Month: January 2015
Law Society of Kenya Lawyer Ahmednassir Abdullahi at Milimani law court.
BY SAM ALFAN.
High court issued orders restraining the Law Society of Kenya from compelling lawyers to give contributions to build the Law Society of Kenya (LSK) ambitious project.
Justice Mumbi Ngugi halted contributions by the society members, saying that advance argument by aggrieved parties indicates that the process was not inclusive.
The judge however stated that orders given in two other similar cases do not prevent any members of LSK willing to pay the money to do so.
The judge further ordered LSK to provide information to its members regarding the especial annual general meeting held on 27 September that came up with idea to establish the arbitration Centre.
The case involves four lawyers who are yet to be issued with a practicing certificate which requires that they pay an extra Sh 11,000 to acquire it.
The aggrieved advocates have accused the LSK of purportedly making the requisite charges as a precondition for the issuance of a practicing certificate.
They moved to court seeking the High court to quash the decision of the law society of Kenya on grounds that they were not consulted and neither was the issue listed as an agenda, so it can be voted at any of the LSKs Annual -General meeting.
“It is evident that the respondent is implementing the resolution of the meeting despite the same being contested,” she said.
She said the petitioners have the right to have information about the arbitration centre.
She said the legal umbrella body had the obligation to give information to its members since it has not presented a reason why it should not release the information or how prejudice will be suffered.
Deynes Murithii, Alexander Muchemi, Ann Cherono Konuche and Paul Kariba sued the Law Society of Kenya (LSK) for raising the fees up from Sh 39,000 to 50,000.
According the advocates, the lawyers’ umbrella body has hiked the amount to facilitate the construction of a Sh 1.2 billion International Arbitration Center.
Also section of Muslim lawyers filed a petition opposing the establishment of the LSK proposed Arbitration Centre in which they were being asked to make contribution towards the project.
The lawyers claim, that whereas the project is a positive move toward the promotion of the rule of law it goes against their religious believe and faith.
They argued that, the proposal arrived at the legal umbrella body in its special annual general held on 27 September at Hilton Hotel Nairobi which specifically centered on financing of the LSK Arbitration Centre Project constitute gross violation of their constitutional rights since they are being asked to finance and facilitate the payment of the loan to be secured from the bank.
The petitioners Obondi Victor, Musa Ali bashir, Abdil Yunis Khalid, Jama,Farah Mohamud among others, that meeting that resolved that 70 per cent of the project cost that is Sh1, 255,000,000 of the total cost of Sh 878,500,000 will be financed through a loan facility that will attract interest and members of the legal umbrella body will be compelled to contribute towards it.
The petitioner avers that the project will have a bar constructed within the premise contrary to their faith.
BY SAM ALFAN
Industrial Court has declined to stop the ongoing countrywide strike by teachers.
Justice Nduma Nderi also noted that the Teachers Service Commission (TSC), the Kenya National Union of Teachers (Knut) and the Kenya Union of Post-Primary Education Teachers (Kuppet) had already reached compromises on 37 issues, some of which touch on teachers’ allowances.
However the only stalemate, he said, which is the cornerstone of the strike concerns increasing teachers’ basic pay.
“I need all the officials from TSC, Knut and Kuppet to help come up with an amicable solution that will see children resume school soonest possible,” he said.
Knut, through their lawyer John Mbaluto said that parties could only negotiate without coercion and in an environment of give and take.
“I appreciate that your affidavit (TSC’s) is misleading because you persisted in that lie which is in the press because probably they also did not take time to examine the parties in the suit. The intention today first of all was a mention for directions and further orders. My intention was to intervene in this matter in terms of Section 15 of the Industrial Court Act,” he explained.
He further emphasised the importance of all parties in a dispute to exhaust all avenues of dispute resolution before resorting to court action.
“Both the unions nor the employer referred this matter to conciliation and you cannot approach this court before you follow the laid down procedure and that is why other employees are not on strike every day because they follow the procedure which is a very good guideline to resolving disputes.”
He says once negations come to a halt, parties need to follow all the laid down procedures so as to unlock the deadlock.
“I know once the strike commences, you get a right but that does not absolve you from the omission. As an employer, as soon as there is an indication that things are getting out of hand, you resort to the mechanism under section 62 which allow the matter to be resolved and you have not done that for the past many years when a strike has always been called for,” he said.
TSC chairperson Lydia Nzomo instructed County Education Directors to undertake a daily headcount of teachers to ascertain those who boycott work.
She stated that teachers unions should wait until August when the Salaries and Remuneration Commission completes its job evaluation after a collapse in ingoing negotiations.
But in a swift rejoinder, the Kenya National Union of Teachers insisted that the teachers strike is still on and that tutors will not be intimidated.
KNUT Secretary General Wilson Sossion described the TSC statement as misguided and vowed that they would not be cowed.
Justice Nduma Ndeli directed the officials of the two unions and the officers of TSC to appear before in chambers at 10.30am on January 14, 2015 for further directions.
Business man Erastus Ediot Odhiambo chatting with his lawyer after he pleaded not guilty in a case where he’s facing charges of killing his wife late last year at BuruBuru estate.
BY SAM ALFAN
High court will rule whether to release on bail or not Business man Erastus Ediot Odhiambo.
Ediot is facing charges of killing his wife Linda Wanjiku late last year at BuruBuru estate.
Through his lawyer Robert Onyango told the court he will abide with any court direction if released on bail.
However the state opposed the bail application on grounds that if released he is likely to interfere with witnesses.
Odhiambo is accused of killing his wife Linda Wanjiku Irungu a mother of one son in Buruburu.He pleaded no guilty to the charges.
Friends and relatives said Linda Wanjiku Irungu a mother of one son constantly complained that her
husband physically abused her, especially when he was drunk.
“We asked her to leave on several occasions but she said her husband would change,” a close friend of Ms Wanjiku told local daily.
On the fateful Friday morning, Linda’s husband, Erastus Ediot Odhiambo, arrived home at around 3 a.m. and found his wife missing. He left and returned an hour later to find her in the house.
A quarrel ensued.
Ms Wanjiku, who was Odhiambo’s second wife, had attended a party with friends. She had stated on Facebook page earlier in the day “Happy Thursday to y’all, catch you later my pals.”
According to the lawyer’s sister Diana Irungu, the couple began quarrelling at around 4.30 a.m.
“My sister decided that we leave for our parents’ home in Buruburu Phase 2. When she started driving, her husband caught up with us, opened the car door and pulled her out,” she said.
Ms Irungu said Mr Odhiambo then pulled out his gun and hit her sister on the back of the head several times as she lay on the ground.
“He kept kicking her and even fired at her despite my pleas that he lets her go. I then called my father and brothers,” she said.
Hellen Wesonga said she went to the compound with other neighbors minutes after hearing the gunshot and found Ms Wanjiku lying unconscious on the ground.
“I saw Linda’s sister screaming while her father and brother tried to lift her into the car. Her husband kept blocking and asking them to leave her alone,” she said.
With the help of neighbours, Linda’s father and Brother Renson Karanja put her in the car and drove to Jamaa Hospital where she was pronounced
dead. “My sister was unconscious when we arrived and that is why we decided to take her to the nearest hospital,” Mr Karanja said.
Ms Irungu said her sister and husband have had differences for long. According to the post mortem
examination results, Ms Wanjiku’s body had a bullet wound on the upper right side of the back.
Justice Kimaru said he will deliver the ruling on 3rd of February know whether he will be released on bail or not.
Bedrock Security services Director Eric Okeyo Managing director with his Lawyer Steve Bundotich (right) at Milimani Law courts after the hearing an application challenging a tender by a security firm that has been offering security services to the judiciary.
BY SAM ALFAN.
High court will deliver its ruling on a case challenging a tender by a security firm that has been offering security services to the judiciary.
In the case Riley services has accused the Chief Registrar Ann Amadi for entering into contract with Lavington services for the provision of security services. Riley argues that Amadi disobeyed orders of the public Procurement Administrative Review Board directing her that there should be no contract pending the determination of an appeal.
Riley Security Company is under scrutiny by its rivals Bedrock Security Services Limited and Lavington Security Limited who are challenging its case in court.
Bedrock security who is the second interested party argues that the court has no jurisdiction to entertain the petition by Riley Company adding that the proceedings are premature, misled and defective.
According to Erick Okeyo the Bedrock Managing director, the judiciary is currently paying half the budget it used to pay Riley Services Limited.
He argues that that the judiciary used to spend 216 million shillings annually on security adding that a hand held metal detector was being bought at 18,000 shillings whereas the actual price is about 5,000 shillings in the market.
The board is said to have on December 22 stopped the registrar from entering into contracts with Lavington Security Ltd for provision of security services until the tender dispute is resolved. Riley Services Ltd was allegedly notified by the registrar on December 17 that its bid for provision of security services was unsuccessful.
However, on December 22, it filed a request for review at the Public Procurement Administrative Review Board. On December 31, following the chief registrar’s directive, Lavington Security Ltd deployed guards at all Judiciary premises.
Justice Mumbi Ngugi will make her ruling on 23, to decide whether to nullify Lavington Security Limited tender as sought by Riley Security Company.
Attorney General Githu Muigai who has filed an appeal against the suspension of eight clauses of the controversial Security Laws Amendment Act 2014.
BY SAM ALFAN.
Attorney General Githu Muigai has challenged the suspension of eight clauses of the controversial Security Amendment Act 2014 that is meant to curb rising insecurity unleashed by terrorism..
AG has filed a notice appeal against the January 2 decision by High Court Judge George Odunga following petitions by the Coalition for Reforms and Democracy (Cord) and the Kenya National Commission on Human Rights (KNCHR).
In his application, the Attorney General argues the high court does not have power to suspend legislation that has been lawfully sanctioned by the National Assembly and assented to by the President without justifiable reasons. The law can only invalidated by a three-Judge constitutional bench appointed by the Chief Justice upon receiving valid grounds regarding the short-comings or excesses of the law, he said.
President Uhuru Kenyatta signed into law the controversial legislation on December 19 following unprecedented mayhem in the House. Parliament enjoys exclusive power to enact laws that are presumed to be lawful and the High Court can only intervene when there is evidence of interference with freedoms and liberties protected by the Constitution, Prof. Githu says.
The Attorney General claimed the new law does not violate the fundamental rights and freedoms enshrined in the Bill of Rights but opposition groups have condemned the tough regulations, among which allow security agents to hold suspects without charge for up to 90 days.
Earlier in December, while responding to an application filed by the two petitioners, the AG said the law has given security personnel the ability to counter terror activities and if it is shelved, it will mean Kenyans will be left at the mercy of the perpetrators.
The AG defended the Security Laws arguing that the court cannot grant temporary orders as this
would jeopardize the fight against terror insurgents.
The CORD fraternity is seeking orders to stop the implementation of the security laws that President Uhuru signed into law and have since been published in the Kenya Gazette.
“The Security Laws (Amendment) Bill 2014 was not referred to the Speaker of the Senate by the Speaker of the National Assembly after it was passed by the National Assembly,” Orengo told the court.
He castigated the Speaker of National Assembly Justin Muturi for not referring the laws to the senate.
“The Speakers lost control of the proceedings in the House and acted in a partisan and bias manner and there was no decorum and dignity in the National Assembly and freedom of speech and debate,” judge Lenaola was told.
Orengo told court that the speaker violated the law by forwarding the laws for assenting by the president, before the senate could deliberate on them.
“Serve and come for inter-parties hearing tomorrow at 11.30 in the morning. The applicant will not suffer any prejudice if the stay orders are not granted immediately,” Judge Lenaola said.
Senior Counsel Orengo argued that the government was keen in returning the county to a one party state through the new security laws. “The laws were passed in a chaotic environment coupled with violation of the standing orders,” he said.
In the turn of events, the efforts of the application seeking orders before government is served were thwarted, after the judge noted that there was no enough demonstration to issue such a request.
The CORD fraternity argues that the President of the Republic of Kenya had acted in a manner that does not respect, uphold and safeguard the Constitution of Kenya.
“The president has an obligation to promote and enhance the unity of the nation; and to ensure the protection of human rights and fundamental freedoms and the rule of law,” read part of the suit.
The applicants also said that public participation was restricted because the time allocated was inadequate and committee meetings were held at odd times in contravention of Article 118 of the Constitution of Kenya.
CORD wants the court to make a finding that the Security Laws (Amendment) Bill 2014 as passed and assented to and the Security Laws (Amendment) Act contravene the Constitution of Kenya and violate the Bill of Rights and are both, each and all therefore null and void.
The court has been asked to make a determination that the conduct of the National Assembly in unilaterally considering and passing the Security Laws (Amendment) Bill without involving the Senate undermines the architecture and legal structure and framework of the legislature.
The case has outlined a number of grey areas including section 5 of the Security Laws (Amendment) Act 2014 and Section 9 of the Public Order Act which CORD says are inconsistent with and contravenes Articles 238 and 239 of the Constitution of Kenya.
The coalition hold s that a Cabinet Secretary is not a member of any of the national security organs and therefore would not be obligated to comply with the principles of national security organs .
Also, the court has been invited to see that the provisions contained in Section 66A (2) of the Penal Code are oppressive and are inconsistent with and contravenes Articles 28 and 29 of the Constitution.
According to the applicants, the penal code now allows for the trial, punishment and conviction of a person who had no knowledge of ongoing investigations or security operations of the National Police Service or the Kenya Defence Forces.
They said that Section 25 of the Security Laws (Amendment) Act and Section 18A of the Registration of Persons Act are inconsistent with and contravene Articles 12, 14 and 24 of the Constitution and to the extent that it is not reasonable and justifiable for a person who is a Kenyan citizen by birth to be denied a passport or other document of registration
The appellate court will hear the appeal of the attorney general and give further direction on the matter.
Igembe Central Member of Parliament Cyprian Kubai Kiringo who has been ordered to clear the outstanding school fees amounting to over Sh320, 000 for a child whom he sired outside his marriage.
BY SMART NEWS TEAM.
A Member of Parliament I from Meru County is involved in a protracted court battle with a woman claiming school fees for their child.
Igembe Central Member of Parliament Cyprian Kubai Kiringo has been ordered to clear the outstanding school fees amounting to over Sh320, 000 for a child whom he sired outside his marriage.
Milimani Children’s court magistrate David Kuto said that the earlier order issued against the MP has not been fully complied with.
He said failure to obey the order, the warrant of arrest issued by the court should be enforced.
Mr Kuto said that, the child should remain in the school he has chosen and the legislator should forthwith desist from demanding change of the learning institution for the child.
As the schools are having opened, the lady wants the legislator to pay fees for the child to ensure his son’s smooth learning.
The aggrieved woman through her lawyer Jane Nyaboke, told the court that MP has abused the court process by making several application seeking to set aside the warrant of arrest issued against him.
“The application made to this court has not been disclosed to us as applicant and they have been taken to different court” the lawyer told the court. The warrant can only be set a side after the school fees have been paid has ordered.
Igembe Central Member of Parliament and his former girl friend are engaged in bitter exchange over the upkeep of a child they sired together.
As the schools are about to open, the lady wants the legislator to pay fees for the child.
“It’s prudent that the MP do honor the court’s order requiring him to pay the school fees.
Nyaboke told trial magistrate David Kuto that the MP has in the application before court sought the kid to be transferred from his current school to another.
The lawyer said there is no problem for the child to study at his current school which has provided transport and the kid is comfortable there.
The children’s court has already entered judgment against him for SH 325,864 which keeps on attracting interest.
The child’s mother obtained the decree on 11 February 2014 after the legislator declined to defend the suit brought against him over neglect of the kid.
The mother’s lawyer has submitted to court that the legislator has become evasive leading the child being chased from school due non payment of fees.
.The lawyer further submitted that, the mother cannot return the child to the former school where there is an outstanding substantial fee which has not been paid.
There are orders in placed to have the Mp under go DNA test issued by the court and the same was supposed to have been done on 17 September 2013, but the father failed to avail himself at hospital.
The court directed that the matter be mentioned on 21 January to conform compliance of the orders of the court.
BY SAM ALFAN.
Supreme Court has suspended the analogue- digital migration schedule that was set to take place in Nairobi at the end of this year.
The decision was made today, after three media houses, KTN, NTV and Citizen TV asked to be given more time to set up their platforms.
The Supreme Court had earlier ruled that the three media houses be granted distribution licenses in the spirit of fair competition, a move that enabled them be able to compete with other distributors.
The deadline has already been moved severally this year and with the worldwide deadline fast approaching, will give Kenyans lesser time to prepare for the switch.
Last week, Deputy Chief Justice Kalpana Rawal granted the orders sought by The Standard Group (SG), Royal Media Services (RMS) and Nation Media Group (NMG) who filed the application arguing that there were issues yet to be ironed out even as the deadline approached.
Their lawyer Paul Muite told the court that the deadline set by the Communications Authority of Kenya (CAK) did not comply with the three-month period given by the Supreme Court for negotiations.
The three media houses KTN, NTV and Citizen will continue to operate on analogue system pending the hearing and determination of a case where they are seeking Communications Authority of Kenya not to cancel their analogue licenses for a period of time.
However while objecting to their case, CAK lawyer told the supreme court that the three media houses are having undue competitive advantage over other players in Nairobi who have already complied and switched off to the digital platform.
Out of eleven broadcasters it is emerging that only eight including Kenya Broadcasting Corporation have migrated to digital platform in Nairobi.
However three media houses are yet to migrate and they moved to court seeking more time with their lawyer Paul Muite arguing that they need time to put in place infrastructure in terms of transmitters and other equipment to enable them to transmit digital signal.
Opposing application Communications Authority of Kenya through its lawyer Kilonzo Wambua says that the three media houses are on both digital and analogue platforms and that they are using unorthodox means to gain unfair advantage over the other broadcasters who have already switched off their analogue systems in Nairobi.
The Supreme Court however made a ruling concerning the cancellation of analogue licences and said that although the court has not barred digital migration but it is imperative that the case be determined first before the three media houses can move to digital platform.
The date of the hearing of the case will be determined on a priority basis with the global deadline set in five months time. This comes as the three digital signal distributors have been authorized to develop national infrastructure in the country to facilitate migration to digital broadcasting.
The latest addition was a consortium of local media owners who have had a long battle to get their own license to caution their businesses after the shift.
Local broadcasters had earlier expressed fears the transition from analogue signals would heavily impact on their overall advertising revenues-the mainstay of most media stations.
Key functions of these distributors include managing its systems, distribution of multimedia services to consumers on behalf of broadcasters and provide billing systems for pay tv operators.
Signet, a subsidiary of state-owned Kenya Broadcasting Corporation (KBC) was the first to get full authority to broadcast and distribute digital terrestrial signals in the country.
The distributor has a total of 35 local channels on its platform to include a host of gospel television stations, music, vernacular, education and general viewing as well radio stations.
It was launched Dec. 2009 by the government but faced financial challenges to lock it from improving capacity to efficiently roll out its services.
The state owned distributor had a bigger budget to expand infrastructure amid low revenue collections.
Signet was unable to raise Sh 4 billion needed by then to roll out national infrastructure, limiting its reach to Nairobi and environs alone.
Communication Authority (CA) of Kenya (formerly CCK) was forced to open up the digital TV market to private investors to help meet its digital migration obligation and meet the global deadlines for switch off.
Two years later, a Chinese company, Pan Africa Network Group that boost of over 700 million viewers in Asia and Africa won the tender that attracted five contenders.
Africa Link Agencies, Signal Distributors Ltd, Globecast Africa, Mayfox Ltd, and a consortium of local broadcasters contested for the tender.
The Chinese firm was given three conditions to comply with for an assurance to the government that it will help government achieve its target before it start operations in the country.
It was to show proof that it has capacity to mop up enough resources to fund development of infrastructure and provide national coverage.
The Chinese investor was also to open up its platform to allow local channels use its infrastructure to relay their programmers’ to audience.
Digital coverage in the country has since surpassed 70 percent of the population cover, making it ready for the country to switch off analogue TV sets in the planned phased approach.
Nairobians will continue enjoying analogue television services pending the hearing of the suit.