KLR WEEKLY e-NEWSLETTER
 

| Issue 114| Newsletter Archive | Friday 9th July 2010 |

 
   
 
 
CASE OF THE WEEK
 

COURT DEFINES ATTORNEY GENERAL’S DISCRETION IN REPRESENTING STATE CORPORATIONS

By Petronella Karimi Mukaindo -  Advocate

Joseph Nathaniel Kipruto Vs the Attorney General & Investment Promotion Centre [2010 eklr](www.kenyalaw.org)
Court of Appeal at Nairobi
Bosire, Githinji & Nyamu, (JJA)
 July 9, 2010.

“The decision of the superior court that the Attorney General had no locus standi to represent the Investment Promotion Centre was solely based on the narrow ground that the Centre was a body corporate with its own power to sue and be sued in its own name. However, this particular case is in our view, one where the AG has unquestionable right to represent a State Corporation in Civil proceedings …”

The Court of Appeal has cleared the air on whether, the Attorney General (AG), who is the government legal advisor can represent a public officer or even a state corporation as a counsel. In reversing the decision of the superior court (Ojwang J ) that the AG had no power to represent a State Corporation, a three member bench ruled that though the AG cannot competently institute a suit in his own name on behalf of a State Corporation, he has unquestionable right to represent it in Civil proceedings. Section 26 of the current Constitution establishes the office of the AG as the ‘principal legal adviser’ to the Government of Kenya.
In this appeal, the court seemed to stress the distinction between power of the Attorney General to institute civil proceedings and the discretion of the Attorney General to appear as a counsel for a party in civil proceedings. 

The background to this case was that Joseph Kipruto (appellant) had filed a suit against the respondents on the basis that the two had wrongfully and fraudulently terminated his contract of employment as executive chairman of Investment Promotion Centre (IPC). (IPC is a State Corporation established under the Investment Promotion Centre Act (Cap 485, Laws of Kenya). The AG was sued on behalf of the Permanent Secretary (PS), Ministry of Trade & Industry as he was the one who allegedly terminated the appellant’s services.

Mr Kipruto had thus filed a suit seeking a declaration that the PS’s purported termination of his services was unlawful, illegal and unprocedural and sought both special and general damages.

Upon service of the summons to enter appearance together with plaint on IPC, the Managing Director of IPC requested the AG to represent it vide a letter dated June, 2004. Thereafter, the AG prepared a joint defence and counter-claim of himself as first respondent and also IPC (second respondent). These were verified by the affidavit of the Managing Director of IPC.  In July, 2004 the AG entered appearance on behalf of the two respondents and also filed a joint defence and counter-claim on behalf of the 1st and 2nd respondents.

The appellant subsequently filed an application for orders that the defence and counter-claim be struck out and for leave to enter judgment for non appearance and default in filling defence by the IPC.  The application was mainly based on the ground that the memorandum of appearance and the defence filed by the AG on behalf of IPC was an abuse of the process of the court as the AG had no locus standi to file pleadings on behalf of IPC since IPC was a body corporate with power to sue and be sued in its name. The AG opposed the application contending, among other things, that IPC was legally and properly being represented by the AG.

The High court was not convinced by an earlier decided case of Chief Nehemia Gotonga presented before it in which it was held that it was entirely within the administrative discretion of the Attorney General to decide whether it was in the interest of the crown (State) that it should provide legal representation for a particular litigant.In allowing the application, the court (Ojwang J.) held  that the AG had  no legal standing to enter appearance and file a defence and counter-claim on behalf of IPC and that the appearance and defence and counter-claim were thus a nullity with the result that IPC must be taken as not having filed a defence and counter-claim.  The High court thereupon struck out the appearance and the defence and counter-claim and gave leave for entry of judgment against IPC for non-appearance and for default of defence and as a result entered judgment against IPC.

IPC then instructed a firm of Advocates to enter appearance on behalf of it and the firm filed an application seeking to set aside the exparte judgment entered against IPC under the Civil Procedures Rules (CPR). The application was ultimately heard and allowed by Ransley, J. in September, 2005 thereby precipitating the instant appeal.

The current appeal was against the exercise of judicial discretion to set  aside judgment entered ‘‘in default of appearance and defence’’ and also against the consequential order giving IPC leave to enter appearance and file a defence. Mr. Thangei, counsel representing the appellant contended that the judge lacked jurisdiction to set aside the judgment as the judgment was not an exparte judgment in the first place. He further argued that the judge had misdirected himself in both law and in fact in failing to appreciate that there was inordinate delay from the time IPC was served with summons to enter appearance and the time it applied for setting aside of the judgment and that the Judge  had erred in law in allowing M/s. Wekesa & Co. Advocates to represent IPC when the firm was not properly on record as it had not sought leave of the court to appear for IPC.

The Court of Appeal concurred with the appellant’s contention that the Civil Procedure Rules (CPR) provide that a change of advocate after the judgment has been passed should not be effected without an order of the court upon an application with notice to the advocate already on record.  The court however noted that this only applied to a situation where a party who had previously engaged an advocate in a suit intended either to act in person or had engaged another advocate after the court has passed judgment, which was different from the present case as IPC had not engaged AG as counsel but had merely requested the AG to represent it.

Furthermore, the court observed that superior court’s ruling that the AG’s documents were a nullity as the AG had no locus standi to represent IPC meant that that IPC had not been represented by AG ab initio hence, no advocate had been on record. The appellate court thus concluded that there was in essence no change of advocates and hence no leave of court was required.

On the question as to the exercise of judicial discretion to set aside an ex parte judgment, the appellate court referred to the case of Shah vs. Mbogo that sets the principles governing the exercise of a court’s discretion to set aside a judgment obtained exparte. In the Shah’s case, it had been held that a court’s discretion to set aside an exparte judgment was intended to avoid injustice or hardship resulting from accident, inadvertence or excusable mistake or error but not to assist a person who has deliberately sought to obstruct or delay the course of justice. The appellate court noted that the superior court (Ransley J.) had exercised its discretion judicially in the present case, because had the superior court declined to set aside the judgment, IPC would have suffered great injustice as it would have been condemned unheard for no fault of its own.

Was it then in order for the Attorney General to enter appearance and file defence on behalf of the state corporation? In answering this question, the court agreed with the holding in the case of AG vs KCB that the AG cannot competently step into the shoes of a State Corporation which had power to sue and be sued in its corporate name and institute a suit in his own name on behalf of the State Corporation. The suit can only be instituted in the name of the specific State Corporation. The Court however clarified that there are instances where the AG has unquestionable right to represent a State Corporation in Civil proceedings and this was such one.
In the AG v KCB case, the AG had filed a suit in his name on behalf of National Irrigation Board (a State Corporation which is a body corporate with power to sue and be sued in its name). Justice Ringera (as he then was) in that case had stated thus: “I think the Attorney General’s institution of a suit for and on behalf of the National Irrigation Board which is a body corporate with power to sue and be sued in its own name is a legal misadventure.  It is an action without juridical basis.  The Attorney General has no locus standi to do so…”.

Ringera, J. was however guided by section 34 of the Government Proceedings Act which authorizes the Government to control or intervene in proceedings affecting its rights, property or profits and stated as follows: “In my view, the Attorney General may step in such proceedings by either offering legal services as counsel or by applying to be joined either as a plaintiff or defendant as the case may be or as a necessary party …….”.

The appellate court however distinguished this case with the present one in that the AG had not instituted the suit in his own name on behalf of IPC.  Rather, the AG and IPC had been sued as co-defendants. The court further held that the decision of the superior court that the AG had no locus standi to represent IPC was solely based on the narrow ground that IPC was a body corporate with its own power to sue and be sued in its own name. The court stressed that there was however no restriction on the right of representation. The superior court had thus confused the power of the Attorney General to institute civil proceedings and the discretion of the Attorney General to appear as a counsel for a party in civil proceeding. 

The court also noted that the appellant had been appointed and retired by the Government (through the relevant Permanent Secretaries) and the role of IPC was thus peripheral.

The court was further persuaded by the holding in the Chief Nehemiah case in which it was stated that the Attorney General has discretion to appear as counsel for any public officer (even though the officer is sued in a private capacity) or for any public body. 

In dismissing the appeal, the appellate court concluded that the court below had erred in law in excluding the Attorney General from representing IPC and in striking out the appearance, defence and counter-claim filed on its behalf by AG.

Download Full Text of This Judicial Opinion

 
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SELECTED NOTICES FROM THE KENYA GAZETTE
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Vol CXII-No.67 Dated July 9,2010

GAZETTE NOTICE NO. 7732
THE VALUATION FOR RATING ACT (Cap. 266)
THE MUNICIPAL COUNCIL OF MOMBASA
EXTENSION OF VALUATION ROLL

IN EXERCISE of the powers conferred by section 3 of the Valuation for Rating Act, the Deputy Prime Minister and Minister for Local Government approves the extension of the Municipal Council of Mombasa’s Valuation Roll for a period of two years (2008 to 2010)

Dated the 14th June, 2010.

MUSALIA MUDAVADI,
Deputy Prime Minister
and Minister for Local Government

GAZETTE NOTICE NO. 7733
THE CONSTITUTION OF KENYA
THE DISTRICTS AND PROVINCES ACT (No. 5 of 1992)
INTENTION TO ESTABLISH DISTRICTS

CORRIGENDUM

IT IS notified for the information of the general public that, in accordance with the Constitution of Kenya, the Government, through appropriate legislation, intends to change the names of the districts named in the first column specified in the schedule below to be known by the name presented in the second column of the schedule.

SCHEDULE

The Lagdera                The Daadab
The Kiharu                  The Murang’a

Dated the 24th May, 2010.

GEORGE SAITOTI,
Minister of State for Provincial
Administration and Internal Security.

GAZETTE NOTICE NO. 7734
THE STATE CORPORATIONS ACT (Cap. 446)
THE INDUSTRIAL AND COMMERCIAL DEVELOPMENT CORPORATION

APPOINTMENT

IN EXERCISE of the powers conferred by section 5 (3) of the State Corporations Act, the Minister for Trade appoints-

PETER KIMURWA

To be the chief Executive officer of he Industrial and Commercial Development Corporation, for a period of three (3) years, with effect from 14th June, 2010.

Dated the 28th June, 2010.

AMOS KIMUNYA
Minister for Trade.

GAZETTE NOTICE NO. 7735
THE STATE CORPORATIONS ACT (Cap. 446)
THE CATERING AND TOURISM DEVELOPMENT LEVY TRUSTEES

APPOINTMENT

IN EXERCISE of the powers conferred by section 6 (1) (e) of the State Corporations Act, the Minister for Tourism appoints-

WYCLIFF APHESEINE ANYASI

to be a member of the Board of Catering and Tourism Development Levy Trustee, for a period of three (3) years, with effect from 1st July, 2010.

Dated the 2nd July, 2010.

N.M. BALALA,
Minister for Tourism.

GAZETTE NOTICE NO. 7736
THE KENYA TOURIST DEVELOMENT CORPORATIONS ACT (Cap. 382)

APPOINTMENT

IN EXERCISE of the powers conferred by section 6 (1) of the Kenya Tourist Development Corporation Act, the Minister for Tourism appoints-

MARIANNE NDEGWA JORDAN

to be the Managing Director of the Kenya Tourist Development Corporation, for a period of three (3) years with effect from 1st June, 2010.

Dated the 30th June, 2010.

N.M. BALALA,
Minister for Tourism

GAZETTE NOTICE NO. 7737
THE EWASO NG’IRO SOUTH RIVER BASIN DEVELOPMENT
AUTHORITY ACT (Cap. 447)

APPOINTMENT

IN EXERCISE of the powers conferred by section 9 (1) of the Ewaso Ng’iro South River Basin Development Authority Act, the Minister for Regional Development Authorities appoints-

CHARLES SUNKULI

To be the Managing Director of the Ewaso Ng’iro South River Basin Development Authority, for a period of three (3) years, with effect from 31st May, 2010.

Dated the 24th June, 2010.

F.O. GUMO,
Minister for Regional Development Authorities.

GAZETTE NOTICE NO. 7738
THE COAST DEVELOPMENT AUTHORITY ACT (Cap. 449)

APPOINTMENT

IN EXERCISE of the powers conferred by section 10 (1) of the Coast Development Authority Act, the Minister for Regional Development Authorities appoints-

JAMES KAHINDI MANGI

to be the Managing Director of the Coast Development Authority, for a period of three (3) years, with effect from 1st July, 2010.

Dated the 24th June, 2010.

F.O. GUMO,
Minister for Regional Development Authorities.

GAZETTE NOTICE NO. 7739
THE ENVIRONMENTAL MANAGEMENT AND
CO-ORDINATION ACT (No. 8 of 1999)

APPOINTMENT

IN EXERCISE of the powers conferred by section 125 (1) of the Environmental Management and Co-ordination Act, the Minister for Environment and Mineral Resources appoints-

Jane Akinyi Dwasi
Evans Thiga Gaturu

to be members of the National Environment Tribunal, for a period of three (3) years, with effect from 2nd July, 2010.

Dated the 28th June, 2010.

J.N. MICHUKI,
Minister for Environment and Mineral Resources.

GAZETTE NOTICE NO. 7740
THE NATIONAL CRIME RESEARCH CENTRE ACT (No. 4 of 1997)
NOTIFICATION OF COUNCIL MEMBER

IT IS notified for the information of the general public that pursuant to section 6 (2) of the National Crime Research Centre Act 1997-

MATHEW KIRAI ITEERE

is a member of the Governing Council of the National Crime Research Centre. Gazette Notice no. 5390 of 2006, is revoked.

Dated the 1st July, 2010.

S.A. WAKO
Attorney-General

GAZETTE NOTICE NO. 7741
THE LAW OF SUCCESSION ACT (Cap. 160)

APPOINTMENT

IN EXERCISE of the powers conferred by section 47 of the Law of Succession Act, the Chief Justice appoints-

CHARLES OBULUTSA

to represent the High Court for the purposes of the section with effect from 1st July, 2010.

Dated the 24th June, 2010.

J.E. GICHERU,
Chief Justice.

GAZETTE NOTICE NO. 7742
THE MAGISTRATE’S COURTS ACT (Cap. 10)
INCREASE OF LIMIT OF JURISDICTION

IN EXERCISE of the powers conferred by section 5 (1) of the Magistrates’ Courts Act, the Chief Justice increases the limit of jurisdiction of-

LOIS C. KOMINGOI

Principal Magistrate, to Kenya shillings one million (Ksh. 1,000,000), with effect from the 1st July, 2010.

Dated the 23rd June, 2010.

J.E. GICHERU,
Chief Justice.

GAZETTE NOTICE NO. 7743
THE MAGISTRATE’S COURTS ACT (Cap. 10)
INCREASE OF LIMIT OF JURISDICTION

IN EXERCISE of the powers conferred by section 5 (1) of the Magistrates’ Courts Act, the Chief Justice increases the limit of jurisdiction of-

GODFREY ODUOR

Principal Magistrate, to Kenya shillings one million (Ksh. 1,000,000), with effect from the 1st July, 2010.

Dated the 23rd June, 2010.

J.E. GICHERU,
Chief Justice.

GAZETTE NOTICE NO. 7744
THE MAGISTRATES’ COURTS ACT (Cap 10)
INCREASE OF LIMIT OF JURISDICTION

IN EXERCISE of the powers conferred by section 5 (1) of the Magistrates’ Courts Act, the Chief Justice increase the limit of jurisdiction of-

CELESA ASIS OKORE

Resident Magistrate to Kenya shillings five Hundred thousand (Kshs. 500,000), with effect from 1st July, 2010.

Dated the 23rd June, 2010.

J.E. GICHERU,
Chief Justice

GAZETTE NOTICE NO. 7745
THE BANKING ACT (Cap. 448)
MERGER BETWEEN THE EQUATORIAL COMMERCIAL BANK
LIMITED AND THE SOUTHERN CREDIT BANKING
CORPORATION LIMITED

PURSUANT to section 9 of the Banking Act, it is notified for the general information of the public that-

  1. at the extra ordinary general meeting held on the 18th March, 2010, the shareholders of Equatorial Commercial Bank Limited resolved and approved the merger of the Equatorial Commercial Bank Limited with the Southern Credit Banking Corporation Limited;
  2. at the extra ordinary general meeting held on the 21st April, 2010, the shareholders of the Southern Credit Banking Corporation Limited resolved and approved the merger of the Southern Credit Banking Corporation Limited with the Equatorial Commercial Bank Limited;
  3. the resulting institution shall be called the Equatorial Commercial Bank Limited; and
  4. the merger takes effect as from the 1st June, 2010.

Dated the 1st July, 2010.

NJUGUNA NDUNG’U,
Governor Bank of Kenya

GAZETTE NOTICE NO. 7746
THE MARRIAGE ACT (Cap. 150)

APPOINTMENT

IN EXERCISE of the powers conferred by section 5 of the Marriage Act, and in pursuance of a delegation of such powers* under section 38 (1) of the Interpretation and General Provisions Act, the Registrar-General appoints-

DORCAS J. RONO

to be the Deputy Registrar of Marriages, Thika West District.

Dated the 24th June, 2010.

B.W. GACHEGU,
Registrar-General.

*L.N. 186/1963
GAZETTE NOTICE NO. 7747
THE MARRIAGE ACT (Cap. 150)

APPOINTMENT

IN EXERCISE of the powers conferred by section 5 of the Marriage Act, and in pursuance of a delegation of such powers* under section 38 (1) of the Interpretation and General Provisions Act, the Registrar-General appoints-

WILSON G. NJENGA

to be the Deputy Registrar of Marriages, Thika West District.

Dated the 24th June, 2010.

B.W. GACHEGU,
Registrar-General.

*L.N. 186/1963

GAZETTE NOTICE NO. 7748
THE MARRIAGE ACT (Cap. 150)

APPOINTMENT

IN EXERCISE of the powers conferred by section 5 of the Marriage Act, and in pursuance of a delegation of such powers* under section 38 (1) of the Interpretation and General Provisions Act, the Registrar-General appoints-

HIRAM KAHIRO

to be the Deputy Registrar of Marriages, Kajiado District.

Dated the 24th June, 2010.

B.W. GACHEGU,
Registrar-General.

*L.N. 186/1963

GAZETTE NOTICE NO. 7749
THE MARRIAGE ACT (Cap. 150)

APPOINTMENT

IN EXERCISE of the powers conferred by section 5 of the Marriage Act, and in pursuance of a delegation of such powers* under section 38 (1) of the Interpretation and General Provisions Act, the Registrar-General appoints-

KALUME KASHURU

to be the Deputy Registrar of Marriages, Kajiado District.

Dated the 24th June, 2010.

B.W. GACHEGU,
Registrar-General.

*L.N. 186/1963

GAZETTE NOTICE NO. 7750
THE CONSTITUTION OF KENYA
THE GOVERNMENT LANDS ACT
(Cap. 280) THE TRUST LAND ACT (Cap. 288)

REVOCATION OF LAND TITLES

WHEREAS the parcel of land whose details are described under the schedule herein below were allocated and title issued to private developers, it has come to the notice of the Government that the said parcel of land were reserved for public purposes under the relevant provisions of the Constitution, 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 the said title.

SCHEDULE
Mombasa

Mombasa/Block/1085
Mombasa/Block/972

R.M. INGONGA
Land Registrar, Mombasa

GAZETTE NOTICE NO. 7751
THE CONSTITUTION OF KENYA
THE GOVERNMENT LANDS ACT
(Cap. 280) THE TRUST LAND ACT (Cap. 288)

REVOCATION OF LAND TITLES

WHEREAS the parcel of land whose details are described under the schedule herein below were allocated and title issued to private developers, it has come to the notice of the Government that the said parcel; of land were reserved for public purposes under the relevant provisions of the Constitution, 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 the said title.

SCHEDULE
Nairobi

Nairobi L.R. No. 21194
Nairobi L.R. No. 21195/4

 

G.G. GACHIHI
Registrar of Titles, Nariobi.

GAZETTE NOTICE NO. 7752
THE CONSTITUTION OF KENYA
THE GOVERNMENT LANDS ACT
(Cap. 280) THE TRUST LAND ACT (Cap. 288)

REVOCATION OF LAND TITLES

WHEREAS the parcel of land whose details are described under the schedule herein below were allocated and title 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, 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 title.

SCHEDULE
Kwale

Kwale/Diani Beach/856
Kwale/Msabweni/2602

A.M. ALEX
District Land Registrar, Kwale

GAZETTE NOTICE NO. 7753
THE CONSTITUTION OF KENYA
THE GOVERNMENT LANDS ACT
(Cap. 280) THE TRUST LAND ACT (Cap. 288)

REVOCATION OF LAND TITLES

WHEREAS the parcel of land whose details are described under the schedule herein below were allocated and title issued to private developers, it has come to the notice of the Government that the said parcel of land were reserved for public purposes under the relevant provisions of the Constitution, 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 title.

SCHEDULE
Kitale

Kitale Block 4/364

A.M. ALEX
District Land Registrar, Kwale

GAZETTE NOTICE NO. 7754
THE CONSTITUTION OF KENYA
THE GOVERNMENT LANDS ACT
(Cap. 280) THE TRUST LAND ACT (Cap. 288)

REVOCATION OF LAND TITLES

WHEREAS the parcel of land whose details are described under the schedule herein below were allocated and title issued to private developers, it has come to the notice of the Government that the said parcel of land were reserved for public purposes under the relevant provisions of the Constitution, 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 the said title.

SCHEDULE
Mombasa
LR 12860
R.M. INGONGA,
Registrar of Titles, Mombasa

GAZETTE NOTICE NO. 7755
THE CONSTITUTION OF KENYA
THE GOVERNMENT LANDS ACT
(Cap. 280) THE TRUST LAND ACT (Cap. 288)

REVOCATION OF LAND TITLES

WHEREAS the parcel of land whose details are described under the schedule herein below were allocated and title issued to private developers, it has come to the notice of the Government that the said parcel of land were reserved for public purposes under the relevant provisions of the Constitution, 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 the said title.

SCHEDULE
Kisumu
Kisumu Municipality Block 7/240
W.NYABERI,
District Land Registrar ,Kisumu

GAZETTE NOTICE NO. 8028
THE COURT OF APPEAL

SUMMER VACATION, 2010

The summer vacation shall commence on Sunday, 1st August, 2010 and shall terminate on Wednesday, 15th September, 2010.

During the vacation, the Registry of the Court will be open to the public from 9.00 a.m. to 12 noon on all weekdays except Public Holidays. A judge will be in attendance for the disposal of any urgent business.

M.K.K. SEREM,
Principal Deputy Registrar

GAZETTE NOTICE NO. 8029
THE HIGH COURT OF KENYA
SUMMER VACATION 2010

THE Summer Vacation of the High Court Kenya, other than in the Coast Province, shall commence on 1st August, 2010, and terminate on 15th September, 2010, both days inclusive.

The Summer Vacation of the High Court in the Coast Province shall commence on 1st August, 2010, and shall terminate on 18th August, 2010 both days inclusive.

During the period trials in criminal appeals will take place as usual.

A Judge will hear urgent civil matters, if admitted to hearing on application made in accordance with the rules of the court.

During the vacation, the offices of the High Court, elsewhere other than Mombasa and Malindi, shall be open to the public from 8.45 a.m. to 12.00 noon on all weekdays other than public holidays. The offices of the High Court at Mombasa and Malindi, shall be open to the public from 8.00 a.m. to 12.30 p.m. on all weekdays, other than public holidays.

All courts shall be closed on public holidays.

All courts and offices of the chief magistrate, senior principal magistrate, principal magistrate, senior resident magistrate, resident magistrate, kadhis and district magistrate will be open during the usual hours for the Government Departments in each province.

Criminal cases will, in all subordinate courts, be heard as usual. Civil suits and civil matter of an urgent nature or those in which advocates are not engaged may also be heard in these courts if convenient.

Dated the 1st July, 2010.

L.A ACHODE,
Registrar,
High Court of Kenya

GAZETTE NOTICE NO. 8030
THE ADVOCATEES ACT
THE COMPLAINTS COMMISSON

78TH QUARTERLY REPORT

1. PURSUANT  to sections 53 (9) of the Advocates Act and 12 (1) of the Advocates (Complaints Commission) Rules 1991, it is notified for general information that between 1st April, 2010 and 30th June, 2010, the Commission received a  total of three hundred and twenty-three (323) new complaints out of which eighty (80) were classified and files opened. Two hundred and forty-three (243) were submitted for further enquiry under preliminary initiative.

2. The nature of new complaints is shown below:

Nature of complaints                                       No. of complaints

(a) Failure to account                                      16
(b) Failure to keep client informed                 9
(c) Failure to render professional services       27
(d) Withholding funds                                    39
(e) Issuing dishonoured cheques                     2
(f) Delay                                                          2
(g) Others                                                        18

TOTAL                                                           113

3. Complaints filed against advocates/firms of advocates were disposed of in the following manner:

Classified Complaints                                     No. of Complaints

(a) Abandoned                                                88
(b) Settled                                                       21
(c)Closed: No misconduct disclosed              37
(d) Dismissed                                                  4
(e) Withdrawn                                                 1
(f) Others                                                        16

Total                                                                167

(ii)  Preliminary Enquiry (PE) Complaints
 

  • Total number of Preliminary Enquiry (PE) complaints were two hundred and forty-three (243)
  • Total number of complaints settled under the Preliminary Enquiry (PE) was one hundred and eleven (111)

                                                                      
4. The matters referred to the Disciplinary Committee (DC) during the same period for further action and in accordance with section 57 (1) of the Advocates Act were twenty-seven (27)

5. During the same period a further twenty-five (25) cases were disposed off as follows:

                                                                                    No. of Complaints
(a) Advocates struck off the Roll of Advocates        Nil
(b) Advocates Fines                                                    Nil
(c) Advocates Acquitted                                            4
(d) Settled (matters resolved)                                                 18
(e) Withdrawn                                                             2
(g) Dismissed                                                              1

TOTAL                                                                       25

6. In pursuant to section 53 (4) and in the spirit of section (5) of the Advocates Act, forty three (43) complaints were settled amicably by the Advocates Complaints Commission.

Dated the 5th July, 2010.

JOSEPH KING’ARUI,
Chairman

GAZETTE NOTICE NO. 8031
THE COUNCIL OF LEGAL EDUCATION (ADMISSION)
REGULATIONS, 2009

PURSUANT  to regulation 13 of the Council of Legal Education (Admission) Regulations ,it is notified that

ABDULKADIR A.S.S EL-KINDIY
Has complied with the provisions of section 13 of the Advocates Act as to pupilage and the passing of examinations subject to such exemptions as may have been granted under subsection (2) of the section.

Dated the 28th June, 2010.

W. KULUNDU-BITONYE,
Director/Chief Executive
and Secretary, Council of Legal Education

GAZETTE NOTICE  NO. 8038
THE RECORDS DISPOSAL (COURTS) RULES (Cap. 14, Sub.Leg.)
IN THE SENIOR RESIDENT MAGISTRATE’S COURT
AT KITHIMANI

INTENDED DESTRUCTION OF COURT RECORDS

IN ACCORDANCE with the Records Disposal (Courts) Rules, notice is given that three (3) months after the date of publication of this notice, the Resident Magistrate’s Court at Kithimani, intends to apply to the Chief Justice, for leave  under rule 3 to destroy the records, books and papers of the Senior Resident Magistrate’s Court at Kithimani as set out below:

Criminal cases                                                 2004-2007
Traffic cases                                                    2004-2007
Inquest cases                                                   1975-2007

A comprehensive list of all condemned records that qualify to be disposed under the Act can be obtained and perused at the Senior Resident Magistrate’s Court Registry, Kithimani.

Any person desiring the return of any exhibit in any of the above cases must make his/her claim within the time stipulated in this publication should do so before the expiry of the notice.

All exhibits to which no claim is substantiated before the destruction of the records shall under section 4 be deemed to be part of the records for the purposes of destruction.

Dated the 3rd June, 2010.

A.W. Mwangi,
Senior Resident Magistrate, Kithimani

GAZETTE NOTICE  NO. 8039
THE RECORDS DISPOSAL (COURTS) RULES (Cap. 14, Sub.Leg.)
IN THE SENIOR RESIDENT MAGISTRATE’S COURT
AT KITHIMANI

INTENDED DESTRUCTION OF COURT RECORDS

IN ACCORDANCE with the Records Disposal (Courts) Rules, notice is given that three (3) months after the date of publication of this notice, the Senior Resident Magistrate’s Court at Mwingi, intends to apply to the Chief Justice, for leave  to destroy the records, books and papers of the Senior Resident Magistrate’s Court at Mwingi as set out below:

Criminal cases                                                 2003-2007
Civil cases                                                       1994-1998
Civil miscellaneous                                         1994-1998
Criminal miscellaneous                                   2003-2007
Traffic cases                                                    2003-2007
Inquest                                                            2003-2007

A comprehensive list of all condemned records that qualify to be disposed under the Act can be obtained and perused at the Senior Resident Magistrate’s Court Registry, Mwingi.
 
Any person desiring the return of any exhibit in any of the above cases must make his/her claim within the time stipulated in this publication should do so before the expiry of the notice.

All exhibits to which no claim is substantiated before the destruction of the records shall under section 4 be deemed to be part of the records for the purposes of disposal.

Dated the 3rd June, 2010.

H.M. NYABERI,
Senior Resident Magistrate, Kithimani

GAZETTE NOTICE NO. 7710
THE ENVIRONMENTAL MANAGEMENT AND
CO-ORDINATION ACT (No. 8 of 1999)
THE NATIONAL ENVIRONMENT MANAGEMENT AUTHORITY

ENVIRONMENTAL IMPACT ASSESSMENT STUDY

REPORT FOR THE PROPOSED FUEL SERVICE STATION IN GARISSA TOWN ON LR/No: GARISSA TOWN/BLOCK 111/430

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 service station.

The proposed Project will comprise of service station, restaurant, mini-mart, station office, lubricants/spare parts shop, store and a service pit. In addition, such facilities will go along with waste water system-septic, soak pit, and storm water drain. Toilets for both genders will be availed and shower room as well. There will be three pumps, two for diesel and one for petrol.

The proposed service (fuelling) station will be located in Garissa Town on plot LR/No; Garissa Town/Block 111/430.

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:

  1. Director-General the National Environment Management Authority (NEMA), Kapiti Road, off Mombasa Road, P.O. Box 67839-00200, Nairobi 
  2. Permanent Secretary, Ministry of Environment and Mineral Resources, N.H.I.F. Community, P.O. Box 30521, Nairobi.
  3. Provincial Director of Environment, North Eastern Province.
  4. District Environment Officer, Garissa District.

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
For Director-General,
National Environment  Management Authority

GAZETTE NOTICE NO. 7711
THE ENVIRONMENTAL MANAGEMENT AND
CO-ORDINATION ACT (No. 8 of 1999)
THE NATIONAL ENVIRONMENT MANAGEMENT AUTHORITY

ENVIRONMENTAL IMPACT ASSESSMENT STUDY

REPORT FOR THE PROPOSED PETROL STATION ON L.R. NO. BLOCK 3/14/15/16 NYAMBERA, KISII TOWN
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 proposed petrol station.

The proposed petrol development will comprise of a petrol station with the following facilities:

Four underground fuel tanks; a pumping bay of four pumps and three pump islands; a main office which has a shop, sales area, store, drop area, gas cage and compressor room; toilet facilities with a changing room; a car wash; an oil interceptor; tyre centre; service bay; a mini-supermarket; a cafeteria and a parking area. 

The proposed 1.06 acres development site is located on the industrial area of Kisii Town along Daraja Moja – Nyambera-Daraja Mbili 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:

  1. Director-General the National Environment Management Authority (NEMA), Kapiti Road, off Mombasa Road, P.O. Box 67839-00200, Nairobi   
  2. Permanent Secretary, Ministry of Environment and Mineral Resources, N.H.I.F. Community, P.O. Box 30521, Nairobi.
  3. Provincial Director of Environment, Nyanza Province.
  4. District Environment Officer, Nairobi Kisii Central District.

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
For Director-General,
National Environment Management Authority

GAZETTE NOTICE NO. 7712
THE ENVIRONMENTAL MANAGEMENT AND
CO-ORDINATION ACT (No. 8 of 1999)
THE NATIONAL ENVIRONMENT MANAGEMENT AUTHORITY

ENVIRONMENTAL IMPACT ASSESSMENT STUDY

REPORT FOR THE PROPOSED PETROLEUM DEPOT ON PLOT NO. NAIROBI/BLOCK 97/9, 50, 51, AND 105 ALONG OUTERING ROAD EMBAKASI

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 proposed construction of petroleum depot.

The proposed project will entail development of a Petroleum depot which will include installation of five above ground tanks with a capacity of 90M3 each for Automotive Diesel and illuminating Kerosene only, a loading gantry, offloading area, fire fighting system and related office. The project is located on L.R. Nos Nairobi/Block 97/49, 50, 51 & 105, along Outer Ring Road Nairobi.

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:

  1. Director-General the National Environment Management Authority (NEMA), Kapiti Road, off Mombasa Road, P.O. Box 67839-00200, Nairobi   
  2. Permanent Secretary, Ministry of Environment and Mineral Resources, N.H.I.F. Community, P.O. Box 30521, Nairobi.
  3. Provincial Director of Environment, Nairobi Province.
  4. District Environment Officer, Nairobi East District.

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,
For Director-General,
        National Environment  Management Authority

SUPPLEMENT  NO. 42
BILLS, 2010

The Constitution of Kenya (Amendment) Bill, 2010

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