Bench Bulletin - Issue 12 - Kenya Law Reports

KENYA LAW REPORTS
BENCH BULLETIN
DIGEST OF CASES FEATURED
Service – mode service of an election petition - affidavit of service - whether the appellant’s affidavit of service dismissed
by the High Court would have discharged the onus of showing on a balance of probability that the appellant exercised
due diligence in serving the election petition – whether onus is on the petitioner to demonstrate that he exercised due
diligence before invoking service through alternative mode of service – 1st respondent argued that the petitioner had
ample time exercise due diligence before resorting to alternative means – whether the petitioner discharged the onus of
showing diligence in serving the petition – due diligence – meaning of due diligence
Justus Mungumbu Omiti v Walter Enock Nyambati Osebe & 2 others ....................................................................................... 48
Service - service of an election petition – appeal against dismissal of an election petition by the High Court on the ground
that service had not been conducted within the requisite period after publication of results – production of conflicting
evidence before the High Court through conflicting affidavits regarding the service of the election petition - appellant’s
process server swearing in an affidavit that the election petition had been served within the given period of time –1st
respondent also swearing in an affidavit that the service of election of election petition as alleged by the process server did
not take place – parties whether failure by the 1st respondent to cross examine the process server amounted to admission to
having been served the election petition - whether the appeal could be allowed on that ground- section 20 (1) (a)National
Assembly and Presidential Elections Act.
Dickson Daniel Karaba v John Ngata Kariuki & 2 others ............................................................................................................. 56
EMPLOYMENT – termination of – appeal against a decision finding the termination of appellant’s employment lawful and
on disciplinary grounds – claims over rebate tickets – respondent having argued that the rebate tickets were concessionary
and only a privilege to staff – claims that they could be changed or withdrawn or augmented by the respondent as deemed
fit – circumstances under which the appellate court would find differently from a superior court – whether the appellant
had an litigable entitlement to the tickets
Jimi Masege v Kenya Airways Limited ............................................................................................................................................ 41
EVIDENCE
Corroboration - where corroborative evidence showed that the complainant was defiled despite the fact that the alleged
perpetrator was not clinically examined-whether a conviction can solely be based on the corroborative evidence despite
lack of clinical tests on the alleged perpetrator.
Dennis Muthee Chokera v Republic ................................................................................................................................................. 38
Identification evidence - principles that the court had to take into when dealing with evidence of identification where
the accused claimed it was mistaken identity- appellant caught red handed-whether there was proper identification.
Chris Kasamba Karani v Republic ................................................................................................................................................... 46
Identification - accused seen and identified by witnesses in broad daylight-conviction based on such identification-whether
such conviction is safe.
Jackson Kyalo Munge v Republic ..................................................................................................................................................... 42
LAND LAW - statutory notice - service of notice-statutory power of sale-provisions of the Registered Lands Act with regard
to statutory power of sale-whether the statutory notices were valid-where first respondent’s statutory power of sale had
accrued-Registered Land Act (cap 300) sections 65 (2), 74 (1) (a), 77 (4)
Marco Munuve Kieti v Official Receiver and Interim Liquidator Rural Urban Credit Finance & another ............................ 42
PROBATE AND ADMINISTRATION - letters of administration - appeal - interpretation of statute – interpretation of section
3(5) of the Law of Succession Act - appeal from High Court judgment granting the respondent letters of administration
– appellant arguing that a customary law marriage could not presumed where all the customary requirements had not
been fulfilled – whether a marriage between the respondent and the deceased could be presumed under section 3(5) of
the Law of Succession Act Marriage – presumption of marriage - rationale and genesis of the concept of presumption of
marriage - circumstances in which a presumption of marriage is deemed to arise – respondent having cohabited with the
deceased for over fifteen years and had three children – evidence supporting that the deceased supported the respondent
financially – lack of evidence that dowry was paid under the Kikuyu customs of marriage – whether a marriage could be
presumed under such circumstances
Mary Wanjiru Githatu v Esther Wanjiru Kiarie Civil Appeal 20 of 2009 ................................................................................... 50
Issue 12: April-June 2010
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