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Constitutional Law Jurisdiction of The Courts’ to Interpret The Constitution

Erad Suppliers & General Contractors Limited v. National Cereals & Produce Board
Petition No. 5 Of 2012
Supreme Court of Kenya at Nairobi
J.B. Ojwang, N.S. Ndungu, SC JJ
September 12, 2012
Reported by Njeri Githang’a

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Constitutional Law – interpretation and application of the Constitution-constitution of a supreme court bench - definition of the word “proceedings” under Art.163 (2) of the Constitution-where steps of the Court run in a series of events the last being, the hearing and determination of the substantive cause, which had to be before the full Bench of five Judges- responsibility of the Court to fix the operative meanings of the relevant provisions – circumstance under which a bench of less than five can sit-where a limited bench of the court could deal with the preparatory steps including settling of deserving legal procedural issues to facilitate case management -whether a two judge bench had jurisdiction to determine the issue of jurisdiction of the Supreme court to determine a matter -Constitution of Kenya, 2010 Art.159 (2) (d)

Constitutional Law – Interpretation of the constitution-jurisdiction to interpret the Constitution- whether the Supreme Court can entertain a question involving the interpretation or application of the Constitution that is integrally linked to the main cause in a superior Court of first instance  Read More...

Issues:

  1. Whether the Supreme court can entertain a question involving the interpretation or application of the Constitution that is integrally linked to the main cause in a superior Court of first instance.
  2. Whether a two-judge bench of the Supreme Court has the competence to hear such a matter especially on the issue jurisdiction.

Held:

  1. The Court, in giving meaning and effect to the drafts-person’s language, cannot be purely technical or literal. The Court must take into account the reality and the context as a whole – so as to give meaning to the provisions: in particular the definition of the word “proceedings” under Art.163 (2) of the Constitution. The steps of the Court run in a series of events – and it is the last event, namely, the hearing and determination of the substantive cause, that must come before the full Bench of five Judges; and that is what amounts to hearing-proceedings before the Supreme Court.
  2. In the run-up to the hearing before the five-Judge Bench, there are preparatory steps – beginning with proceedings on record before the Supreme Court Registrar, to any settling of deserving legal-procedural issues before a more limited Bench of the Court, and ending up with the substantive hearing before a Bench of five Judges. Without this mode of case-management, the task of the Court under the Constitution would be incapacitated. This would be contrary to Art.159 (2) (d) of the Constitution. It was therefore, the courts’ duty to give full meaning to the terms of the Constitution as regards the determination of contested questions – i.e., the questions of merit.
  3. The bench as constituted was valid and lawful framework for clearing initial and preliminary questions preceding the hearing and determination of the substantive cause, before arriving at the stage of a Bench of five Judges. While the category of preliminary issues preparatory to a hearing before five Judges is by no means closed, the bench as constituted was a lawful forum for determining and directing on issues of jurisdiction – as a basis for intended hearings before the full Bench.
  4. A question involving the interpretation or application of the Constitution that is integrally linked to the main cause in a superior Court of first instance is to be resolved at that forum in the first place, before an appeal can be entertained.
  5. Where, before such a Court, parties raise a question of interpretation or application of the Constitution that has only a limited bearing on the merits of the main cause, the Court may decline to determine the secondary claim if in its opinion, it will distract its judicious determination of the main cause; and a collateral cause thus declined, generally falls outside the jurisdiction of the Supreme Court. That principle would in particular apply in relation to interlocutory matters that do not fall within the terms of Article 163(4) of the Constitution. The matter before the court had a collateral nature falling outside the Court’s jurisdiction, failing the express consent of the Court of Appeal.
  6. The Supreme Court, as the ultimate judicial agency, ought to exercise its powers strictly within the jurisdictional limits prescribed; and it ought to safeguard the autonomous exercise of the respective jurisdictions of the other Courts and tribunals.
Petition dismissed at the preliminary stage
Arbitration Exclusion of Time Consumed in Litigation Proceedings

Glencore Grain Limited v TS.S.S Grain Millers Limited [2012] eKLR
Civil Case No. 388 of 2000
High Court of Kenya at Mombasa
R. M. Mwongo, J.
August 31, 2012
Reported By Nelson K. Tunoi

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Arbitrationarbitration award-recognition and enforcement of an international award-application seeking exclusion of time consumed in litigation proceedings-where more than seven (7) years had lapsed between the filing of the application for enforcement of the award and the decision of the appellate court-whether the doctrine of “relation back” was applicable in the circumstances-whether the application was competent-whether unreasonable delay was occasioned in filing the application-whether the application was prejudicial to the respondent if granted   Read More...

Issue for determination:

  1. Whether an arbitration award, sought to be recognized and enforced through the court, is caught out by limitation because the court processes did not serve up a directional judgment expeditiously to avail the award holder the fruits of his award?

Held:

  1. The application for exclusion of time under the Limitation of Actions Act for filing an arbitral award for enforcement does not properly fit under any of the categories provided for in the Arbitration Rules, 1997, making it a unique circumstance not anticipated under the Arbitration Act. Albeit the insufficiency of the Arbitration Rules (6 & 9) to deal with the various incidents, the Civil Procedure Rules provide for most of such situations, and where there is a gap, the aid of Section 3A may be available.
  2. Section 36 of the Arbitration (Amendment) Act provides the new approach to enforcement of international awards in Kenya, and identifies as applicable the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 1958 (New York Convention). The Articles under the convention avail to both the enforcer and a resisting party under the Arbitration (Amendment) Act to seek stay of enforcement. This was a previously non-existent procedure. Such a process would automatically have the effect of staying the running of time for purposes of limitation of time. By parity of reasoning, there is nothing in law to prohibit the applicant from similarly enjoining a stay of or exclusion of time for purposes of limitation.
  3. The prejudice of prolonged proceedings that the respondent would suffer if the application is granted, is preferable to the injustice which the applicant would suffer for being shut out for delays not attributed to it. The respondent will have a chance to defend against and resist any fresh application. However not to allow the application would render the award held by the applicant a pyrrhic victory. Balancing the two, the court preferred to err in favour of allowing the application.
Application allowed.
Arbitration Enforcement of “Exclusive Jurisdiction Clauses” in Contracts

Areva T & D India Limited vs. Priority Electrical Engineers & another
Civil Appeal No 103 of 2011
Court of Appeal at Nairobi
A. Visram & M. Koome, JJA
May 30, 2012
Reported by Rose M. Wachuka

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Arbitration – exclusive jurisdiction clause– exceptional circumstances -free conferment of jurisdiction by the parties

Contract Law – sanctity of contract -re-writing contracts for the parties by the court.  Read More...

Issue for determination:

  1. Whether the court should give effect to an 'exclusive jurisdiction clause' in an agreement which the parties freely and voluntarily conferred jurisdiction to the courts of Delhi, to resolve any dispute arising from the performance of their contract in Kenya.

Held:

  1. The rule that the parties should be held to their bargain should only be departed from in special and exceptional cases.
  1. The parties entered into the subcontract voluntarily and there were no exceptional circumstances that had occurred during the sub-contract to warrant a departure.
  1. It is trite that a court cannot rewrite a contract for the parties.
  1. Business people mainly choose arbitration over courts mainly because they want a more expeditious resolution of disputes.
Appeal allowed with costs.
Labour Law Exclusivity of Jurisdiction by the Industrial Court to Hear Industrial Disputes

Rob De Jong & another v Charles Mureithi Wachira
High Court at Mombasa
Civil Appeal No. 137 of 2009
M. K. Ibrahim & J.W Mwera JJ.
August 31, 2012
Reported by Cornelius W. Lupao

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Labour Law – industrial disputes-right forum to adjudicate over industrial disputes- whether a magistrate's court can adjudicate over an industrial dispute- Labour Institutions Act, section 12. 

Civil Practice and Procedure – transfer of suits-application seeking transfer of a suit from a court without jurisdiction to a court of competent jurisdiction-where the suit involved an industrial dispute but filed in a magistrate's court.   Read More...

Issues for determination:

  1. Can a High Court direct the transfer of a suit filed before a Magistrate court to the Industrial Court?
  2. Which court has exclusive jurisdiction to hear industrial disputes?

Labour Institutions Act, section 12. “The Industrial Court shall have exclusive jurisdiction to hear, determine and grant any appropriate relief in respect of an application, claim or complaint or infringement of any provisions of this Act or any other legislation which extends jurisdiction to the Industrial Court or in respect of any matter which may arise at common law between an employer and employee in the course of employment, between employee and employer’s Organization and a trade union or between a trade union, an employer’s organization, a federal and a member thereof”.

Held:

  1. The law gives exclusive jurisdiction to the Industrial Court to hear and determine all industrial related matters. It is therefore wrong for other courts at the instigation of litigants to take away or attempt to share jurisdiction with the Industrial Court.
  2. For the High Court to order transfer of a suit form one court to another, the matter should first, be before a court of competent with jurisdiction. If the matter was filed in a court without jurisdiction, then the suit is a nullity and there is nothing capable of being transferred.
Jurisdiction Conflict of Jurisdiction

National Housing Corporation v The Chief Magistrates Court, Mombasa & 2 others [2012] eKLR
Judicial Review No. 72 of 2011
High Court of Kenya at Mombasa
E. M. Muriithi, J.
August 31, 2012
Reported By Nelson K. Tunoi

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Jurisdictionpecuniary jurisdiction – jurisdiction pegged to the value of subject matter-whether the magistrates court has jurisdiction to deal with the subject matter of the suit filed by the parties-subject matter valued at Kshs. 800,000/=-where jurisdiction is curtailed by statutory provisions of the law.  

Judicial review-certiorari and prohibition – application for orders to restrain the respondent magistrates court from proceeding with the subject suit and to quash those proceedings-grounds of application that the respondent magistrate court lacked of jurisdiction over the subject matter before it-whether the judicial review proceedings should be deemed as application for transfer of proceedings from the magistrates curt to the High Court-validity of application.    Read More...

Issue(s) for determination:

  1. Whether the fact that the subject matter’s value is within the pecuniary limit will accord the magistrates court jurisdiction to grant such relief where a law(s) denies jurisdiction to the magistrate court with respect to certain reliefs?

Held:

  1. The civil jurisdiction of the Magistrates Court is circumscribed by section 5 of the Magistrates Court Act (cap 10). The court cannot therefore have jurisdiction in civil proceedings for a claim if the subject matter to which the claim relates exceeds the pecuniary limit of the court. Jurisdiction is pegged to the value of the subject matter in dispute and a distinction must be made between the subject matter in dispute and the reliefs sought by the parties.
  2. Jurisdiction is subject to all written laws and therefore where any law denies jurisdiction to the magistrate court with respect to certain reliefs, then the fact that the subject matter value is within the pecuniary limit will not afford the court jurisdiction to grant such relief.
  3. Even if the magistrate’s court could deal with proceedings relating to the subject matter of the dispute whose value does not exceed Kshs. 7,000,000/= by the current pecuniary limits, section 159 of the Registered Land Act (repealed), which is the statute regulating the proceedings relating to title or possession of land registered under that Act provide for a pecuniary limit of Kshs. 500,000/= only. Therefore under this formulation, the magistrate courts have no authority to deal with the suit property valued at Kshs. 800,000/=. This absurdity must be the result of want of coordinated review of statutes and legal notices.

Law Reform Issue

  1. The apparent inconsistency between the pecuniary limit set for the value of the subject matter in the Magistrate Courts Act (cap 10) and the repealed (which is the applicable law) Registered Land Act as precondition for the jurisdiction of the magistrate courts.
Land Law Squatters’ Acquisition of Good Title to Land

Republic V The Registrar Of Titles, Mombasa & 2 others Ex Parte EMFIL Limited
High Court of Kenya at Mombasa
Miscellaneous Civil Application (JR) No. 84 of 2011
E. M. Muriithi J.
September 7, 2012
Reported by Emma Kinya

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Land Law – title to land – action for revocation of title deeds – applicant claiming that the respondents action in revoking the titles and allocating the land to squatters was an unconstitutional infringement of its right to property as the legal owner of the property – claim by the respondents that transfer of the suit property to the applicant by the original owner was irregular and fraudulent and therefore the transfer of the suit property was void ab initio – whether the squatters titles could be revoked in the circumstances.

Judicial Review – certiorari, mandamus and prohibition - application for judicial review orders with respect to a gazette notice through which the Registrar of Titles purported to revoke the applicants title to the suit property – claim by the respondents that the applicant had acquired the land illegally and therefore the transfer of land to him was void ab initio – whether the applicant was entitled to the orders as prayed.  Read More...

Issues:

  1. Whether the Registrar or the Government has power to revoke titles to land.
  2. Whether the Government can be justified by public interest to revoke title to private land.
  3. Whether the Judicial review orders of certiorari, prohibition and mandamus are available in the circumstances of this case.

Held:

  1. There was unanimity among the courts that the registrar had no authority in law to have revoked the titles to land, whether in public interest or otherwise.
  2. Only the courts could order for the revocation of titles or refuse to uphold the private individual’s title to land in case of public interest or where the applicant had committed fraud or other illegalities with regard to the title.
  3. The considerations of public interest could only be used by court in making an order for cancellation of title or in authorizing compensation for the compulsory acquisition or takeover of private property.
  4. The nemo dat quod non habet principle was to the effect that a buyer who acquires goods sold by a seller who is not the owner and does not sell under the authority of the owner acquires no better title to the goods than the seller. Its exceptions include sale by apparent owner of the goods where the buyer acquires good title if he buys in market overt, in good faith and without notice of defect. This was applicable in the circumstances as the squatters had acquired a good title to the parcels of land which had been offered by the Government as the apparent owner of plots and for which they had paid for in good faith in the usual course of sale of land without knowledge that the Government had no right to sell the land in view of the order of stay that had been granted by court.
  5. The judicial review orders of certiorari, mandamus and prohibition could not have been granted in the circumstances.
Application dismissed.
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