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KLR WEEKLY e-NEWSLETTER |
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| Issue 45/2011 Newsletter Archive | Friday 11th November 2011 | |
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NOMINATED COUNCILORS LOSE BID TO STOP REVOCATION OF THEIR NOMINATION “It is incumbent upon he who seeks a legal remedy to come with a clear road map so that the court can hear, evaluate, interrogate and determine the grievances suffered or likely to be suffered by the person seeking to benefit from the power of the court. The court can only intervene on clear factual and legal basis. There must be a cause of action against an individual before court clearly and correctly framed in a proper manner.” Paul Kiplagat Birgen and 25 Others V Interim Independent Electoral Commission and 2 others (2011) eKLR www.kenyalaw.org The High Court has declined to issue orders restraining the Orange Democratic Movement ( ODM) nominated councilors from being de-nominated. The court dismissed claims by the councilors that their rights were breached, saying it was not clear who had violated their rights under their application. The 28 applicants had been serving as nominated councilors by the Orange Democratic Movement (ODM) in various Municipals and county councils within the Republic of Kenya having been nominated pursuant to sections 26(1) (b), 39(1) (c) of the Local Government Act and section 33 of the repealed Constitution. It was contended that through various letters ODM through the Secretary General wrote to the 1st respondent (Interim Independent Electoral Commission-IIEC chairman) requesting for revocation and nomination of new councilors in the positions of those to be revoked or de-nominated. All the letters were also copied to the Deputy Prime Minister and Minister for Local Governments. After satisfying itself with all the requirements for the nomination and de-nomination of a councilor, the IIEC Chairman wrote a letter dated 12th July 2011 to the Minister for Local Government enclosing a letter from the ODM party containing the list of councilors to be revoked and nominated. Being aggrieved, the applicants filed a notice of motion seeking an order of certiorari to quash the decision of the IIEC contained in the letter addressed to the Deputy Prime Minister and Minister for Local Government requesting and/or recommending the revocation of nomination of the applicants. They further sought an Order of Prohibition to stop the Deputy Prime Minister and Minister for Local Government from acting on the recommendation by the IIEC. The application was argued by Mr. Ongegu on behalf of the applicants. It was submitted that the actions of the IIEC Chairman amounted to a blatant violation of the rules of natural justice. He also submitted that the decision to terminate the nomination of the applicants was taken exparte as they were never invited to any forum where their conduct or suitability was discussed. It was contended that the decision to revoke the applicants’ nomination was reached at by a section of ODM members without any regard to the party’s constitution and the universal rules of natural justice. He further stated that the IIEC Chairman had violated the mandatory provisions of section 17 (7) of the Political Parties Act which echoes the rules of natural justice be observed before a member can be expelled from a party. Lastly it was the applicants’ view that the 2nd respondent was not seized of jurisdiction to terminate the nomination of councilors nominated under section 26 of Local Government Act. Mr. Kilonzo advocate for the IIEC Chairman submitted that the issue of revocation had been dealt with by the High Court and the Court of Appeal. He further submitted that the commission had limited responsibilities and was not entitled to question a political party why it sought the revocation of a councilor. The court started by analyzing the scope and the efficacy of an order of certiorari. Justice Warsame pointed out that Certiorari and prohibition were complementary remedies based upon common principles and certiorari would be issued to quash a decision which was ultra vires. The concern of certiorari, he stated, was about a decision or determination whether or not made under a legal power or a legal authority. The judge was of the view that it was not clear who had breached the applicants’ rights and who was to accord them a hearing before any decision was taken against them. He pointed out the fact that it was uncontested that the IIEC Chairman was not the appointing authority of the applicants. Secondly the commission had a limited statutory power and it had no power and/or authority to question the party or Minister on matters outside its jurisdiction. The question was hence whether the letter dated 12th July 2011 addressed to the Deputy Prime Minister and Minister for Local Government amounted to a decision and whether the IIEC chairman committed acts prejudicial to the rights and interests of applicants. The judge referred to the Black’s Law Dictionary 6th Edition which defined a decision as “A determination arrived at after consideration of facts, and, in legal context, law.” It was noted that the catchwords used in the prayer No.1 of the Notice of Motion were the words ‘requesting and/or recommending’. From the definition of request and recommendation it meant the chairman of the IIEC Chairman was asking for something to be granted or done which had been requested by the political party that nominated the applicants. The IIEC Chairman was indeed incapable and had no capacity or authority or power to revoke or recommend the nomination of the applicants. According to the court, one could not challenge an exercise of statutory duty or obligation from being exercised by the IIEC Chairman. With regard to the contention of the applicants that they were not given or accorded an opportunity as to why the decision contained in the letter dated 12th July 2011 was made, the court affirmed that the understanding of the law was that it was not the role of the IIEC Chairman to assume the responsibilities of the concerned party that nominated the applicants. It was hence opined that there was no decision capable of being challenged and which was amenable to judicial review that was made by the IIEC Chairman against the applicants. On the issue of the prohibition order, it was the court’s view that there was little difference in principle between certiorari and prohibition except that prohibition could be involved at an earlier stage. If the proceedings established that the body complained of was exceeding its jurisdiction by entertaining matters which could result into its final decisions being subject to being brought up and quashed on certiorari, then prohibition would lie to restrain from so exceeding its jurisdiction. However under the circumstances, the court could not determine whether the rules of natural justice were followed or would be followed by the Minister when there was no evidence or complaint against his conduct or the exercise of his statutory duty. The judge could not also determine whether the decision to revoke the applicants’ nomination was unilaterally reached by a section of ODM members without the presence of the said party before the proceedings. In conclusion, the court opined that there was no cause of action established by the applicants against the respondents and the application was hence without merit and was dismissed in its entirety. |
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Kenya Gazette Vol. CXIII – No. 110 Dated 11th November, 2011 GAZETTE NOTICE NO. 14096 IN EXERCISE of the powers conferred by section 3B (1) (i) of the Wildlife (Conservation and Management) Act, the Minister for Forestry and Wildlife appoints— Patricia Awori, to be members of the Kenya Wildlife Service Board of Trustees for a period of three (3) years, with effect from the 28th October, 2011. Dated the 3rd November, 2011. N. M. WEKESA, 
GAZETTE NOTICE NO. 14097 IN EXERCISE of the powers conferred by section 6 (1) (e) of the State Corporations Act, the Minister for Tourism appoints— Amina Kasinga, to be board members for Catering and Tourism Development and Levy Trustees, for a period of three (3) years, with effect from 9th December, 2011. Dated the 1st November, 2011. NAJIB BALALA,
GAZETTE NOTICE NO. 14098 IN EXERCISE of the powers conferred by section 73 (d) (ii) of the Children Act, the Chief Justice appoints— MWINZI SHADRACK MWENDA District Magistrate II (Prof) at Meru to preside over cases involving children in respect of Eastern, with effect from 18th November, 2011. Dated the 31st October, 2011. WILLY MUTUNGA,
GAZETTE NOTICE NO. 14099 IN EXERCISE of the powers conferred by section 5 (1) of the Magistrates’ Court Act, the Chief Justice increases the limit of Jurisdiction of— Lillian N. Mutende, Dated the 31st October, 2011. WILLY MUTUNGA,
GAZETTE NOTICE NO. 14100 IN EXERCISE of the powers conferred by section 5 (1) of the Magistrates’ Court Act, the Chief Justice increases the limit of Jurisdiction of— Kennedy Bidali, Senior Principal Magistrates to Kenya shillings Two Million (Kshs 2,000,000), with effect from 1st December, 2011. Dated the 31st October, 2011. WILLY MUTUNGA,
GAZETTE NOTICE NO. 14101 IN EXERCISE of the powers conferred by section 5 (1) of the Magistrates’ Court Act, the Chief Justice increases the limit of Jurisdiction of— JOHN TAMAR Senior Resident Magistrate to Kenya shillings Eight Hundred Thousand (Kshs 800,000), with effect from 1st December, 2011. Dated the 31st October, 2011. WILLY MUTUNGA,
GAZETTE NOTICE NO. 14102 IN EXERCISE of the powers conferred by section 5 (1) of the Magistrates’ Court Act, the Chief Justice increases the limit of Jurisdiction of— SAMSON OMAIYO TEMU Resident Magistrate to Kenya shillings Five Hundred Thousand (Kshs 500,000), with effect from 1st December, 2011. Gazette Notice No. 10285 of 2006 is revoked. Dated the 31st October, 2011. WILLY MUTUNGA,
GAZETTE NOTICE NO. 14080 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 construction of the proposed housing estate in Mlolongo, Athi River. The project will involve construction housing estate of twelve (12) similar, five (5)-storey residential blocks each floor comprising eight The proposed site is on a 2.041 hectare parcel of land, Plot L.R. No. 12715/449, Mlolongo area in Mavoko Municipality. It is situated near Syokimau along Beijing Road about 250M off Mombasa Road. The anticipated impacts and proposed mitigation measures are set out in the gazette. The full report of the proposed project is available for inspection during working hours at: (a) Director-General, the National Environment Management Authority (NEMA), Popo Road, off Mombasa Road, P.O. Box 67839–00200, Nairobi. 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. ROBERT ORINA,
GAZETTE NOTICE NO. 14081 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 construction of the proposed housing estate in Mlolongo, Athi River. The project will involve construction of a housing estate of seven (7) similar, five (5)-storey residential blocks each floor comprising eight (8), three- bed roomed units, totaling to 336 units to be used as single family dwellings. The estate will have ample parking within the perimeter masonry wall. The proposed site is on a 1.99 hectare parcel of land, Plot L.R No. 12715/448, Mlolongo area in Mavoko Municipality. It is situated near Syokimau along Beijing Road about 250M off Mombasa Road. The anticipated impacts and proposed mitigation measures are set out in the gazette. (a) Director General, NEMA, Popo Road, off Mombasa Road, P.O. Box 67839-00200, Nairobi. The National Environment Management Authority invites members of the public to submit oral or written comments within sixty (60) days from the date of publication of this notice to the Director General, NEMA, to assist the Authority in the decision making process of the plan. SALOME MACHUA,
GAZETTE NOTICE NO. 14282 PURSUANT to regulation 21 of Environmental (Impact Assessment and Audit) regulations, the National Environmental Management Authority (NEMA) has received an Environmental Impact Assessment Study Report for the implementation of the proposed subdivision of remaining ,053 acres in Kiu ranch. The project proposes to subdivide the remaining portion of its ranch to its 1006 members. It also wishes to allocate 2,760 acres to the former squatters on its land as directed by the high court. This final subdivision will involve a total of 3,053 acres which after putting aside 500 acres for roads, social amenities etc will see the members share the remainder with each member getting only about 2.7 acres. The proposed project will be in Kiu ranch, plot L.R No.7612 Mukaa district, Malili division, Ngaamba location. The anticipated impacts and proposed mitigation measures are set out in the gazette. The full report of the proposed project is available for inspection during working hours at: (a) Director General, NEMA, Popo Road, off Mombasa Road, P.O. Box 67839-00200, Nairobi. 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 decision making process of the plan.
ROBERT ORINA,
GAZETTE NOTICE NO. 14283 PURSUANT to regulation 21 of Environmental (Impact Assessment and Audit) regulations, the National Environmental Management Authority (NEMA) has received an Environmental Impact Assessment Study Report for the implementation of the proposed rosewood nursing home and mortuary The proposed project involves construction of a nursing home and mortuary. The design of the proposed project includes: The proposed project site is located on plot no. Kamagambo/kabuoro/1561, Rongo County, Migori District The anticipated impacts and proposed mitigation measures are set out in the gazette. The full report of the proposed project is available for inspection during working hours at: (a) Director General, NEMA, Popo Road, off Mombasa Road, P.O. Box 67839-00200, Nairobi. 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 decision making process of the plan. B. M. LANGWEN,
GAZETTE NOTICE NO. 14284 PURSUANT to regulation 21 of Environmental (Impact Assessment and Audit) regulations, the National Environmental Management Authority (NEMA) has received an Environmental Impact Assessment Study Report for the implementation of the proposed 200 3-bedroomed apartments. The proposed development will entail construction of 200 spacious apartments (in 20 blocks each having 10 units) with excellent finishes on a five acre compound. They will be 3 bedrooms (plus DSQ) with a plinth area of approximately 150 sq metres. These will be built in phases development will include a jogging truck, ample parking, baby swimming pool, Gazebo, baby class, shops and recreational areas. The site is next to the railway line after Muthama Heights and Easypark apartments The anticipated impacts and proposed mitigation measures are set out in the gazette. The full report of the proposed project is available for inspection during working hours at: (a) Director General, NEMA, Popo Road, off Mombasa Road, P.O. Box 67839-00200, Nairobi. 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 decision making process of the plan. OUMA Z. O.,
GAZETTE NOTICE NO. 14285 PURSUANT to regulation 21 of Environmental (Impact Assessment and Audit) regulations, the National Environmental Management Authority (NEMA) has received an Environmental Impact Assessment Study Report for the implementation of the proposed construction of a bitumen plant. The project will involve building an emulsion bitumen plant with a boiler- bitumen preheating tank and one bitumen pump, a guardhouse, The proposed site for construction of a bitumen plant is in Nairobi Municipality on plot no 209/13714 along Masai Road, off Mombasa The anticipated impacts and proposed mitigation measures are set out in the gazette. The full report of the proposed project is available for inspection during working hours at: (a) Director General, NEMA, Popo Road, off Mombasa Road, P.O. Box 67839-00200, Nairobi. 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 decision making process of the plan.
ROBERT ORINA,
GAZETTE NOTICE NO. 14286 IN EXERCISE of the powers conferred by section 15of the rating Act, the County Council of Meru South with the approval of deputy Prime Minister and the Minister for Local Government do hereby gazette the following forests and increase in rates from Kshs. 10 per acre to Kshs 250 per Acre—
Dated the 25th October 2011. M . K. KARIUKI
SPECIAL ISSUE GAZETTE NOTICE No. 13774. 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 Kenya Defence.Forces. appoint— PHILIP O. OKUNDI (ENG.) to be Chairman of the Communications Commission of Kenya, for a period of three (3) years. Dated the 25th October. 2011.
MWAI KIBAKI,
GAZETTE NOTICE No. 13775
MARGARET KWENGWA CHEMENGICH (MRS.) to be Chairman of the Board of Chemelil Sugar Company Limited, for a period of three (3) years, with effect from 9th September, 2011. Dated the 25th October, 2011. MWAI KIBAKI,
GAZETTE NOTICE No. 13776
DANIEL M. MUKUNYA (PROF.) to be Chairman of the Kenya Plant Health Inspectorate Service (KEPHIS), for a period of three (3) years, with effect from 23rd September. 2011. The appointment of Julia Auma Ojiambo (Prof.) is revoked. MWAI KIBAKI.
GAZETTE NOTICE No. 13777 IN EXERCISE of the powers conferred by section 6 (I) (a) of the State Corporations Act, I, Mwai Kibaki, President and Commander-in-Chief of the Kenya Defence Forces, appoint— AMOS GICHUKI NGONJO Dated the 25th October. 2011. MWAI KIBAKI.
GAZETTE NOTICE No. 13778
SHUKRI BARAMADI to be Chairman of the Kenya Ports Authority, for a period of three (3) years, with effect from 3 Ist October, 2011. Dated the 25th October, 2011. MWAI KIBAKI,
GAZETTE NOTICE No. 13779 IN EXERCISE of the powers conferred by section 12 (1) (g) of the Kenyatta University Act, I, Mwai Kibaki, President and Commander-in-Chief of the Kenya Defence Forces, appoint— DAVID NGUGI (PROF.) to be a Council member of Kenyatta University Council, for a period of three (3) years. Dated the 25th October, 2011. MWAI KIBAKI,
GAZETTE NOTICE No. 13780 IN EXERCISE of the powers conferred by section 5 (2) (a) of the Pest Control Products, I, Mwai Kibaki, President and Commander-in-Chief of the Kenya Defence Forces, appoint— FAITH RUGURU MUTWIRI to be Chairman of, the Pest Control Board, for a period of three (3) years, with effect from 31st October, VII. Dated the 25th October, 2011. MWAI KIBAKI,
DAVID MWIRARIA to be Chairman of the Kenya Wildlife Service Board of Trustees, for a period of three (3).years. Dated the 25th October, 2011 MWAI KIBAKI,
GAZETTE NOTICE No. 13782 IN EXERCISE of the powers conferred by section I I (I )(a) of the Chuka University College Order, 2007, I, Mwai Kibaki, President and Commander-in-Chief of the Kenya Defence Forces, appoint- Under section – 11 (1) (a)— Wilfred _Murungi — (Chairman). John S. Mbaya —(3/we-Chu/ma n), Under section 11 (1) (g)- Linda Anne Lumbusi, Jane J. Nakodony; to be Council members of the Chuka University College, for a period of three (3) years. Dated the 25th October, 2011. MWAI KIBAKI,
GAZETTE NOTICE No. 13783
Under section 11 (1) (a)- J. K. ole Karei (Prof.)-(Chairman), Under section 11 (1)(h) and (i)- Joan Cuka Kagwanja (Mrs.) to be Council members of the Narok University College, for a period of three (3) years. Dated the 25th October, 2011. MWAI MAKI,
IN EXERCISE of the powers conferred by section 11 (1) (a) of the Kisii University College Order, 2007,-1,.Mavai Kibaki, ,President and Commander-in-Chief of the Kenya Defence Forces. appoint— Under section 11 (1) (a)— Joseph Nyasani (Prof.) — (Chairman) Under section 11 (1) (g) - to be council members of the Kisii University College for a period of three (3) years. Dated the 25th October, 2011.
MWAI KIBAKI.
GAZETTE NOTICE No. 13785 IN EXERCISE of the powers, conferred by section 11 (1) (a) of the Kimathi University College of Technology order, 2007 I, Mwai Kibaki, President and Commander-in-Chief of the Kenya Defence Forces, appoint- David Ndegwa Wachira – (Chairman) Under section 11(1) (g) to be Council members of the. Kimathi University, College of Technology for aperiod of time (3) Years: Dated 25th October, 2011. MWAI KIBAKI,
GAZETTE NOTICE NO.13786, IN EXERCISE of the powers conferred by section 11 (1) (a) of the Mombasa Polytechnic university College Order, 2007, I, Mwai Kibaki, President and Commander-in-Chief of the Kenya Defence Forces, appoint- Abdulgafur El-Busaidy (Prof.) – (Chairman) Under section 11(1) (g) (iv), (v) and (vii) – Mariam El Maawy to be council members of the Mombasa Polytechnic University College, for a period of three (3) years. Dated the 25th October, 2011 MWAI KIBAKI
GAZETTE NOTICE NO.13787, IN EXERCISE of the powers conferred by section 11 (1) (a) of the Kenya Polytechnic University College Order, 2007, I, Mwai Kibaki, President and Commander-in-Chief of the Kenya Defence Forces, appoint- Under Section 11 (1) (a) John K. Tanui to be Vice – Chairman of the Kenya Polytechnic University College, for a period of three (3) years. The appointment of Julius Marimi Riungu (Eng) has been revoked. Dated the 25th October, 2011 MWAI KIBAKI
SPECIAL ISSUE
GAZETTE NOTICE NO. 14091 IN EXERCISE of the powers conferred on me by paragraph 7 of the First Schedule to the Independent Electoral and Boundaries Commission Act, 2011, as read with section 5 of the Act, I, Mwai Kibaki, President and Commander-in-Chief of the Kenya Defence Forces, in consultation with the Prime Minister, appoint - AHMED ISSACK HASSAN to be the chairperson of the Independent Electoral and Boundaries Commission. Dated the 8th November, 2011. MWAI KIBAKI,
GAZETTE NOTICE NO. 14092 IN EXERCISE of the powers conferred on me by section 11(9) of the Commission on Administrative Justice Act, 2011, as read with section 9 of the Act, I, Mwai Kibaki, President and Commander-in- Chief of the Kenya Defence Forces, in consultation with the Prime Minister, appoint - PAUL OTIENDE AMOLLO to be the chairperson of the Commission on Administrative Justice. Dated the 8th November, 2011. MWAI KIBAKI,
GAZETTE NOTICE NO. 14093 IN EXERCISE of the powers conferred on me by section 11(9) of the Commission on Administrative Justice Act, 2011, as read with section 9 of the Act, I, Mwai Kibaki, President and Commander-in- Chief of the Kenya Defence Forces, in consultation with the Prime Minister, appoint - Regina Gathoni Mwatha (Dr.), to be members of the Commission on Administrative Justice. Dated the 8th November, 2011. MWAI KIBAKI,
GAZETTE NOTICE NO. 14094 IN EXERCISE of the powers conferred on me by paragraph 7 of the First Schedule to the Independent Electoral and Boundaries Commission Act, 2011, as read with section 5 of the Act, I, Mwai Kibaki, President and Commander-in-Chief of the Kenya Defence Forces, in consultation with the Prime Minister, appoint - Yusuf Abdulrahman Nzibo, to be members of the Independent Electoral and Boundaries Commission. Dated the 8th November, 2011. MWAI KIBAKI,
SUPPLEMENT No. 143 SUPPLEMENT No. 144 |
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"Transforming Legal Information Into Public Knowledge" |
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Kenya Law Weekly Issue 45/2011
12 November 2011
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KenyaLawBlog
National Council for Law Reporting