Kenya Law Weekly Issue 49/2011

| Issue 49/2011 Newsletter Archive | Friday 19th December 2011 |

NYONG’O AND 10 OTHERS TO BE PAID OVER 200 MILLION SHILLINGS BY THE SOLICITOR GENERAL.

By CORNELIUS  W. LUPAO.

Peter Anyang’ Nyongo   & 10 others v Solicitor General-eKLR (2011)
High Court, at Nairobi
Misc. Application No.173 of 2011
M. Warsame J.
December 15, 2011.

‘‘............the Attorney General was representing one arm of the Government and if any costs or liability accrues from his representation, he is obliged to pay the costs.  It is for the Attorney General to advise his clients to pay the costs which attracted his representation on behalf of the said client.

Being a constitutional representative and being the principal legal advisor to the three arms of the Government, he is required to direct any arm of Government he represented to pay the costs of any suit which he acted on its behalf.   Clearly, it is the duty and the function of the Attorney General to advise his client and if a particular organ refuses to pay he will be responsible on behalf of his agent.  In that regard, the Solicitor General being the accounting officer of the Attorney General was rightly sued by applicants.   In my mind the applicants clearly and correctly sued the Solicitor General and are entitled to the orders sought.....’’ 

The High Court has issued judicial review orders compelling the Solicitor General to pay the Hon Prof  Peter Anyang’ Nyongo  and 10 other people   a principal sum of US$2531280.42 together with accrued interest thereon at the rate of 14% per annum with effect from 23rd September 2010 till debt of full satisfaction thereof. This followed their successful application to have the Solicitor General pay the money earlier awarded to them in a judgment which was entered in favour of the applicants by the court following their successful litigation against the Attorney General of the Republic of Kenya in Ref. No.1 of 2006 before the East African Court of Justice.

In the earlier litigation, judgement was entered in court by consent of both parties and a final decree issued.  Prof. Anyang Nyongo and the rest of the applicants subsequently obtained a certificate of costs against the Attorney General pursuant to section 21 of Government Proceedings Act, Cap 40 Laws of Kenya, which certificate was served and received. In this particular application, the applicants contended that despite written demands, reminders and oral presentations, the Solicitor General had failed, ignored and/or refused to pay the decretal sum as had been decreed by the court.

The application was opposed by counsel for the respondent who argued that the application was misconceived against the Solicitor General since, according to him, the Attorney General had been sued in his representative capacity on behalf of the National Assembly.  He stressed that the Attorney General was sued for acts done by the National Assembly, which actions had infringed the East African treaty.   According to counsel, the reference before the East African Court was not a claim against the Attorney General but it was against the Government of Kenya.  He further emphasised that since the Attorney General had been  sued in representative capacity, primarily on behalf of the Government of Kenya and secondarily on behalf of the National Assembly, the  proper party to pay the costs of the applicants is the Clerk to the National Assembly.

On the other hand, counsel for the applicants submitted that the Solicitor General is the accounting officer in the office of the Attorney General and that it is not the role of applicants to know the internal arrangements between different Government organs.  

While holding for the applicants, the court started by saying that the  consent that was entered into was between the applicants and the Attorney General of the Republic of Kenya on the strength that the claim was genuine and payable.     The Attorney General, the court went on, was sued because he is the principal legal advisor and representative of the Government of Kenya in all matters concerning litigations in Kenyan jurisdiction and outside.    In so far as his representation before the East African court is concerned, stated the court, the Attorney General was protecting and preserving the rights and interests of the Kenyan people.  As such, according to the court, if any party commences proceedings against any of the three organs outside Kenya’s jurisdiction, the Attorney General is obligated to give adequate representation and legal advice and in such circumstances it does not matter whether the Attorney General was acting for the Executive, Parliament and/or Judiciary as he was exercising a Constitutional function on behalf of the Government of Kenya. It further stated that the Attorney General  is required to direct any arm of Government he represented to pay the costs of any suit which he acted on its behalf and  if a particular organ refuses to pay he will be responsible on behalf of his agent.

Finally, the Court concluded that the Solicitor General, being the accounting officer of the Attorney General, was rightly sued by applicants to pay up the sums claimed.

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Kenya Gazette Vol. CXIII – No. 122 Dated December 16,2011
GAZETTE NOTICE NO. 15788
THE STATE CORPORATIONS ACT
(Cap. 446)
THE MOI TEACHING AND REFERRAL HOSPITAL BOARD
ORDER, 1998
(L. N. 78 of 1998)
APPOINTMENT

IN EXERCISE of the powers conferred by paragraph 2 (h) of the Moi Teaching and Referral Hospital Board Order, the Minister for Medical Services appoints —

Nelly Yatich (Dr.)
Eunice Wangari Wambugu (Ms.)
Katwa Kigen

to be members of the Moi Teaching and Referral Hospital Board, for a period of five (5) years. The appointment of Said Kaitany*, Musa Lochom Ewoi†, and Hellen Yego†, are revoked.

Dated the 1st December, 2011.

P. A. NYONG’O,
Minister for Medical Services.
*G.N. 9626/2008 and †G.N. 4561/2009.

GAZETTE NOTICE NO. 15789
THE GOVERNMENT FINANCIAL MANAGEMENT ACT
(No. 5 of 2004)
THE GOVERNMENT FINANCIAL MANAGEMENT (HOSPITAL
MANAGEMENT SERVICES) REGULATIONS, 2009
(L. N. 155 of 2009)
APPOINTMENT

IN EXERCISE of the powers conferred by regulation 5 (1) of the Government  Financial Management (Hospital Management Services)  Regulations, the Minister for Medical Services appoints the persons named in the Schedule to be members of the respective District Hospital Management Committees, for a period of three (3) years.

SCHEDULE
UASIN GISHU COUNTY
ELDORET WEST DISTRICT

Ziwa Sub–District Hospital
Philip Kibusie—(Chairman)
Joseph Mwongoi
Stephen K. Rono
Constantine Rogony
Clementine Menjo
The appointments* of James Kiptoo (Rev.), Aggrey Rop, Roseline Meli and Rhoda Langat, are revoked.

TAITA TAVETA COUNTY
TAVETA DISTRICT

Taveta District Hospital
Frank Mmare (Rev.)
Rose Dawa Amiri
The appointments* of Rosemary Mkunde and Fr. In-charge, St. Paul’s Catholic Church, are revoked.
BARINGO COUNTY
BARINGO NORTH DISTRICT
Kabartonjo Sub–District Hospital
Mike Y. Telieny (Eng.)—(Chairman)
Lilian Cheskaw
Marisa Kiprop
Harold Kipchumba
Isaiah K. C. Bunyi
NAIROBI COUNTY
KASARANI DISTRICT
Mathari Hospital
John Mburu (Dr.)—(Chairman)
Patrick Odanga
Marjorie Nangali
Boniface Njoroge Kinuthia.

The appointments* of M. M. Okonji (Dr.), Rosina Njue and Sr. Incharge, Little Sisters of Charity (Kariobangi), are revoked.

Dated the 1st December, 2011.
P. A. NYONG’O,
Minister for Medical Services.
*G.N. 3461/2010.

GAZETTE NOTICE NO. 15790
THE LABOUR RELATIONS ACT
(No. 14 of 2007)
DEDUCTION OF AGENCY FEES

IN EXERCISE of the powers conferred by section 49 (1) of the Labour Relations Act (No. 14 of 2007), the Minister for Labour makes the following order:
(a) Orders Messrs. Bata Shoe Company (K) Limited to deduct from the wages of each unionisable employee who is not a member of Kenya Shoe and Leather Workers Union herein referred to as the ‘union’ but is covered by the Collective
Bargaining Agreement RCA No. 193 of 2011 signed between the union and the company a sum equal to two and a half per cent (2.5 %) of the employees basic salary subject to a minimum of Kshs. 200 per month.
(b) Deductions to commence within thirty (30) days of receiving the order.
(c) To remit within ten (10) days the sums deducted under item (a) by crossed cheque made payable to the Union into that Union’s account No. 094-1821-022 at the Barclays Bank of Kenya Limited, Queensway Branch, Mama Ngina Street, P.O. Box 30011, Nairobi.

Dated the 29th November, 2011.

JOHN MUNYES,
Minister for Labour.
MR/8406049

GAZETTE NOTICE NO. 15791
THE MAGISTRATES’ COURTS ACT
(Cap. 10)
INCREASE OF LIMIT OF JURISDICTION

IN EXERCISE of the powers conferred by section 5 (1) of the Magistrate’s Courts Act, the Chief Justice, increases the limit of jurisdiction of the magistrates set out in the gazette as indicated against their names with effect from 1st December, 2011.

Dated the 30th November, 2011.

WILLY MUTUNGA,
Chief Justice and President of the Supreme Court of Kenya.

GAZETTE NOTICE NO. 15793
THE LAND ACQUISITION ACT
(Cap. 295)
RECONSTRUCTION OF LANET–DUNDORI ROAD
ADDENDUM
IN Gazette Notice Nos. 5073 and 5074 of 2010, add the following:
Plot No.                             Registered Owner                                 Area Affected (ha.)
11739/R —                                                                                          0.5518
Dundori/Lanet Blk. 1/65    Julius Watatua Macharia                   0.0661

Inquiries will be held on 27th January, 2012 at D.O.’s office, Dundori, starting from 9.30 a.m.
Every person who is interested on the affected land is required to deliver to the commissioner of lands not later than the day of inquiry a written claim to compensation. All interested parties should appear for inquiries with copies of PIN, ID card and Title Deed.

Gazette Notice No. 15441 of 2011, is revoked.
Dated the 30th November, 2011.

Z. A. MABEA,
Commissioner of Lands.
MR/8406100

GAZETTE NOTICE NO. 15794
THE TRUST LAND ACT
(Cap. 288)
SETTING APART OF LAND

NOTICE is given that the land described in the schedule hereto has been duly set apart in accordance with the provisions of Part IV of the Trust Land Act, for the purposes specified in the said schedule.

SCHEDULE
Place. —       Maji ya Chumvi, Mariakani, Kilifi District.
Purpose. —  Commercial.
Area.— 16.19 ha. approximately.

Description of Land:
This Land is situated approximately 10 km to the north west of Mariakani Township. The boundaries are demarcated on the ground and are described as follows:

Starting from a point OMNSX. which is an iron pin on concrete from which spotheight 188 and spot height 213 are 1800 m and 1560 m distant on bearing of 269°20'20"and 356°28'04" respectively;

thence for a distance of 100.00 m on a bearing of 149°08’51" to point D - 1PC; thence for a distance of 150.00 m on a bearing of 43°34'16" to point C – 1PC; thence for a distance of 163.83 m on a bearing of 133°34'16" to point B – 1PC; thence for a distance 532.50 m on a bearing of 25°30'11" to point A – 1PC; thence for a distance of 202.20 m on a bearing of 325°28'36" to point 0MN8 - 1PC; thence for a distance of 400.00 m on a bearing of 51°10'01" to point 0MN9 – 1PC;
thence for a distance of 90.00 m on a bearing of 143°14'59" to point 0MN10 – 1PC; thence for a distance 150.00 m on a bearing of 209°30'10" to point OMN3 – 1PC; thence for a distance of 84.01 m on a bearing of 203°59'57" to point 10MN4X - 1PC; thence for a distance of 34.90 m on a bearing of 239°07'54" back to point 10MNSX – 1PC.

All bearings given above are magnetic.

A plan of the area may be inspected at the Office of the District Commissioner, Kinango.

Dated the 5th December, 2011.

Z. A. MABEA,
Commissioner of Lands.
MR8406256

GAZETTE NOTICE NO. 15864
THE KENYA POWER AND LIGHTING COMPANY LIMITED
SCHEDULE OF TARIFFS 2008 FOR SUPPLY OF ELECTRICITY
FOREIGN EXCHANGE FLUCTUATION ADJUSTMENT

PURSUANT to clause 2 of part III of the Schedule of Tariffs 2008, notice is given that all prices for electrical energy specified in part II of the said schedule will be liable to a foreign exchange fluctuation adjustment of plus 149 cents per kWh. for all meter readings taken in December, 2011.

Information used to calculate the adjustment:

Total units generated and purchased excluding exports in November, 2011 (G) = 634,050,275 kWh.
L. K. NJAGI,
Company Secretary.

GAZETTE NOTICE NO. 15753
THE ENVIRONMENTAL MANAGEMENT AND
CO-ORDINATION ACT
(No. 8 of 1999)
THE NATIONAL ENVIRONMENT MANAGEMENT
AUTHORITY
ENVIRONMENTAL IMPACT ASSESSMENT STUDY REPORT
FOR THE PROPOSED BARAKA ESTATE PHASE 3 ON PLOT
L.R. NO. 18111 IN EMBAKASI, NAIROBI
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 Baraka estate phase 3.

The proposed development will include construction of a residential estate of 101 units of three types:

(a) Type C—Maisonettes
(b) Type D—Maisonettes
(c) Type F—Maisonettes

The project site is located on Plot L.R. No. 18111 in Embakasi, off North Old Airport near Administration Police Training College (APTC).

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.
(b) Permanent Secretary, Ministry of Environment and Mineral Resources, N.H.I.F. Building, Community, P.O. Box 30521, Nairobi.
(c) Provincial Director of Environment, Nairobi Province.
(d) District Environment Officer, Embakasi and Makadara Districts.

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.
MR7681871

GAZETTE NOTICE NO. 16152
THE LOCAL GOVERNMENT ACT
(Cap. 265)
THE COUNTY COUNCIL OF BARINGO
THE BARINGO TRADE DEVELOPMENT JOINT LOANS BOARD
APPOINTMENT

IN EXERCISE of the powers conferred by section 104 (3) of the Local Government Act, the County Council of Baringo appoints —

Cllr. Richard K. Kampala,
Cllr. Julia Lochingamoi,
Cllr. Dickson Lenasolio,

to be members of the Baringo Development Joint Loans Board, for a period of three (3) years.

Dated the 6th December, 2011.

GIDEON OLE SARUNI,
County Clerk.
MR8406223
SUPPLEMENT No. 158
Legislative Supplement
LEGAL NOTICE NO.
The Interpretation and General Provisions Act—Declaration.

SUPPLEMENT Nos. 159 to 163
Acts, 2011
The Capital Markets (Amendment) Act, 2011.
The Central Depositories (Amendment) Act, 2011.
The National Payment System Act, 2011.
The Unclaimed Financial Assets Act, 2011.
The National Construction Authority Act, 2011.

Special Issue Vol. CXIII – No .121, Dated December 9, 2011
GAZETTE NOTICE NO. 15783
THE INTERPRETATION AND GENERAL PROVISIONS ACT
(Cap. 2)
TEMPORARY TRANSFER OF MINISTERIAL POWERS

IN EXERCISE of the powers conferred by section 37 of the Interpretation and General Provisions Act, I, Mwai Kibaki, President and Commander-in-Chief of the Kenya Defence Forces, direct that the powers and duties of the Minister for Medical Services shall be exercised and performed by Hon. Dalmas Anyango Otieno, the Minister of State for Public Service, with effect from 8th December, 2011.

Dated the 8th December, 2011.
MWAI KIBAKI,
President.

GAZETTE NOTICE NO. 15784
THE CONSTITUTION OF KENYA
THE POWER OF MERCY ACT
(No. 21 of 2011)
APPOINTMENT

IN EXERCISE of the powers conferred by section 16 (2) of the Power of Mercy Act, I, Mwai Kibaki, President and Commander-in- Chief of the Kenya Defence Forces, appoint—

GACIVIH JOHN NYAGAH

to be the secretary to the Advisory Committee on the Power of Mercy.

Dated the 8th December, 2011.

MWAI KIBAKI,
President.

GAZETTE NOTICE NO. 15785
THE STATE CORPORATIONS ACT
(Cap. 446)
NYAYO TEA ZONES DEVELOPMENT CORPORATIONS ORDER
(L. N. 30 of 2002)
APPOINTMENT

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

DANIEL KARABA DICKSON

to be a member of the Board of Nyayo Tea Zones Development Corporations, for a period of three (3) years, with effect from 9th December, 2011. The appointment of Joseph Munene Murage*, is revoked.

Dated the 1st December, 2011.

S. J. KOSGEI,
Minister for Agriculture.
*G.N. 6676/2009.

GAZETTE NOTICE NO. 15786
THE ARCHITECTS AND QUANTITY SURVEYORS ACT
(Cap. 525)
REVOCATION OF APPOINTMENT

IN EXERCISE of the powers conferred by section 4 (2) (a) of the Architects and Quantity Surveyors Act, the Minister for Public Works Revokes the appointment* of—

COSMAS JOSPHAT MUENDO MAWEU

as a member of the Board of Registration of Architects and Quantity Surveyors, with effect from 12th August, 2011.

Dated the 2nd December, 2011.
C. M. OBURE,
Minister for Public Works.
*G.N. 9502/2011.

GAZETTE NOTICE NO. 15787
THE STATE CORPORATIONS ACT
(Cap. 446)
APPOINTMENT

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

ALBERT RUTURI

to be a member of the Board of Directors of the Industrial and Commercial Development Corporation, for a period of three (3) years, with effect from 18th  November, 2011.

Dated the 28th November, 2011.

C. A. MWAKWERE,
Minister for Trade.

Gazette Notice Special Issues Vol. CXIII . No. 120, Dated December 9, 2011
GAZETTE NOTICE NO. 15782
AWARD OF ORDERS, DECORATIONS AND MEDALS
JAMHURI DAY, 12TH DECEMBER 2011

IN RECOGNITION of outstanding or distinguished services rendered to the nation in various capacities and responsibilities, I, Mwai Kibaki, President and Commander-in-Chief of the Defence Forces of the Republic of Kenya, confer Awards and Honours to the following persons:

Dated the 8th December, 2011.
MWAI KIBAKI,
President.

Special Issue Vol. CXIII – No 118 Dated, December 2, 2011
GAZETTE NOTICE NO. 15433
THE NATIONAL SOCIAL SECURITY FUND ACT
(Cap. 258)
APPOINTMENT

IN EXERCISE of the powers conferred by section I of the First Schedule to the National Social Security Fund Act, the Minister for Labour appoints:

Under paragraph 1 (a)—
Adan Daud Mohamed—(Chairman);
Under paragraph 1 (b)—
Permanent Secretary to the Treasury;
Under paragraph 1 (c)—
Permanent Secretary, Ministry of Labour,

to be members of the National Social Security Fund Board of Trustees, for a period of three (3) years, with effect from 16th January, 2011.

Dated the 1st December, 2011.

JOHN MUNYES,
Minister for Labour.

GAZETTE NOTICE NO. 15434
THE COFFEE ACT
(No. 9 of 2011)
APPOINTMENT

IN EXERCISE of the powers conferred by section 4 (1) (a) of the Coffee Act, the Minister for Agriculture appoints —

Mathew K. Ndege,
Eldad Riungu Mpengu,
Matanda Wabuyele (Mrs.),
Kuria Kimamo,
Ernest C. A. Saina,
Jack K. Kimuri,

to be members of the Coffee Board of Kenya, for a period of three (3) years, with effect from 2nd December, 2011.

Dated the 1st December, 2011.

S. J. KOSGEI,
Minister for Agriculture.

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