KLR WEEKLY e-NEWSLETTER |
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| Issue 107| Newsletter Archive | Friday 21th May 2010 | |
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COURT RULING ON THE OVERRIDING OBJECTIVES (O2) PRINCIPLE By Monica Achode - Advocate “The furthering of the O2 principle by the courts is not likely to be helped or assisted where advocates or the parties in the applications fail to lay the basis for the application of the O2 principle or fail to comply with the rules practice directions or court orders. In the case of applications seeking the invocation of O2 principle a firm basis whether factual or legal must be laid and expressed in the application.” Kenya Commercial Bank Limited V Kenya Planters Co-operative Union [2010] eKLR This was the Court of Appeal’s position regarding the principle of Overriding Objectives in an application by Kenya Commercial Bank, the applicant, against the respondent, Kenya Planters Co-Operative Union, seeking for the extension of time within which they were to file their Civil Appeal. In making the application, the Bank relied on the grounds that the appeal had been lodged out of time by only one day and that the failure to file the application on time had been inadvertent. It was their contention that due to the intervening long Easter holiday, the applicant was unable to instruct their advocates in good time to enable preparation and filing of the application within the statutory limit of fourteen (14) days. According to the applicant the delay was further aggravated by the rejection of their bound application by the registry officials because it was in two different colors instead of one. The applicants submitted that the delay of one day in filing the application was not under those circumstances inordinate and that it had been fully explained in two ways; namely, the refusal of the record by the Registry officials on the basis of the record cover being in two different colors and the consequent need to unbind and bind another record so as to comply, and the intervention of the Easter holiday which prevented the advocate’s firm from obtaining the Banks instructions to file the application for leave in time. The applicant finally stated that in their opinion the application had a high probability of success and that failure to grant the application would prejudice them. On their part the respondents, opposed the application claiming that it had no merit and the same was meant to delay the determination of the real issues between the parties. It was their advocate’s opinion that in the Court of Appeal, it should have been obvious to the Bank’s counsel that as a matter of practice documents were never filed in rainbow colors and therefore the reasons for the delay were not plausible. In any event, no evidence of refusal to accept the documentation by the Registry officials had been tendered. In his final submission, Mr. King’ara contended that the order made by the judge was not appealable as a matter of law and on the additional ground that the applicants counsel had not made any formal application in the superior court. In its considerations the Appellate Court relied on the case of Leo Sila Mutiso v Rose C.A. Nai 255 of 1997 in which the Court of Appeal had held; “It is now settled that the decision whether or not to extend the time for appealing is essentially discretionary. It is also well settled that in general, the matters which this Court takes into account in deciding whether to grant an extension of time are: first, the length of the delay: secondly, the reason for the delay: thirdly, (possibly), the chances of the appeal succeeding if the application is granted; and, fourthly, the degree of prejudice to the respondent if the application is granted.” Justice Nyamu’s also considered the decision of Mongira & Another v Makori & Another [2005] 2 KLR 103 at pp 106-107 in which the court stated in part, “..We do not understand this list to be exhaustive, it was not meant to be exhaustive and that it is clear from the use of the words “in general,” Rule 4 gives the judge an unfettered discretion and so long as the discretion is exercised judicially a judge would be perfectly entitled to consider any other factor outside those listed in the paragraph we have quoted above so long as the factor is relevant to the issue being considered…” In deciding whether the application had a chance of success the Appellate Court considered the provisions of Order 42 rule 2 of the Civil Procedure Rules which clearly stated that an appeal lay with leave of the court from any other order made under the Rules. Applying the foregoing it was Justice Nyamu’s opinion that a delay of one day could not by any standard be said to be inordinate and the two reasons given for the delay namely the need to undo the record so as to again bind it in acceptable colors and the intervening Easter holiday which delayed the taking of instructions could not be said to be a frivolous reason and the two reasons are acceptable. The Appellate Judge felt that although he could not comment on appeal’s chances of success the grounds raised were not frivolous. Justice Nyamu added that since the application before him was principally grounded on sections 3A and 3B of the Appellate Jurisdiction Act, the decision that the list of factors to be considered was not exhaustive,was prophetic in that after the enactment of the O2 principle, the Court was statutorily required when exercising its powers either under the Act or the rules made pursuant to the Act or in interpreting the provisions of the Act or the rules to give effect to the Overriding Objective (which was elsewhere baptized “O2 principle” (or “the oxygen principle”). Under the O2 principle, the court’s mandate in each case or appeal was to act justly and as far as was practicable, to act fairly. Expressed differently and broadly, the principal aim of O2 principle was to achieve or attain justice, and fairness in the circumstances of each case; reduce cost and delay; deal with each matter in ways which are proportionate; and ensuring that the parties are on an equal footing and finally, allotting to each case an appropriate share of the court’s resources, while taking into account the need to allot resources to other cases. It was Justice Nyamu’s opinion that in the circumstances described in the case before him he would have failed in his duty to give effect to the O2 principle if he did not grant the order for extension as sought so as to enable the parties to have the merit of the application determined outside the prescribed period. The reason for this was that, although the court rules had a very special value as handmaiden of justice as often expressed, and in ensuing certainty, efficiency, predictability and curtailing arbitrariness, the O2 principle now demanded that whenever this Court was exercising any of its powers under the Act or the rules or interpreting them, the Court had to give effect to the O2 principle. Therefore since in the circumstances of this case, the Judge was called upon to exercise the powers conferred on him by Rule 4 of this Court’s rules, he had to as a matter of statute law give effect to the O2 principle. The net effect therefore was that, while the four factors would continue to assist the Court in assessing whether it had discharged its duty under sections 3A and 3B, it was the considerations set out in the sections which would take precedence and which had to prevail. The considerations were in his view not exhaustive because the concept of good management was vast. Thus, technicalities of procedure non-compliant precedents or the exercise of power in a manner that would defeat the court’s core business of acting justly would have to give way. However, Justice Nyamu was quick to add that the O2 principle was not at a flash meant to cover mistakes or lapses of counsel or negligent acts, dilatory tactics or acts constituting abuse of the Court process; on the contrary in many situations the Court would strike out applications under the O2 principle if the circumstances in the application would have the effect of violating the O2 principle. Advocates and their clients had a duty to assist the court in managing the cases. Thus, the furthering of the O2 principle by the courts was not likely to be helped or assisted where advocates or the parties in the applications failed to lay the basis for the application of the O2 principle or fail to comply with the rules practice directions or court orders. In the case of applications seeking the invocation of O2 principle a firm basis whether factual or legal must be laid and expressed in the application. In short, a party had to explain why he thought he was embraced by the O2 principle or why he thought the court ought to apply it. In this case, this being the beginning of the application of the O2 principle and since it was quite apparent to Justice Nyamu that what was being sought was an extension of time, he considered that a proper factual basis for the application had been laid by the applicant. The Judge also stated that when managing the appeals, perhaps consideration ought to be given by the Rules Committee to making rules pursuant to section 5 (d) of the Appellate Jurisdiction Act to provide for summary determination of any appeal which appeared to the Court to be frivolous or vexatious or to be brought for the purposes of delay. Such rules together with the anticipated case management rules to be incorporated in the Civil Procedure Rules would greatly enhance the efficient management of cases and appeals and the furthering of the O2 principle. Against this reasoning, Justice Nyamu allowed the Bank’s application holding that it was a special circumstance, that he was exercising the powers conferred on him as a single Judge and that in so doing, he was also giving effect to the O2 principle. |
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VOL. CXII-NO. 53 Dated 21st MAY, 2010 GAZETTE NOTICE NO. 5554 APPOINTMENT IN EXERCISE of the powers conferred by section 6 (1), (a) of the State Corporations Act, I, Mwai Kibaki, President and Commander-in-Chief of the Armed Forces of the Republic of Kenya appoint- JOSEPH K. THIONGO to be Chairman of the Kenya Bureau of Standards (KEBS), for a period of three (3) years. Dated the 12th May, 2010. MWAI KIBAKI, ![]() GAZETTE NOTICE NO. 5555 APPOINTMENT IN EXERCISE of the powers conferred by section 6 (1) (a) of the State Corporations Act, I, Mwai Kibaki, President and Commander in Chief of the Armed Forces of the Republic of Kenya appoint- JULIUS NYAROTHO (ENG.) to be Chairman of the Nzoia Sugar Company for a period of three (3) years. Dated the 12th May, 2010. MWAI KIBAKI, ![]() GAZETTE NOTICE NO. 5556 IN EXERCISE of the powers conferred by section 5 of the Land Control Act, the Minister for Lands appoints the persons named in the third column of the Schedule to be members of the respective Land Control Boards specified in the second column. This notice supersedes all other notices published there before under this section, with respect to the boards mentioned in the second column.
Dated the 17th May, 2010. ![]() GAZETTE NOTICE NO. 5557 IN EXERCISE of the powers conferred by section 5 (1) of the Magistrates’ Courts Act, the Chief Justice increases the limit of jurisdiction of- BEATRICE .M. KIMEMIA Senior Resident Magistrate to Kenya shillings eight hundred thousand (Ksh. 800,000), with effect from 1st May, 2010. Dated the 27th April, 2010. J.E. GICHERU, ![]() GAZETTE NOTICE NO. 5558 REVOCATION OF LAND TITLES WHEREAS the parcels of land whose details are described under the schedule herein below were allocated and titles issued to private developers, it has come to the notice of the Government that the said parcels of land were reserved for public purposes under the relevant provisions of the Constitution of Kenya, the Government Lands Act (Cap. 280) and the Trust Land Act (Cap. 288). The allocations were therefore illegal and unconstitutional. Under the circumstances and in view of the public need and interest, the Government revokes all the said titles. SCHEDULE Nairobi G.G. GACHIHI, ![]() GAZETTE NOTICE NO. 5559 REVOCATION OF LAND TITLES WHEREAS the parcels of land whose details are described under the schedule herein below were allocated and titles issued to private developers, it has come to the notice of the Government that the said parcels of land were reserved for public purposes under the relevant provisions of the Constitution of Kenya, the Government Lands Act (Cap. 280) and the Trust Land Act (Cap. 288). The allocations were therefore illegal and unconstitutional. Under the circumstances and in view of the public need and interest, the Government revokes all the said titles. SCHEDULE Siaya Ukwala Township/16 P.A. OWEYA, ![]() GAZETTE NOTICE NO. 5560 REVOCATION OF LAND TITLES WHEREAS the parcels of land whose details are described under the schedule herein below were allocated and titles issued to private developers, it has come to the notice of the Government that the said parcels of land were reserved for public purposes under the relevant provisions of the Constitution of Kenya, the Government Lands Act (Cap. 280) and the Trust Land Act (Cap. 288). The allocations were therefore illegal and unconstitutional. Under the circumstances and in view of the public need and interest, the Government revokes all the said titles. SCHEDULE Kitale Kitale Block 12/32 HELLEN MUTAI ![]() GAZETTE NOTICE NO. 5561 REVOCATION OF LAND TITLES WHEREAS the parcels of land whose details are described under the schedule herein below were allocated and titles issued to private developers, it has come to the notice of the Government that the said parcels of land were reserved for public purposes under the relevant provisions of the Constitution of Kenya, the Government Lands Act (Cap. 280) and the Trust Land Act (Cap. 288). The allocations were therefore illegal and unconstitutional. Under the circumstances and in view of the public need and interest, the Government revokes all the said titles. SCHEDULE WUNDANYI
M. JEMBE ![]() GAZETTE NOTICE NO. 5562 REVOCATION OF LAND TITLES WHEREAS the parcels of land whose details are described under the schedule herein below were allocated and titles issued to private developers, it has come to the notice of the Government that the said parcels of land were reserved for public purposes under the relevant provisions of the Constitution of Kenya, the Government Lands Act (Cap. 280) and the Trust Land Act (Cap. 288). The allocations were therefore illegal and unconstitutional. Under the circumstances and in view of the public need and interest, the Government revokes all the said titles. SCHEDULE MOMBASA Mombasa Block /XXVI/MI/1011 and 1013
GEOFFREY BIRUNDU, ![]() GAZETTE NOTICE NO. 5563 REVOCATION OF LAND TITLES WHEREAS the parcels of land whose details are described under the schedule herein below were allocated and titles issued to private developers, it has come to the notice of the Government that the said parcels of land were reserved for public purposes under the relevant provisions of the Constitution of Kenya, the Government Lands Act (Cap. 280) and the Trust Land Act (Cap. 288). The allocations were therefore illegal and unconstitutional. Under the circumstances and in view of the public need and interest, the Government revokes all the said titles. SCHEDULE Nairobi Nairobi Block 72/3174 ![]() GAZETTE NOTICE NO. 5560 REVOCATION OF LAND TITLES WHEREAS the parcels of land whose details are described under the schedule herein below were allocated and titles issued to private developers, it has come to the notice of the Government that the said parcels of land were reserved for public purposes under the relevant provisions of the Constitution of Kenya, the Government Lands Act (Cap. 280) and the Trust Land Act (Cap. 288). The allocations were therefore illegal and unconstitutional. Under the circumstances and in view of the public need and interest, the Government revokes all the said titles. SCHEDULE Lamu Lamu Block IV/124 M.S CHINYAKA ![]() GAZETTE NOTICE NO. 5330 INVITATION OF PUBLIC COMMENTS PURSUANT to regulation 21 of Environmental (Impact Assessment and Audit) Regulations, the National Environment Management Authority (NEMA) has received an environmental impact assessment study report for the implementation of the proposed Kibera development programme. The Proposed project has two main components: Water supply and Sewerage in Kibera Slum Area. The proposed project will cover the three villages of Soweto East, Silanga and Laini Saba. The items under the water supply component will include;
To address the sanitation situation in the area, various alternatives will be considered.
The project anticipates the impacts and mitigation measures set out in the gazette. The full report of the proposed project is available for inspection during working hours at:
The National Environment Management Authority invites members of the public to submit oral or written comments within thirty (30) days from the date of publication of this notice to the Director-General, NEMA, to assist the Authority in the approval process of the project. B.M. LANGWEN ![]() GAZETTE NOTICE NO. 5331 INVITATION OF PUBLIC COMMENTS PURSUANT to regulation 21 of Environmental (Impact Assessment and Audit) Regulations, the National Environment Management Authority (NEMA) has received an environmental impact assessment study report for the implementation of the proposed petrol station. The proposed project will entail development of a petrol service station which will include a filing area, service bay, tyre centre and mini shop. The project is located on L.R. Nos. 254, 255 and 256, Mwiki. The project anticipates the impacts and mitigation measures set out in the gazette. The full report of the proposed project is available for inspection during working hours at:
The National Environment Management Authority invites members of the public to submit oral or written comments within thirty (30) days from the date of publication of this notice to the Director-General, NEMA, to assist the Authority in the approval process of the project. B.M. LANGWEN ![]() GAZETTE NOTICE NO. 5332 INVITATION OF PUBLIC COMMENTS PURSUANT to regulation 21 of Environmental (Impact Assessment and Audit) Regulations, the National Environment Management Authority (NEMA) has received an environmental impact assessment study report for the implementation of the proposed petrol station. The proposed components of the proposed petrol service station will include the following: offices, service bay, toilets, car wash section, cafeteria, shop, mini supermarket, water/oil separator, three underground fuel tanks and pump canopy. The opposed petrol service station will be located at Mwongori settlement scheme, plot No. 84, Cheplat Market, Cheplat-Keroka Highway. The project anticipates the impacts and mitigation measures set out in the gazette. The full report of the proposed project is available for inspection during working hours at:
The National Environment Management Authority invites members of the public to submit oral or written comments within thirty (30) days from the date of publication of this notice to the Director-General, NEMA, to assist the Authority in the approval process of the project. B.M. LANGWEN ![]() GAZETTE NOTICE NO. 5333 INVITATION OF PUBLIC COMMENTS PURSUANT to regulation 21 of Environmental (Impact Assessment and Audit) Regulations, the National Environment Management Authority (NEMA) has received an environmental impact assessment study report for the implementation of the proposed development of multi family housing, commercial and offices. The proposed project will entail development of the following: Phase 1
Phase 2
Phase 3
Phase 4
The proposed development will be situated on plot L.R. No. 11148/4 which has an approximate of 34.6 Ha. located about three kilometers from Thika Road turn off to Thika/Gatanga Road opposite Blue Post Hotel and ten kilometers from Thika town centre. The project anticipates the impacts and mitigation measures set out in the gazette. The full report of the proposed project is available for inspection during working hours at:
The National Environment Management Authority invites members of the public to submit oral or written comments within thirty (30) days from the date of publication of this notice to the Director-General, NEMA, to assist the Authority in the approval process of the project. B.M. LANGWEN ![]() GAZETTE NOTICE NO. 5857 INVITATION OF PUBLIC COMMENTS PURSUANT to regulation 21 of Environmental (Impact Assessment and Audit) Regulations, the National Environment Management Authority (NEMA) has received an environmental impact assessment study report for the implementation of the proposed multi-storey office block for Kenya National Assembly. The proposed project will consist of six (6) Basement floors, Ground Floors, Ground floor and 26 no. level floors. The project is located on Plot L.R. No. 209/11456, situated along Harambee Avenue opposite Parliament Buildings in Nairobi’s CBD. The project anticipates the impacts and mitigation measures set out in the gazette. The full report of the proposed project is available for inspection during working hours at:
(c) Provincial Director of Environment, Nyayo House Nairobi , Province. The National Environment Management Authority invites members of the public to submit oral or written comments within thirty (30) days from the date of publication of this notice to the Director-General, NEMA, to assist the Authority in the approval process of the project. A.M KARIUKI ![]() GAZETTE NOTICE NO. 5858 INVITATION OF PUBLIC COMMENTS PURSUANT to regulation 21 of Environmental (Impact Assessment and Audit) Regulations, the National Environment Management Authority (NEMA) has received an environmental impact assessment study report for the implementation of the proposed silicate plant. The proponent intends to construct industrial warehouses and office buildings at plot L.R. No 14863 in Muthiga, Rungiri Location in Kikuyu Division. The proposed development will be undertaken to enable the proponent manufacture sodium silicate used in industrial manufacture of soap among other products. The plot to be developed which is approximately 2 acres. The project anticipates the impacts and mitigation measures set out in the gazette. The full report of the proposed project is available for inspection during working hours at:
The National Environment Management Authority invites members of the public to submit oral or written comments within thirty (30) days from the date of publication of this notice to the Director-General, NEMA, to assist the Authority in the approval process of the project. B.M. LANGWEN ![]() GAZETTE NOTICE NO. 5859 INVITATION OF PUBLIC COMMENTS PURSUANT to regulation 21 of Environmental (Impact Assessment and Audit) Regulations, the National Environment Management Authority (NEMA) has received an environmental impact assessment study report for the implementation of the proposed construction of inland container depot. The proposed project activities will include site preparation activities, excavation, casting foundation, building of a boundary wall construction of the depot area and a 2 storey office block. Also included are a fire station, paving works for the container stacking yard and the truck marshalling area. The 33KV high tension power supply line will be rerouted and commercial supply installed at the facility. The proposed project will be located on plots L.R. Nos. 4178, 4180, 4404 and 4405/VI/MN off Makupa Causeway within Mombasa Municipality. The project anticipates the impacts and mitigation measures set out in the gazette. The full report of the proposed project is available for inspection during working hours at:
The National Environment Management Authority invites members of the public to submit oral or written comments within thirty (30) days from the date of publication of this notice to the Director-General, NEMA, to assist the Authority in the approval process of the project. A.M. KARIUKI, ![]() GAZETTE NOTICE NO. 5860 INVITATION OF PUBLIC COMMENTS PURSUANT to regulation 21 of Environmental (Impact Assessment and Audit) Regulations, the National Environment Management Authority (NEMA) has received an environmental impact assessment study report for the implementation of the proposed 2X1MW thermal power plant project. The proposed development will involve procuring, installing and commissioning two (2) additional Caterpillar Generator Engines with capacities of 1000KW each. The 2X1MW Generator Sets are to be installed on the fast track basis. Upon completion of these additional engines the total installed capacity will increase from 4100 to 6100KW. This project is to cover Garissa town. The project anticipates the impacts and mitigation measures set out in the gazette. The full report of the proposed project is available for inspection during working hours at:
The National Environment Management Authority invites members of the public to submit oral or written comments within thirty (30) days from the date of publication of this notice to the Director-General, NEMA, to assist the Authority in the approval process of the project. B.M. LANGWEN ![]() GAZETTE NOTICE NO. 5861 INVITATION OF PUBLIC COMMENTS PURSUANT to regulation 21 of Environmental (Impact Assessment and Audit) Regulations, the National Environment Management Authority (NEMA) has received an environmental impact assessment study report for the implementation of the proposed mixed development. The proposed housing development will be comprised of 8 Godowns, Private Filing Station, Office Blocks, and Residential Flats The site is located on LR. No 12715/546, measuring 2.057ha. This project is located abutting JKIA Country club opposite Kapa Oil Refineries ltd, off Mombasa Road. The project anticipates the impacts and mitigation measures set out in the gazette. The full report of the proposed project is available for inspection during working hours at:
The National Environment Management Authority invites members of the public to submit oral or written comments within thirty (30) days from the date of publication of this notice to the Director-General, NEMA, to assist the Authority in the approval process of the project. B.M. LANGWEN ![]() GAZETTE NOTICE NO. 5863 APPROVAL OF BY-LAWS PURSUANT to section 205 of the Local Government Act, notice is given that the County Council of Keiyo has with the approval of the Deputy Prime Minister and Minister for Local Government made the undermentioned By-laws: The County Council of Keiyo (Rimoi National Reserve) By-laws, 2010. The same will have the force of law within the area of jurisdiction of the County Council; of Keiyo from the date of publication of this Notice. By Order of the County Council of Keiyo. Dated the 4th May, 2010. E.K.L. BALIAT, ![]() GAZETTE NOTICE NO. 5863 APPROVAL OF BY-LAWS IN EXERCISE of the powers conferred by section 205 of the Local Government Act, the County Council of Keiyo has with the approval of the Deputy Prime Minister and Minister for Local Government effected the by-laws set out in the gazette within its area of jurisdiction with effect from the date of publication of this notice. Dated 12th May,2010 R.T CHEPKONGA SUPPLEMENT No. 30 LEGAL NOTICE NO. 67- The National Assembly and Presidential Elections Act- Extension of Period for the Issue of Writs-Juja Constituency ![]() |
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Kenya Law Weekly Issue 107/2010
21 May 2010
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