ought to be exercised sparingly, and only in exceptional cases.
It will be exercised where the proceedings are shown to be frivolous, vexatious or harassing or to be manifestly groundless or in which there is clearly no cause of action in law or in equity. The applicant for a stay on this ground must show merely that the plaintiff might not, or probably would not, succeed but that he could not possibly succeed on the basis of the pleading and the facts of the case.”
29.
Further, in the case of Kenya Wildlife Services v Jane Mutembi (2019) eKLR, again, Hon. Justice F. Gikonyo held that:
“
Stay of proceedings should not be confused with stay of execution pending appeal. Stay of proceedings is a grave judicial action which seriously interferes with the right of a litigant to conduct his litigation. It impinges on right of access to justice, right to be heard without delay and overall right to fair trial. Therefore, the test for stay of proceedings is high and stringent.”
30.
In the instant case, because it is common ground that the applicant did not put forth her defense in the lower court, what the court ought to consider are the circumstances under which this happened and whether the applicant was prejudiced by the decision of the court in light of these circumstances to lead to the conclusion that her rights under Article 50 of the Constitution were infringed and as a result, if the proceedings are not stayed and the lower court goes ahead to deliver its judgement then the appellant will be prejudiced as submitted.
31.
In considering the issues raised, I note that in their Replying Affidavit and subsequent submissions, the respondent deposed that the applicant was accorded four occasions by the lower count to proceed with its defense but the applicant failed to proceed on the given dates but chose to adjourn and/or failed to appear despite the relevant hearing dates being taken by consent. That subsequently, the court closed the applicant’s case and set a date for judgement.
32.
These averments were not at all rebutted, challenged and or controverted by the applicant by way of a Further Affidavit. I also note that Counsel for the applicant steered cleared of this issue in her submissions and also did not rebut the same as submitted upon by counsel for the respondent. Without going into all the other issues raised, in my considered opinion, being satisfied that contrary to the applicant’s assertion that she was unfairly and unjustly denied the opportunity to put across her case by the lower court, I am of the finding that she was accorded every opportunity to do so and she spurned those opportunities at every turn and can therefore now not claim that the act of the Hon Magistrate in closing the case without her ventilating her defense will cause her prejudice in light of the fact that she is the author of her own misfortune. In this regard, I further find that the applicant does not merit the exercise of the court’s discretion in her favor for reasons that the applicant has come to court with unclean hands.
33.
On this ground therefore, coupled with the fact that the trial court being a court of first instance, her right of appeal is still fully reserved, I fully associate myself with the holding Justice Ringera in the above cited case that in deciding whether to order a stay, the Court should essentially weigh the pros and cons of granting or not granting the order. And in considering those matters, it should bear in mind such factors as the need for expeditious disposal of cases……On the same vein, I also associate myself fully with the finding of Gikonyo J that stay of proceedings impinges on the right of access to justice, right to be heard without delay and overall right to fair trial. Therefore, the test for stay of proceedings is high and stringent.”
34.
Finally, by dint of the fact that in proceedings before the court, Section 1A of the Civil Procedure Act sets out the overriding objectives which the court is enjoined to abide by which are as I have hereunder reproduced is as follows;
1.
The overriding objective of this Act and the rules made hereunder is to facilitate the just, expeditious, [Emphasis mine] proportionate and affordable resolution of the civil disputes governed by the Act.
2.
The Court shall, in the exercise of its powers under this Act or the interpretation of any of its provisions, seek to give effect to the overriding objective specified in subsection (1).
3.
A party to civil proceedings or an advocate for such a party is under a duty to assist the Court to further the overriding objective of the Act and, to that effect, to participate in the processes of the Court and to comply with the directions and orders of the Court [Emphasis mine]
35.
Being satisfied also that the guidelines as set out in in the excerpt from the Halsbury’s Laws of England herein above laid out are in tandem with the authorities that I have herein cited and which I have found to be persuasive and therefore relevant, I am of the finding that the applicant’s application lacks merit and the same is accordingly dismissed in its entirety. The interim orders herein issued are now hereby set aside and the applicant is to bear the costs of the application. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/4436/eng@2025-04-08 |
Civil Appeal E1468 of 2023 | Trax Kenya Limited & another v Lwango (Civil Appeal E1468 of 2023) [2025] KEHC 4410 (KLR) (Civ) (8 April 2025) (Judgment) | Judgment | High Court at Nairobi (Milimani Law Courts) | High Court | LP Kassan | 8 April 2025 | 2,025 | Nairobi | Civil | Trax Kenya Limited & Khimji Jethalal v Dan Otieno Lwango | [2025] KEHC 4410 (KLR) | null | 1.
This appeal emanates from the judgment delivered on 24/11/2023 in Nairobi Milimani SCCC No. E2054 of 2023 (hereafter the lower Court claim). The claim was filed by Dan Otieno Lwango, the claimant before the lower court (hereafter the Respondent) as against Trax Kenya Limited and Khimji Jethalal, the respondents before the lower Court (hereafter the 1st and 2nd Appellant/Appellants) seeking inter alia general and special damages. It was averred that at all material times to the suit the Respondent was a pedal cyclist whilst the 1st Appellant was the registered owner of motor vehicle registration number KCK 596B (hereafter the suit motor vehicle) while the 2nd Appellant was the authorized driver or beneficial owner of the suit motor vehicle.
2.
It was further averred that on or about the 04/02/2023 the Respondent was lawfully riding his bicycle along Parklands Road when 2nd Appellant so negligently drove, managed and or controlled the suit motor vehicle so carelessly that he failed to keep proper look out for other users thereby knocking the Respondent, a consequence of which the latter sustained serious body injuries and thus suffered much pain and loss. The doctrine of Res Ipsa loquitor was equally pleaded.
3.
In response to the claim, the Appellant filed a statement of defence denying the key averments in the statement of claim meanwhile averred on a without prejudice basis to the averments in the defence that the accident was caused and or substantially contributed to by the negligence of the Respondent.
4.
From the record of proceedings before the trial Court, it would appear that parties recorded a consent on liability in ratio of 85:15 in favour of the Respondent as against the Appellants and thereafter proceeded to canvass the issue of damages by way of filed documents and written submissions in accordance with Section 30 of the Small Claims Court Act. In its judgment, the trial Court entered judgment in favour of the Respondent in the total sum of Kshs. 846,843.10/- after apportionment of 15% liability, inclusive of costs and interest in the above sum.
5.
Aggrieved with the outcome, the Appellants preferred this appeal specifically challenging the award on damages, premised on the following grounds -;
(i)
That the learned Adjudicator erred in law in awarding the Respondent general damages amounting to Kshs. 950,000/- which award was inordinately high considering the findings of the doctor during the Respondent’s re-exam that there was no post injury functional deficits and no permanent incapacitation.
(ii)
That the learned Adjudicator erred in law and fact in failing to consider the medical report by Dr. Adegu produced by the Appellants.
(iii)
That the learned Adjudicator misdirected herself by failing to consider the submissions by the Appellants while arriving at the judgment.
(iv)
That the learned Adjudicator’s award was incommensurate with injuries sustained by the Respondent.
(v)
That the award on general damages was unreasonable and excessive. (sic)
6.
The appeal was canvassed by way of written submissions of which this Court has duly considered alongside the memorandum of appeal, the record and supplementary record of appeal. This is a first appeal, specifically from the Small Claims Court. This Court has repletely observed and must iterate that the Small Claims Court is a specialized Court on accord of legislation that establishes the said Court. That said, Section 38 of the Small Claims Court Act prescribes the nature of appeals that lie from the Small Claims Court to the High Court by providing that; -
1.
A person aggrieved by the decision or an order of the Court may appeal against that decision or order to the High Court on matters of law.
2.
An appeal from any decision or order referred to in subsection (1) shall be final.” | 14.
Upon review of both the Appellants and Respondent submissions before the trial Court, it would seem that both have relied on decisions that the lower Court did not have the benefit of considering while rendering its determination. That later is in clear disregard of the exhortation by Ochieng J (as he then was) in Silas Tiren & Another v Simon Ombati Omiambo [2014] eKLR, of which this Court agrees with, that law on appeal process is intended to correct the errors made by the trial Court however the same is not an invitation upon this Court to assess a decision of the lower Court that was arrived at using a yardstick that was not made available to it.
15.
Confoundingly, the Appellants had urged before the lower Court that the award of Kshs. 200,000/- was sufficient however on appeal have urged an award of Kshs. 500,000/-. Nevertheless, a review of the impugned decision, there was no in-depth analysis and or consideration of the respective parties’ medical reports on record in respect of the Respondent’s injury. The trial Court seems to have only referred to the Respondent’s medical evidence to the exclusion of the 2nd medical report by the Dr. Adegu, as urged in the Appellants memorandum of appeal. Though a factual issue, per the exhortation in Kenya Breweries Ltd (supra) this Court may intervene where it is shown that trial Court failed to consider matters they should have considered. Further to the forestated, the trial Court seemed to have relied on the date decision in Rukia Mugoya v Johnson Juma Ogutu [2007] eKLR wherein the claimant sustained wedge compression, fracture dislocation at C4, C5; facial paralysis both upper and lower limbs, loss of stool control and loss of sensation from the naval region downwards with 100% incapacitation. Ex facie, the injuries in the latter decision were more severe than those sustained by the Respondent in the instant matter. It must also be stated that juxtaposing both Dr. Okere’s medical report (capturing 15 % incapacitation) and that by Dr. Adegu, (capturing no incapacitation) it would seem that although the Respondent must have endured much pain in the period of morbidity, he seems to have sufficiently recovered from his injuries with little attendant sequela.
16.
In this Court’s opinion the authority relied on by the trial Court was hardly on all fours with the instant case. However, this Court equally appreciates that it is nigh impossible to find two cases reflecting injuries that are similar in every respect and a Court’s duty is to do its best to assess appropriate damages, based on the most reasonably comparable authorities. From my own review of the material presented before the trial Court and comparisons with authorities relied on by the trial Magistrate, the Appellants complaint in regard of the awarded damages is slightly merited and the Court does feel justified to interfere given the nature of injuries disclosed in the medical evidence available and attendant sequela. Reviewing the cases cited in the lower Court by the respective parties, the Court considers the case of Jimna Muthusi Kaloki v Rebecca Wanzila Musyoka [2020] eKLR cited by the Appellants as closely relevant however not on all fours with the injuries sustained by Respondent with the most severed thereof being a compressed fracture of the L1 vertebral.
17.
It is useful at this juncture to bear in mind the applicable principles in the assessment of damages, and further the exhortation by the English court in Lim Poh Choo v Health Authority (1978)1 ALL ER 332 as echoed by Potter, J.A in Tayab v Kinany (1983) KLR14, quoting dicta by Lord Morris Borth-y-Gest in West (H) v Sheperd (1964) AC 326, at page 345 as follows:
“
But money cannot renew a physical frame that has been battered and shattered. All the courts can do is to award sums which must be regarded as giving reasonable compensation. In the process, there must be the endeavor to secure some uniformity in the method of approach. By common consent awards must be reasonable and must be assessed with moderation. Furthermore, it is eminently desirable that so far as possible comparable injuries should be compensated by comparable awards. When all this is said and done, it still must be that amounts which are awarded are to a reasonable extent conventional.” (Emphasis added).
See also Denshire Muteti Wambua v Kenya Power & Lighting Co. Ltd. [2013] eKLR.
18.
Thus, with the above in reserve, the Court is persuaded to disturb the award by the trial Court decreasing the same to Kshs. 850,000/- on general damages whereafter upon apportionment of liability of 15% the same would amount to Kshs. 722,500/- as the final award on general damages. The award on special damages was not challenged and the same is sustained as awarded.
19.
In conclusion the Appellants appeal succeeds, to wit, the award of general damages by as awarded by the trial Court at Kshs. 805,000/- is hereby substituted with an award of Kshs. 722,500/- after apportionment of liability. The Appellants are equally awarded the costs of the appeal. Specials shall attract interests from the time the case was filed at the lower court and the general damages from the time the lower court judgment was read. Each party to bear own costs. | Allowed | https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/4410/eng@2025-04-08 |
Judicial Review Application E281 of 2024 | Vee Vee Enterprises Limited v Managing Director Kenya Railways Corporation & another (Judicial Review Application E281 of 2024) [2025] KEHC 4560 (KLR) (8 April 2025) (Judgment) | Judgment | High Court at Nairobi (Milimani Law Courts) | High Court | RE Aburili | 8 April 2025 | 2,025 | Nairobi | Judicial Review | Vee Vee Enterprises Limited v Managing Director Kenya Railways Corporation & Kenya Railways Corporation | [2025] KEHC 4560 (KLR) | null | 1.
The exparte applicant is Vee Vee Enterprises Limited. Vide its Notice of motion dated 17th December, 2024, the applicant seeks judicial review orders of mandamus to compel the 1st respondent to pay from the revenues of the 2nd respondent Kenya Railways Corporation balance of decretal sum being Kshs 392, 336, 211.46 as at 19th October, 2024 together with accrued interest at the rate of 14.5% per annum from October 1st, 2029 until payment in full arising from the final Arbitral Award of Calvin Nyachoti FCIArb and subsequent decree of the Court in HCCCOMSC E601 of 2021 between Vee Vee Enterprises Limited versus Kenya Railways Corporation and the Ministry of Transport. The applicant also prays for another order of mandamus to compel settlement of all costs and expenses that are incidental to the enforcement and execution of the Arbitrator’s award being an order and decree arising from HCCCON E601 of 2021.
2.
The other prayer is for notice to show cause in the event of default of such settlement, once compelled.
3.
It also prays for costs of the application.
4.
The grounds in support of the application are on the face thereof and supported by the statutory statement for leave and verifying affidavit together with annextures thereof.
5.
Opposing the application, the respondents filed a preliminary objection dated 16th January 2025 contending that the application was fatally defective for non-compliance with section 21 of the Government Proceedings Act and Order 29 Rule (3) of the Civil Procedure Rules as no certificate of order and or certificate of costs has been obtained and served upon the respondents which is a mandatory requirement for enforcement of decrees against the government. The respondents also filed a replying affidavit setting out the journey the matter had taken and how it involves the National Treasury and Kenya Revenue Authority and how some of the prayers sought cannot be quantified hence the National Treasury cannot pay.
6.
Responding to the Preliminary objection, the applicant filed grounds of opposition and a further affidavit contending that the preliminary objection is based on misapprehension of the law and lacks merit and that it was res judicata the issues raised before Mabeya J in HCCCOM E601 of 2021 in the Garnishee proceedings; that the 2nd respondent is a state corporation established under an Act of Parliament with a corporate seal and perpetual succession which has power to sue and be sued and therefore does not constitute or comprise Government or department of the government for purpose of the Government proceedings Act hence those provisions cited do not apply; and that in Kenya Revenue Authority v Habimana Sued Hamad [2015] eKLR the Court of Appeal held that state corporations were not government departments hence they cannot take refuge under the government proceedings Act.
7.
This court was urged to dismiss the preliminary objection. | 9.
I need not rehash the pleadings, depositions and submissions for three reasons. One, is that the Notice of motion in question as filed on 17/12/2024 pursuant to leave granted as per the ruling uploaded on 19th December, 2024 is not signed. Secondly, is that the leave to apply was granted on 19/12/2024 and no notice of motion was filed pursuant to that leave as granted. The question that I will answer in the succeeding paragraphs of this judgment is what are the consequences of having unsigned pleadings and what about there being, in essence, no notice of motion filed at all, pursuant to the leave granted to the applicant. The unsigned notice of motion was filed together with the application for leave.
10.
There is then the issue of whether the 2nd respondent is a government entity, which issue was settled on appeal when the applicant attempted to garnishee the money belonging to the 2nd respondent and held in Kenya Commercial Bank.
11.
Allowing the appeal, the Court of Appeal held that the assets of the 2nd respondent could not be attached as stipulated in law because ethe 2nd respondent is a government entity hence its linkage to the Government Proceedings Act. As such, the preliminary objection cannot be said to be far-fetched and neither is it based on misapprehension of the law. It is also not res judicata as it appears the applicant’s counsel has not read the Court of Appeal decision on the matter.
12.
Commencing with the first question of unsigned notice of motion originating these proceedings, Order 2 Rule 16 of the Civil Procedure Rules provides that:
“
Every pleading shall be signed by an advocate, or recognized agent (as defined by Order 9, Rule 2) or by the Party if he sues or defends in person”
13.
What is not in dispute is that a pleading is like a bridge. It is an important connection between a litigant and the justice that he or she seeks from court or Tribunal. It is for that reason that Order 2 Rule 16 of the Civil Procedure Rules is framed in mandatory not directory or discretionary terms. Signing of pleadings authenticates the document and determines whether the document is valid or genuinely before a court or tribunal.
14.
In Regina Kavenya Mutuku & 3 Others vs United Insurance Co. Ltd[2002]1KLR 250, Ringera J. (as he then was) held that:
“
An unsigned pleading has no validity in law as it is the signature of the appropriate person on the pleading which authenticates the same and an unauthenticated document is not a pleading of anybody, it is a nullity.”
15.
7.The Court of Appeal in Atulkumar Maganlal Shah vs Investment & Mortgages Bank Limited and 2 Others CA 13/2001 stated as follows concerning unsigned pleadings:
“
Where a pleading is not signed the same would be struck out rather than being dismissed. A pleading must be signed either by the advocate or the party himself where he sues or defends in person or by his recognized agent and this is meant to be a voucher that the case is not a mere fiction…. The failure to sign the service copy of the statement of Claim if the original is signed is not fatal...”
16.
Thus, it matters not that the mistake is that of an advocate. Since the error is not curable by an amendment, the client must bear the consequences of the carelessness of counsel. See John Ongeri Mauria & Others vs Paul Matundura CA No. Nai 301 of 2003[2004]2EA 163.See also the Court of Appeal decision and observations in Nai. CA 228/2018 Kiptoo Arap Korir Salat vs IEBC & Others where the Court of Appeal was confronted with an unsigned pleading. It concluded that where a pleading is not signed, the same should be struck out.
17.
Consequently, having perused the notice of motion dated 17th December, 2024 as filed into court, and in the e-portal which is not signed, I find no notice of motion and the notice of motion is hereby struck out.
18.
The other reason for striking out the Notice of motion date 17th December, 2024 is that leave to apply was granted vide the brief ruling of 19th December, 2024. The Notice of motion dated 17th December 2024 was, according to the court fees receipt, filed together with the chamber summons on 17th December, 2024. No notice of motion was filed pursuant to the leave granted on 19th December, 2024.
19.
Accordingly, there is no notice of motion filed pursuant to the leave granted by the Court on 19th December, 2024.
20.
I would have stopped there. However, as the applicant is not barred from filing fresh proceedings over the same subject matter, I will briefly discuss the question of whether the certificate of order against the government was mandatory in this matter, following the court of appeal decision that the 2nd respondent is a government entity. This is important because of the misinformation about certificate of order against the government.
21.
The applicant maintains the stance that the 2nd respondent is a statutory body independent of the Government hence not governed by Order 29(3) of the Civil Procedure Rules and Section 21 of the Government proceedings Act.
22.
The High Court in the case of Association of Retirement Benefits Scheme vs. Attorney General & 3 Others [2017] eKLR aptly cited with approval the Indian Supreme Court case of International Airport Authority of India & Others (1979) SC. R 1042 in which the test for determining whether an entity was a government body or not, was stated as follows:
“
(a)
Consider whether any share capital of the corporation is held by the Government and if so that would indicate that the corporation is an instrumentality or agency of Government.
(b)
Where the financial assistance of the State is so much as to meet almost the entire expenditure of the Corporation, that fact would afford some indication of the corporation being impregnated with Governmental character;
(c)
It may also be relevant to consider whether the corporation enjoys monopoly status conferred by the State.
(d)
Whether the body has deep and pervasive State control,
(e)
Whether the functions of the corporation are of public importance and closely related to Governmental functions then that would be a relevant factor in classifying the corporation as an instrumentality or agency of Government and
(f)
If a Department of a Government is transferred to a corporation, then it becomes an instrumentality or agency of the Government.”
23.
The above decision was rendered quite recently on 25th October, 2024.
24.
The Court of Appeal in the matter challenging the decision by Justice Mabeya which allowed garnishee proceedings to proceed against the 2nd respondent, was clear that the 2nd respondent is a government entity and that is the reason section 88 of the Act establishing it bars execution by way of attachment of its assets.
25.
Additionally, the applicant cannot insist that the 1st respondent must pay the decretal sum from the revenues collected by the 2nd respondent when it is clear from the correspondence annexed that the 2nd respondent also relies on the exchequer and therefore appropriated funds held by the National Treasury to settle decrees such as the one herein, where the debt is incurred by the 2nd respondent as a government agent in implementing government projects, which fact the applicant is very much aware of the process where the 2nd respondent acts as an agent of the National Government but has chosen a short cut.
26.
Without a certificate of order against the government being issued and served upon the Attorney General and the accounting officer of the 2nd respondent, this court, the respondents and the National treasury would not even know how much is payable in prayer 2 of the void notice of motion. A certificate of order against the government quantifies all the amount due on a decree. No judgment should be directed to pay an amount which is unknown.
27.
Further, the National Treasury would only settle based on certificate of order against the government. This in my view is important otherwise the 2nd respondent would be confronted with questions as to how much is due of the generalized prayer.
28.
This is a very simple matter for the applicant to comply and approach the court, now that the law prohibits attachment of assets of the 2nd respondent, instead of engaging in academic exercise of litigating whether the 2nd respondent is a government entity or not, a matter that has long been settled by the Court of Appeal. I trust that the applicant will now comply and file an appropriate application and seek to recover the monies owed to it as opposed to engaging in procedural arguments.
29.
In the end, the application which has been found to be nonexistent for the reasons given is struck out.
30.
Having struck out what appears to be an application which is not signed or filed pursuant to the leave of court granted, I order that each party bear their own costs as the respondents have not denied that the money claimed is owed and remains unsettled.
31.
This file is closed. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/4560/eng@2025-04-08 |
Miscellaneous Criminal Application E014 of 2025 | Waraya v Republic (Miscellaneous Criminal Application E014 of 2025) [2025] KEHC 4398 (KLR) (8 April 2025) (Ruling) | Ruling | High Court at Siaya | High Court | DK Kemei | 8 April 2025 | 2,025 | Siaya | Criminal | Peter Ochieng Waraya v Republic | [2025] KEHC 4398 (KLR) | null |
1.
The Applicant herein has filed a Notice of Motion dated 17/1/2024 and filed on 17/1/2025 seeking for an order that this court reviews the sentence of10 years’ imprisonment imposed by the Lower Court vide Bondo Criminal Case No. 44/2022 to a less severe sentence. The application is supported by the Applicant’s affidavit sworn on even date.
2.
The Applicant’s gravamen is inter alia; that he was arrested at the age of twenty-four (24) years; that he is the first born in a family of eight children without parents who have all died; that he is the sole bread winner for his family; that he is suffering from health complications which cannot be managed in prison; that he is remorseful.
3.
The Respondent did not file a response to the application as the learned counsel indicated that he leaves the matter to the court to make orders as appropriate. | 4.
I have considered the Applicant’s application aforesaid and the averments in the affidavit in support. The issue for determination is whether the application has merit.
5.
It is noted that the Applicant had been charged before Bondo Law Courts vide Criminal Case (S.O) No. E044/2022 for the offence of attempted defilement contrary to Section 9(1) as read with Section 9(2) of the Sexual Offences Act No. 3 of 2006. The particulars were that on the 22/9/2022 at about 1500hrs in [Particulars Withheld] village, Got Ramogi Sub Location, Bondo Sub-County willfully and unlawfully intentionally attempted to cause your penis to penetrate the vagina of L.A a child a aged 16 years.
6.
The Applicant also faced an alternative charge of committing an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act No. 3 of 2006. The particulars were that on 22/9/2022 at about 1500hrs in [Particulars Withheld] village, Got Ramogi Sub-Location, Bondo Sub-County within Siaya County willfully and unlawfully intentionally caused your finger to touch the vagina of L.A a child aged 16 years.
7.
After a full trial wherein the Respondent called five(5) witnesses while the Applicant called three(3) witnesses, the Applicant was found guilty of the main count and sentenced to serve ten (10) years’ imprisonment.
8.
It appears that the Applicant has opted not to lodge an appeal against both conviction and sentence but has decided to approach this court for a sentence review.
9.
Under Section 9(2) of the Sexual Offences Act No. 3 of 2006, a person who commits an offence of attempted defilement with a child is liable upon conviction to imprisonment for a term of not less than ten (10) years. I find this is the minimum sentence possible in law since an offender could as well be sentenced to periods of more than ten (10) years if circumstances permit. The fact that the Applicant has opted not to challenge his conviction, the impression given is that he is okay with it. The Applicant wants this court to interfere with the sentence. The trial court before imposing the sentence, had called for a pre - sentence report. The same was availed and which indicated that the Applicant was someone who is not remorseful and that his conduct in molesting the minor has not been taken well by the community. The report also indicated that there are rampant cases of sexual offences in the area. The report found him not suitable for non-custodial sentence. It is apparent that the action of the Applicant caused psychological trauma on the victim. The Applicant being an adult was expected to protect the complainant who was a minor but not to prey on her. The Applicant who was a neighbour of the victim, turned into a predator. This calls for deterrence sentence so as to curb the kind of offences which are rampant in the area. I am not persuaded to interfere with the sentence. The Supreme Court in Petition No. 18/2023 Republic versus Stephen Gichuki and Others [2023] eKLR held that the minimum sentences imposed under the Sexual Offences Act No. 3 0f 2006 remain lawful until the Act is amended or declared unconstitutional. Hence, the sentence imposed by the trial court is quite proper in all respects.
10.
It is also noted that the Applicant had been released on bond and therefore no issue arises regarding the application of Section 333 (2) of the Criminal Procedure Code. Hence, the sentence imposed shall proceed from the date of conviction.
11.
In the result, it is my finding that the Applicant’s application aforesaid lacks merit. Same is dismissed. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/4398/eng@2025-04-08 |
Criminal Appeal E160 of 2024 | Waweru v Republic (Criminal Appeal E160 of 2024) [2025] KEHC 4465 (KLR) (8 April 2025) (Judgment) | Judgment | High Court at Kibera | High Court | DR Kavedza | 8 April 2025 | 2,025 | Nairobi | Criminal | Moses Mugo Waweru v Republic | [2025] KEHC 4465 (KLR) | null |
1.
The appellant charged and after a full trial convicted for the offence of rape contrary to Section 3 (1) (a) (b) as read with Section 3 (3) of the Sexual Offences Act No. 1 of 2006. now Cap 63 Laws of Kenya. He was sentenced to serve ten (10) years imprisonment.
2.
Aggrieved, he filed an appeal challenging his conviction and sentence. In his petition of appeal, he challenged the totality of the prosecution’s evidence against which he was convicted. He complained that his defence was not considered. He urged the court to quash his conviction and set aside the sentence imposed.
3.
This being the first appellate court, we are guided by the ruling in Okeno v. R [1972] EA 32. In this case, the court opined that a court of first appeal ought to re-examine all the evidence afresh and in an exhaustive manner, so as to come up with its own conclusions without overlooking the conclusions of the trial court, bearing in mind that it never saw the witnesses testify.
4.
The prosecution called nine witnesses to support their case. It was the prosecution’s case that on 14 November 2020 the complainant (PW3) lived with Bedan Maison (PW2) in a two-bedroom flat. On Bedan’s birthday, they celebrated with cake and alcohol, joined by others. The complainant, who first met the appellant in primary school and reconnected through PW2 seven years later, returned home exhausted after the party. Bedan and Newton Simiyu (PW4) followed. Larry fell asleep but awoke in agony, witnessing Moses fleeing his room. Emotional in court, he identified Moses as his assailant. Too shocked to speak initially, he later told his mother, MKA (PW1), who arranged medical attention.
5.
Bedan (PW2), confirmed the celebration. The complainant left early, and later the appellant called to visit. Bedan allowed him to use his room and stepped out to play video games elsewhere. Returning home, he found Moses gone. Soon after, the complainant texted, revealing the sexual assault. Bedan noted the complainant, typically a light drinker, had overindulged.
6.
Newton (PW4) recalled the complainant arriving home drunk, followed by Bedan. The appellant arrived, entering Bedan’s room. After Bedan left, Newton saw the appellant go into Larry’s room past midnight. At 5:30 a.m., he observed the appellant exit via the kitchen door. Newton confirmed the appellant, the complainant, Bedan, and Patrick Wachira were present; Wachira slept through the incident.
7.
Mariam (PW1) the complainant’s mother called her from the party during the Covid curfew. Later, he confided about the rape. She took him for medical examinations, a DNA test, and to the police.
8.
John Njuguna (PW6), a clinician at Nairobi Women’s Hospital, examined Larry on 21st November 2020 noting anal trauma and agitation, with no other injuries or DNA evidence. He produced medical forms as evidence.
9.
Chief Inspector Wanjohi (PW5) from the DCI forensic unit reviewed CCTV footage from 19th March 2021, producing 12 photographs. The fifth showed a person of interest, though unclearly. His report and certificate were produced as evidence. PC Lilian Mwende (PW7), the initial investigator, met the complainant and his parents on 21st November 2020. Alone and distressed, the complainant reported the appellant raped him, recounting waking in pain as the appellant fled. The appellant later messaged an apology on Instagram before blocking him. PW7 collected CCTV, statements, and samples, producing as evidence, with medical findings confirming the sexual assault.
10.
Pamella Okello (PW8) from the government chemist analysed samples received on 30th November 2020 an anal swab and blanket from the complainant. Semen appeared on the swab but not the blanket; with the results being inconclusive, failing to link the appellant to the crime.
11.
Vincent Ongeri (PW9) from Safaricom provided call records for Moses (072444xxxx, ID 3690xxxx) and the complainant (071652xxxxx ID 3565xxxx), submitting them as evidence.
12.
In his defence, the appellant stated that on the material day he was invited by PW2 to a birthday party, where he met the complainant and was drinking. He later left with two friends and was dropped at his apartment. PW2 later called him to continue the party at his place, where more people were present. He noted that Ian Osman brought more drinks, and they went to party on the 9th floor of Building 10. The complainant was not present. The appellant said he left the 9th floor at midnight and went to PW2’s room, where the complainant was not present, and he slept on the couch until 6:00 a.m.
13.
He stated that when he woke up, the complainant was on the phone with his mother, and Newton was in the kitchen and helped him open the door. The appellant denied ever sending an Instagram message to the complainant and said he was distressed when he left. He added that DNA results did not link him to the incident.
14.
The appellant recalled one occasion when the complainant was aggressive towards a woman and said the complainant once proposed an unconventional relationship, which he declined. He was aware the complainant had been sodomised but denied any involvement. He confirmed being with Bedan, who later left, and denied going to the complainant’s room. | 15.
I have considered the evidence and the submissions on record. I find that the issue in this appeal is whether the prosecution proved their case beyond reasonable doubt.
16.
Rape is defined under section 3 of the Sexual Offences Act to mean,
the intentional and unlawful penetration of a person’s genital organ into another’s genital organ without their consent.
17.
The elements for rape are well settled in Simon Kimiti David v Republic [2017] eKLR where it was stated thus;
“
Without corroboration, the essential elements of rape consist of the following:
(1)
The act of intentional and unlawful penetration.
(2)
The act of sexual intercourse was done and against the complainant’s will.
(3)
The consent is obtained by force or by means of threats or intimidation.”
18.
The prosecution was therefore required to establish the following ingredients; penetration, absence of consent, and that the Appellant was the unlawful perpetrator of the act.
19.
On penetration, the complainant alleged that he had been subjected to anal rape. Medical documentation presented in support of this assertion includes the Gender Violence Recovery Centre (GVRC) form, which recorded evidence of blunt force trauma to the anal region at the time of clinical examination. Additionally, the Post-Rape Care (PRC) form, documented healing injuries, specifically bruising at the 6 o’clock position of the anus, though there was no active bleeding. The PRC form further indicated that the observed injuries were consistent with the complainant’s account of traumatic penetration. The P3 medical examination form, corroborated the findings similarly noting anal trauma.
20.
Collectively, these three contemporaneous medical reports, prepared and signed by healthcare professionals who personally examined the complainant, strongly support the ingredient of penetration which was proved beyond reasonable doubt.
21.
On the issue of consent, the complainant consistently maintained that no consent was given to the alleged sexual act. He had returned home after a night of consuming alcohol and engaging in social activities with friends and was in a state of rest when the assault occurred. He categorically stated that he did not, at any point, consent to any form of sexual interaction with the perpetrator. This assertion is further corroborated by the medical evidence, which documented anal trauma indicative of forceful penetration. There is no evidence on record to suggest that the complainant willingly participated in the incident. In light of the totality of the evidence, the element of lack of consent has been established beyond reasonable doubt.
22.
On the identity of the perpetrator, the complainant maintained that it was the appellant who raped him. That he woke up to pain in his anal region and saw someone getting off his bed. When keen to see who it was, it was the appellant. He could not tell the time and remained in bed until around 10 am.
23.
The other witnesses presented by the prosecution did not witness the alleged acts of rape. This is not peculiar to this matter, as such acts of sexual violence rarely get witnessed by third parties. Circumstantial and collaborative evidence would normally be used in such situations. The proviso to Section 124 of the Evidence Act (Cap 80) Laws of Kenya also allows the court to convict based on the evidence of the victim if the court is satisfied that the victim is truthful and proceeds to give reasons for such a belief.
24.
In rape, the general rule is that even without considering the presence or otherwise of medical evidence, an offence of this nature can be proved by oral evidence of a victim of rape or circumstantial evidence. This position is fortified by the holding of the Court of Appeal in Martin Nyongesa Wanyonyi vs. Republic [2015] e-KLR citing Kassim Ali vs Republic Criminal Appeal No. 84 of 2005 (Mombasa) where the appellate court stated that:
“
The absence of medical evidence to support the fact of rape is not decisive as the fact of rape can be proved by oral evidence of a victim or circumstantial evidence.”
25.
This court has given careful consideration to the entirety of the evidence on record and, in particular, the forensic findings. The DNA analysis report tendered clearly indicates that no DNA profile attributable to the appellant was recovered from the anal swab samples taken from the complainant. This forensic evidence is crucial and cannot be disregarded. In cases of sexual assault, DNA evidence—though not always conclusive—is an important tool in linking an accused person to the offence. In the present matter, the fact that the report did not link the appellant to the offence, raises the issue of whether the remaining circumstantial and testimonial evidence sufficiently and conclusively establishes the appellant as the perpetrator.
26.
Upon further scrutiny, contradictions within the prosecution’s narrative are evident. Bedan (PW2), a key witness, stated that he left the house to play video games and, in doing so, permitted the appellant to use his bedroom. However, Newton (PW4) contradicts this account, stating that Bedan was present when the appellant allegedly entered the complainant’s room. This inconsistency raises legitimate concerns about the reliability and accuracy of the witnesses' recollections and casts doubt on the precise sequence of events on the material night considering the parties had been drinking alcohol. It remains unclear whether Bedan left the premises before or after the alleged incident occurred, an issue that is crucial in determining the appellant’s opportunity to commit the offence.
27.
The complainant, in his testimony, stated that he awoke in pain and witnessed the appellant fleeing from his room. However, his account is devoid of any specific details regarding the lighting conditions or visibility in the room at the time. These omissions are not trivial. The reliability of a visual identification, particularly in a dimly lit or dark environment, must be subject to rigorous scrutiny. The absence of clarity on the conditions under which the alleged identification was made significantly weakens the probative value of this evidence.
28.
It is further noted that PW4 confirmed the presence of several individuals in the house during the material period. Despite this, the investigating authorities appear to have made no meaningful inquiry into whether any of the other occupants could have accessed the complainant’s room. This oversight reflects a lack of thoroughness in the investigation and weakens the foundation of the prosecution’s case, which appears to rest predominantly on the complainant’s testimony and Newton’s assertions, both of which are subject to the inconsistencies noted above.
29.
PW4’s claim that he saw the appellant enter the complainant’s room past midnight and later leave via the kitchen door at 5:30 a.m. is not independently corroborated. No third-party testimony is presented to support this observation despite the presence of other guests in the house as claimed. Furthermore, there is no explanation as to why, if Newton witnessed such an act, he failed to intervene or report the incident immediately. This omission undermines the credibility of his account and further reflects the inadequacy of the investigative process.
30.
Additionally, this court notes with concern that the trial magistrate, in arriving at the finding of guilt, appears to have relied on a misconstrued interpretation of the appellant’s defence. It was suggested that the appellant had admitted to being in a consensual relationship with the complainant. Upon review of the record, there is no evidence to support such an assertion. To the contrary, the appellant expressly denied entering the complainant’s room or engaging in any sexual act with him. He maintained that he slept on the couch in Bedan’s room until morning. The magistrate’s inference was therefore not only unsupported by the record but also prejudicial, leading to an unsafe conclusion.
31.
The issue that this court has to grapple with is whether the contradictions and inconsistencies outlined in the foregoing analysis are so trivial as to be ignored, or whether they are substantial and fundamental to the issues for determination. In Richard Munene vs Republic [2018] eKLR, the Court of Appeal stated as follows about contradiction or inconsistency in the evidence of the prosecution witness:
Contradictions, discrepancies, and inconsistencies in the evidence of a witness go to discredit that witness as being unreliable. Where contradictions, discrepancies, and inconsistencies are proved, they must be resolved in favor of the accused.
It is a settled principle of law, however, that it is not every trifling contradiction or inconsistency in the evidence of the prosecution witness that will be fatal to its case. It is only when such inconsistencies or contradictions are substantial and fundamental to the main issues in question and thus necessarily create some doubt in the mind of the trial court that an accused person will be entitled to benefit from it.
32.
The test as to whether the contradictions are minor or substantial was laid out in the case of Sigei v Republic [2023] KECA 154 (KLR):
“
In assessing the impact of contradictory statements or discrepancies on the prosecution’s case, our understanding is that firstly, for contradictions to be fatal, they must relate to material facts. Secondly, such contradictions must concern substantial matters in the case. Thirdly, such contradictions must deal with the real substance of the case."
33.
From the above authorities, it is clear that contradictions and inconsistencies, unless satisfactorily explained, would usually, but not necessarily, result in the evidence of a witness being rejected. The contradictions must be grave and point to deliberate untruthfulness.
34.
In the premises, the contradictions in witness testimony, the lack of forensic evidence linking the appellant to the crime, and the demonstrable investigative lapses raise serious doubt as to whether the prosecution discharged its burden of proof to the requisite standard. The court must, therefore, approach the appellant’s conviction with caution, as the totality of the evidence does not support a finding of guilt beyond reasonable doubt.
35.
For the foregoing reasons, I find the appeal merited and hereby quash the conviction and set aside the sentence of ten (10) years imprisonment imposed by the trial court. The appellant is thus set at liberty forthwith unless otherwise lawfully held.
Orders accordingly. | Allowed | https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/4465/eng@2025-04-08 |
Civil Appeal E006 of 2021 | Adana v Ogora (Civil Appeal E006 of 2021) [2025] KEHC 4446 (KLR) (7 April 2025) (Judgment) | Judgment | High Court at Kisii | High Court | DKN Magare | 8 April 2025 | 2,025 | Kisii | Civil | Mbipui Julius Adana v Avenus Ogora | [2025] KEHC 4446 (KLR) | null | 1.
This is an appeal from the Judgment and decree of Hon. S.K. Onjoro (SRM), given on 9.10.2020 in Kisii CMCC No. 695 of 2018. The Appellant was the Defendant in the lower court. The court heard the matter and delivered judgment as follows:
a.
Liability 70:30% for the Plaintiff
b.
General damages Ksh. 1,600,000/=
c.
Special damages Ksh. 25,180/=
d.
Costs of the suit
2.
The Appellant was aggrieved and filed a precise Memorandum of Appeal on quantum and set forth the following grounds of appeal:
a.
That the learned trial magistrate erred in law and, in fact, in awarding Ksh. 1,600,000/- on 100% basis in general damages which was inordinately high.
b.
That the learned trial magistrate erred in law and, in fact, in awarding Ksh. 25,180/= on 100% basis for special damages, which was not proved.
c.
That the learned trial magistrate erred in law and, in fact, by failing to consider the appellant’s evidence on record, thereby arriving at an excessive award. | 10.
This being a first appeal, this court is under a duty to re-evaluate and assess the evidence and make its own conclusions. It must, however, keep at the back of its mind that a trial court, unlike the appellate court, had the advantage of observing the demeanour of the witnesses and hearing their evidence first hand.
11.
The jurisdiction for this court to review the evidence in the lower court should this be done but with caution. In the case of Peters vs Sunday Post Limited [1958] EA 424, the court therein rendered itself as follows:-
“
It is a strong thing for an appellate court to differ from the findings on a question of fact, of the judge who had the advantage of seeing and hearing the witnesses…But the jurisdiction to review the evidence should be exercised with caution: it is not enough that the appellate court might have come to a different conclusion…”
12.
The duty of this court in the appeal is thus to reconsider the evidence, evaluate it itself and draw its own conclusions. In Selle & Another vs. Associated Motor Boat Co. Ltd & Others [1968] EA 123, this principle was enunciated thus:
“
...this court is not bound necessarily to accept the findings of fact by the court below. An appeal to this court ... is by way of retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect..."
13.
The Court of Appeal, pronounced itself succinctly on the principles for disturbing award of damages in Kemfro Africa Ltd Vs Meru Express Servcie Vs. A.M Lubia & Another 1957 KLR 27 as follows: -
The principles to be observed by an appellate Court in deciding whether it is justified in distributing the quantum of damages awarded by the trial Judge were held in the Court of Appeal for the former East Africa to be that it must be satisfied that either the Judge in assessing the damages, took into account an irrelevant facts or left out of account a relevant one or that short of this, the amount is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of damages.
14.
For the appellate court to interfere with the award it is not enough to show that the award is high or had I handled the case in the subordinate court, I would have awarded a different figure. The foregoing statement had been ably elucidated by Sir Kenneth O’Connor P, in restating the Common Law Principles earlier enunciated in the case at the Privy Council, that is, Nance vs British Columbia Electric Co Ltd, in the decision of Henry Hilanga vs Manyoka 1961, 705, 713 at paragraph c, where the learned Judge ably pronounced himself as doth regarding disturbing quantum of damages:-
“
The principles which apply under this head are not in doubt. Whether the assessment of damages be by the Judge or Jury, the Appellate Court is not justified in substituting a figure of its own for that awarded simply because it would have awarded a different figure if it had tried the case at the first instance…”
15.
The award must have accord to the local circumstances. In the case of Butler vs. Butler Civil Appeal No. 43 of 1983 (1984) KLR, Keller JA stated the following regarding the award of damages.
“
This court has declared that awards by foreign courts do not necessarily represent the results which should prevail in Kenya, wherethe conditions relevant to the assessment of damages, such as rents, standards of living, levels of earnings, costs of medical supervision and drugs, may be different. Kimothia v Bhamra Tyre Retreaders[1971]EA(CA-K); Tayab and Ahmed Yakub & Sons v Anna May Kinanu Civil Appeal 29 of 1982 (Law, Potter & Hancox JJA)March 30,1983.The general picture, all the circumstances and the effect of the injuries on the particular person concerned must be considered.
The fall in the value of money generally, and the leveling up or down of the rate of exchange between the Kenya Shs 20 and Pound Sterling, must be taken into account.
Some degree of uniformity, however, is to be sought in awards of damages and the best guide is to pay regard to recent awards in comparable cases in local courts. Bhogal v Burbridge [1975] EA 285 (CA-K). None, alas, has been cited to us.
But a member of an appellate court may ask himself what award would have been made? There are differences of view and of opinion in the task of awarding money compensation in these matters, of course, and if the one awarded by the trial judge is different from one’s own assessment, it is not necessarily wrong. H West & Sons Ltd v Shephard [1964] AC 326, Lord Morris of Borth-Y-Gest; also Hancox JA in Tayab (1983 KLR, 114).
16.
The issue in the court below was whether the Respondent suffered those injuries. The question then is what amounts to proof on a balance of probabilities. Kimaru, J in William Kabogo Gitau –vs- George Thuo & 2 Others [2010] 1 KLE 526 stated that:
“
In ordinary civil cases a case may be determined in favour of a party who persuades the court that the allegations he has pleaded in his case are more likely that not to be what took place. In percentage terms, a party who is able to establish his case to a percentage of 51% as opposed to 49% of the opposing party is said to have established his case on a balance of probabilities. He has established that it is probable than not that the allegations that he made occurred.”
17.
The balance of probabilities is also about what is likely to have happened than the other. Lord Nicholls of Birkenhead in Re H and Others (Minors) [1996] AC 563, 586 held that;
“
The balance of probability standard means that a court is satisfied an event occurred if the court considers that, on the evidence, the occurrence of the even was more likely than not. When assessing the probabilities the court will have in mind as a factor, to whatever extent is appropriated in the particular case, that the more serious the allegation the less likely it is that the event occurred and, hence, the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability…..”
18.
Furthermore, the standard of proof in civil cases must carry a reasonable degree of probability, but not so high as is required in a criminal case for such standard is based on a preponderance of probabilities. In Palace Investment Ltd –vs- Geoffrey Kariuki Mwenda & Another [2015] eKLR, the Judges of Appeal held that:
“
Denning J, in Miller –vs- Minister of Pensions [1947] 2 All ER 372 discussing the burden of proof had this to say;-
“That degree is well settled. It must carry a reasonable degree of probability, but not so high as is required in a criminal case. If the evidence is such that a tribunal can say: we think it more probable than not; the burden is discharged, but, if the probabilities are equal it is not.
This, burden on a balance or preponderance of probabilities means a win however narrow. A draw is not enough. So, in any case in which the tribunal cannot decide one way or the other which evidence to accept where both parties…are equally (un) convincing, the party bearing the burden of proof will lose because the requisite standard will not have been attained.”
19.
Damages are proved to be at large, they must be commensurate with similar injuries. The injuries suffered were as follows:
i.
Tenderness on the chest wall
ii.
Dislocation of the left shoulder joint
iii.
Fracture of the left ulna and radius
iv.
Dislocation of the left knee
v.
Pelvis fracture
vi.
Fracture of the left tibia and fibula
20.
The Appellant did not present any medical evidence. The evidence of the Respondent was as such uncontroverted. In the case of Janet Kaphiphe Ouma & Another –vs- Maries Stopes International (Kenya), Kisumu HCCC No. 68 of 2007, Ali Aroni, J citing the decision in Edward Muriga suing through Stanley Muriga –vs- Nathaniel D. Schulter, Civil Appeal No. 23 of 1997 stated that:
“
In this matter, apart from filing its statement of defence the defendant did not adduce any evidence in support of assertions made therein. The evidence of the 1st plaintiff and that of the witness remain uncontroverted and the statement in the defence therefore remains mere allegations…Sections 107 and 108 of the Evidence Act are clear that he who asserts or pleads must support the same by way of evidence.”
16.
Guided by the above case, I find the statements in the defence filed on 10th December 2014 remain mere allegations having not been substantiated orally in court by the Appellant to controvert the Respondents testimony.”
21.
This Court appreciates that courts have impressively expressed the extent of application of an expert opinion in judicial proceedings and the general trend is that such evidence is not necessarily conclusive and binding. As was held in Shah and Another vs. Shah and Others [2003] 1 EA 290:
“
The opinion of the expert witness is not binding on the court, but is considered together with other relevant facts in reaching a final decision in the case and the court is not bound to accept the evidence of an expert if it finds good reasons for not doing so.”
22.
The medical report is not binding, and the court is entitled to reject it if it does not align with the rest of the evidence. Due regard must, however, be given to a medical report where there is no conflicting medical evidence. The Court of Appeal, on its part in Kimatu Mbuvi T/A Kimatu Mbuvi & Bros vs. Augustine Munyao Kioko Civil Appeal No. 203 of 2001 [2007] 1 EA 139 held that:
“
… such opinions are not binding on the Court although they will be given proper respect, particularly where there is no contrary opinion and the expert is properly qualified although a Court is perfectly entitled to reject the opinion if upon consideration alongside all other available evidence there is proper and cogent basis for doing so.”
23.
Courts must give proper respect to the opinions of experts. Such opinions are not, as it were, binding on the courts and the courts must accept them as stated in Parvin Singh Dhalay vs. Republic [1997] eKLR; [1995-1998] 1 EA 29, where it was held that:
“
It is now trite law that while the courts must give proper respect to the opinions of experts, such opinions are not, as it were, binding on the courts and the courts must accept them. Such evidence must be considered along with all other available evidence and if there is proper and cogent basis for rejecting the expert opinion, a court would be perfectly entitled to do so. We will repeat what this Court said in the case of Elizabeth Kamene Ndolo vs. George Matata Ndolo, Civil Appeal No. 128 of 1995. There the Court said with regard to the evidence of experts:-
"The evidence of PW1 and the report of Munga were, we agree, entitled to proper and careful consideration, the evidence being that of experts but as has been repeatedly held the evidence of experts must be considered along with all other available evidence and it is still the duty of the trial court to decide whether or not it believes the expert and give reasons for its decision. A court cannot simply say:- "Because this is the evidence of an expert, I believe it."
24.
This court will independently reevaluate the expert report. The medical report, in this case, was in consonance with the treatment notes and the Respondent’s evidence. Dr. Ombati Timothy Mokua concluded that the Respondent sustained great harm with fractures of the left tibia and fibula, fracture of left ulna and radius, pelvis fracture, left knee dislocation, crack of the iliac bone, left shoulder joint dislocation, and several other injuries which were in the process of healing. He gave a prognosis that the dislocations may complicate with post-traumatic arthritis later.
25.
The court takes judicial notice that that the iliac is largest and most superior bone of the hip, forming part of the pelvic girdle and connecting with the ischium and pubis to create the hip bone. The pelvis fracture thus extended not only on the pelvis but with a crack in the iliac. These injuries were thus serious.
26.
Therefore, it is my finding that the injuries pleaded herein were proved. The medical report of Dr. Ombati Timothy Mokua dated 2.11.2018 clearly stated that the Respondent suffered left tibia fibula fractures, left ulna radius fractures, pelvis fracture, left knee dislocation and left shoulder dislocation and was not controverted. I do not accede to the submissions by the Appellant that the Respondent only suffered soft tissue injuries which is without basis. I find no basis to interfere with this finding.
27.
The Appellant also contended that the assessment of damages was excessive and not commensurate with the injuries. The lower court awarded damages as follows:
General damages – Ksh. 1,600,000
Special damages – Ksh. 25,180/=
28.
As regards general damages, the lower court awarded Kshs. 1,600,000/-. No specific authority was referred to. The damages must be commensurate to the injuries for consistency in the judicial award. This is achieved through awarding similar injuries with similar or relatively similar damages. The Court of Appeal in Odinga Jacktone Ouma v Moureen Achieng Odera [2016] eKLR stated that “comparable injuries should attract comparable awards”
29.
The principle on the award of damages is settled. In Charles Oriwo Odeyo vs. Appollo Justus Andabwa & Another [2017] eKLR the court set out the principles which guide the court in the assessment of damages in a personal injury case. The considerations include but not limited to; -
1)
An award of damages is not meant to enrich the victim but to compensate such victim for the injuries sustained.
2)
The award should be commensurable with the injuries sustained.
3)
Previous awards in similar injuries sustained are mere guide but each case be treated on its own facts.
4)
Previous awards to be taken into account to maintain stability of awards but factors such as inflation should be taken into account.
5)
The awards should not be inordinately low or high.
30.
I proceed to establish related injuries. In the case of James Gathirwa Ngungi v Multiple Hauliers (EA) Limited & another (2015) eKLR, the Plaintiff therein suffered a compound comminuted fracture of the right tibia, compound comminuted fracture of the right fibula, fracture of the left proximal radius, fracture of the left ulna, head injury, deep cut wound of the parietal region about 4 cm, soft tissue injury and bruises of both hands, multiple facial cuts and lacerations and pathological fracturing of the right leg. Ougo J assessed damages at Ksh 1,500,000/=.
31.
In China Road & Bridge Corporation vs. Job Mburu Ndung’u [2021] eKLR (Mwita, J), the court had awarded Kshs. 2,000,000.00, where the injuries sustained were fractures of the left radius, the left ulna, the right tibia and the right fibula.
32.
In my reevaluation based on the above authorities, the fractures suffered by the Respondent were multiple and the court was called upon to assess damages based on the general hallmark of the injuries all of which may not have appeared in related judicial decisions. The award could as such be based on an estimate bearing in mind the injuries that included fracture of the pelvis, tibia and fibula and ulna and radius. The authorities cited by the Appellant did not present all facets of the injuries suffered by the Respondent and appear to have been founded on the wrong assumption that the Respondent did not suffer any fractures. Based on the foregoing authorities, I find the award by the lower court of Kshs. 1,600,000/- not inordinately high.
33.
On special damages, the rule is strict and somewhat mathematical. The court has to discern pleaded damages and proceed to find their proof. It is not based on estimates. The Court of Appeal in Jogoo Kimakia Bus Services Ltd vs. Electrocom International Ltd [1992] KLR 177 stated that:
“
The law on damages stipulates various types of damages. The distinction between general and special damages is mainly a matter of pleading and evidence. General damages are awarded in respect of such damages as the law presumes to result from the infringement of a legal right or duty. Damages must be proved but the claimant may not be able to quantify exactly any particular items in it. Special damages are the precise amount of pecuniary loss which the claimant can prove to have followed from the particular facts set out in the pleadings. They must be specifically pleaded.”
34.
Special damages are thus very specific and constitute liquidated claim which must be pleaded and proved. This court’s task thus entails whether the trial court failed to award special damages that were pleaded and proved. In Joseph Kipkorir Rono vs. Kenya Breweries Limited & Another Kericho HCCA No. 45 of 2003, Kimaru J held that:
“
In current usage, special damage or special damages relate to part pecuniary loss calculable at the date of the trial, whilst general damages relate to all other items of damage whether pecuniary or non-pecuniary. If damages are special damages they must be specifically pleaded and proved as required by law. For a loss to be calculable at the date of trial it must be a sum that has actually been spent or loss that has already been incurred…Special damages and general damages are used in corresponding senses. Thus in personal injury claims, ‘special damages’ refers to past expenses and lost earnings, whilst ‘general damages’ will include anticipated loss as well as damages for pain and suffering and loss of amenities…Special damage is in the nature of past pecuniary losses or expenses while general damage is futuristic pecuniary loss or expenses. Therefore in the instant case the loss of income as a direct consequence of this fraud would be both a general damage as well as a special damage. General damages particularly extent thereof would be unknown at the time of the trial and must await the conclusion of the case so that they may be assessed. Special damages on the other hand consist of those losses that could be calculated at the time of the trial. Special damages must be pleaded, but so must future pecuniary loss if it may lead to surprise. Non-pecuniary damage must not be quantified in a pleading…
35.
The Appellant submitted that only Ksh.18,680/- was proved. The Respondent pleaded Ksh. 171,700/- and I note the court awarded Ksh. 25,180/- under this head. The Respondent produced receipts as follows:
a.
18,000/= Cash receipt
b.
Medical report receipt Ksh. 6,500/=
c.
Other receipts 1,240/=
Total Ksh. 25,180/=
36.
Appellant has not appealed the finding on special damages but I have to find whether the court awarded more than what was proved as urged by the Appellant. In my revaluation, I find no basis for the award of Kshs. 6,500/= for medical report. The same was not proved to have been incurred. Therefore, the special damages are Ksh. 18,680/= as submitted by the Appellant. The special damages will not be subject to contribution. The lower court did so in error. The error is reversible and I correct it.
Determination
37.
The upshot of the foregoing is that I make the following orders: -
a.
The appeal against the award of general damages lacks merit and is dismissed.
b.
The award of special damages is set aside and substituted with Ksh. 18,680/=. This amount shall not be subject to contribution.
c.
The Respondent shall have costs assessed at Ksh. 85,000/=. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/4446/eng@2025-04-07 |
Criminal Appeal E082 of 2024 | Enima v Republic (Criminal Appeal E082 of 2024) [2025] KEHC 4495 (KLR) (7 April 2025) (Judgment) | Judgment | High Court at Kibera | High Court | DR Kavedza | 7 April 2025 | 2,025 | Nairobi | Criminal | Wilson Motunde Enima v Republic | [2025] KEHC 4495 (KLR) | null |
1.
The appellant was charged and after a full trial convicted for the offence of defilement contrary to section 8(1) as read with 8(2) of the Sexual Offences Act, No. 3 of 2006. He was sentenced to serve life imprisonment.
2.
Aggrieved, he filed an appeal challenging his conviction and sentence. In his petition of appeal, he challenged the totality of the prosecution’s evidence against which he was convicted. He argued that his right to a fair trial was violated. He urged the court to quash his conviction and set aside the sentence imposed.
3.
This being a first appeal, it is the duty of this court as the first appellate court, to reconsider, re-evaluate, and re-analyse the evidence afresh and come to its own conclusion on that evidence. The court should however bear in mind that it did not see witnesses testify and give due consideration for that. (See Okeno v Republic [1972] EA 32).
4.
The complainant A.H. gave unsworn evidence after voir dire examination. She told the court that she was six (6) years old. On the material day which she could not recall, after school, she would visit Willy, a man she knew, who lured her with his phone while her mother washed clothes. One day, the appellant undressed her and inserted his penis into her vagina. She was in pain during the incident. Her mother (PW2) interrupted, spotting her through a window. The complainant confessed that the appellant had done “bad manners” to her. They sought her grandmother’s counsel before returning home. Later, her mother took her to SHOFCO hospital, where Zena advised a visit to Kilimani the next day. She identified the appellant in court.
5.
PW3, the complainant’s mother, testified that on 12th May 2017, while washing clothes outside, her daughter, PW1, returned from school. She instructed her to change, but soon after, PW1 entered the appellant’s house. PW3 called her for food, but she did not respond. Though surprised that the door was closed, she trusted the appellant and continued washing. Later, when she peered through the window, she saw a startled Willie, who claimed the complainant was at the door. PW1 then emerged, stating that Willie had defiled her, marking the third such incident. PW3 took her to her mother-in-law, who found no clear evidence. However, days later, a foul smell from PW1’s private parts led to a hospital visit to SHOFCO, followed by a report at Kilimani Police Station. PW3 confirmed that PW1 was born on 22nd November 2010.
6.
At the hospital, PW2, Joan Muriuki, a clinical officer, examined PW1 and found her hymen broken, with foul-smelling discharge, redness, and swelling. She treated PW1 and filed the PRC form, which was produced in evidence. PW4, Dr. Joseph Maundu, also examined the complainant, confirming similar findings. He filled and signed the P3 form, which was produced in evidence.
7.
PC Obina Royee, the investigating officer, recorded statements from PW1 and PW3 and produced the complainant’s birth certificate.
8.
In his sworn defence, the appellant denied the offence, stating that he was at work at the material time. He noted that DNA samples were taken, but no results were issued. | 9.
To succeed in a prosecution for defilement, it must be proven that the accused committed an act that caused penetration with a child. "Penetration" under Section 2 of the Act means, "the partial or complete insertion of the genital organs of a person into the genital organs of another person.”
10.
Further, section 8(1) and (2) of the Act, No. 3 of 2006 provides thus: -
8. Defilement
(1)
A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.
(2)
A person who commits an offence of defilement with a child aged eleven years or less shall upon conviction be sentenced to imprisonment for life.
11.
The critical element of penetration was comprehensively established through cogent and compelling evidence. The complainant provided a clear and detailed account of the incident, which was corroborated by medical evidence from PW2 and PW4, both medical practitioners. PW2 produced the Post Rape Care (PRC) form, while PW4 tendered the P3 form, which revealed a bacterial infection, foul-smelling vaginal discharge, and a broken hymen. These medical findings unequivocally supported the complainant’s account, reinforcing the prosecution’s case. The combination of testimonial and medical evidence thus sufficiently satisfied this essential ingredient of the offence.
12.
The age of the complainant was another pivotal factor in these proceedings. PW5, the investigating officer, produced the complainant’s birth certificate, confirming her date of birth as 22nd November 2010. This proved that she was only six years old at the material time, placing her within the legal definition of a child and fulfilling another essential element of the charge.
13.
The identity of the appellant as the perpetrator was established beyond reasonable doubt. The complainant knew the appellant, a neighbour, and had interacted with him several times. Thus, her identification of the appellant was based on recognition, not mere recollection. This position was further strengthened by in-court identification by both the complainant and her mother, which remained unchallenged and unimpeached.
14.
Given the foregoing analysis, the prosecution discharged its burden of proof beyond a reasonable doubt. The complainant's testimony, corroborative medical records, proof of age, and unequivocal identification of the appellant formed a cohesive and unassailable case. Accordingly, the conviction stands affirmed.
15.
On sentence, the appellant was sentenced to life imprisonment. During sentencing, the court considered the appellant's mitigation, and the pre-sentence report and meted the minimum sentence provided in law. In the premises, I see no reason to interfere with the sentence.
16.
In the end, the appeal is found to be lacking in merit and is dismissed in its entirety. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/4495/eng@2025-04-07 |
Judicial Review Application E284 of 2024 | Hassan & another v Director of Public Prosecutions & 2 others; Nuh Abdille Hassan t/a Nurex Cargo & Clearing Limited (Interested Party) (Judicial Review Application E284 of 2024) [2025] KEHC 4556 (KLR) (7 April 2025) (Judgment) | Judgment | High Court at Nairobi (Milimani Law Courts) | High Court | RE Aburili | 7 April 2025 | 2,025 | Nairobi | Judicial Review | Daud Ali Hassan & Yussuf Mohammed Abdullahi v Director of Public Prosecutions & 2 others; Nuh Abdille Hassan T/A Nurex Cargo & Clearing Limited | [2025] KEHC 4556 (KLR) | null | 1.
Pursuant to leave granted on 31st December 2024, the Applicants herein filed the substantive Notice of Motion dated 2nd January 2025 which is the subject of this Judgment. The motion seeks the following orders:
a.
That the Honourable Court do issue an order of Prohibition, prohibiting the 3rd Respondent or any other officers acting with his authority, prohibiting him/her and each one of them from proceedings with the conduct and/or prosecution of any criminal case borne out of MCCRMISC Case No. E1715 of 2024; R v E—Light Cargo Limited with regard to the applicants’ pending the full hearing and determination of this application or the further Orders of the court.
b.
That this Honourable Court do issue an order of Certiorari directed to the 1st and 3rd Respondent, by themselves, their servants and/or agents or any other officer acting under their authority to quash the decision by them made on or about 26/ 12/ 2024 to institute and/or commence criminal proceedings against the applicants.
c.
That this Honourable Court do issue an order of Prohibition directed against the 2nd Respondent, by himself, his servants and/ or Agent or any other judicial officer for the time being seized of hearing or the conduct of MCCRMISC Case No. E1715 of 2024; R v E-Light Cargo Limited from trying and/or carrying on any further proceedings on the matter pending the full hearing and determination of this application or the further Orders of the court.
d.
That further and in the alternative, the Honourable Court be pleased to issue orders directing officers of the 3rd Respondent, specifically 104573 PC Suleiman Mwatajiri to release personal items belonging to the Applicants being:
a.
National Identity Cards and/ or Passports and Travel Documents.
b.
Mobile Phone(s).
e.
A declaration that the Order granted by the Magistrate Court sitting at Makadara on the 24th of December 2024, allowing officers of the 3rd Respondent to have access, search and recover suspected stolen goods held at the applicants’ premises in respect of MCCRMISC Case No. E1715 of 2024; R v E-Light Cargo Limited is and was invalid, made ultra vires, void and of no effect.
f.
That costs of this application be provided for.
2.
The application is supported by a Statutory Statement dated 30th December 2024 and a verifying affidavit sworn on 2nd January 2025 by the 1st Applicant.
3.
According to the Applicants, the 1st Respondent initiated criminal proceedings before the Makadara Chief Magistrates Court on 24th December 2024, seeking a search warrant to allow officers from the Directorate of Criminal Investigations (DCI) at Starehe to access, search and recover suspected stolen goods at their premises, MEMKAM Godown No. 3.
4.
The alleged criminal case is said to have arisen from a dispute between Nuh Abdille Hassan Trading as Nurex Cargo & Clearing Limited and Abdi Mohammed Hassan, with the former alleging that their goods ordered from China had been diverted to the Applicants' premises.
5.
That on the same day, the Magistrate’s Court granted the search warrant, allowing DCI officers access to the premises. However, that upon executing the search, the officers allegedly harassed and intimidated the staff while ransacking the warehouse without finding any evidence linking the Applicants to criminal activity. The Applicants claim that the search was unlawful, as the officers exceeded their authority by conducting an illegal search beyond the warrant's scope, violating their right to privacy and property.
6.
It is the Applicants’ case, that they were later arrested by the Officer Commanding Station (OCS), Ruaraka Police Station on allegations of stealing by servant under Section 281 of the Penal Code. Further, that they were detained for over 24 hours before being released on cash bail of Kshs. 50,000 each.
7.
The Applicants further depose that allegation against them revolve around goods supposedly held on behalf of Nurex Cargo & Clearing Limited. However, that no employment relationship exists between them and the Interested Party complainant, thus invalidating the charge. They further asserted that their company, E-Light Cargo Limited, is a distinct legal entity and that there is no basis for the criminal charges being preferred against them.
8.
The Applicants also assert that the entire process, including their arrest and detention, amounted to abuse of power, violating the principles of natural justice, fairness, and due process. They maintain that the case against them is malicious and lacks evidence, as there was no contractual link between them and the Interested Party. They also allege that officers from the 3rd Respondent had interfered with their business by confiscating work phones and obstructing their banking activities.
9.
The Applicants seek the court’s intervention to prevent further unlawful actions against them, arguing that continued interference will cause irreparable harm to their business, which cannot be compensated by damages. | 28.
I have considered the application and affidavits in support, the annextures, responses, evidence, case law and oral submissions made by counsel. The following issues arise for determination:
i.
Whether the search warrant issued on 24th December 2024 was lawful and valid;
ii.
Whether the actions of the 3rd Respondent’s officers in executing the search warrant and arresting the Applicants were lawful;
iii.
Whether the Applicants are entitled to the judicial review reliefs sought.
Whether the search warrant issued on 24th December 2024 was valid
29.
The law governing the issuance of search warrants is the Criminal Procedure Code which provides under Sections 118,118A and 119 as follows:
118.
Power to issue search warrant
Where it is proved on oath to a court or a magistrate that anything upon, with or in respect of which an offence has been committed, or anything which is necessary for the conduct of an investigation into an offence, is, or is reasonably suspected to be, in any place, building, ship, aircraft, vehicle, box or receptacle, the court or a magistrate may by written warrant (called a search warrant) authorize a police officer or a person named in the search warrant to search the place, building, ship, aircraft, vehicle, box or receptacle (which shall be named or described in the warrant) for that thing and, if the thing be found, to seize it and take it before a court having jurisdiction to be dealt with according to law.
118A.
Ex-parte application for search warrant
An application for a search warrant under section 118 shall be made ex-parte to a magistrate.
119.
Execution of search warrants
A search warrant may be issued on any day (including Sunday), and may be executed on any day (including Sunday) between the hours of sunrise and sunset, but the court may, by the warrant authorize the police officer or other person to whom it is addressed to execute it at any hour.
30.
In the present case, the validity of the search warrant issued by the Magistrates' Court in Miscellaneous Criminal Application No. E1715 of 2024 on 24th December 2024 is a central issue.
31.
As seen under Section 118 of the Criminal Procedure Code (CPC), a search warrant may be issued by a Magistrate if there are reasonable grounds to believe that a crime has been committed and that evidence relating to that crime is likely to be found in a specific location.
32.
An application for a search warrant must be made on oath by a police officer or any other authorized person, providing sufficient facts or information that show reasonable suspicion of criminal activity. The application should clearly specify the premises to be searched and the items sought to be seized. The Magistrate, upon reviewing the application and the supporting facts, may issue a search warrant if the requirements under Section 118 are met.
33.
In the present case, the 1st Respondent, the Directorate of Criminal Investigations (DCI), applied for a search warrant on 24th December 2024, stating that goods meant for Nurex Cargo had been diverted to the Applicants' premises. The Magistrates' Court, having considered the application and satisfied that reasonable grounds existed to suspect criminal activity, issued the search warrant, granting the officers permission to search MEMKAM Godown No. 3.
34.
No challenge has been made by the Applicants on the procedures followed leading up to issuance of the search warrant. This court also notes that the search warrant was issued upon compliance with the provisions of the law under which it was obtained and as such, it is lawful and valid.
Whether the actions of the 3rd Respondent’s officers in executing the search warrant and arresting the Applicants were lawful;
35.
Having established the validity and legality of the search warrant, the next issue is the lawfulness or otherwise of the actions of the officers of the 3rd respondent in executing the said search warrant.
36.
The Applicants argue that the execution of the search warrant by the 3rd Respondent’s officers was unlawful, in that, the officers are accused of having exceeded the scope of the warrant by conducting an unlawful search.
37.
Under Section 118(2) of the Criminal Procedure Code, a search warrant must specify the particular premises to be searched and the items that are to be seized.
38.
This means that if the officers' actions went beyond these specified limits, the search could be deemed unlawful.
39.
It is also the Applicants’ case that the search involved harassment and intimidation of their staff and that the warehouse was ransacked without any evidence being found linking the Applicants to criminal activity. This, they argue, violated their constitutional right to privacy and property, as guaranteed under Article 31 of the Constitution of Kenya, which protects against unreasonable searches.
40.
The Applicants also claim that the search was conducted beyond the authorized scope. In response, the Respondents maintain that the search was executed in good faith, in accordance with the warrant and under the authority granted by the court.
41.
The ex parte Applicants’ allegations are indeed grave allegations against the 3rd Respondent’s officers, claiming that the applicants’ constitutional rights were violated through harassment and intimidation of their staff and search of premises where search warrants had not been issued. However, no evidence of these alleged violations was availed to court. No staff or even the apparent actual owners of the said warehouse has sworn an affidavit before the court to complain that the search warrants were executed in a manner that violated their constitutional rights and as such, what remains is mere assertions by the applicants. The entity introduced in the further affidavit Top Way Cargo Limited which is not a party to these proceedings has not complained of its warehouse being violated, these proceedings not being representative proceedings.
42.
In the Anarita Karimi Njeru v Republic [1979] KECA 12 (KLR) case, it was held that a party seeking a constitutional remedy is required to set out with reasonable precision that which is complained of, noting to stipulate which constitutional provisions have been infringed and how they have been infringed.
43.
Further, in Leonard Otieno vs Airtel Kenya Limited [2018] eKLR, it was held that:
“
It is a fundamental principle of law that a litigant bears the burden (or onus) of proof in respect of the propositions he asserts to prove his claim. Decisions on violation of constitutional rights should not and must not be made in a factual vacuum. To attempt to do so would trivialize the Constitution and inevitably result in ill-considered opinions. The presentation of clear evidence in support of violation of constitutional rights is not a mere technicality; rather, it is essential to a proper consideration of constitutional issues.”
44.
The Applicants have also raised the issue of being detained for more than 24 hours without being informed of what they are being charged with and without being taken to court. They have also claimed that the 3rd Respondent’s officers are holding their personal belongings unlawfully. In response, the 1st and 3rd Respondents contend that the Applicants were arrested on 24th December 2024 and as 25th and 26th December 2024 were public holidays, they could not be presented to court within 24 hours and they were therefore released on a police cash bail of Kshs.50,000 on 27th December 2024 with instructions to report to Makadara Law Courts on 3rd January 2025.
45.
Article 49(1)(f) the Constitution guarantees Rights of arrested persons as follows:
(1)
An arrested person has the right—
(f)
to be brought before a court as soon as reasonably possible, but not later than—
(i)
twenty-four hours after being arrested; or
(ii)
if the twenty-four hours ends outside ordinary court hours, or on a day that is not an ordinary court day, the end of the next court day.
46.
Examining the calendar for 2024, am in agreement with the 1st and 3rd Respondents’ position that the Applicants could not have been arraigned in court on 25th and 26th December 2024 as these two days were not ordinary court days as they were Christmas and Boxing Holidays.
47.
On the Applicants’ claim that they were not informed of what they had been charged with, I find this hard to believe, as the applicants in their own affidavit refer severally in their application, affidavit and Statutory Statement of being charged with the offence of stealing by servant and the documents they have annexed show the charge that the respondents intended to charge them with. The cash bail receipt issued on 27/12/2024 shows the charge to be conspiracy to defraud. The applicants have persisted that there is no evidence of employment with the complainants. However, this court cannot direct the DPP on what charge to frame against the suspect, depending on the outcome of investigations. The matter was still under investigations and only after completion would the DPP direct prosecution on a particular charge.
48.
Furthermore, a charge can be amended in the course of criminal proceedings therefore the question of stealing by servant and evidence of employment is neither here nor there.
49.
On the issue of seizure of the Applicants’ property, in the case of Republic v OCS Nairobi Central Police Station & 2 Others, Ex parte Applicant: Sixtus Gitonga Mugo [2020] KEHC 7039 (KLR) the court observed as follows:
“
The applicant has not demonstrated that there was no factual basis to justify the seizure of the exhibits. There is nothing to show that the exhibits do not form part of the intended prosecution evidence. As stated earlier, it is not the function of this court to weigh the veracity of the evidence or to assess which exhibits are relevant to the investigations. That would amount to this court descending into the arena of the trial court. An investigation should be commenced or continued if there is admissible, substantial and reliable evidence that a criminal offence known to the law has been committed by a suspect. It has not been established that the facts presented in this case do not disclose an offence known to the law.
50.
Just as is the case herein, although the Applicants argue that the 3rd respondent’s officers have unlawfully seized their personal belongings, they have not demonstrated that there was no factual basis to justify the seizure of the items to assist the police in their investigations. Further, there is nothing to show that the exhibits do not form part of the intended prosecution evidence.
Whether the Applicants are entitled to the judicial review reliefs sought.
51.
The 3rd Respondent, through the Directorate of Criminal investigations and its officers draw their authority to investigate from Article 245 of the Constitution and Section 35 of the National Police Service Act. Under Sections 24 and 35 of the National Police Service Act, 2013, the functions of the police include undertaking investigations, apprehending offenders as well as detecting and preventing crime. In the exercise of the powers of investigations and arrest, the 3rd Respondent or his officers are functionally independent and can only take directions to investigate from the 1st Respondent, the DPP.
52.
The above position was restated by the Court of Appeal in Lalchand Fulchand Shah v Investments & Mortgages Bank Limited & 5 others [2018] eKLR citing the Supreme Court of India decision in State of Maharashtra & Others v. Arun Gulab & Others, Criminal Appeal No. 590 of 2007, where the Court stated:
“
The power of quashing criminal proceedings has to be exercised very sparingly and with circumspection and that too in the rarest of rare cases and the Court cannot be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of allegations made in the F.I.R./Complaint, unless the allegations are so patently absurd and inherently improbable so that no prudent person can ever reach such a conclusion. The extraordinary and inherent powers of the Court do not confer an arbitrary jurisdiction to the Court to act according to its whims or caprice. However, the Court, under its inherent powers, can neither intervene at an uncalled for stage nor can it soft-pedal the course of justice at a crucial stage of investigation/proceedings. The provisions of Articles 226, 227 of the Constitution of India and Section 482 of the Code of Criminal Procedure, 1973 (hereinafter called as “Cr.P.C.”) are a device to advance justice and not to frustrate it. The power of judicial review is discretionary; however, it must be exercised to prevent the miscarriage of justice and for correcting some grave errors and to ensure that esteem of administration of justice remains clean and pure. However, there are no limits of power of the Court, but the more the power, the more due care and caution is to be exercised in invoking these powers.”
53.
In Bernard Mwikya Mulinge v Director of Public Prosecutions & 3 others [2019] eKLR, Odunga J (as he then was) expressed himself as follows: -
“
As has been held time and time again, the Court ought not to usurp the Constitutional mandate of the Director of Public Prosecutions (DPP) to investigate and undertake prosecution in the exercise of the discretion conferred upon that once under Article 157 of the Constitution. The mere fact therefore that the intended or ongoing criminal proceedings are in all likelihood bound to fail, is not ipso facto a ground for halting those proceedings by way of judicial review since judicial review proceedings are not concerned with the merits but with the decision making process. An applicant who alleges that he or she has a good defence in the criminal process ought to ventilate that defence before the trial court and ought not to invoke the same to seek the halting of criminal proceedings undertaken bona fides since judicial review court is not the correct forum where the defences available in a criminal case ought to be minutely examined and a determination made thereon…”
54.
In Kipoki Oreu Tasur vs. Inspector General of Police & 5 Others [2014] eKLR the Court stated that:
“
The criminal justice system is a critical pillar of our society. It is underpinned by the Constitution, and its proper functioning is at the core of the rule of law and administration of justice. It is imperative, in order to strengthen the rule of law and good order in society, that it be allowed to function as it should, with no interference from any quarter, or restraint from the superior Courts, except in the clearest of circumstances in which violation of the fundamental rights of individuals facing trial is demonstrated…”
55.
In Republic vs. Commissioner of Police and Another ex parte Michael Monari & Another [2012] eKLR the Court held that:
… the police have a duty to investigate on any complaint once a complaint is made. Indeed, the police would be failing in their constitutional mandate to detect and prevent crime. The police only need to establish reasonable suspicion before preferring charges. The rest is left to the trial court...As long as the prosecution and those charged with the responsibility of making the decisions to charge act in a reasonable manner, the High Court would be reluctant to intervene....”
56.
The above decisions reiterate the 3rd Respondent’s duty to conduct investigations into complaints and subsequently, if there is enough evidence, the 1st Respondent to charge the person accused of the offence. It is this court’s humble opinion that the 3rd Respondent’s actions through its officers was within the mandate provided under the Constitution and the law.
57.
Courts have consistently held, and rightly so, that they should not interfere with the constitutional responsibility of the 1st and 3rd Respondents to investigate crimes and initiate criminal proceedings, as long as these actions are carried out in a justifiable manner. This position was adopted in the case of Michael Monari & Another vs Commissioner of Police & 3 Others, Misc. Application No. 68 of 2011.
58.
The 3rd Respondent being independent and an office established under the Constitution, the Court can only interfere with or interrogate its actions or those of its officers where there is threatened or actual violation of rights and freedoms guaranteed by the Constitution or contravention of the Constitution.
59.
In Paul Ng’ang’a Nyaga vs Attorney General & 3 Others [2013] eKLR, it was held that:
“
... this court can only interfere with and interrogate the acts of other constitutional bodies if there is sufficient evidence that they have acted in contravention of the Constitution.”
60.
In light of the above and for the reasons given in this Judgement, I find that the application dated 2nd January 2025 is not merited and it is hereby dismissed with no orders as to costs.
61.
This File Is Closed. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/4556/eng@2025-04-07 |
Succession Cause 142 of 2010 | In re Estate of Maina Gikuru alias Maina Kikuru (Deceased) (Succession Cause 142 of 2010) [2025] KEHC 4471 (KLR) (7 April 2025) (Ruling) | Ruling | High Court at Nyeri | High Court | DKN Magare | 7 April 2025 | 2,025 | Nyeri | Family | Beatrice Njoki Karuri v Rosemary Wangari Ngenye | [2025] KEHC 4471 (KLR) | null | 1.
The Applicants filed an application dated 10.11.2024, seeking to rectify the grant confirmed on 17.10.2024. They sought the following prayers:
i.
By rectifying the mode of distribution of LR. No. LOC.15/Gakuyu/709 to be shared equally among Cyrus Irungu Mwangi and James Mwangi Muthoni as per the mediation agreement.
ii.
Costs in the cause. | 2.
Before I proceed, I note that the matter was raised and dismissed earlier. The question is whether this court has jurisdiction to grant the orders. In the case of Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & 2 others [2012] eKLR, the supreme court stated as doth: -
“
This Court dealt with the question of jurisdiction extensively. In the Matter of the Interim Independent Electoral Commission (Applicant), Constitutional Application Number 2 of 2011, the Constitution exhaustively provides for the jurisdiction of a court of law. The Court must operate within the constitutional limits. It cannot expand its jurisdiction through judicial craft or innovation. Nor can Parliament confer jurisdiction upon a court of law beyond the scope defined by the Constitution. Where the Constitution confers power upon Parliament to set the jurisdiction of a court of law or tribunal, the legislature would be within its authority to prescribe the jurisdiction of such a court or tribunal by statute law.”
3.
The court will, therefore, assume jurisdiction where it has and eschew jurisdiction where none exists. In Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] eKLR, Nyarangi JA posited as follows:
“
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 down tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction. Before I part with this aspect of the appeal, I refer to the following passage which will show that what I have already said is consistent with authority:
“By jurisdiction is meant the authority which a court as to decide matters that are litigated before it or to take cognisance of matters presented in a formal way for its decision. The limits of this authority are imposed by the statute, charter, or commission under which the court is constituted, and may be extended or restricted by the like means. If no restriction or limit is imposed the jurisdiction is said to be unlimited. A limitation may be either as to the kind and nature of the actions and matters of which the particular court has cognisance, or as to the area over which the jurisdiction shall extend, or it may partake of both these characteristics. If the jurisdiction of an inferior court or tribunal (including an arbitrator) depends on the existence of a particular state of facts, the court or tribunal must inquire into the existence of the facts in order to decide whether it has jurisdiction; but, except where the court or tribunal has been given power to determine conclusively whether the facts exist. Where a court takes it upon itself to exercise a jurisdiction which it does not possess, its decision amounts to nothing. Jurisdiction must be acquired before judgment is given.”
4.
What is the difference between what was sought and resulted in the orders of 17.10.2024 and this application? Surely, why would a party wish to regurgitate the same case over and over again? There is an appellate process that should be pursued. Rectification cannot be used to redistribute the estate. In the case of Re Estate Josephat Kariuki Ngure (Deceased) [2021] eKLR, A.O. Muchelule posited as follows:
“
8. It does not matter the reasons that the applicant has for seeking the redistribution of the estate. The truth is that an application for rectification under section 74 and rule 43 is limited in scope. It can only deal with the correction of an error in names of persons or places, or the description of persons, things or places. It deals with the correction of errors regarding the time or place of death and, in case of a limited grant, the purpose for which the grant was made. In the instant case, the applicant is seeking, among other things, to introduce new beneficiaries and to rework the shares of the existing beneficiaries. Some of the existing beneficiaries in the certificate of confirmation will get more and others will get less than what the court had ordered. It is now trite that such introduction of new beneficiaries and redistribution of the estate of the deceased cannot be entertained through an application for rectification (In Re Estate of Dishon Ondiek Mayabi (Deceased) [2020] eKLR; In Re Estate of Kwaria Marete (Deceased) [2018] eKLR)."
5.
Section 7 of the Civil Procedure Act Cap 21 Laws of Kenya 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.”
6.
The Civil Procedure Act also provides explanations with respect to the application of the res judicata rule. Explanations 1-3 are in the following terms:
(1)—
The expression “former suit” means a suit which has been decided before the suit in question whether or not it was instituted before it.
(2)—
For the purposes of this section, the competence of a court shall be determined irrespective of any provision as to right of appeal from the decision of that court.
(3)—
The matter above referred to must in the former suit have been alleged by one party and either denied or admitted, expressly or impliedly, by the other.’’
7.
In the dicta in re Estate of Riungu Nkuuri (Deceased) [2021] eKLR 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.”
8.
In the case of Attorney General & another ET v [2012]eKLR 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…..”.
9.
In essence therefore, 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.”
10.
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.
11.
By comparing the two applications and the authorities on res judicata, it is clear to me that the issues being canvassed in the application are the same dismissed on 17.10.2024. The Applicants have sought that the land parcel number Loc 15/GAKUYU/709 be given to the two persons herein. The court did not agree with them and proceeded to direct that the land be given to the estate of their late father. The issue of a mediation agreement was raised.
12.
It was again rejected since Lucy Wanjiku Mwangi did not sign. In other words, there was no mediation agreement. The applicants have redone the same application and now face the court again. If they were aggrieved by my decision, they ought to have appealed. In Maumbwa & 3 others v Kisemei (Civil Appeal E009 of 2021) [2022] KEHC 10416 (KLR) (26 May 2022) (Judgment Maumbwa & 3 others v Kisemei (Civil Appeal E009 of 2021) [2022] KEHC 10416 (KLR) (26 May 2022) (Judgment) the court stated doth:
By comparing the two applications and the authorities on res judicata, it is clear to me that the issues being canvassed in the application dated 11th January 2021 is res judicata. The issues in issue in that application were directly and substantially in issue in the application dated 13th September 2017. These issues relate to the same parties and these issues have been tried by a competent court. To my mind to bring the same issues between the same parties that have been determined by a court of competent jurisdiction is an abuse of the court process.
13.
A mediation agreement must be signed by all protagonists. The purported document is not a mediation agreement. In Greenhouse Management Limited v Jericho Development Company Limited [2015] eKLR, E.K.O. Ogola posited as follows regarding a mediation agreement.
1.
There is no doubt that the agreement and the leases herein contained arbitration and mediation processes which had to be exhausted before a party could move to court. Indeed Clause 6.13.1 allows for mediation. Now, one party contends that there was mediation, and now seeks to enforce the outcome of the alleged mediation, while the other party alleges that there was never a mediation. As far as I know, however, mediation is a voluntary process which is conducted by a neutral person who commits to confidentiality. Before the parties go into mediation, there must be firstly, a mediation agreement binding the parties to mediation. After mediation, there is an agreement containing the terms of mediation. This agreement must be signed by all the parties to the mediation. In the agreement the parties agree that they were bound with the resolutions reached by the mediator. This final agreement is a document which can be tabled in court to show that one party is reneging from the agreed resolutions.
1.
From the foregoing, it is clear that the alleged mediation which the Plaintiff now says took place was quite irregular or invalid for the following reasons:
The alleged mediator being the Manager of the Plaintiff could not be a mediator since he was not a neutral person given to confidentiality.
There was no agreement to go into mediation. This also means that the alleged mediation was not voluntary and freely entered into by the parties especially the Defendant. At least no agreement showing the parties agreed to mediation was attached to these proceedings.
There was no agreement containing the resolution of mediation. The law requires that agreement to contain all the agreed terms and resolutions and the same must be executed by all the parties.
1.
It is therefore clear to me that there was no mediation. If there was ever an attempt at mediation, the best outcome is that it failed. Mediation having failed the next cause of action was arbitration under Clause 6.13.2.
14.
There is therefore, no mediation agreement. The purported unsigned agreement is rejected. The same has never been adopted as an order of the court. The application is thus rejected.
15.
The court gets the definite impression that the application is meant to lock out other beneficiaries. Why will the two grandchildren of the deceased wish to inherit their father’s estate to the exclusion of their mother and other siblings? Such conduct is not only despicable but also to be frowned upon.
16.
The application is a mark of greed and a false sense of self entitlement. There is no basis for why beneficiaries cannot share their parents' estate equally. Pandering to the whims of the applicants make no sense, as, at the end of the day, this court cannot disinherit anyone. When a court of law had made a decision, parties have to find a way to live with it or appeal. It is not wise to continue recycling the same application.
17.
In the circumstances, the application herein is struck out for being res judicata. The file is closed.
Determination.
18.
The upshot of the foregoing is that I make the following orders:
a. The application dated 10.11.2024 is struck out for being res judicata.
b. Each party should bear their own costs.
c. The file is closed. | File Closed | https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/4471/eng@2025-04-07 |
Succession Cause 364 of 2012 | In re Estate of Murungi s/o Ihururu alias Zacharia Murungi Ihururu (Deceased) (Succession Cause 364 of 2012) [2025] KEHC 4428 (KLR) (7 April 2025) (Judgment) | Judgment | High Court at Nyeri | High Court | DKN Magare | 7 April 2025 | 2,025 | Nyeri | Family | David Wanyiri Ndugu v Ronald Ndungu Murungi | [2025] KEHC 4428 (KLR) | null |
1.
Vide the Summons for Conformation of Grant dated 3.6.2024, the Petitioner applied for an order that the grant of probate or letters of administration intestate (or with will annexed) made to David Wanyiri Ndungu on 8.7.2012 be confirmed.
2.
Subsequently, the Protestor opposed the confirmation of the grant vide the Affidavit of Protest sworn on 13.9.2024 as follows:
a.
All beneficiaries agreed before the chief that land parcel Euasonyiro/Ilpejeta/Block 1/1008 be registered in the name of the Protestor in absolute.
b.
Land parcel No. Tetu/Kabage/516 was not included in the chief’s letter as the same belongs to the Protestor having bought it but registered in the name of the deceased. | 15.
The issue before me for determination is whether the protest is merited and whether to confirm the grant. The grounds upon which the Protestor protested the summons for the confirmation of grant and sought that it be dismissed was that both LR No. Tetu/Kabage/516 and Euasonyiro/Ilpejeta/Block 1/1008 were his property though registered in his father’s names.
16.
In essence, the court is to establish any ground upon which the court could have issued the confirmed grant when in fact it ought not to have issued it at all. This is because by dismissing the summons for confirmation of grant, the Administrator will either commence the process afresh or rectify that which is demonstrated to have caused such dismissal. The grounds for revocation or annulment of grant of Letters of Administration are set out in Section 76 of the Law of Succession as follows:
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.
17.
However, the Protestor did not object to the confirmation of the grant or the resultant temporary grant that the Petitioner sort to be confirmed. On the other hand, the Petitioner’s case is that both properties are in the name of the deceased and constitute the estate of the deceased. That the properties should be shared among the beneficiaries of the deceased as proposed in the affidavit in support of the Summons for Confirmation of the Grant.
18.
I understand the case of the Protestor to challenge summons on the premises also that there was an agreement within the family of the deceased that bestowed the entire estate in LR No. Euasonyiro/Ilpejeta/Block 1/1008 to him. The court is alive to the agreement dated 26.12.2011 and the chief’s letter dated 17.2.2012 which is juxtaposed by the Agreement dated 3.5.2012. The case of the Petitioner is that the agreement dated 3.5.2012 revoked the agreement dated 26.12.2011.
19.
The Protestor is mute on this fact and I consider that the true position is that like LR No. Tetu/Kabage/516, LR No. Euasonyiro/Ilpejeta/Block 1/1008 is the property of the deceased available to all beneficiaries of the deceased. The Protestor has a false sense of entitlement as confirmed by his own admission that he cut down and sold trees on the estate land. This was an act of intermeddling. The law relating to intermeddling is codified in Section 45 of the Law of Succession Act Cap 160, Laws of Kenya as follows:
i.
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.
ii.
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; andb.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.
20.
The property of a dead person cannot be lawfully dealt with by anybody unless such a person is authorized to do so by the law. In the case of Veronica Njoki Wakagoto (Deceased) [2013] eKLR: Hon. Justice William Musyoka held:
“
The effect of [section 45]… is that the property of a dead person cannot be lawfully dealt with by anybody unless such a person is authorized to do so by the law. Such authority emanates from a grant of representation and any person who handles estate property without authority is guilty of intermeddling. The law takes a very serious view of intermeddling and makes it a criminal offence.”
21.
The Protestor had no authority to deal with the estate of the deceased as he was not the administrator. Likewise, in Re Estate of M ‘Ngarithi M’ Miriti [2017] eKLR it was held that:
“
Whereas there is no specific definition provided by the Act for the term intermeddling, it refers to any act or acts which are done by a person in relation to the free property of the deceased without the authority of any law or grant of representation to do so. The category of the offensive acts is not heretically closed but would certainly include taking possession, or occupation of, disposing of, exchanging, receiving, paying out, distributing, donating, charging or mortgaging, leasing out, interfering with lawful liens or charge or mortgage of the free property of the deceased in contravention of the Law Of Succession Act. I should add that any act or acts which will dissipate or diminish or put at risk the free property of the deceased are also acts of intermeddling in law. I reckon that intermeddling with the free property of the deceased is a very serious criminal charge for which the person intermeddling may be convicted and sentenced to imprisonment or fine or both under section 45 of the Law of Succession Act. That is why the law has taken a very firm stance on intermeddling and has clothed the court with wide powers to deal with cases of intermeddling and may issue any appropriate order (s) of protection of the estate against any person.”
1.
The court also notes that the Protestor failed to establish that he purchased the two properties using his own money and the same do not constitute the estate of the deceased. Even if the Protestor had adduced evidence of purchase, merely that cannot annul the process of confirmation of grant. Rather, that would raise an issue to be determined outside this succession process through the Environment and Land Court or designated courts of similar jurisdiction. Musyoka J, in re Estate of Andashe Munyeti (Deceased) [2021] eKLR stated as follows:
5.
After a grant is confirmed, and a certificate of confirmation of grant is processed and issued, the next step would be transmission of the property in accordance with the distribution in the certificate of confirmation of grant. Transmission is not a process under the Law of Succession Act, Cap 160, Laws of Kenya. The Law of Succession Act does not provide for it. Indeed, the term transmission is not even mentioned in the Act. It is a process which is provided for in the Land Registration Act, No. 3 of 2012, and the Land Act, No. 6 of 2012. The process has nothing to do with the succession process. The effect of it is that once the court confirms a grant, and issues a certificate of confirmation of grant, its work would be over. The parties ought to move to the next step, of execution of the confirmation orders, which happens at the land registries and at the offices of other land authorities. The application that has been placed before me dwells on matters that have nothing to do with succession, but registration of land, and the parties are better of addressing the issues to the relevant land bodies.
The promulgation of the Constitution, 2010, on 27th August 2010, had one critical consequence, the taking away of jurisdiction from the High Court, with respect to matters relating to land. That comes out very clearly from Articles 162(2) and 165(5) of the Constitution. Parliament passed a law that established the Environment and Land Court. The Land Registration Act and the Land Act, which govern transmission and land registration, carry provisions that make it clear that where disputes or questions or the need for certain actions arise, with respect to issues that are regulated or governed by the two statutes, such as transmission and land registration, then the court to address them is the Environment and Land Court and any subordinate court vested with jurisdiction. These provisions are in sections 2 and 101 of the Land Registration Act and sections 2 and 150 of the Land Act.
23.
The court has taken into account interests of all beneficiaries entitled to the deceased’s estate and has no doubt that the action taken in the summons for confirmation of grant will be for the interest of justice.
24.
There is no basis for the Protestor trying to have all the estate alone to the exclusion of others. I dismiss the assertion by the Protestor that the chief’s letter dated 17.2.2012 did not mention property LR No. Tetu/Kabage/516 because it was not estate property. The Chief only listed what came to his attention by disclosure and what matters is the evidence that the property was in the name of the deceased which the Petitioner proved and the Protestor failed to produced controverting evidence. In Evans Nyakwana –vs- Cleophas Bwana Ongaro [2015] eKLR it was held that:
“
As a general preposition the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue. That is the purport of Section 107 (i) of the Evidence Act, Chapter 80 Laws of Kenya. Furthermore, the evidential burden…is cast upon any party, the burden of proving any particular fact which he desires the court to believe in its existence. That is captured in Section 109 and 112 of law that proof of that fact shall lie on any particular person…The appellant did not discharge that burden and as Section 108 of the Evidence Act provides the burden lies in that person who would fail if no evidence at all were given as either side.”
25.
I find no basis upon which to exercise my discretion in favour of the Protestor. There is no evidence that then 4 years old or 12 years when his father came out of detention, the Protestor had any means to purchase property. He has a false sense of grandeur and misplaced sense of time. The discretion of this court is premised on the law. In animating the discretionary powers of the court in the case of Ramakant Rai vs Madan Rai, Cr Lj 2004 Sc 36, the Supreme Court of India rendered itself thus on the issue of judicial discretion:
Judicial discretion is canalized authority not arbitrary eccentricity. Cardozo, with elegant accuracy, has observed:
“The judge, even when he is free, is still not wholly free. He is not to innovate at pleasure. He is not a knight-errant roaming at will in pursuit of his own ideal of beauty or of goodness. He is to draw his inspiration from consecrated principles. He is not a yield to spasmodic sentiment, to vague and unregulated benevolence. He is to exercise a discretion informed by tradition, methodized by analogy, disciplined by system, and subordinated to ‘the primordial necessity of order in the social life.’ Wide enough in all conscience is the field of discretion that remains.
26.
The Protestor’s evidence reminded me of a decision in Kioko Peter v Kisakwa Ndolo Kingóku [2019] eKLR, where Odunga J, as he then was lamented hereunder about this kind of evidence that is collected from the streets without triangulation to its truth in terms of time, space and reality. The Protestor was living in an alternative reality that cannot be gainsaid. The court posited as follows:
In my view such remarkable averments can only be taken to be meant to mislead the court. Parties and Counsel ought to give the court’s some credit that the courts are not manned by morons who can be easily duped into believing all manner of incredible stories with little or no iota of truth. It is these kinds of allegations that Madan, J (as he then was) had in mind when in N vs. N [1991] KLR 685 he expressed himself in the following terms:
“I wish people would not tell me absurd and unbelievable lies. I feel disappointed if a lie told in court is not reasonable imitation of the truth and is not reasonably intelligently contrived. I wish people who tell lies before me would respect my grey hair even if they consider that my intelligence is not of high order. I wish the witness had not told me the most stupid of his lies, which both disappointed and made me feel intellectually insulted.”
5. In the South African case of Matatiele Municipality & Others vs. President of the Republic of South Africa & others (1) (CCT73/05) (2006) ZACC 2: 2006 (5) BCLR (CC); 2006(5) SA 47 (CC) it was held that:
“In my view a person who deliberately either by commission or omission misleads the court and the public that a particular state of affairs exist while knowing very well that that is not the position cannot be said to be open, candid and transparent. Dishonest, in my view, is an Act which is the antithesis to transparency and vice versa…”
27.
How the protestor stood in court lying to me without batting an eyelid, is beyond comprehension. He then went ahead and cut trees wantonly, knowing that the day and hour were nigh.
28.
On the other hand the Petitioner was honest and candid. He was not interested in the shenanigans the protestor was engaging the court in. I looked at W3 with horror in my eyes as he stood there in the dock lying to me. What he did not know, though he is old now, is that he has not always been old. In 1959 he was barely 10 years. No one speaks to 10-year-old strangers about land. The deceased died at the ripe old age of 78 years in 1987. He was, therefore, 50 years old in 1959. Nothing was placed before me to show any hint of succession. I cannot sign the claim as a claim for trust. It was purely a claim under a false pretense that no one was there among the other 4 beneficiaries. It is pure greed. The Protest fails.
29.
On confirmation of the grant, there are five beneficiaries. One was killed by another beneficiary who had no children. The one who killed disappeared. The killer cannot benefit from the estate of the person whom they killed. Though the estate belongs to the father, the killer cannot benefit from the windfall from the killing of the late Simon Ndirangu.
30.
The consequence of the foregoing is that I make the following in terms of distribution.
1.
Euasonyiro/Ilpejeta/ Block1/1008measuring 1.64 hectares
a.
Ronald Ndungu Murungi 0.4373 ha
b.
David Wanjiri Murungi 0.4373 ha
c.
Mary Mumbi Ndungu 0.4373 ha
d.
David Kahiga Murungi 0.328 ha
2.
Tetu /Kabage/516 measuring 3.4 acres
a.
Ronald Ndungu Murungi 0.9066 acres
b.
David Wanjiri Murungi 0.9066 acres
c.
Mary Mumbi Ndungu 0.9066 acres
d.
David Kahiga Murungi- 0.68 acres
31.
Having done so, I note that the Protestor has cut down trees while the matter was proceeding. The administrator will cause the appropriate authorities to value the same and report to the court within a month. In the course of subdivision, in the area where trees were cut, the protestor must make good the value thereof, or the same be recovered from his share of the estate.
32.
The next question is costs. I am cognizant of the fact that the parties are related. However, the protest was completely unnecessary. There must be consequences for such perilous action. How can a person claim that he won a lottery in the Nakuru Race Course in 1959? He had no idea what goes on in a race course, especially in a colonial Africa.
33.
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.
34.
Costs of Ksh 95,000/= to the Petitioner will suffice.
Determination
35.
In the upshot, I make the following orders:
a.
The protest dated 13.9.2024 lacks merit and is dismissed with costs of Ksh 95,000/= to the Petitioner.
b.
The grant of representation issued to the Petitioner is confirmed in the following manner:
1.
Euasonyiro/Ilpejeta/ Block1/1008measuring 1.64 hectares
a.
Ronald Ndungu Murungi 0.4373 ha
b.
David Wanjiri Murungi 0.4373 ha
c.
Mary Mumbi Ndungu 0.4373 ha
d.
David Kahiga Murungi 0.328 ha
2.
Tetu /Kabage/516 measuring 3.4 acres
a.
Ronald Ndungu MurungI 0.9066 acres
b.
David Wanjiri Murungi 0.9066 acres
c.
Mary Mumbi Ndungu 0.9066 acres
d.
David Kahiga Murungi- 0.68 acres
c.
David Kahiga Murungi having killed his brother, he cannot benefit from the share that arise from the said brother’s death. His share shall be registered in the petitioner’s name.
d.
Transmission be concluded by 7.11.2025.
e.
The matter be mentioned before the Deputy Registrar on 9/6/2025 to receive the report of the destruction of part of the estate by cutting of trees and to confirm subdivision.
f.
The file is closed. | File Closed | https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/4428/eng@2025-04-07 |
Civil Appeal E005 of 2021 | Kabuu v Chinga Tea Factory Company Limited (Civil Appeal E005 of 2021) [2025] KEHC 4482 (KLR) (7 April 2025) (Judgment) | Judgment | High Court at Nyeri | High Court | DKN Magare | 7 April 2025 | 2,025 | Nyeri | Civil | Harun Kagwi Kabuu v Chinga Tea Factory Company Limited | [2025] KEHC 4482 (KLR) | null | 1.
This is an appeal from the Judgment and decree of Hon. M.N. Munyendo (PM) dated 6.1.2021 arising from Othaya CMCC No. 37 of 2019.
2.
The Memorandum of Appeal dated 1.2.2021 raised the following grounds:
a.
The learned magistrate erred in delivering a judgment that was against the evidence.
b.
The learned magistrate erred in law and fact in delivering a judgment that was against the law.
c.
The learned magistrate erred in applying extraneous evidence.
3.
The plaint dated 8.10.2019 claimed an order that the Respondent should pay the value of the tea leaves delivered by the Appellant. The Appellant averred that he was a duly licensed tea grower under the Crops Act, Grower No. CH0400140, CH0240170 and CH0050329. Further, the Appellant entered into contract with the Respondent to grow and supply tea to the Respondent through Kahiagira Tea Buying Centre, Nyakone Tea Buying Centre and Ngaru Tea Buying Centre.
4.
It was pleaded that the Appellant supplied under No. CH0400140 in September -December 2018, and January 2019; and under No. CH0240170 in the months of September – October 2018 and ultimately under No. CH0050329 in the months of September-December 2018 and January – March 2019 and the due and owing payment was Ksh. 1,750,946.35 which the Respondent refused to pay.
5.
The Respondent entered appearance and filed defence dated 5.12.2019 denying the averments in the plaint. In particular, the Respondent averred that the Respondent discovered that the Appellant had supplied excess weight of green tea that could not be supported by the number of the registered tea bushes as per the Tea Buying Centre By-laws. The Appellant also owed the Respondent various debts which the Respondents continued to recover over time.
6.
The trial court heard the parties and proceeded to render judgment dismissing the Appellant’s case on the basis that the Appellant failed to produce lease agreements for the tea bushes to prove his claim. Aggrieved by the finding of the lower court, the Appellant lodged a Memorandum of Appeal hence this appeal. | 14.
This being a first appeal, this court is under a duty to re-evaluate and assess the evidence and make its own conclusions. It must, however, keep at the back of its mind that a subordinate court, unlike the appellate court, had the advantage of observing the demeanour of the witnesses and hearing their evidence first hand.
15.
This Court will not interfere with the exercise of judicial discretion by an inferior court unless it is satisfied that its decision is clearly wrong. In the case of Mbogo and Another vs. Shah [1968] EA 93 the court stated:
“
…that this Court will not interfere with the exercise of judicial discretion by an inferior court unless it is satisfied that its decision is clearly wrong, because it has misdirected itself or because it has acted on matters on which is should not have acted or because it failed to take into consideration matters which it should have taken into consideration and in doing so arrived at a wrong conclusion.”
16.
The duty of the first appellate court was set out in the case of Selle and another Vs Associated Motor Board Company and Others [1968]EA 123, where the court in their usual gusto, held as follows;-
“
.. this court is not bound necessarily to accept the findings of fact by the court below. An appeal to this court ... is by way of re-subordinate and the Court of Appeal is not bound to follow the subordinate Court’s finding of fact if it appears either that he failed to take account of particular circumstances or probabilities or if the impression of demeanour of a witness is inconsistent with the evidence generally.”
17.
The Court is to bear in mind that it had neither seen nor heard the witnesses. It is the subordinate court that has observed the demeanor and truthfulness of those witnesses. However, documents still speak for themselves. The observation of documents is the same as the lower court as parties cannot read into those documents matters extrinsic to them.
18.
This court’s jurisdiction to review the evidence should be exercised with caution. In the case of Peters vs Sunday Post Limited [1958] EA 424 , the court therein rendered itself as follows:-
“
It is a strong thing for an appellate court to differ from the findings on a question of fact, of the judge who had the advantage of seeing and hearing the witnesses…But the jurisdiction to review the evidence should be exercised with caution: it is not enough that the appellate court might have come to a different conclusion…”
19.
This court does not have the advantage of seeing and hearing the witnesses as did the lower court, yet it must reconsider the evidence, evaluate it itself and draw its own conclusions.
20.
The Appellant urged the court to find that the lower court erred in dismissing the suit. This court is entitled to reevaluate by way of a retrial the pleadings and evidence at the lower court. On the prove of the allegations of breach of contract in Raghbir Singh Chatte v National Bank of Kenya Limited [1996] eKLR the Court of Appeal stated thus:
“
When a party in any pleading denied an allegation of fact in the previous pleading of the opposite party, he must not do so evasively, but answer the point of substance. Thus, if it be alleged that he received a certain sum of money, it shall not be sufficient to deny that he received that particular amount, but he must deny that he received that sum, or any part thereof, or else set out how much he received. And so, when a matter of fact is alleged with divers circumstances, it shall not be sufficient to deny it as alleged along those circumstances, but fair and substantial answer must be given.”…
…First of all a mere denial is not a sufficient defence in this type of case there must be some reason why the defendant does not owe the money. Either there was no contract or it was not carried out and failed. It could also be that payment had been made and could be proved. It is not sufficient therefore simply to deny liability without some reason given.”
21.
The burden was with the Appellant to prove his case against the Respondent. On this subject, Section 107 (1) of the Evidence Act, Cap 80 Laws of Kenya provides that:
Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.
22.
A party who invokes the aid of the law and asserts affirmative of an issue has the burden to prove the matters in issue. In Anne Wambui Ndiritu –vs- Joseph Kiprono Ropkoi & Another [2005] 1 EA 334, the Court of Appeal held that:
“
As a general proposition under Section 107 (1) of the Evidence Act, Cap 80, the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue. There is however the evidential burden that is case upon any party the burden of proving any particular fact which he desires the court to believe in its existence which is captured in Sections 109 and 112 of the Act.”
23.
It follows that the initial burden of proof lies on the Plaintiff, but the same may shift to the Defendant, depending on the circumstances of the case.
24.
The burden of proof also casts upon any party, the burden of proving any particular fact which he desires the court to believe in its existence. In Evans Nyakwana –vs- Cleophas Bwana Ongaro [2015] eKLR it was held that:
“
As a general preposition the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue. That is the purport of Section 107 (i) of the Evidence Act, Chapter 80 Laws of Kenya. Furthermore, the evidential burden…is cast upon any party, the burden of proving any particular fact which he desires the court to believe in its existence. That is captured in Section 109 and 112 of law that proof of that fact shall lie on any particular person…The appellant did not discharge that burden and as Section 108 of the Evidence Act provides the burden lies in that person who would fail if no evidence at all were given as either side.”
25.
The question then is what amounts to proof on a balance of probabilities. Kimaru, J in William Kabogo Gitau –vs- George Thuo & 2 Others [2010] 1 KLE 526 stated that:
“
In ordinary civil cases a case may be determined in favour of a party who persuades the court that the allegations he has pleaded in his case are more likely that not to be what took place. In percentage terms, a party who is able to establish his case to a percentage of 51% as opposed to 49% of the opposing party is said to have established his case on a balance of probabilities. He has established that it is probable than not that the allegations that he made occurred.”
26.
Courts have established that the more serious the allegation the less likely it is that the event occurred and, hence, the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability. Lord Nicholls of Birkenhead in Re H and Others (Minors) [1996] AC 563, 586 held that;
“
The balance of probability standard means that a court is satisfied an event occurred if the court considers that, on the evidence, the occurrence of the even was more likely than not. When assessing the probabilities the court will have in mind as a factor, to whatever extent is appropriated in the particular case, that the more serious the allegation the less likely it is that the event occurred and, hence, the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability…..”
27.
The preponderance of probabilities is degree well settled. It must carry a reasonable degree of probability, but not so high as is required in a criminal case. Furthermore in Palace Investment Ltd –vs- Geoffrey Kariuki Mwenda & Another [2015] eKLR, the Judges of Appeal held that:
“
Denning J, in Miller –vs- Minister of Pensions [1947] 2 All ER 372 discussing the burden of proof had this to say;-
“That degree is well settled. It must carry a reasonable degree of probability, but not so high as is required in a criminal case. If the evidence is such that a tribunal can say: we think it more probable than not; the burden is discharged, but, if the probabilities are equal it is not.
This burden on a balance or preponderance of probabilities means a win however narrow. A draw is not enough. So, in any case in which the tribunal cannot decide one way or the other which evidence to accept where both parties…are equally (un) convincing, the party bearing the burden of proof will lose because the requisite standard will not have been attained.”
28.
With the above guide, in the instant appeal, the Appellant sought an order against the Respondent to pay the tea leaves delivered. The value of the tea leaves delivered was stated as Ksh. 1,750,946.35. It was the burden of the Appellant to prove the quantities delivered that yielded the claimed amount. In David Bagine v Martin Bundi [1997] eKLR, the Court of Appeal cited the judgment by Lord Goddard CJ. in Bonham Carter v Hyde Park Hotel Limited (1948) 64 TLR 177), where he that:
[The] Plaintiffs must understand that if they bring actions for damages it is for them to prove damage. It is not enough to note down the particulars and, so to speak, throw them at the head of the court saying ‘this is what I have lost’, I ask you to give me these damages; they have to prove it.
in Attorney General of Jamaica v Clerke (Tanya) (nee Tyrell), Cooke, J.A. delivering the judgment of the court stated that special damages must be strictly proved; the court should be very wary to relax this principle; that what amounts to strict proof is to be determined by the court in the particular circumstance of the case and the court may consider the concept of reasonableness.
29.
The nature of the Appellant’s claim was also a liquidated sum. The amount was specific and how it was arrived at was important as to enable the court discern the source and import of the claim. With special damages, the rule is strict and somewhat mathematical. The court has to discern pleaded damages and proceed to find their proof. It is not based on estimates. The Court of Appeal in Jogoo Kimakia Bus Services Ltd vs. Electrocom International Ltd [1992] KLR 177 stated that:
“
The law on damages stipulates various types of damages. The distinction between general and special damages is mainly a matter of pleading and evidence. General damages are awarded in respect of such damages as the law presumes to result from the infringement of a legal right or duty. Damages must be proved but the claimant may not be able to quantify exactly any particular items in it. Special damages are the precise amount of pecuniary loss which the claimant can prove to have followed from the particular facts set out in the pleadings. They must be specifically pleaded.”
30.
Special damages are thus very specific and constitute liquidated claim which must be pleaded and proved. This court’s task thus entails whether the lower court failed to award the sum of Ksh. 1,750,946.35 that was pleaded and proved. In Joseph Kipkorir Rono vs. Kenya Breweries Limited & Another Kericho HCCA No. 45 of 2003, Kimaru, J held that:
“
In current usage, special damage or special damages relate to part pecuniary loss calculable at the date of the trial, whilst general damages relate to all other items of damage whether pecuniary or non-pecuniary. If damages are special damages they must be specifically pleaded and proved as required by law. For a loss to be calculable at the date of trial it must be a sum that has actually been spent or loss that has already been incurred…Special damages and general damages are used in corresponding senses. Thus in personal injury claims, ‘special damages’ refers to past expenses and lost earnings, whilst ‘general damages’ will include anticipated loss as well as damages for pain and suffering and loss of amenities…Special damage is in the nature of past pecuniary losses or expenses while general damage is futuristic pecuniary loss or expenses. Therefore in the instant case the loss of income as a direct consequence of this fraud would be both a general damage as well as a special damage. General damages particularly extent thereof would be unknown at the time of the trial and must await the conclusion of the case so that they may be assessed. Special damages on the other hand consist of those losses that could be calculated at the time of the trial. Special damages must be pleaded, but so must future pecuniary loss if it may lead to surprise. Non-pecuniary damage must not be quantified in a pleading…There ought to be a distinction between past pecuniary losses or expenses already incurred and could easily be calculated by say reference to receipts obtained and anticipated future pecuniary loss or expenses which is continuing and which though one may know the multiplicand you will not normally know how long the loss will take. Such an anticipated loss is general damage, which must of necessity await the completion of the suit to be assessed by the Court. Special damages on the other hand is calculable at the date of the trial out of which a round figure will be obtained. General damages are such as the law will presume to be the direct natural or probable consequences of the action complained of. Special damages on the other hand, are such as the law will infer, from the nature of the act. They do not follow in the ordinary course but are exceptional in their character and, therefore, they must be claimed specifically and proved strictly…Specific loss of profits consequential upon the loss of use of an article for a specific period to the date of the plaint is special damage, which must be pleaded. However, in certain circumstances loss of profits could be included within a claim for general damages…General damages consist of the nature of prospective loss of income while special damages consist of out of pocket expenses and loss of earnings or income incurred down to the date of trial and is generally capable of substantially exact calculation. Where damages has become crystallised and concrete since the wrong the defendant could be surprised at the trial by the detail of its amount.”
31.
Regarding proof of loss, while it is true that it is trite law that special damages must not only be specifically pleaded but also strictly proved, what amounts to strict proof must depend on the circumstances; that is to say, the character of the acts producing damage, and the circumstances under which those acts were done. See Nizar Virani T/A Kisumu Beach Resort vs. Phoenix of East Africa Assurance Company Limited Civil Appeal No. 88 of 2002 [2004] 2 KLR 269, Gulhamid Mohamedali Jivanji vs. Sanyo Electrical Company Limited Civil Appeal No. 225 of 2001 [2003] KLR 425; [2003] 1 EA 98, Coast Bus Service Ltd vs. Sisco E. Murunga Ndanyi & 2 Others Civil Appeal No. 192 of 1992.
32.
The Respondent’s case was that the amount of tea supplied was over and above the number of tea bushes as per the audit. In other words, there is no way the Appellant’s tea bushes could have yielded the quantities that he purported to supply. It was also the case of the Respondent that it paid only what the Appellant could justify as per the audit and the bylaws. Further, the Appellant could not be paid because he was in debt and any proceeds were applied towards settling the debt.
33.
In my view, it was not in dispute that the Appellant supplied tea that he was not paid. The Respondent also tendered reliable evidence that the Appellant supplied excess quantity of green tea which the number of tea bushes could not support. A party is bound by its pleadings. The Appellant failed in stating the exact quantities that could be justifiably paid. This could have enabled the court to establish whether any amount or whatever amount was due to the Appellant, if any, in relation to the alleged debts with the Respondent. In the case of Daniel Otieno Migore v South Nyanza Sugar Co. Ltd [2018] eKLR, Justice A C Mrima stated as doth: -
“
11.
It is by now well settled by precedent that parties are bound by their pleadings and that evidence which tends to be at variance with the pleadings is for rejection. Pleadings are the bedrock upon which all the proceedings derive from. It hence follows that any evidence adduced in a matter must be in consonance with the pleadings. Any evidence, however strong, that tends to be at variance with the pleadings must be disregarded. That settled position was re-affirmed by the Court of Appeal in the case of Independent Electoral and Boundaries Commission & Ano. vs. Stephen Mutinda Mule & 3 others (2014) eKLR which cited with approval the decision of the Supreme Court of Nigeria in Adetoun Oladeji (NIG) vs. Nigeria Breweries PLC SC 91/2002 where Adereji, JSC expressed himself thus on the importance and place of pleadings: -
“…..it is now trite principle in law that parties are bound by their pleadings and that any evidence led by any of the parties which does not support the averments in the pleadings, or put in another way, which is at variance with the averments of the pleadings goes to no issue and must be disregarded……
…In fact, that parties are not allowed to depart from their pleadings is on the authorities basic as this enables parties to prepare their evidence on the issues as joined and avoid any surprises by which no opportunity is given to the other party to meet the new situation.”
34.
The Appellant instead resorted to pleading quantities and amounts that he could not justify by evidence. In the case of Malawi Railways Ltd vs Nyasulu [1998] MWSC 3, Malawi Supreme Court of Appeal stated as doth when the learned judges cited with approval an article by Sir Jack Jacob entitled “The Present Importance of Pleadings” published in [1960] Current Legal Problems at p 174 whereof the learned author posited that: -
As the parties are adversaries, it is left to each one of them to formulate his case in his own way subject to the basic rules of pleadings …….for the sake of certainty and finality; each party is bound by his own pleadings and cannot be allowed to raise a different fresh case without due amendment properly made. Each party thus knows the case he has to meet and cannot be taken by surprise at the trial. The court itself is as bound by the pleadings of the parties as they are themselves. It is no part of the duty court to enter upon any inquiry into the case before it other than to adjudicate upon the specific matters in dispute which the parties themselves have raised by the pleadings. Indeed, the court would be acting contrary to its own character and nature if it were to pronounce any claim or defence not made by the parties. To do so would be to enter upon the realm of speculation. Moreover in such event, the parties themselves, or at any rate one of them might well feel aggrieved; for a decision given on a claim or defence not made or raised by or against a party is equivalent to not hearing him at all and thus be a denial of justice….
In the adversarial system of litigation therefore, it is the parties themselves who set the agenda for the trial by their pleadings and neither party can complain if the agenda is strictly adhered to. In such an agenda, there is no room for an item called “Any Other Business” in the sense that points other than those specific may be raised without notice.”
35.
In 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…...’”
36.
The quantities of green tea supplied were not pleaded as to enable the court to discern the difference from that which was said to have been over and above the number of tea bushes and so the attempt to prove Kshs. 1,750,946.35 was unsuccessful. The court cannot act on evidence, even where it is established, in the absence of pleadings. In the recent presidential election petition, the Court of Appeal of Nigeria sitting as the election court, in Peter Gregory Obi & another versus Senator Bola Ahmed Tinubu &INEC & 3 others consolidated with petitions No. 4 and 5 both of 2023, stated as doth: -
“
In Belgore Versus Ahmed(2013) 8 Nwlr (Pt.1355) 60 the complaint against averments in the petition that were unspecific, generic, speculative, vague, unreferable(sic), omnibus and general in terms. The Apex court specifically held as follows: -
“Pleadings in an action are written statements of the parties wherein they set forth the summary of material facts on which they rely on in proof of this claim or his defence as the case may be, and by means of which real matters [in] controversy between the parties are to be adjudicated are pleaded in a summary form. They must nevertheless be sufficiently specific and comprehensive to elicit the necessary answers from the opponent.
37.
The last aspect is whether the Respondent is entitled to audit and not to pay for excess tea supplied. The parties entered into an agreement where the Appellant was to supply tea from his farm. He ended up supplying tea in excess of the capacity he had. The Appellant was unable to explain the origin of the excess tea. This was the agreement between the parties. There was no agreement to supply tea that the Appellant did not grow. The court cannot make a party avoid a lawful contract they have entered into. In the case of National Bank of Kenya Ltd v Pipeplastic Samkolit (K) Ltd & another [2001] eKLR it was held as follows: -
“
A Court of law cannot re-write a contract between the parties. The parties are bound by the terms of their contract, unless coercion, fraud or undue influence are pleaded and proved. There was not the remotest suggestion of coercion, fraud or undue influence in regard to the terms of the charge.
As was stated by Shah JA in the case of Fina Bank Limited vs Spares & Industries Limited (Civil Appeal No 51 of 2000) (unreported):
“It is clear beyond peradventure that save for those special cases where equity might be prepared to relieve a party from a bad bargain, it is ordinarily no part of equity’s function to allow a party to escape from a bad bargain”.
38.
While dealing with the question of the supply of excess or unaccounted-for tea, the court, B. Thuranira Jaden, J had this to say in the case of John K Waweru & 12 others v Theta Tea Factory Company Limited & another [2019] eKLR:
24.
On the other hand, the Respondent's position was that there was collusion with the clerks at the tea buying centers and falsification of records. There was no direct evidence of falsification or evidence of any reports made to the police or any disciplinary action taken against the said clerks. However, there is evidence from the Respondents that reflect that the investigations carried out reflected higher quantities of by the Appellants during the questioned period than in the previous or subsequent years.
25.
Without sufficient evidence of the tea bushes said to have been leased and from whom, it is difficult to agree with the Appellant's position that they delivered green tea leaves to the Respondents in excess of their registered tea bushes. The investigations carried out for the period before and subsequent to the period in question as per the evidence of DW1 and DW2 failed to exonerate the Appellants. Without any satisfactory explanation in respect of the excess quantities, the Appellants failed to prove that they indeed had produced the green tea leaf claimed to have been delivered to the Respondents. He who alleges must prove.
39.
The evidence on record shows that the licensing covers not only supply but also the number of tea bushes. Producing more than is scientifically possible leads to a conclusion of breach of the agreement between the parties. This is either through result inflation or unauthorized tea. The Appellant did not dispute the finding that only number CH 0050329 had 1,287 as against the registration of 2,337. The other two numbers had no single tea bush, but they produced tea leaves.
40.
In the case of Michael Rono v Tirgaga Tea Factory Ltd & another [2021] eKLR, R. Lagat-Korir posited as follows regarding excess tea leaves.
55.
At the time of the execution of the lease agreements, Section 14 of the Act provided for the registration of a tea farmer with the tea factory that he/she intends to deliver tea to. The Appellant had himself registered as a tea farmer then had his 875 bushes verified and registered. This court finds that the Appellant was aware by conduct, of the requirement for registration and verification of tea bushes.
56.
With regard to the lease agreements, there is no evidence on record to show that the 6000 tea bushes that the Appellant produced were verified and registered. There are no verification certificates to show that the 1st Respondent indeed went to the farms and counted the tea bushes to ascertain their number. There is also no evidence on record to show that the aforementioned bushes were registered so that the said tea bushes could be debited to the Appellant’s account. The Appellant also confirmed during cross examination that he did not have verification certificates with respect to the tea bushes in the leased farms.
57.
The doctrine of privity of contract applies in this case. A Contract cannot confer rights or impose obligations on any person other than the contracting parties, a contract cannot be enforced by or against a third party, which the 1st Respondent clearly is. The effect of this legal principle is that only parties who are privy to a contract can sue to enforce its terms. This position was held in the Court of Appeal case of Agricultural Finance Corporation Vs Lengetia Limited and Another (1985) eKLR where the court held that:-
“As a general rule, a contract affects only the parties to it and cannot be enforced by or against a person nor a party even if the contract is made for his benefit and purports to give the right to sue or to make him liable upon it”.
41.
The only tea bushes the Appellant had were 1,287, with a maximum yield of 1,634.5 kg. There was no registration of the other bushes or evidence of their existence. I find and hold that the Respondent was thus correct in finding that the excess tea was unexplained. The purpose of the audit is to ensure that there is no falsification of weights. Further, it avoids theft of tea from other farmers. The Appellant failed in his bid to introduce what he called new evidence. It is thus evident that the Appellant’s claim was untenable.
42.
The end result is that the Appellant was bound both by the Crops Act and the contract to register specific tea bushes. There was no evidence of the source of the extra bushes. The appeal is thus untenable, having found that the court below properly exercised its discretion.
43.
The issue of costs is governed by Section 27 of the Civil Procedure Act, which provides as follows:
(1)
Subject to such conditions and limitations as may be prescribed, and to the provisions of any law for the time being in force, the costs of and incidental to all suits shall be in the discretion of the court or judge, and the court or judge shall have full power to determine by whom and out of what property and to what extent such costs are to be paid, and to give all necessary directions for the purposes aforesaid; and the fact that the court or judge has no jurisdiction to try the suit shall be no bar to the exercise of those powers: Provided that the costs of any action, cause or other matter or issue shall follow the event unless the court or judge shall for good reason otherwise order.
(2)
The court or judge may give interest on costs at any rate not exceeding fourteen per cent per annum, and such interest shall be added to the costs and shall be recoverable as such.
44.
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.
45.
In the circumstances of this case, an award of costs of Kshs. 75,000/- to the Respondent is just and proper.
46.
In the upshot, I make the following orders: -
a.
The appeal lacks merit and is dismissed.
b.
The Respondent shall have costs of the appeal assessed at Ksh. 75,000/-.
c.
30 days stay of execution.
d.
File is closed. | Dismissed | https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/4482/eng@2025-04-07 |
Civil Appeal E066 of 2023 | Kariuki v Gaturu (Civil Appeal E066 of 2023) [2025] KEHC 4517 (KLR) (7 April 2025) (Ruling) | Ruling | High Court at Nyeri | High Court | LP Kassan | 7 April 2025 | 2,025 | Nyeri | Civil | Sarah Wangari Kariuki v Peter Macharia Gaturu | [2025] KEHC 4517 (KLR) | null | 1.
I have read the entire High court file and it is true that the lower court set aside its judgment dated 20/12/2022. I asked for the lower ocurt file to understand the circumstances under which the judgment was set aside but I was only supplied with proceedings up to 23/12/2023. | 2.
In my ruling which is a sub-suit of application for review, I clearly indicated that I had no typed proceedings and so I was at a disadvantaged position to determine some issues. this has clearly come out. I appreciate that this is among the files that came under RRI and time was of essence.
3.
This end, I shall order that the physical lower court file be supplied as soon as possible for me to write the ruling on review.
4.
For clarification on awards, I wish to state the following:
1.
The throw away costs was 10,000/- and not 15,000/-.
2.
This is a Nyeri matter.
3.
The ruling was delivered twice; just like all my matters under RRI that is on 3/7/2024 and 14/8/2024. The reason as to why I did this is because many advocates did not turn up on 3/7/2024 which was the first date of judgment. I directed notices be issued for 14/8/2024 for me to re-read the rulings/judgments.
4.
(Later) Parties still being absent – lower court file (physical copy) to be availed. Mention 16/6/2025. | Court issues further directions | https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/4517/eng@2025-04-07 |
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