National Council for Law Reporting
Editorial Department
Case Selection Meeting
July 24, 2012
Summary:
 No. of judicial opinions allocated: 33
 Anonymized:
 Divorce case 1
o parties names, children’s names
 Adoption case 2
o Child’s previous and new names
o Postal addresses of guardian ad litem and adoptive parents
 Recommended for reporting: 6
 Not recommended for reporting: 19
 All these cases have been emailed to the person in charge of inventory.
 Sampled 10 cases allocated to me for reporting about in the previous week. All
are online.
1. Kaburu Okelo & Partners v Stella Karimi Kobia & 2 others [2012]eKLR
Court of Appeal at Nairobi
(Appeal from a judgment of the High Court at Nairobi - Rawal J)
O’Kubasu, Waki & Onyango Otieno, JJ A
July 13, 2012
Judgment*
Advocates:
Mr. SK Ngii for the Resident Engineer
Miss Nekesa Makila for the 1st Respondent
[Per Waki JA
“As Onyango Otieno J.A also agreed, the judgment of the court shall be as above.
This Judgment is made under rule 31(2) of the Court of Appeal Rules, 2010”
Rule 31: General powers of the Court.
On any appeal the Court shall have power, so far as its jurisdiction permits, to confirm,
reverse or vary the decision of the superior court, or to remit the proceedings to the
superior court with such directions as may be appropriate, or to order a new trial, and to
make any necessary incidental or consequential orders, including orders as to costs.
Court of Appeal Rules 2010 rule 32(3): (3) In civil applications (other than applications
heard by a single judge) and civil appeals, separate judgments shall be given by the
members of the Court unless, the decision being unanimous, the presiding judge
otherwise directs, but where one judge delays, dies, ceases to hold office, or is unable to
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perform the functions of his office because of infirmity of mind or body, separate
concurring judgments may be given by the remaining members of the court.]
Negligence - Vicarious liability – liability of an employer for the negligence of his
employee – who is an employer – test of control over the acts of the negligence
Issue: What level of control over the negligent acts of person A would lead to a finding that
person B, who is directing person A on the doing of those acts, as being held vicariously liable for
the negligence?
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Salama Construction – road works contractor
GoK – signed contract with Salama Construction for road rehabilitation
Contract describing GoK as the ‘Employer’
Chief Engineer, Ministry of Public Works & Housing – Project Engineer
Kaburu, Okello & Partners – Consulting Engineers – authorized
representatives of the Chief Engineer, Ministry of Public Works &
Housing for the project
John Kobia Muthuri – Resident Engineer for the project, an employee of,
and representing Kaburo, Okello & Partners
o Contract providing for Salama Construction to provide motor
vehicles for the use of the Engineer for the project.
o Salama Construction providing a vehicle and a driver.
o Resident Engineer killed in road accident.
GoK not made a party to the proceedings.
Who, between Salama Construction and the Resident Engineer was vicariously liable for
the actions of the offending driver?
The High Court found as a fact that the driver was not a servant of Salama and
that, therefore, Salama was not vicariously liable for his actions.
That the deceased, and by extension, the resident engineer, was “in control of the
way in which the act involving negligence was performed” and that “the driver.. was
hired as a driver by the resident engineer” who was therefore liable for his actions.
Held:
1. Vicarious liability arises when the tortious act is done in the scope of or
during the course of one’s employment or authority.
2. In all the circumstances, therefore, the driver was a servant of Salama
and he drove the vehicle owned by Salama. The test of “control” was
improperly applied by the High court when it came to the conclusion that
the resident engineer had control of the way in which the act involving
negligence was done.
3. The Resident Engineer had the authority and liberty to tell the driver
generally where to work and when to work during the pendency of the
contract, but certainly he had no control over how the driver would
execute his skill as such driver.
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4. Vicarious liability for the actions of the driver continued to operate
against Salama Construction and there was no basis for dismissing the
suit against it.
Appeal allowed, damages to be paid by Salama Construction along with costs in the High Court.
2. Methodist Church in Kenya & another v Jeremiah Muku & another [2012]eKLR
Court of Appeal at Nyeri
(Appeal from the judgment and decree of the High Court at Meru – Ouko J)
EM Githinji, HM Okwengu & DK Maraga JJ A
July 5, 2012
Judgment
Advocates:
Mr. Ng’ang’a for the Appellant
Mr. Kilinzo Junior for the 1st Respondent
Constitutional law – judgment or decree of a court – constitutionality of a
judgment or decree – extent to which a judgment or decree can be challenged as
amounting to a violation of a constitutional right or fundamental freedom.
To what extent can a judgment or order of a court be challenged through a constitutional
application as contravening a right or fundamental freedoms guaranteed by the former
Constitution?
The appellants filed a petition in May 2006 in a civil suit mainly under section 84 of the
former Constitution and by virtue of rule 23 of the [Gicheru rules on constitutional
applications] alleging that the Ruling of the Subordinate court and the preliminary
decree had contravened the appellants’ fundamental rights to liberty,t he right not to be
held to servitude, the right to property, freedom of conscience and association under the
provisions of the Constitution. The main relief sought was an order of certiorari to
quash the Ruling and the preliminary decree.
Held:
1. A petition under section 84 (1) of the former Constitution is concerned with
public law and not private law. Indeed the Order of certiorari to quash the
preliminary decree sought in the petition is a remedy in public law. We
appreciate that the preliminary decree was given by a judicial officer in exercise
of judicial power of State and that to that extent the preliminary decree has a
public law element.
2. It is only in rare cases that an error in the judgment or order of a court can
constitute a breach of human right or fundamental freedoms. Ordinary errors
made in the course of adjudication by courts of law should be cured by invoking
the mechanism and procedures prescribed by the ordinary law for correction of
errors such as appeal or review.
3. In this case, the collateral attack of a preliminary decree through a constitutional
petition was a gross abuse of the process of the court.
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Appeal dismissed.
Maharaj v Attorney General of Trinidad and Tobago (No. 2) [1979] AC 385, the
Privy Council said at page 399 – para D: We have deliberately quoted the majority
judgment of thePrivy Council at length because it explains to what extent a judgment
or order of a court can contravene the human right or fundamental freedoms guaranteed
by the former Constitution.
o No human right or fundamental freedom recognized by [the
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Constitution of Trinidad & Tobago] is contravened by a judgment
or order that is wrong and liable to be set aside on appeal for an
error of fact or substantive law, even where the error has resulted in a
person’s serving a sentence of imprisonment. The remedy for errors
of these kinds is to appeal to a higher court.
Where there is no higher court to appeal to then none can say that
there was an error. The fundamental human right is not to a legal
system that is infallible but to one that is fair. It is only errors in
procedure that are capable of constituting infringements of the rights
protected by section 1(a) [of the Constitution of Trinidad &
Tobago]; and no irregularity in procedure is enough, even though, it
goes to jurisdiction; the error must amount to a failure to observe one
of the fundamental rules of natural justice. This cannot be be
anything but a very rare event.
A Judge cannot be made personally liable for what he has done when
acting or purporting to act in a judicial capacity.
Even a failure by a Judge to observe one of the fundamental rules of
natural justice does not bring the case within [constitutional redress]
unless it has resulted, is resulting or is likely to result, in a person
being deprived of life, liberty, security of the person or enjoyment of
property.
It is only in the case of imprisonment or corporal punishment already
undergone before an appeal can be heard that the consequences of the
judgment or order cannot be put right on appeal to an appellate court
3. Samuel Mwangi v Jeremiah M’Itobu [2012]eKLR
Waki, Visram & Koome JJ A
Court of Appeal at Nyeri
(Appeal from the Judgment and Decree of the High Court at Meru – Etyang J)
July 5, 2012
Judgment*
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“This judgment has been delivered under rule 31 (3) of the Court of Appeal Rules,
and as Koome, JA also agrees, the orders shall be as outlined herein before”.
Land law – trespass – right to sue in trespass – whether a mere possessor who is
not the owner of land can have a cause of action in trespass against an intruder.
Can an ‘occupier’ of land sue an ‘intruder’ for trespass?
Held:
1. The High Court erred in its conclusion that only an ‘owner’ of land had the right
to use in trespass.
2. (Quoting with approval Winfield & Jolowicz, Tort, 12th Edn. P. 361:
a. Possession in fact confers no actual right of property, but a
possessor may nevertheless maintain trespass against anyone who
interferes who cannot himself show that he has the right to
recover possession immediately.
b. A stranger cannot rely in his defence upon another person’s right
to possess (the “jus tertii”) unless he can prove that he acted with
that person’s authority. Even wrongful possession, such as that
acquired by a squatter, will, in principle, be protected except
against the owner of the land or someone acting lawfully on his
behalf.”
Appeal allowed.
4. Bakari Said Lao v Republic [2012] eKLR
High Court at Mombasa
Justice M. Odero
June 26, 2012
Judgment
Evidence – expert evidence – documentary evidence contained in the report of a
Government Chemist – whether such evidence may be admitted without calling
the person who made the document – interpretation of the Evidence Act (Cap. 80)
section 77(1), (2), (3)
Can the documentary report of a government chemist (on whether the composition of certain
substances alleged to be narcotic drugs) accepted in evidence where the maker, i.e. the Government
Chemist, was not called to testify?
“77(1) In criminal proceedings any document purporting to
be [a] report under the hand of a Government analyst,
medical practitioner or of any ballistics expert, document
examiner or geologist upon any person, matter or thing
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submitted to him for examination or analysis may be used in
evidence [my emphasis]
(2) The court may presume that the signature to any such
document is genuine and that the person signing it held the
office and qualifications which he professed to hold at the
time when he signed it”
Held:
1. The Evidence Act (Cap. 80) section 77 sets out the rules governing the
admissibility of expert evidence. Notwithstanding the failure to call the
Government Analyst, the reports were admissible and were deemed to have been
prepared by the Analyst.
2. The section provides that a court ‘may’ summon the analyst to testify if it thinks
fit. The use of the word ‘may’ implies that the decision whether to summon the
analyst or not lies solely at the court’s discretion.
3. The trial magistrate did not deem it necessary to exercise that discretion in this
case and the appellant had not raised any objection to the production of the
reports of the Government Analyst and he did not make any request for the
Analyst to be summoned. The Government Analyst’s reports were therefore
properly produced and accepted in evidence.
5. Rachel Auma Owiti v Municipal Council of Kisumu [2012] eKLR
High Court at Kisumu
Justice HK Chemitei
July 13, 2012
Judgment
Constitutional law – constitutional rights and fundamental freedoms – right to
administrative action – right to expeditious, efficient, lawful, reasonable and
procedurally fair administrative action – failure and delay by municipal authority
to respond to letters from a land owner who sought clearance to develop the land
– whether the failure was a breach of the petitioner’s right to administration
action - Constitution of Kenya, 2010 Article 47
Where a municipal authority neglects to respond to several letters from a member of the public
who has acquired land within the municipality and is seeking clearance to develop the land, has
the authority breached the person’s the right to expeditious, efficient, lawful, reasonable and
procedurally fair administrative action provided in Article 47 of the Constitution of Kenya,
2010?
47 (1) Every person has the right to administrative action that is
expeditious efficient, lawful, reasonable and procedurally fair.
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47 (2) If a right or fundamental freedom of a person has been or is likely to
be adversely affected by administrative action, the person has the right to
be given written reasons for the action.
Held:
1. The failure by the respondent, a Municipal Authority, to respond to
several letters from the petitioner, a purchaser of land within the
Municipality who sought the clearance of the Authority to develop
the land, was a breach of Article 47 (1) and (2) of the Constitution.
2. The purposes and duty of any statutory body is to serve its
constituents with utmost care speed and diligence. This recalcitrance
action by the respondent, while it continued to charge and accept
land levies from the petitioner, was inefficient, unlawful,
unreasonable and unprocedural and time wasting.
3. The respondent was liable to the petitioner in the amount of Kshs.
150,000 being general damages for breach of Article 47 of the
Constitution.
4. The action by the respondent to revoke the allotment of the land and
to put it up for competitive acquisition by the public was not
arbitrary and the respondent had acted within its mandate.
Orders accordingly.
5. Kiama Wangai v John N. Mugambi & another [2012] eKLR
High Court at Nairobi – Civil Division
Justice JV Odunga
July 12, 2012
Ruling
Application to strike out a plaint in a case in which a client filed defamation proceedings
against his advocate arising from letters written by the advocate. Different suits were
filed with respect to different letters.
section 6 of the Civil Procedure Act which provides as follows:
“No court shall proceed with the trial of any suit or proceeding in which
the matter in issue is also directly and substantially in issue in a previously
instituted suit or proceeding between the same parties, or between parties
under whom they or any of them claim, litigating under the same title,
where such suit or proceeding is pending in the same or any other court
having jurisdiction in Kenya to grant the relief claimed”.
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Held:
1. Where a party decides to file suit after suit between same parties with the same
cause of action with either an intention of vexing or annoying his opponent, and
without pursuing the first suit in the production line to its logical conclusion,
that action may be construed to amount to an abuse of the process of the Court.
2. It is not the form in which the suit is framed that determines whether it is sub
judice but the substance of the suit.
3. The overriding objective set out in section 1A of the Civil Procedure Act is
tailored to enable the court deal with cases justly which includes ensuring that
the parties are on an equal footing; ensuring that it is dealt with expeditiously
and fairly; and allotting it appropriate share of the court’s resources, while
taking into account the need to allot resources to other cases. In order to deal
with cases expeditiously, the practice of fragmenting a case into many causes of
action when they can all be disposed in one cause should be discouraged.
4. In exercising its powers to strike out proceedings under Order 2 rule 15 of the
Civil Procedure Rules, a court of law is to be guided by certain well established
principles:
a. Whereas the essence of the provisions is the striking out of a suit, that is
a jurisdiction that must be exercised sparingly and in clear and obvious
cases and unless the matter is plain and obvious, a party to civil litigation
is not to be deprived of his right to have his suit tried by a proper trial.
b. The court ought to act very cautiously and carefully and consider all
facts of the case without embarking upon a trial thereof before dismissing
a case for not disclosing a reasonable cause of action or being otherwise
an abuse of the process of the court.
c. The power to strike out pleadings must be sparingly exercised and it can
only be exercised in clearest of cases. If a pleading raises a triable issue
even if at the end of the day it may not succeed then the suit ought to go
to trial.
d. However where the suit is without substance or groundless or fanciful
and or is brought or is instituted with some ulterior motive or for some
collateral one or to gain some collateral advantage, which the law does
not recognise as a legitimate use of the process, the court will not allow
its process to be as a forum for such ventures. T
e. To do this would amount to opening a front for parties to ventilate
vexatious litigation which lack bona fides with the sole intention of
causing the opposite party unnecessary anxiety, trouble and expense at
the expense of deserving cases contrary to the spirit of the overriding
objective which requires the court to allot appropriate share of the court’s
resources, while taking into account the need to allot resources to other
cases.
f. A pleading is scandalous if it states (i) matters which are indecent; or
(ii) matters that are offensive; or (iii) matters made for the mere purpose
of abusing or prejudicing the opposite party; or (iv) matters that are
immaterial or unnecessary which contain imputation on the opposite
party; or (v) matters that charge the opposite party with bad faith or
misconduct against him or anyone else; or (vi) matters that contain
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g.
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degrading charges; or (vii) matters that are necessary but otherwise
accompanied by unnecessary details.
However, the word “scandalous” for the purposes of striking out a
pleading under Order 2 rule 15 of the Civil Procedure Rules is not
limited to the indecent, the offensive and the improper and that denial of
a well-known fact can also be rightly described as scandalous.
A matter is frivolous if (i) it has no substance; or (ii) it is fanciful; or (iii)
where a party is trifling with the Court; or (iv) when to put up a defence
would be wasting Court’s time; or (v) when it is not capable of reasoned
argument.
Again a pleading or an action is frivolous when it is without substance or
groundless or fanciful and is vexatious when it lacks bona fides and is
hopeless or offensive and tends to cause the opposite party unnecessary
anxiety, trouble and expense.
A matter is said to be vexatious when (i) it has no foundation; or (ii) it has
no chance of succeeding; or (iii) the defence (pleading) is brought merely
for purposes of annoyance; or (iv) it is brought so that the party’s
pleading should have some fanciful advantage; or (v). where it can really
lead to no possible good.
Pleading tend to prejudice, embarrass or delay fair trial when (i) it is
evasive; or (ii) obscuring or concealing the real question in issue between the
parties in the case. It is embarrassing if (i) It is ambiguous and
unintelligible; or (ii) it raises immaterial matter thereby enlarging issues,
creating more trouble, delay and expense; or (iii) it is a pleading the party
is not entitled to make use of; or (iv) where the defendant does not say
how much of the claim he admits and how much he denies.
A pleading which tends to embarrass or delay fair trial is described as a
pleading which is ambiguous or unintelligible or which states immaterial
matters and raises irrelevant issues which may involve expenses, trouble
and delay and that which contains unnecessary or irrelevant allegations
which will prejudice the fair trial of the action and lastly a pleading which
is abuse of the process of the court really means in brief a pleading which
is a misuse of the Court machinery or process.
A pleading is an abuse of the process where it is frivolous or vexatious or
both. Where the pleading as it stands is not really and seriously
embarrassing it is wiser to leave it un-amended or to apply for further
particulars.
Suit stayed pending the hearing and determination of another suit or until further
orders of the Court.
Important cases referred:
1. In Chepkoech A Rotich v John Masinde Simiyu [2012] eKLR. High Court at Nakuru.
Justice RPV Wendo. July 6, 2012 (ruling). The following decision was affirmed:
Fauji Auto Trading Company Limited Vs National Bank of Kenya, Hcc No. 3459 of
1995, where Justice Kuloba said;
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“what all these considerations mean is that unless it be
shown that an order for security is necessary for the
protection of the defendant, the court ought not to make
an order for security. As it is almost uniformly said in
major reference books, the basic principle is that poverty
is itself no ground for ordering security for costs, and a
poor person is not to be debarred from suing merely
because if he lost the suit he could not pay the defendant
his costs”.
- Decision not available on eKLR
2. In Nutech System & Trading Company Ltd. v East African Excavation Co. Ltd
[2012] eKLR - Justice JV Odunga, July 12, 2012. Ruling.
Per JV Odunga:
“The Court of Appeal in Kenya Seed Co. Ltd vs. Joseph Bosire Civil Appeal
No. 72 of 2002 held as follows:
“In adversarial system governing civil matters the plaintiff as the
arbiter litis or dominus litis has the right to choose any forum
the law allows him to agitate his case and such right is only
subject to the control provided in the Civil Procedure Rules for
transfer of cases, otherwise the Courts would lightly interfere
with it…The suit however must be filed in the first instance
before a Court which has the jurisdiction to determine it and if it
is incompetent in that respect it cannot even be transferred as
the remedy is to withdraw it and file it before a Court which has
jurisdiction. The other remedy, if the limit of the jurisdiction is
monetary, is to limit the claim to the jurisdiction of the trial
court”.
The decision’s metadata is online.
Kenya Seed Co. Ltd Vs Joseph Bosire [2010] eKLR
Case Number : Civil Appeal 72 of 2002
Delivery Date : Fri 17 , June, 2005
Judge : P.K. TUNOI ,E.O. O'KUBASU P.N. WAKI
Court : Court of Appeal at Eldoret
Citation : KENYA SEED CO. LTD Vs JOSEPH BOSIRE [2010] eKLR
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