Waweru Gatonye & Co.

Waweru Gatonye & Co. becomes a 5-Fold Partnership

admin — Fri, 15 Jul 2011 09:44:00 +0000

The Waweru Gatonye fraternity takes great pride in the professional, corporate and personal development its members It is for this reason that we are pleased to announce the growth of the firm. With effect from 1st June 2011, the firm has restructures and now comprises of a 5 strong team as follows:

Charles Waweru Gatonye is the Managing Partner;
Munyalo Nthuli has moved up and becomes the Senior Partner & Head of Civil Litigation;
Mary Imende is now the Partner & Head of the Commercial and Conveyancing/Property Department;
Daniel Ngaca Gacugia also becomes Partner and is instrumental in Commercial & Tax Litigation;
Tedd Moya is a Partner in the Commercial/Conveyancing Department as well as in the Commercial Litigation team.

Our objective to provide professional and excellent legal services while remaining sensitive to the clients’ needs and professional ethics is stronger than ever. With the leadership of this team, we believe that Waweru Gatonye & Co Advocates will be more efficient. We look forward to continue building and sustaining excellent professional relationships with our clients.

The AG has Unquestionable Right to Represent State Corporations

admin — Tue, 13 Jul 2010 06:33:04 +0000

On July 9th 2010 Bosire, Githinji & Nyamu, (JJA) held that the Attorney General (AG), who is the government legal advisor can represent a public officer or even a state corporation as a counsel. In reversing the decision of the superior court (Ojwang J ) that the AG had no power to represent a State Corporation, the three member bench ruled that though the AG cannot competently institute a suit in his own name on behalf of a State Corporation, he has unquestionable right to represent it in Civil proceedings. Section 26 of the current Constitution establishes the office of the AG as the ‘principal legal adviser’ to the Government of Kenya.
In this appeal, the court seemed to stress the distinction between power of the Attorney General to institute civil proceedings and the discretion of the Attorney General to appear as a counsel for a party in civil proceedings.

The brief facts of this case are that Joseph Kipruto (appellant) had filed a suit against the respondents on the basis that the two had wrongfully and fraudulently terminated his contract of employment as executive chairman of Investment Promotion Centre (IPC). [IPC is a State Corporation established under the Investment Promotion Centre Act (Cap 485, Laws of Kenya).] The AG was sued on behalf of the Permanent Secretary (PS), Ministry of Trade & Industry as he was the one who allegedly terminated the appellant’s services. Upon service of the summons to enter appearance together with plaint on IPC, the Managing Director of IPC requested the AG to represent it by a letter dated June, 2004. Thereafter, the AG prepared a joint defence and counter-claim of himself as first respondent and also IPC (second respondent). These were verified by the affidavit of the Managing Director of IPC. In July, 2004 the AG entered appearance on behalf of the two respondents and also filed a joint defence and counter-claim on behalf of the 1st and 2nd respondents. The appellant then filed an application for orders that the defence and counter-claim be struck out and for leave to enter judgment for non-appearance and default in filing defence by the IPC. The application was mainly based on the ground that the memorandum of appearance and the defence filed by the AG on behalf of IPC was an abuse of the process of the court as the AG had no locus standi to file pleadings on behalf of IPC since IPC was a body corporate with power to sue and be sued in its name. The AG opposed the application contending, among other things, that IPC was legally and properly being represented by the AG.

The High court was not convinced by an earlier decided case in which it was held that it was entirely within the administrative discretion of the Attorney General to decide whether it was in the interest of the crown (State) that it should provide legal representation for a particular litigant.In allowing the application, the court (Ojwang J.) held that the AG had no legal standing to enter appearance and file a defence and counter-claim on behalf of IPC and that the appearance and defence and counter-claim were thus a nullity with the result that IPC must be taken as not having filed a defence and counter-claim. IPC then instructed a firm of Advocates to enter appearance on behalf of it and the firm filed an application seeking to set aside the exparte judgment entered against IPC under the Civil Procedures Rules (CPR). The application was ultimately heard and allowed by Ransley, J. in September, 2005 thereby precipitating the instant appeal.

The current appeal was against the exercise of judicial discretion to set aside judgment entered ‘‘in default of appearance and defence’’ and also against the consequential order giving IPC leave to enter appearance and file a defence.

Although the Court of Appeal agreed that the AG cannot competently step into the shoes of a State Corporation which had power to sue and be sued in its corporate name and institute a suit in his own name on behalf of the State Corporation,the Court however clarified that there are instances where the AG has unquestionable right to represent a State Corporation in Civil proceedings and this was such one. In an earlier High Court ruling, Justice Ringera (as he then was) had stated, “I think the Attorney General’s institution of a suit for and on behalf of the National Irrigation Board which is a body corporate with power to sue and be sued in its own name is a legal misadventure. It is an action without juridical basis. The Attorney General has no locus standi to do so…”. Ringera, J. was however guided by section 34 of the Government Proceedings Act which authorizes the Government to control or intervene in proceedings affecting its rights, property or profits and stated as follows: “In my view, the Attorney General may step in such proceedings by either offering legal services as counsel or by applying to be joined either as a plaintiff or defendant as the case may be or as a necessary party…”.

The appellate court however distinguished this case with the present one in that the AG had not instituted the suit in his own name on behalf of IPC. Rather, the AG and IPC had been sued as co-defendants. The court further held that the decision of the superior court that the AG had no locus standi to represent IPC was solely based on the narrow ground that IPC was a body corporate with its own power to sue and be sued in its own name. The court stressed that there was, however, no restriction on the right of representation. The superior court had thus confused the power of the Attorney General to institute civil proceedings and the discretion of the Attorney General to appear as a counsel for a party in civil proceeding.

In dismissing the appeal, the appellate court concluded that the court below had erred in law in excluding the Attorney General from representing IPC and in striking out the appearance, defence and counter-claim filed on its behalf by AG.

Click here for the full text from the Kenya Law Reports®

Prisoners to vote at Referendum

admin — Wed, 30 Jun 2010 07:29:38 +0000

On 25th June 2010, the Interim Independent Constitutional Dispute Resolution Court (“The court”) held that inmates were entitled to participate in the constitutional making process as of right, and further that the Constitution only barred people in protective custody from participating in a general election but not in a referendum. Therefore, all eligible prisoners in Kenya have a right to vote in the upcoming referendum on the Constitution.

The court observed that the peoples’ constituent power was above the Constitution itself; meaning that this is the power that enabled the people to take part in a referendum. The court stressed that a referendum only applies when the Constitution is to be made, altered or replaced, which is clearly distinct from National Assembly and Presidential Elections. The court cited the celebrated Njoya case where the High Court stated, “… The sovereignty of the people betokens that they have a constituent power – the power to constitute and/or reconstitute as the case may be their framework of Government. That power is a primordial one. It is the basis of a Constitution and it cannot be conferred or granted by the Constitution…”

The court referred to the recent constitutional amendment to section 47 through the Constitution of Kenya (Amendment) Act which further recognized this sovereignty as follows:“Notwithstanding anything to the contrary in this Constitution:-
(a) the sovereign right to replace this Constitution with a new Constitution vests collectively in the people of Kenya through a referendum, in accordance with this section:” The court further made reference to international conventions that Kenya is a signatory to, such as the International Covenant on Civil and Political Rights (ICCPR) which provides that “Every citizen shall have the right and the opportunity, … without unreasonable restrictions… to take part in the conduct of public affairs, directly or through freely chosen representatives;…”

The Court acknowledged that people in protective custody in Kenya are barred from voting by section 43 2(c) the Constitution. Nevertheless, the court emphasised that the section referred to the National Assembly and Presidential elections and not a referendum. In allowing the petition, the court further found that the constituent rights to vote in a referendum was a basic human right and that on the balance of proportionality there was no legitimate governmental objective or purpose that would be served by denying the inmates the right to vote in a referendum. This right would however only be exercised by inmates of sound mind, who are over 18 years of age and who had not committed an electoral offence.

Click here for the full text from the Kenya Law Reports®

Goods not ferried ‘at owners risk’ if transporter is negligent

admin — Tue, 22 Jun 2010 15:42:47 +0000

A term of contract that virtually gives a transporter a carte blanche to steal or damage its client’s goods with impunity and without right of recourse is unfair. Even where the transporter is a common carrier or bailee for reward, the defendant is under a duty to transport the goods in a secure condition and deliver them for the client at the agreed destination.

On 3rd June 2010, High Court Judge, Justice P. Kihara Kariuki found that a contracted transporter who is a common carrier or a bailee for reward is under a legal duty to deliver the goods for its client in the state in which they were received from the client. The transporter would be liable for damage caused to the goods by its negligence even if it is agreed that they were to be transported ‘at the owner’s risk’. This was the decision in a case in which Kingsway Motors Limited (the plaintiff) sued Corner Garage Transporters Limited (the defendant) for the value of goods (motor vehicles) that were damaged while being transported by the defendant.

To read or download the full version of Kingsway Motors Limited v Corner Garage Transport Limited [2010]eKLR visit http://kenyalaw.org/Downloads_FreeCases/74488.pdf

Tedd Moya attends international course on I.P. Human Rights and Access to Medicines

admin — Tue, 25 May 2010 11:54:59 +0000

At Waweru Gatonye & Co, we take great pride in the professional development of our people in a bid to offer current and relevant services to our clients. It is for this reason that one of our senior associates (Tedd) attended the Human Rights and Access to Medicines course. The conference was organised by the Centre for Human Rights (University of Pretoria, South Africa) in conjunction with the Program on Information Justice and Intellectual Property at the American University Washington College of Law and was being sponsored by the Open Society Institute and UNDP.

The knowledge acquired will doubtless be an asset to our Intellectual Property and consultancy capacity.

In summary, the Human Rights and Access to Medicines Course focused on the provision of information and skills-building exercises to enable civil society advocates to engage in legislation-drafting and constituent education to promote access to needed medicines in the region. Specifically, the course covered topics included but were not limited to:
* The economics of access to medicines in Africa;
* The impact of multinational and bilateral trade agreements on access to medicines;
* Key “flexibilities” in international intellectual property and trade law, including examination of the “Doha Agreement on TRIPS and Public Health”;
* The impact of “anti-counterfeit” legislation on access to needed to medicines, including examination of recent legislation in Kenya and multilateral forums;
* The use of competition laws to restrain patent monopolies and promote access to more affordable medicines, including recent cases from the South Africa Competition Commission;
* Mechanisms to negotiate and regulate the prices of medicines on national and regional levels, including proposals for regional purchasing pools.

This course was taught through participatory methodologies that emphasize exercises and role plays to better enable practical application of the course materials. Specific exercises and instruction focused on building useful advocacy skills including:
* Drafting legislation;
* Reviewing one’s country’s patent, competition and other legislation;
* Asking questions of ministers and other officials to research and monitor policy making;

The course was aimed at senior-level governmental and intergovernmental officials, leaders of civil society, law practitioners, staff and managers of NGO’s as well as academics and other interested parties. This course was particularly relevant for government officials in trade, health and competition ministries that deal with medicine pricing and intellectual property issues.

Mary Imende participates in the East and Central Africa Islamic Finance Conference

admin — Tue, 25 May 2010 11:37:51 +0000

As the head of our Commercial, Securities and Real Estate Department, Mary takes a keen interest in emerging areas of Corporate finance. She attended this conference with the aim of getting the African perspective on Islamic finance and financial products. The conference focused on challenges and solutions and enlightened attendees on the importance of Shariah, theory of Islamic contracts and the use and application of a variety of Islamic financial products especially in Africa.

The speakers and panelists discussed in detail the regulatory and legal aspects, the potential of Islamic finance globally and in Africa, the concept of Islamic insurance, technology solutions in Islamic finance among many other interesting topics.

Key Speakers were from Central Bank of Kenya, Gatehouse Bank/UK, Path Solutions – Kuwait , King & Spalding LLP – Middle East, Pak Qatar Takaful Company, FNB & WesBank Islamic Finance – South Africa, Denton Wilde Sapte – Dubai, Gulf African Bank, with panelists from Shariah Supervisory Boards, Jaiz Bank – Nigeria, Bank of Uganda, Synergy Solicitors and Advocates – Uganda, First Community Bank – Kenya, Xtranet Communications – Kenya, leading Law firms both local and international and consumers of Islamic Finance products and services.