REPUBLIC v THE INDUSTRIAL COURT & another Exparte JOEL KANDIE CHEBII& another [2012] KEHC 3428 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI (MILIMANI LAW COURTS)

MISCELLANEOUS CIVIL APPEAL 327 OF 2010

IN THE MATTER OF:AN APPLICATION BY REV. JOEL KANDIE CHEBII AND MARIA AGUNDA THE APPLICANTS FOR JUDICIAL REVIEW ORDERS

AND

IN THE MATTER OF:THE LABOUR INSTITUTIONS ACT

AND

IN THE MATTER OF:THE LAW REFORM ACT CHAPTER 26 OF THE LAWS OF KENYA

AND

IN THE MATTER OF:CIVIL PROCEDURE RULES

AND

IN THE MATTER OF:APPLICATION FOR JUDICIAL REVIEW SEEKING ORDERS OFCERTIORARIAND MANDAMUS

AND

IN THE MATTER OF:MR. WILLIAM MUGA AKETCH, INDUSTRIALOF KENYA AND TAILORS & TEXTILES WORKERS UNION

BETWEEN

REPUBLIC......................................................................................................................APPLICANT

VERSUS

1. THE INDUSTRIAL COURT.......................................................................1ST RESPONDENT

2. WILLIAM MUGA AKETCH.......................................................................2NDRESPODNENT

1. REGISTRAR OF TRADE UNIONS................................................1ST INTERESTED PARTY

2. ABDULLAHI HASSAN IBRAHIM & 15 OTHERS...........2ND–16TH INTERESTED PARTY

EXPARTE

1. REV. JOEL KANDIE CHEBII

2. MARIA AGUNDA

J U D G M E N T

The Exparte Applicant herein Rev. Joel Kandie Chebii and Maria Agunda moved this court by way of Notice of Motion dated 8th November 2010 seeking the following orders:

(1)THATthe Honourable Court be pleased to grant an order of Certiorari to bring into this court and quash the decision of the Honourable Judge of the Industrial Court (Hon. Rika J.) dated 1st November, 2010 in Cause No.3(N) of 2010.

(2)THATthe Honourable Court be pleased to grant an order of Mandamus directed at the Registrar of Trade Unions not to deregister the Notice of Change of the Tailors & Textiles Workers Union as contained in Form Q following the Award of the Honourable Industrial Court of 1st November, 2010.

(3)THATcosts of the application be providedfor.

The application is supported by the statement of facts dated 3rd November 2010, the verifying affidavit sworn by Rev. Joel Kandie Chebii (hereinafter referred to as the 1st Applicant) on 3rd November 2010 and annextures thereto.

The application was filed pursuant to leave granted on 4th November 2010 and is premised on the following grounds:

(1)The decision and Award of the Honourable Judge of the Industrial Court to order deregistration of the said Applicants was made in excess of jurisdiction, is an abuse of the process of the law and in the premises a nullity and devoid of any legal effect.

(2)The decision and/or Award of the Honourable Judge of the Industrial Court of Kenya to effect deregistration of the Applicants was made without due regard to the rights of the Applicants

(3)The decision and action of the Honourable Judge of the Industrial Court of Kenya to deregister the Applicants was arbitrary and effected without due process of the law.

(4)The Industrial Court delivered the Award without considering the injustice and prejudice that would be suffered by the Applicants as a result of the Award.

(5)The decision and action by the Honourable Judge of the Industrial Court to deregister the Applicants is ultra vires and in contravention of the Applicant Union’s Constitution and the Labour Institutions Act.

It is worth noting that besides the Registrar of Trade Unions who was named as the 1st interested party, the members of the National Executive Committee of the Tailors and Textile Workers Union were enjoined as interested parties in the proceedings following a consent recorded by the parties and adopted by the court on 22nd November 2011.

Briefly, the background against which these judicial review proceedings came into being as can be discerned from the material placed before the court is that the 2nd respondent, William Muga Aketch was prior to 30th December 2009 the elected Secretary General of the Tailors and Textile Workers Union (hereinafter referred to as the Union). He however lost this position on 30th December 2009 when the Union convened a National Executive Committee meeting purposely to discuss his conduct. In this meeting, ten members unanimously decided that the 2nd respondent should be removed from the office of Secretary General and that he be replaced by the 1st applicant who prior to that date was the Union’s National Chairman. The 2nd applicant Maria Agunda was elected as National Chairperson of the Union to replace the 1st applicant. Those new changes in the Union’s leadership were brought to the attention of the Registrar of Trade Unions (1st Interested Party) and he effected the said changes in his records on 31st December 2009.

Upon learning of the changes effected in the Union’s leadership, the 2nd respondent filed a claim in the industrial Court being Cause No.3N of 2010 in which he complained that he had not been notified of the meeting of 30th December 2009 or of any charges levelled against him which led to his dismissal as Secretary General and that the National Executive Committee meeting convened on 30th December 2009 was held against the Union’s Constitution. He also complained that his removal from office was illegal and unconstitutional.

In his memorandum of claim filed on 6th January 2010, the 2nd respondent sought the following orders against the 1st interested party and the Union who were the respondents in that cause:

(a)   A declaration that the National Executive meeting held on 30th December 2009 at Old Mitihani House Nairobi was improperly convened and constituted and the appointments made thereon were improper.

(b)An Order compelling the 1st Respondent to de-register the Notice of Change of Officers of the union Form ‘Q’ filed following the National Executive Meeting held on 30th December 2009 at Old Mitihani House, Nairobi.

(c)Costs of this claim be awarded to the Claimant.

After hearing all parties to the dispute, the Industrial Court made its decision and delivered an award in favour of the 2nd respondent on 1st November 2010 in the following terms:

(1)It is hereby declared that the National Executive Committee meeting held on 30th December 2009 was improperly convened, and appointments made thereat were improper and illegal ab initio.

(2)The first respondent is hereby ordered to immediately de-register the notice of change of officers of the second respondent, as contained in form Q filed following the NEC meeting of 30th December 2009, and that the status quo before the notice was filed be maintained and the claimant be reinstated as the Secretary General of the second respondent without loss of benefits.

(3)We further order that the claimant shall continue to hold the position of Secretary General of the second respondent without any interruption upto and including the 31st December 2011, after which the second respondent may conduct elections with respect to the position of Secretary General, and in accordance with its registered constitution.

(4)Each party will bear its own costs.

This decision by the Industrial Court is what triggered the filing of the current judicial review proceedings. It is the applicants case that they were legally elected as Secretary General and National Chairman of the Union in a National Executive Committee meeting validly convened by the Union on 30th December 2009. The applicants contend that the resolutions of the said meeting and changes made to the affected offices of the Union were presented to the Registrar of Trade Unions together with form Q and other relevant documents and after confirming that the changes of office bearers had been validly effected in accordance with the Unions Constitution and the Labour Relations Act, he effected registration of the new office bearers.

The Applicants complain that in issuing its award on 1st November 2010, the Industrial Court exceeded its jurisdiction by issuing orders which had not been prayed for in the memorandum of claim filed by the 2nd respondent and that in ordering the deregistration of the applicants as the National Secretary and Chairperson of the Union respectively, the Court acted arbitrarily, improperly and in total disregard of the Union’s Constitution and Section 35 (3) and (4) of the Labour Relations Act.

The 16 interested parties represented by the firm of S.N. Gikera and Associates supported the applicant’s position that the award of the Industrial Court should be quashed by orders of Certiorari for having been made in excess of jurisdiction as Order No.3 in the award was not among the prayers made by the applicant in the Cause filed at the Industrial Court.

The interested parties were of the view that the Industrial Court treated them and the applicants unfairly by including Order 3 in the award when they had not been given an opportunity to be heard on the same during the proceedings.

The respondents and the 1st interested party on their part maintained that this court has no jurisdiction to entertain or hear the applicant’s Notice of Motion in view of the provisions of Article 162 (2) of the Constitution of Kenya 2010 and the enactment of the Industrial Court Act of 2011.

The 2nd respondent attacked the applicant’s Notice of Motion by filing a Notice of Preliminary Objection on 24th January 2012 which was argued in opposition to the motion.

The Preliminary Objection raised the following grounds:

(1)The substantive motion herein offends the provisions of Article 162(2)(a) of the Constitution of Kenya.

(2)The application is bad in law; as it is a challenge to the subject decision of the Industrial Court on the merits.

(3)This Honourable Court has no jurisdiction over the matter; or, to grant the orders sought.

(4)On the whole, application is incurably defective, frivolous and an abuse of the court’s due process.

Having considered the pleadings herein and the helpful submissions made on behalf of the parties by their respective Counsel for which this court is thankful, I find that four issues emerge for determination by the court which are as follows:

(1)Whether this court has jurisdiction to entertain and determine the current judicial review proceedings.

(2)Whether the Industrial Court in making its award in Cause No.3(N) of 2010 delivered on 1st November 2010 exceeded its jurisdiction or acted arbitrarily or unfairly.

(3)Whether the applicants are entitled to the reliefs sought and whether those reliefs are the most efficacious in the circumstances of this case.

(4)Who should bear the costs of the application.

Before delving into the merits or otherwise of the contentions advanced herein on behalf of the parties, I propose to first deal with the preliminary point raised by the respondents regarding the jurisdiction of this court to hear and determine the issues raised in this case.

Jurisdiction is a creature of statute and it denotes the authority or power donated to the court to determine certain matters or issues in accordance with the law. Jurisdiction is everything and a court that ascertains that it has no jurisdiction to handle a case before it must down its tools. It is the wings that fly the court and the engine that propels the court in the right direction.

It is upon a determination and ascertainment of jurisdiction that a court embarks on deciding the issues at stake between the parties. That is why the issue of jurisdiction must be tackled first.

The respondent’s and 1st interested party’s  (hereinafter referred to as the Registrar)  challenge on this court’s jurisdiction to determine the applicant’s Notice of Motion is premised on grounds that after promulgation of the Constitution of Kenya 2010, the High Court ceased to have supervisory jurisdiction over the Industrial Court.

Mr. Kaluma, learned Counsel for the 2nd respondent and M/s Mbilu, learned Counsel for the 1st respondent and the Registrar submitted that the High Court only exercises supervisory jurisdiction over inferior tribunals and bodies and that since Article 162(2) of the Constitution of Kenya 2010 established the Industrial Court as a court having the same status as the High Court, the High Court cannot sit over decisions made by the Industrial Court.

M/s Mbilu further clarified this argument by contending that Article 162(2) and Article 165 of the Constitution confirm that the Industrial Court is not an inferior court to the High Court. It is the respondents and the Registrar’s position that since the award by the Industrial Court was delivered during the tenure of the New Constitution and the instant application was filed after promulgation of the Constitution of Kenya 2010, this court had no jurisdiction to hear and determine the applicant’s Notice of Motion.

Mrs. Guserwa, learned Counsel for the applicants in response to the challenge on jurisdiction by the respondents and the Registrar, submitted that this court had jurisdiction to entertain the instant application since the proceedings in Cause No.3N of 2010 which led to the impugned award had been concluded long before the promulgation of the Constitution of Kenya 2010 and that although the award was delivered when the New Constitution was in force, the structure that Article 162(2) intended to be the New Industrial Court had not been put in place and this was only done after the enactment of the Industrial Court Act in August 2011.

It was Mrs. Guserwa’s further submission that until the establishment of the new Industrial Court by the Industrial Court Act No.10 of 2011, the Industrial Court remained as the Industrial Court established under the previous legal regime (Section 65(5) of the repealed Constitution and the Labour Institutions Act) and was therefore an inferior court to the High Court which was subject to the High Court’s supervisory jurisdiction.

Having considered the parties rival submissions on the issue of jurisdiction, I find that it is not disputed that proceedings in Industrial Court’s Cause No.3N of 2010 were instituted and concluded before the promulgation of the Constitution of the Kenya 2010 save for delivery of the award in November 2010 when the said Constitution was in force.

The claim by the applicants that as per 1st November 2010 when the impugned award was delivered the court envisaged by Article 162(2) of the Constitution which was to deal with labour and employment disputes had not been established was not disputed by the respondents and the interested parties.

Article 162 (2) of the Constitution is in the following terms:

“Parliament shall establish courts with the status of the High Court to hear and determine disputes relating to -

(a)employment and labour relations; and

(b)the environment and the use and occupation of, and title to, land”.

Under Article 162(3) Parliament was given the task of determining the jurisdiction and functions of the courts contemplated under Article 162(2) and it is pursuant to this constitutional provision that Parliament later enacted the Industrial Court Act in August 2011 establishing the Industrial Court as a superior Court of record with the status of the High Court.

The corpus of the respondents and Registrar’s submissions is that this court no longer has supervisory jurisdiction over the Industrial Court in view of the provisions of Article 162(2) and 165(6) of the Constitution of Kenya 2010. This in my view amounts to an admission that prior to the promulgation of the Constitution, the Industrial Court was inferior to the High Court and was subject to the supervisory jurisdiction of the High Court.

It is common ground that the Industrial Court as constituted on 1st November 2010 when the impugned award was delivered or as currently constituted is the same Industrial Court that was established under Section 65(5) of the repealed constitution and Section 11 of the Labour Institutions Act 2007.

A reading of Article 162(2) and 162(3) of the Constitution shows clearly that it is the courts envisaged under Article 162(2) to be established by Parliament at a future date that were to have the status of the High Court and were not subject to this court’s supervisory jurisdiction and not the Industrial Court that existed prior to the promulgation of the Constitution.

A reading of the Industrial Court Act makes this position very clear starting from its preamble to its transitional provisions more particularly Section 33 thereof which empowers the Industrial Court existing before the Constitution of Kenya 2010 came into effect to continue determining matters filed before it under the Labour Institutions Act until the new Industrial Court established under the Act came into operation or directions are given in that regard by the Chief Justice or the Chief Registrar of the High Court.

The preamble to the Act states as follows:

“AN ACT of Parliament to establish the Industrial Court as a superior Court of record; to confer jurisdiction on the Court with respect to employment and labour relations and for connecting purposes”

From the foregoing, there is no room for doubt that the people of Kenya in including Article 162(2) and 162(3) in the Constitution of Kenya 2010 and Parliament in enacting the Act in August 2011 intended that the court to be established in accordance with the Constitution with similar status as the High Court would be a different court not the Industrial Court that existed prior to the promulgation of the Constitution. If Parliament intended that the Industrial Court as constituted prior to August 2011 would be converted into the Industrial Court established under Section 4 of the Act, nothing would have been easier than for Parliament to say so.

It is therefore my finding that it is the Industrial Court established under Section 4 of the Act in accordance with Article 162(2) of the Constitution that once constituted will enjoy the status of the High Court and will not be subject to this court’s supervisory jurisdiction and not the Industrial Court as currently constituted. It is common ground that the Industrial Court established under the Industrial Court Act has not been constituted or operationalized since Judges to sit in that court are yet to be appointed.

Going by my aforegoing findings, it is my decision that though the impugned award was delivered in November 2010 and the instant judicial review proceedings were commenced when the Constitution of Kenya 2010 had come into force, the Industrial Court as constituted when it delivered the said award or as presently constituted is the Industrial Court established under Section 11 of the Labour Institutions Act which is inferior to the High Court and is therefore subject to this courts supervisory jurisdiction by way of judicial review.

Consequently, I concur with M/s Guserwa’s submissions that the applicant’s Notice of Motion is properly before this court as the court has jurisdiction to hear and determine the issues raised herein.

Turning now to the other issues for determination which go to the merits of the applicant’s Notice of Motion, from the submissions made by learned counsels in this matter, I find that it is not disputed that all parties in the case filed at the Industrial Court were fully heard on the prayers made by the 2nd respondent in his memorandum of claim dated 6th January 2010 and on the contentious issues arising therefrom in the proceedings conducted by the Industrial Court before it delivered its award on 1st November 2010.

It is evident from Mrs. Guserwa’s submissions that the applicants major complaint and main ground for seeking the quashing of the impugned award by orders of Certiorari is that the award was illegal as it was made in excess of the Industrial Court’s jurisdiction in that it included Order No.3 which was not based on any of the prayers sought by the 2nd respondent in Cause No.3(N) of 2010.  The Industrial Court in Order No.3 of the award directed thatthe claimant shall continue to hold the position of Secretary General of the Union without any interruption upto and including the 31st December 2011 after which the second respondent may conduct elections with respect to the position of Secretary General and in accordance with its registered constitution.

The respondents and the Registrar conceded that Order No.3 was not prayed for in Cause No.3(N) of 2010. M/s Mbilo, learned counsel for the 1st respondent/interested party and Mr. Kaluma, learned counsel for the 2nd respondent however argued that though the said order was not applied for by the 2nd respondent and it did not feature in the proceedings culminating in the award, it was not a new order as it was incidental to the prayers sought and the court used it to clarify the other two orders in the award for the avoidance of doubt.

I with respect disagree with that contention advanced by the respondents and the Registrar since a casual scrutiny of Order No.3 of the award reveals that this was a completely new and substantive order quite independent of Order No.1 and 2 of the award.

The order had the effect of creating another uninterrupted term of one year for the 2nd respondent to serve as Secretary General of the Union so that the Union irrespective of whether it wanted to restructure its organizational structure or have a change of its office bearers was barred from doing so or electing any other person into the office of Secretary General for a period of one year. This is because the Union was only given the liberty of conducting elections for the post of Secretary General after 30th December 2011 and not any time before that date. The Industrial Court made all these orders on its own motion since it had not been moved to do so by the parties before it in their pleadings and according to the applicants, they were also not supported by the proceedings before it.

The law is that parties are bound by their pleadings and the court can only lawfully grant orders which are prayed for in the pleadings and proved by evidence presented before it in the course of a trial. By deviating from the prayers sought by the 2nd respondent in the case before it and granting an order which was not prayed for, the Industrial Court committed an error of law which is apparent from its record and thereby exceeded its jurisdiction.

It is important to note that the Industrial Court’s decision in Order No.3 of the award had the potential of adversely affecting the operations of the Union which had been the 2nd respondent in Cause No.3(N) of 2010 and may have prejudiced interests of members of the Union who included the applicant herein then the incumbent Secretary General who may have desired to contest for the position of Secretary General or Chairman of the Union after election of the applicants to those positions were declared illegal by the court had the Union been given a free hand to decide whether to call for elections immediately or at any time at their convenience.

In view of the foregoing, I find that the Industrial Court not only committed an error of law and exceeded its jurisdiction by making an order which was not supported by the pleadings and proceedings before it but it also treated the applicant herein and the Union unfairly by making orders which were detrimental to their interests without affording them an opportunity to be heard on the same. This in my view affected the procedural propriety of the proceedings before the Industrial Court in so far as Order 3 was concerned.

I however hasten to add that having looked at the evidence tendered before the court, the rest of the orders made by the Industrial Court i.e. Order 1 and 2 cannot be faulted either on the grounds of illegality or procedural impropriety.

The orders were prayed for in the 2nd respondent’s pleadings and were also supported by the proceedings before the Industrial Court. I find that the orders were lawfully made within the Industrial Court’s jurisdiction.

Having made the foregoing findings, the question that now presents itself for the court’s determination is whether the applicant is entitled to the reliefs sought. Besides the prayer for costs, the applicant has sought for only two orders in the Notice of Motion dated 8th November 2010. The first prayer is for orders of Certiorari to quash the decision of the Honourable Judge of the Industrial Court (Rika, J) dated 1st November 2010 while the 2nd prayer seeks orders of Mandamus to compel the 1st interested party not to deregister the notice of change of the Union as contained in Form Q as directed in the Industrial Court’s award.

In Halisbury’s Laws of England, 4th Edition Vol.I, the learned author states at page 202:

“Certiorari will issue to quash a determination for excess of lack of jurisdiction, error of law on the face of the record, breach of the rules of natural justice or where the determination was procured by fraud, collusion or perjury”

It was argued by the respondents and the 1st interested party that the order of Certiorari was not available to the applicants as their application attacked the merits of the Industrial Court’s award and not the process employed by the Court to arrive at that decision. Though I concur with M/s Mbilo and Mr. Kaluma’s submission that judicial review is concerned with the decision making process and not the merits of the decision being challenged, it is my finding that in this case, the inclusion of Order 3 in the Industrial Court’s award when it was not prayed for in the claimants pleadings did not go to the merits of the award on the issues that were for determination before the court but amounted to an error of law which was apparent on the face of the Industrial Court’s record. The error of law affected only Order No.3 and it is my finding that this error did not affect the legality of the rest of the orders in the award which had been lawfully made within the Industrial Court’s mandate in Cause No.3(N) of 2010. I say so because as stated earlier, Order No.3 is a separate and distinct order which had no relationship with Orders No.1 and 2. It was made at the tail end of the proceedings when the court was delivering its verdict and consequently its illegality did not taint the proceedings conducted by the Industrial Court which formed the basis of Orders 1 and 2.

I am therefore persuaded to find that an order of Certiorari would only be available to quash not the whole of the award but only Order No.3.

In the premises, I find that the applicant is entitled to an Order of Certiorari to quash Order No.3 in the award delivered by the 1st respondent on 1st November 2010.

Having made that finding, this court is alive to the fact that judicial review remedies are discretionary. Even when an applicant has succeeded in demonstrating that he/she is deserving of the said orders, the court may nevertheless decline to grant reliefs sought  if the court is of the opinion that the orders sought if granted will not serve any useful purpose or they are not the most efficacious given the circumstances surrounding the case in question. In exercising its discretion to decide whether or not to grant the reliefs sought, the court will consider each case on its own merit.

In this case the order complained about directed that the claimant (2nd respondent) should hold office of Secretary General of the Union till 31st December 2011 after which elections may be held to elect another Secretary General. We are now in June 2012 about six months after the term created by the Industrial Court for 2nd respondent to continue serving as Secretary General of the Union expired. Those orders are now spent meaning that they are no longer in force and issuing orders of Certiorari to quash them will not serve any useful purpose.

As a general rule, courts of law do not issue orders in vain or orders which are incapable of enforcement.

For the foregoing reasons, I decline to grant the order of Certiorari as sought in Prayer I.

On the prayer for an Order of Mandamus, let me state from the outset that Mandamus only issues to compel an inferior court, tribunal or public body/officer to perform a statutory or public duty imposed on the public officer/body where there has been failure and/or refusal by the person or body concerned to discharge that duty to the detriment of the aggrieved party – see the Court of Appeal decision in R –Vs- Kenya National Examination Council, Exparte Geoffrey Gathenji & 9 Others, C/Appeal No.266 of 1999.

In this case, the Registrar of Trade Unions had been ordered by the Industrial Court to deregister the Notice of Change of the Union’s office bearers as contained in Form Q and the Registrar was duty bound to implement the decisions of the Industrial Court.

The Registrar’s duty emanating from the court order was to deregister the Union officials shown to have been elected illegally into office and this is the only duty he would have been compelled to perform had he failed and/or neglected to execute the same. No duty arose from the Industrial Court’s award requiring the Registrar not to deregister those officials.

If the court were to grant the order of Mandamus as sought, it would be tantamount to directing the Registrar not to comply with the orders of the Industrial Court.

The court cannot issue orders of Mandamus whose effect would be to compel the Registrar to disobey lawful orders issued by a court of competent jurisdiction.

In the circumstances, I find and hold that the applicants have not demonstrated that they are deserving of the order of Mandamus as sought in Prayer 2. I accordingly decline to grant the same.

Finally, before I conclude, I must comment on an observation that I made in the course of the proceedings although it was not raised by any of the parties herein.

I noted that the 2nd respondent was sued in his individual capacity and though no substantive orders were sought against him, it is important to point out that the remedy of judicial review is not available against individuals sued in their private capacities. Judicial Review is a challenge on administrative action. Remedies in Judicial Review can only be issued against public or statutory bodies, subordinate courts or inferior tribunals or public officers where it is claimed that any of them has either abused its or their powers by acting either arbitrary, unreasonably or illegally or in excess of their jurisdiction or where they have failed to perform their public duties. Put another way Judicial Review is the process by which the High Court exercises its supervisory jurisdiction over the proceedings and decisions of inferior courts, tribunals and other bodies or persons who carry out quasi-judicial functions or who are charged with the performance of public acts and duties.

It is clear from the foregoing that the 2nd respondent was wrongly sued in this matter as a respondent since as a private citizen he is not amenable to judicial review. He ought to have been enjoined to the proceedings as an interested party. However the misjoinder of the 2nd respondent did not in any way affect the applicants case and it is neither here nor there.

In the end, I have come to the conclusion that the applicants Notice of Motion dated 8th November 2010 lacks merit and it is hereby dismissed.

On the issue of costs, given that the applicant would have succeeded partially in Prayer 1 if the application on that limb had not been overtaken by events, I will not make any order as to costs.  Each party will bear its own costs.

DatedandSignedby me at Nairobi this 18th day of June, 2012.

C. W. GITHUA

JUDGE

DatedandDelivered by me at Nairobi this 19th day of June, 2012.

W.K. KORIR

JUDGE

In the presence of:

Mwangi - Court Clerk

Ashobwe for Applicant

Makolwal holding brief for Mr. Kaluma for 2nd Respondent

Mr. Gikera for Interested Parties