Nderitu Gachagua v Thuo Mathenge and 2 others
Civil Appeal No 14 of 2013
Court of Appeal at Nyeri
A Visram, M Koome, J Otieno-Odek JJA,
August 20, 2013
Reported by Emma Kinya Mwobobia & Obura Paul Michael
This was an interlocutory appeal from the ruling of the High Court at Nyeri on the competence of a Gubernatorial Election Petition filed therein. The fulcrum of the appeal was that the Election Petition filed in the High Court was incompetent on grounds that it was filed prematurely before the publication of the election results through a gazette notice dated 13th March 2013. That the declaration of the results not having taken place until 13th March, 2013, the Petition was incompetently before the High Court, and that the Petitioner had no cause of action.
However the High Court judge after having declared he had no jurisdiction to handle the matter, invoked the court’s inherent jurisdiction and went ahead to hear the matter.
The appellant brought to the attention of the Court of Appeal the inconsistencies between the Elections Act and the Constitution with regard to the time frame within which an Election Petition can be filed. Whereas the Constitution did not provide for the filing of an Election Petition after gazettement of election results, the Elections Act provided for it.
- Whether there was a conflict between Article 87(2) of the Constitution and section 77 of the Elections Act on one hand, and section 76(1)(a) of the Elections Act with regard to the time frame within which an Election Petition can be filed.
- Whether an Election Petition should be filed after the publication of election results by the Independent Electoral and Boundaries Commission (IEBC) in the Kenya gazette.
- Whether the High Court judge erred in entertaining the petition despite his finding that he had no jurisdiction to hear the same petition.
- Whether a court which had no jurisdiction over a matter can invoke its’ inherent jurisdiction to entertain the same.
Jurisdiction -inherent jurisdiction - High Court’s inherent jurisdiction - where the High Court Judge initially declared he had no jurisdiction to hear a matter, only to later invoke its inherent jurisdiction and hear the same - when can inherent jurisdiction be invoked?- Constitution of Kenya 2010, article 159
Statute -statute Interpretation - statute interpretation on election petitions - where the time frame for filing an election petition was questioned - where the Constitution provided for 28 days after declaration of results, while the elections Act provided for 28 days after publication of election results in the Kenya Gazette - appellant alleged a conflict between the two laws - whether the Elections Act was in conflict with the Constitution in the circumstances - Constitution of Kenya 2010, article 87(2) - Elections Act, sections 76(1), 77 Read More...
Article 87 of the Constitution of Kenya 2010, provides:
87 (1) Parliament shall enact legislation to establish mechanisms for timely settling of electoral disputes.
(2) Petitions concerning an election, other than a presidential election, shall be filed within twenty eight days after the declaration of the election results by the Independent Electoral and Boundaries Commission.
(3) Service of a Petition may be direct or by advertisement in a newspaper with national circulation.
Section 76(1)(a) of the Elections Act provides:
76 (1) A petition
a) to question the validity of an election shall be filed within twenty eight days after the date of publication of the results of the election in the Gazette and served within fifteen days of presentation.
- The jurisdiction to declare an Act of Parliament inconsistent with the Constitution went with interpretation of the Constitution; and that the constitutionality of an Act of parliament had to be construed vis – a- vis the Constitution. Therefore, in considering whether Section 76(1)(a) of the Elections Act was inconsistent with Article 87(2) of the Constitution the starting point had to be, of necessity, the interpretation of various provisions of the Constitution to discern the intention of the framers of the same in respect of Article 87.
- The construction of the Constitution was governed by various principles:
- It ought to be interpreted in a manner that promotes its purpose, values and principles; advances the rule of law and contributes to good governance.
- The spirit and tenor of the Constitution which embodies the ideals, aspirations and values of the Kenyan citizens must preside and permeate the process of interpretation. In this regard it is to take into account the language of the various provisions of the Constitution.
- It ought to be given a purposive interpretation so that the objectives of Article 87 are realized.
- A court should always take into account the principle of harmonization whenever it interprets provisions of the Constitution. Where the Constitution contains several provisions relating to an issue these provisions must be looked at as a whole.
- It compels a broad and flexible approach to interpretation.
- Article 87(2) of the Constitution established the broad parameters of electoral disputes, and donated the power to the legislature to enact detailed legislation establishing mechanisms for the timely settling of electoral disputes. This the legislature had done through the enactment of the Elections Act. The intention of the framers of the Constitution was that an Election Petition challenging election results ought to be filed within 28 days after declaration of the election results by the IEBC. Therefore, the Constitution provided a time line within which an Election Petition ought to be filed, and left it entirely to the Legislature to determine the medium and form of the declaration envisaged therein.
- It was the intention of the framers of the Constitution that the medium and form of declaration of election results by the IEBC should be provided for in the Elections Act.
- The intention of the Elections Act was similar to the intention of Article 87 of the Constitution that was the establishment of mechanisms suitable for timely resolution of electoral disputes.
- The intention of framers of the Constitution in establishing time frame within which an election petition ought to be filed was to address the mischief of litigants who filed petitions late and not those who filed early. The court took judicial notice of the fact that historically, and from time immemorial, majority of the Election Petitions were based on a common complaint – that they were filed too late, or served too late. That there has never been a case where the complaint was that it was filed too early. The court was not informed of any prejudice occasioned to any of the other parties. On the contrary they had heads-up and more time to respond.
- The High Court Judge misdirected himself by holding that he had no jurisdiction to entertain the Petition simply because it was filed five days too early. However, he again misdirected himself further by invoking his inherent jurisdiction to save the Petition. This was because jurisdiction of the court flowed from the Constitution and statute and the court could not arrogate to itself jurisdiction it didn’t have.
- The High Court all along had jurisdiction to deal with the Petition, and need not have, and could not have, invoked its inherent jurisdiction either under the Civil Procedure Act or Article 159 of the Constitution.
Appeal dismissed, cross appeal allowed.
Each party to bear his own costs.
||Jurisdiction of the Court of Appeal to hear an interlocutory appeal in respect of an interlocutory decision made by a trial court in an Election Petition
Benjamin Ogunyo Andama v Benjamin Andola Andayi & 2 others
Civil Application No 24 of 2013 (UR 11/13)
Court of Appeal at Kisumu
J W Onyango Otieno, F Azangalala, S Ole Kantai, JJA
August 7, 2013
Reported by Phoebe Ida Ayaya and Derrick Nzioka
- Whether the Court of Appeal had jurisdiction to hear an interlocutory appeal in respect of interlocutory decisions made by the trial court in the course of the hearing of an Election Petition.
- election petition – interlocutory appeal – interlocutory appeal in respect of an interlocutory decision of the High Court – claim that the Court of Appeal did not have the jurisdiction to hear an appeal on an interlocutory decision made by the High Court in an Election Petition – where the provisions of the electoral laws did not specifically provide for the hearing of appeals on interlocutory decisions by the Court of Appeal – whether the Court of Appeal had jurisdiction to hear an interlocutory appeal in respect of an interlocutory decision made by the High Court – National Assembly and Presidential Elections Act, section 23(4); section 64(1), repealed Constitution; rule 35, Election (Parliamentary and County Elections) Petition Rules 2013; section 75, Elections Act. Read More...
- Section 23 (4) of the repealed National Assembly and Presidential Elections Act clearly stated that all decisions of the High Court on Election Petitions whether interlocutory or final would be heard by this Court and there was no doubt as to the jurisdiction of this Court at that time.
- From section 64 (1) of the repealed Constitution, the Court of Appeal had no inherent powers and all the jurisdiction it had was donated to it by law and as to decisions on appeal from election decisions made by the High Court, Section 23 (4) gave it jurisdiction over both interlocutory appeals and final appeals.
- The Constitution was clear that the High Court had to settle election petitions within six months of the date of lodging the petition thus election disputes were to be settled within a specific time frame unlike in the old Constitution where no time limitation was enshrined.
- Although rule 35 of the Election (Parliamentary and County Elections) Petition Rules stated that an appeal from the judgment and decree of the High Court was to be governed by the Court of Appeal Rules, there were still some Court of Appeal rules which could not be applied in election petitions. An example was the time allowed for filing the appeal which, if the Court of Appeal Rules were to be applied, would be 60 days from the date of filing the Notice of Appeal but which under the Elections Act was 30 days from the date of announcement of the results.
- Section 80(3) of the Elections Act stated that interlocutory matters in connection with a petition challenging results of a presidential, parliamentary or county elections were to be heard and determined by the election court and the election court was defined in the Elections Act as the Supreme Court in exercise of the jurisdiction conferred upon it by article 163(3)(a) or the High Court in the exercise of the jurisdiction conferred upon it by article 165(3)(a) of the constitution and the Resident Magistrate's Court designated by the Chief Justice in accordance with section 75 of the Elections Act.
- The Court of Appeal was not mentioned as an Election Court and so in its mechanisms made to ensure timely settling of the electoral disputes or in its legislation made to ensure that the electoral petitions were determined within limited six months period by the High Court, the Court of Appeal was not one of the courts empowered to hear interlocutory matters in connection with petitions challenging results of parliamentary or county elections.
- Furthermore, rule 35 of the Election (Parliamentary and County Elections) Petition Rules made it clear that an appeal which was governed by the rules was only an appeal from a judgment and decree. It did not state an appeal would lie to on an interlocutory decision.
Application dismissed, preliminary objection allowed
||A registered owner’s land could be subject to a trust for the benefit of other persons
Jason Gitimu Wangara v Martin Munene Wangara
ELC Case No 278 of 2013
High Court of Kenya at Kerugoya
Environment & Land Court
B N Olao, J
August 26, 2013
Reported by Beryl A. Ikamari
Download the Decision
- Circumstances in which a registered proprietor of land would be deemed to hold the land subject to a trust for the benefit of other persons.
Land Law-registered owner of land - circumstances in which a registered owner of land would be deemed to hold the land in trust for other persons as beneficiaries - Land Registration Act, No 3 of 2012; section 28, and Registered Land Act (Cap. 300) (repealed); section 28.Read More...
- The dispute over the suit premises was a dispute between brothers. It was established in evidence that the plaintiff obtained the suit premises in 1965 from his father. It was unlikely that the plaintiff was given the land to own exclusively from other members of the family.
- The evidence adduced disclosed that members of the plaintiff's family including 5 of his father's wives were buried on the land and his siblings continue to live on the land. It was also unlikely that the father intended to give the plaintiff the land and to leave his siblings without any property.
- It was probable that the plaintiff was given the land, in his capacity as the family's first born, and in accordance with Kikuyu customary law, he held the land in a trust situation for the benefit of the family.
- Section 28 of the Land Registration Act, No 3 of 2012, provided that all registered land would be subject to overriding interests and a trust, including a customary trust, was a form of an overriding interest.
- The registration of the plaintiff as the proprietor of the suit premises, pursuant to the provisions of the Registered Land Act (Cap. 300) (repealed) would not defeat the possibility that he held the land in trust for other persons as beneficiaries. Section 28 of the Registered Land Act (Cap. 300) (repealed), contemplated that land could be held in trust, for the benefit of other persons.
- As was the holding in Kanyi v Muthiora  KLR 712, the registration of land in the name of one party under the Registered Land Act (Cap. 300) (repealed) would not extinguish the rights of other parties who were entitled to the land under Kikuyu customary law.
Judgment entered for the defendant
||Court nullifies Siaya Gubernatorial election for electoral offences done during campaigns|
William Odhiambo Oduol v Independent Electoral & Boundaries Commission & 2 others
Petition No 2 of 2013
High Court of Kenya at Kisumu
A O Muchelule, J
August 23, 2013
Reported by Teddy Musiga
Download the Decision
- Whether or not the gubernatorial election for Siaya County was conducted substantially in accordance with the Constitution and the relevant electoral laws.
- Whether or not the said gubernatorial election was fundamentally and irreparably flawed.
- What was the standard of proof in election petitions?
- What was the scope of jurisdiction of the election court with regards to the complaints raised before it of fraud, malpractice, irregularity and breach occasioned during nominations and campaigns?
- Whether the jurisdiction of the election court was only limited to acts taken place during voting, counting, tallying and declaration of results.
- Whether or not the gubernatorial election was substantially affected by the alleged electoral offences.
-Election petition – petition seeking to nullify elections – petition grounded on alleged fraud, malpractices, irregularities and breaches of electoral law during nomination, campaign, voting, counting and tallying - Read More...
Article 38 of the Constitution states that
“38(1).Every citizen is free to make political choices, which includes the right -
a. to form, or participate in forming, a political party;
b. to participate in the activities of, or recruit members for, a political party; or
c. to campaign for a political party or cause.
2. Every citizen has the right to free, fair and regular elections based on universal suffrage and the free expression of the will of the electors for-
(a) any elective public body or office established under
this Constitution; or
(b) any office of any political party of which the citizen is a member.
(3) Every adult citizen has the right, without unreasonable restrictions -
(a) to be registered as a voter;
(b) to vote by secret ballot in any election
or referendum; and
(c) to be a candidate for public office, or office
within a political party of which the citizen is a
member and, if elected, to hold office.”
- An election was not an event but a process. It began with the registration of voters up to the time the time the results were declared. Given that scenario, things could, and sometimes went wrong. Mistakes and errors, some honest and others not could be made. Where there was non-compliance with the law and/ or regulations, section 83 of the Elections Act mandated the court to always look at the bigger picture. The court had to consider whether the election with all its imperfections compromised the process so much that an ordinary man could not say that the win as declared was the valid one.
- In interpreting section 83 of the Elections Act, it was not sufficient for petitioners to establish that irregularities or electoral malpractices did occur; they had to establish that the said electoral malpractices were of such magnitude that they substantially and materially affected the outcome of the process. (John Kiarie Waweru v Beth Wambui Mugo & 2 others (2008) eKLR.)
- Further, an election could only be nullified if it was not conducted substantially in accordance with the law as to elections. It would also be nullified, even though it was conducted substantially in accordance with the law as to elections, if there were errors or mistakes in conducting it which, however trivial were found to have affected the results of the election. (Joho v Nyange case (2008) 3 KLR (EP) 500
- The standard of proof in election petitions was beyond what was required to prove a civil case but lower than what was required to prove a criminal case. In other words, it was higher than the balance of probabilities but lower than proof beyond reasonable doubt. Where, however, an election offence was alleged, a higher degree of proof was required. The petitioner had to call evidence that was exact, cogent and unequivocal in proof of the offence.
- Article 88(4)(e) of the Constitution of Kenya, 2010 provided that disputes relating to issues of nominations of candidates to contests elections could only be settled by the Independent Electoral and Boundaries Commission (IEBC). The jurisdiction of the IEBC, however, excluded election petitions and disputes subsequent to the declaration of election results. Further, section 74(1) of the Elections Act reproduced the mandate of article 88(4)(e) of the Constitution of Kenya, 2010 but went further to say in subsection (2) that where a dispute under subsection (1) related to a prospective nomination or election, the dispute had to be determined before the date of the nomination or election, whichever was applicable.
- Sections 56 to 72 of the Elections Act created election offences. It was clear that some of the offences created related to what happened during voting but others dealt with what happened during the campaigns. Therefore, what happened during campaigns was the legitimate business of a court hearing a petition concerning that election.
- In relation to what constituted a free and fair election and the meaning of section 83 of the Elections Act clearly showed that what happened prior to the actual voting could affect the integrity of the election and therefore a court dealing with the challenge to that election could deal with issues prior to that voting.
- Under section 67(1)(m)(ii) of the Elections Act, it was an offence to publish, repeat or disseminate information with the intention to create hostility or fear in order to influence the process and outcome of an election. In the instant case, to refer to the petitioner as a TNA mole was meant to alienate him from the electorate in Siaya County, and such claim breached the law in regards to campaigns.
- Generally, as regards the campaigns, the ODM campaign machine ran a dirty campaign machine during the gubernatorial election in Siaya County. Everything was done to depict the petitioner as a candidate who was running against the grain. The elections were constantly being bombarded with malicious propaganda against him. The propaganda was beyond what was ordinarily expected from opponents in an election campaign. Further, the propaganda that the petitioner was supporting the jubilee candidacy and not the CORD candidacy was not only offensive but a blow below the belt, as it were.
- Taken together with other election offences outlined, one could not say that a fair chance was given to the petitioner to campaign, or that electors were given a fair chance to pick a candidate of their choice. Bluntly, the campaign was not free and fair. The campaign was perverted to the extent that it fundamentally compromised the integrity of the election.
- As regards fraud, malpractices, irregularities and breaches during the polling day; the votes in the ballot boxes following an election contained the best, primary and controlling evidence of the votes cast by the electorate. The commission had, therefore the responsibility to safeguard those votes by making sure that the ballot boxes in which they were contained were scrupulously secured until any litigation on them was concluded. The results as declared in the election forms had to agree with the votes in the ballot boxes, and when they did not agree, the Commission had to explain the discrepancy
- When the Commission was handing over the ballot boxes to court, it had to reasonably anticipate that scrutiny and recount could be ordered, at which time the handling of all the election materials could be inquired into. It was the responsibility of the Commission, at the earliest possible opportunity, to indicate to the court hearing the petition any instance of interference or tampering, or suspected interference or tampering, so that appropriate action or inquiry could be undertaken. All the time, the commission had to bear in mind that it was the custodian of the results as declared in the forms and as evidenced by the votes in the ballot boxes.
- Indeed article 88(d) of the Constitution of Kenya, 2010 commanded the Commission to put in place structures and mechanisms to eliminate electoral malpractices, including the safe keeping of electoral materials. The Commission could not seek to denounce the contents of the forms or the ballot boxes and sought that the court could not rely on any of them, without leading evidence to show that they did their best to safeguard them but that a third party tampered with them.
- Resultantly, and in the circumstances, the credibility of the results of the election was severely and materially tainted by the recount to the extent that it was difficult to find that the results as declared by the 1st and 2nd respondents were either accurate or verifiable. Therefore, the 3rd respondent was not validly elected as the governor for Siaya County during the general elections. A certificate to that effect had to be issued to the Commission in accordance with section 86(1) of the Elections Act, 2011. The consequence, of course, was that a fresh election had to be conducted for the gubernatorial seat for Siaya County.
|CIVIL PRACTICE AND PROCEDURE
||Court prohibits the Judicial Service Commission from proceeding with disciplinary proceedings against the Chief Registrar of the Judiciary|
Gladys Boss Shollei v Judicial Service Commission & 3 others
Petition No 421 of 2013
High Court of Kenya at Nairobi
D S Majanja, J
August 22, 2012
Reported by Phoebe Ida Ayaya and Derrick Nzioka
Download the Decision
- Whether the court could grant final orders in an ex-parte application.
--conservatory orders – ex-parte conservatory orders – where a party sought both temporary and permanent ex-parte conservatory orders – whether the court could grant ex-parte conservatory orders whether they were either temporary or permanent in nature.
- In an ex-parte application, the court had to act with caution as all the facts may not have been before it and in particular where orders of some finality were sought.
- A conservatory order was intended to ensure that the rights and fundamental freedoms of the applicant were not rendered nugatory before the inter partes hearing.
- The prayers for an order of certiorari to temporarily quash the order of compulsory leave and a conservatory order reinstating the petitioner to office could not be granted as these were final orders and it would be proper to hear all the parties before making those orders.
- A case had been from the evidence before the court made out to prohibit the Judicial Service Commission from taking disciplinary proceedings against the petitioner so that the matter could be ventilated in court
1st respondent restrained from commencing or continuing any disciplinary proceedings against the petitioner pending inter partes hearing of the application
||The requirement of authorization by the Commissioner to carry local goods in trucks licensed to carry transit goods affirmed.
Kenya Transporters Association v Kenya Revenue Authority & 2 others
Petition No 297 of 2012
High Court of Kenya at Nairobi
August 16, 2013
M Ngugi, J
Reported by Nelson K Tunoi & Beatrice Manyal
Download the Decision
- Whether the East African Community Customs Management Act (EACCMA) Regulations 2010 which required authorization of the Commissioner to carry local goods in trucks licensed to carry transit goods were ultra vires the provisions of EACCMA and therefore null and void;
- Whether the respondents violated the provisions of articles 40, 47 and 49(1) (f) of the Constitution by impounding the subject motor vehicle.
Constitutional Law – fundamental rights and freedoms - right to property - right to fair administrative action - whether the respondents violated the provisions of articles 40, 47 of the Constitution by impounding the subject motor vehicle - Constitution of Kenya 2010 articles 40, 47.
- interpretation of statutes-interpretation of the EACCM Regulations - whether the EACCM Regulations 2010 were ultra vires the provisions of EACCMA and therefore null and void – where the regulations provided for licenses-where Condition 2 of the Licence (Transit Goods) required that licensed vehicles shall be used exclusively for the carriage of goods in transit and for no other purpose unless otherwise authorized by the Commissioner- where the petition sought to challenge the powers of the respondent to seize its members’ vehicles for carrying local goods in trucks licensed to carry transit goods in alleged breach of regulations governing the transport of transit goods- whether the license condition was ultra vires EACCMA and therefore null and void-East African Community Customs Management Act sections 60, 85, 251; East African Community Customs Management Act Regulations regulations 104,219, 229 (c), Read More...
- Under section 85 of the EACCMA the commissioner was given power to impose conditions for the removal without payment of import duties, of goods in transit, subject to the imposition of conditions for such removal by the Commissioner. The Commissioner could also furnish security with regard thereto.
- The EACCM Regulations were made pursuant to section 251 of the EACCMA, which empowered the Council of Ministers to make regulations. Regulation 104(5) (b) imposed conditions with regard to the carriage of goods in transit. Such conditions included the requirement that the vehicle carrying such goods to bear the words transit goods printed boldly and clearly on both sides. He was also authorized by regulations 219 to grant licenses in respect of goods carried in transit, and in so doing, he could attach to the licence such conditions as he or she deemed fit
- Such a licence had been issued in the case of Siginon with respect to the impounded truck. Siginon had contravened Regulation 104(5) (b) and conditions 1, 2, 4 and 6 of its licence. It was carrying local goods in a truck licensed to carry transit goods without having obtained the consent of the 2nd respondent, had not displayed its license prominently, and had erased the words ‘Transit Goods’ from its truck.
- Although the petitioner admitted these facts, its argument however, was that the conditions were unreasonable, and its members should be allowed to carry goods destined for the local market in trucks licensed to carry transit goods, without having to seek authorization from the Commissioner.
- The provisions of section 85 provided that the Commissioner could release goods intended for transit through Kenya without payment of import duty. If the carriage of such goods was not controlled through the imposition of conditions such as were imposed by the licenses issued under regulation 104, there was no way the loss of revenue could be controlled.
- There was nothing unreasonable in the conditions imposed by the licenses or in the requirement that trucks licensed for carrying goods in transit should carry goods for local consumption only with the authorization of the Commissioner.
- There was no basis for impugning the EACCM Regulations. Like the Act, they were intended to ensure that there was no leakage of revenue by controlling the manner of transportation of transit goods.
- While it was true that the manner of dealing with local goods was addressed in section 60 of EACMA, that section could not be read in isolation and in disregard of the purpose of the Act as contained in the other provisions
- The petitioner and its members indeed wanted to obtain licenses to transport transit goods, but they did not want to comply with the conditions thereof. They found the simple requirement that they had to seek the authorization of the respondents to carry local goods in trucks licensed to carry transit goods burdensome.
- The greater burden would be on the respondents if their work of collecting revenue was hobbled by giving transporters the leeway to transport transit goods, on which no import duty was charged, in the same vehicle(s) that they used to transport local goods which were subject to import duty. To allow such a situation would be to work against the public interest as there would be tax evasion and revenue leakage.
- There was no basis for impugning the EACCM Regulations as they were in consonance with the provisions of the Act.
- Where a party violated laws or regulations that were binding, there could be no basis for alleging violation of either the provisions of article 40 which protected the right to property, or article 47 on the right to fair administrative action. It was therefore perfectly lawful for the respondents to impound the truck carrying local goods in violation of the Act and the Regulations. In addition, the petitioner was fully aware of the conditions under which its truck was licensed to carry transit goods, and what it was required to do if it wished to carry local goods in its truck.
Petition dismissed with costs to the respondents.
||Recognition and enforcement of an arbitral award reached in breach of express terms of agreement is against public policy
Tanzania National Roads Agency v Kundan Singh Construction Ltd
High Court at Mombasa
Misc Civil Application No 171 of 2012
M Muya J
August 15, 2013
Reported by Andrew Halonyere & Cynthia Liavule
Download the Decision
The applicant sought to have a foreign arbitral award recognized and enforced as a decree of the High Court. It submitted that it had furnished the Court with the necessary documents required under section 36(2) of the Arbitration Act No. 4 of 1995 and that the only grounds upon which the application could be declined by the Court were those set out in section 37 of the Arbitration Act.
The respondents’ case on the other hand was that the majority arbitrators went beyond their scope and decided on matters beyond the scope of reference to arbitration. Further that the arbitrators should not have made a decision in favour of the applicant counterclaim as the applicant did not first refer its claim to the Dispute Resolution Board before referring the same for arbitration as required by the contract. Secondly, that the majority decision completely ignored to apply the Tanzanian Legislation which was the law governing the contract. Thirdly, that the arbitral award had not gained full legal force as it was subject to challenge in the proceedings filed by respondent in the Court of Appeal in Stockholm.
- Whether a foreign arbitral award reached in breach of express terms of an agreement was a ground for refusal of enforcement and recognition of the award in Kenya
- Whether enforcement of a foreign arbitral award made in breach of express terms of agreement was contrary to Kenya’s public policy
arbitration award - recognition and enforcement of foreign arbitral awards - requirements for enforcement - whether an award reached in breach of express terms of agreement was a ground for refusal of enforcement and recognition - whether enforcement of an arbitral award in breach of express terms of agreement was contrary to Kenya’s public policy -Arbitration Act No 4 of 1995, sections 36(2), 37 Read More...
Arbitration Act No 4 of 1995
(1) the recognition or enforcement of arbitral award, irrespective of the state in which it was made, may be refused only-
(a) at the request of the party against whom it is invoked, if that party furnishes to the High Court proof that –
(i) a party to the arbitration agreement was under some incapacity; or
(ii) the arbitration agreement is not valid under the law to which the parties have subjected it or, failing any indication of that law, under the law of the state where the arbitral award was made;
(iii) the party against whom the arbitral award is invoked was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings or was otherwise unable to present his case; or
(iv) the arbitral award deals with a dispute not contemplated by or not falling within the terms of the reference to arbitration, or it contains decisions on matters beyond the scope of the reference to arbitration, provided that if the decisions on matters referred to arbitration can be separated from those not so referred, that part of the arbitral award which contains decisions on matters referred to arbitration may be recognised and enforced; or
(v) the composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties or, failing any agreement by the parties, was not in accordance with the law of the state where the arbitration took place; or
(vi) the arbitral award has not yet become binding on the parties or has been set aside or suspended by a court of the state in which, or under the law of which, that arbitral award was made; or
(vii) the making of the arbitral award was induced or affected by fraud, bribery, corruption or undue influence.
(b) if the High Court finds that –
(i) the subject matter of the dispute is not capable of settlement by arbitration under the law of Kenya; or
(ii) the recognition or enforcement of the arbitral award would be contrary to the public policy of Kenya.
(2) If an application for the setting aside or suspension of an arbitral award has been made to a court referred to in subsection (1) (a) (vi), the High Court may, if it considers it proper, adjourn its decision and may also, on the application of the party claiming recognition or enforcement of the arbitral award, order the other party to provide appropriate security.
- In deciding whether to recognize and enforce a foreign arbitral award, the court was guided by and large by the provisions of section 37 of the Arbitration Act. The final award arrived at was in breach of the express terms of the agreement between the parties which contained the arbitration clause that any dispute would be referred to arbitration and would be governed by the law of Tanzania. There was ample evidence from the respondents replying affidavit and further affidavit that the decision of the majority as set out in the award was made contrary to the laws of Tanzania.
- The Court could not condone breach of express terms of the agreement between the parties by recognizing and enforcing the award. There was no justification legally or morally to condone a breach of a contract between two parties and it would be contrary to the public policy of Kenya to allow a court to be used towards that end.
Application to recognize and enforce award dismissed with costs.
||An award by the Land Disputes Tribunal must be rendered by a properly constituted tribunal |
R v Chairman Kandara District Land Disputes Tribunal & 3 others
ELC in Nyeri
Judicial Review 57 of 2011
A Ombwayo J
August 8, 2013
Reported by Andrew Halonyere & Cynthia Liavule
Download the Decision
- Whether the Land Disputes Tribunal established under section 3 of the repealed Land Disputes Tribunal Act No.18 of 1990 had jurisdiction to entertain a dispute on breach of contract.
- Whether an award reached by an improperly constituted tribunal could be rendered illegal, null or void under the repealed Land Disputes Tribunal Act
Jurisdiction - Land Disputes Tribunal-whether the tribunal had jurisdiction to deal with a claim based on breach of contract- Repealed Land Disputes Tribunal Act No.18 of 1990 section 3
Statutes -interpretation of statutes - whether an award reached by an improperly constituted tribunal was illegal, null and void abinitio - Repealed Land Disputes Tribunal Act No.18 of 1990, section 4 Read More...
- Section 3 of the repealed Land Disputes Tribunal Act limited the jurisdiction of the tribunal to the division of, or the determination of boundaries to land, including land held in common; a claim to occupy or work land; or trespass to land. A claim of breach of contract was not contemplated in the said section and therefore the tribunal had no power to deal with a claim based on contract under the said section.
- Any attempt by the tribunal to deal with a claim of breach of contract would be ultra vires and any decision made by the tribunal on the said claim would be a nullity. The court had jurisdiction under the Law Reform Act Cap 26 sections 8 and 9 to issue orders of certiorari to quash nullities.
- The tribunal was not properly constituted when eight members sat and heard the dispute contrary to the provisions of section 4 of the Land Disputes Tribunals Act. The fact that more than five members sat to determine the dispute and one of the members did not sign the award made the same illegal, null and void abinitio.
Application allowed. Proceedings and award by Land Dispute Tribunal quashed
||Requirements for a credible outsourcing programme in an employment relationship|
The Wrigley Company (East Africa) Limited v Attorney General & 3 others
Petition 22 of 2012
Industrial Court at Nairobi
Mathews Nderi Nduma, Linnet Ndolo, Nzioki wa Makau JJ
July 31, 2013
Reported by Njeri Githanga Kamau & Victor L Andande
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- Whether the Industrial Court could rewrite an employment contract where there had been an illegality.
- What were the requirements of a valid outsourcing programme in an employment relationship?
Contract – employment contract – rewriting an employment contract – where there was an allegation of illegality – whether in the circumstances the Industrial Court could rewrite the employment contract
-outsourcing – outsourcing of employment services – what were the guidelines for a credible outsourcing programme - Labour Institutions Act 2007, section 55(2), International Labour Organisation’s Private Employment Agencies Convention, article 1. Read More...
Section 55(2) of the Labour Institutions Act 2007 provided as follows:-
(2) No person shall unless the person is registered under this Act
(a) carry out the business as an employment agency; or
(b) charge or recover any payment in connection with the procurement of employment through an employment agency.
Article 1 of the International Labour Organisation’s Private Employment Agencies Convention, 1997 Convention No. 181 of 1997 provides as follows:-
1) For the purpose of this Convention the term private employment agency means any natural or legal person, independent of the public authorities, which provides one or more of the following labour market services:
(a) services for matching offers of and applications for employment, without the private employment agency becoming a party to the employment relationships which may arise therefrom;
2) For the purpose of this Convention, the term workers include jobseekers.
(b) services consisting of employing workers with a view to making them available to a third party, who may be a natural or legal person (referred to below as a "user enterprise") which assigns their tasks and supervises the execution of these tasks;
(c) other services relating to job seeking, determined by the competent authority after consulting the most representative employers and workers organizations, such as the provision of information, that do not set out to match specific offers of and applications for employment.
3) For the purpose of this Convention, the term processing of personal data of workers means the collection, storage, combination, communication or any other use of information related to an identified or identifiable worker.
- Courts ordinarily ought not and were to refrain, as far as was possible, from rewriting contracts of employment. In the petition, sufficient cause and basis had been laid to suggest that there was an error apparent on the face of the record. Though the Petitioner and the Interested Party were engaged in an illegality, the rewriting of the contracts of employment was a fundamental breach on the part of the Industrial Court.
- There was no jurisdiction to do what the court had done and, there was an error apparent on the face of the record in that the court had committed a fundamental breach. The cure for the illegality lay not in rewriting the contracts of employment but holding both parties jointly and severally liable in all respects regarding the contracts of employment. Both stood in the place of the employer albeit one was a putative one. Appropriate relief would have been to order payment of damages allowed in law for the breach of employment contracts of the employees who had been sublet to the Interested Party by the Petitioner.
- The High Court sitting either as a bench of three or as single judges could quash the decision of the previous Industrial Court which was a court subordinate to the High Court.
- The fact that the arrangement between the Petitioner and the Interested Party led to the Interested Party having a stake in the contracts entered into with the employees who worked for the Petitioner somewhat negated the provisions of article 1 of the Convention. The employees were not allowed to enter into collective bargaining and had to seek recourse from the court only to end up unemployed after the contract between the Petitioner and the Interested Party was terminated. It seemed the contracts were calculated to circumvent the Collective Bargaining Agreements entered into between the petitioner and the 3rd respondent (a workers’ union).
- The parameters for a credible outsourcing program were as follows inter alia:
- Ordinarily, employers were not expected to outsource their core functions;
- An employer would not be permitted to use outsourcing as a means to escape from meeting accrued contractual obligations to its employees;
- An employer would not be permitted to transfer the services of its employees to an outsourcing agency without the express acceptance of each affected employee and in all such cases, the employer had to settle all outstanding obligations to its employees before any outsourcing arrangement could take effect; and
- Outsourcing was unlawful if its effect was to introduce discrimination between employees doing equal work in an enterprise.
Petition allowed each party to bear its own costs.
||Jurisdiction to Issue Concurrent Orders of both Recount and Scrutiny of Votes
John Oroo Oyioka v Independent Electoral and Boundaries Commission & 2 others
Election Petition No 2 & 4 of 2013 (consolidated)
High Court of Kenya at Kisii
R N Sitati, J
July 2, 2013
Reported by Mercy Ombima
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The Petitioner had contested for the parliamentary seat for Bonchari Constituency and lost it for the third Respondent. He sought a court order for recount and scrutiny of votes cast in that constituency; claiming that the electioneering process for Bonchari had been characterized by massive irregularities and inconsistencies depicting corruption. The Respondents challenged the petition claiming that the elections court did not have jurisdiction to issue dual orders of both recount and scrutiny of votes.
- Whether it was proper for a court determining elections disputes to make dual orders of both scrutiny and recount of elections votes.
- Whether an order for scrutiny or recount of votes could be granted as a matter of course.
- Whether a petitioner could benefit from both orders of recount and scrutiny of votes sough in the same prayer
Electoral Law –election petition - scrutiny and recount of votes – where the Applicant sought simultaneous orders of re-count and scrutiny of votes in the same prayer - claim that the court’s jurisdiction was limited to making an order of either scrutiny of votes or recount of votes and not both – whether the court could make concurrent orders of both scrutiny and recount of votes - Elections Act 2011, section 80(3), Elections (Parliamentary and County Elections) Petition Rules 2013, rules 4; 5; 33(2) Read More...
- Section 82 (1) of the Elections Act clothed an election court with wide jurisdiction when considering an application for scrutiny. The court was equally clothed with similar jurisdiction by rules 32 and 33 of the Elections Petition Rules. Neither scrutiny nor recount could be ordered by an election court as a matter of course. The court was required in each situation to be satisfied that there existed sufficient reason to require an examination of the ballot either by way of scrutiny or recount.
- A petitioner could only lay sufficient basis for scrutiny and recount of the votes after such a petitioner had adduced evidence during the actual hearing of the petition - Rashid Hamid Ahmed Amana v IEBC and others, Malindi Election Petition No.6 of 2013.
- The Petitioner and his witnesses in the instant case had testified, though the Respondents’ case was yet to be heard. If that was a case for scrutiny, it would have been necessary to fully hear the Petitioners’ and the Respondents’ cases before going into the issue of scrutiny. The petitioner’s request was however for a recount.
- The Court had jurisdiction to define the scope of scrutiny of votes and the terms under which it was to be conducted. The election court was entitled to consider whether to order a full examination of the ballots and related material; whether or not a recount of the votes could be conducted or whether the scrutiny could be limited to tallying. Whatever option taken by the court depended on the circumstances of each case - Richard N. Kalembe Ndile & others v Dr. Patrick Musumba Mwea & others, Machakos EP No.7 of 2013.
- In reaching a decision of whether or not to take a recount of votes, the court would be guided by the provisions of rule 32 (1) of the Election Petition Rules, which did not limit the extent to which a recount could be undertaken. The wider the net of the recount, the better, so that no stone was left unturned.In that case, all the votes were required to be subjected to interrogation so that the court was assured that the third Respondent’s win and the Petitioner’s loss were informed by correct figures of votes cast for them and for the other candidates who were in the same race.
- Rashid Hamid Ahmed Amana v IEBC and others, Malindi Election Petition No.6 of 2013 (unreported)
- Justus Omiti v Walter Enock Nyambati Osebe & others – Kisii EP No.1 of 2008 (unreported)
||Prayers for Scrutiny or Recount of Votes can be sought together with Other Prayers
Japhet Kirimi Kobia v Julius Kabira Ambau& 2 others
Election Petition No 2 of 2013
Chief Magistrate‘s Court at Maua
C Maundu, M
May 31, 2013
Reported by Mercy Ombima
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The Petitioner contested for the parliamentary elections for Athiru Ruujine Ward and lost to the first Respondent. He instituted a petition to seek an order for recount among other prayers, claiming that there had been errors and inconsistencies in tabulating the total number of votes and that his votes had been under recorded. The first Respondent accepted that there had been irregularities but claimed that the Petition should not succeed because the Petitioner had improperly sought for an order of recount together with other orders prayers not related to scrutiny or recount of votes.
- Whether it was fatal for a petitioner to include prayers of scrutiny or recount of votes together with other prayers in an election petition
Electoral Law -election petition – election petition seeking a court order for recount of elections – where the petition for recount was sought among other prayers – claim that the Petitioner could not seek for an order of recount of the votes unless he had abandoned all other grounds in the petition – whether the court could entertain the petition - Elections (parliamentary and county Elections) petition Rules, 2013 rules 32(1); 32 (2) Read More...
- The Court was alive to the provisions of rule 33(1) & (2) of the Elections Petition Rules, 2013 which provided that a party could at any stage, apply for scrutiny of the votes for purposes of establishing the validity of the votes cast. The said party was required to also satisfy the court that there were sufficient reasons to do so.
- Scrutiny was not limited to only where there were no other grounds in the petition. For an application for scrutiny to succeed, what was required was for one to have sufficient grounds. In the instant case the petitioner had claimed that his votes had been interfered with by being under recorded. The first Respondent had admitted that there was a problem with the tabulation of the votes. That was a sufficient ground for scrutiny.
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