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Jurisdiction Section 14 of the Supreme Court Act Unconstitutional

Samuel Kamau Macharia and another v. Kenya Commercial Bank Limited and 2 others
Application No. 2 of 2011
Supreme Court of Kenya at Nairobi
W.M. Mutunga, CJ, P.K. Tunoi, J.B. Ojwang, S.C. Wanjala, N.S. Ndungu, SCJJ.
October 23, 2012
Reported By Njeri Githang'a Kamau

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Issues

  1. Whether Section 14 of the Supreme Court Act in so far as it provides the Supreme Court with special jurisdiction was unconstitutional.
  2. Whether the failure to enjoin the Liquidator, who has to seek leave of the Court to sue on behalf of the Company as required by s. 241 of the Companies Act, in a suit instituted by the major shareholder of a company under receivership fatal.
  3. Whether the first applicant needed to obtain leave of the Court before joining the second applicant in the proceedings within the wording of Section 241(1) of the Companies Act while it was under receivership and if so, whether failure to apply and obtain such leave was so fatal as to render the application untenable.
  4. Whether the facts as deponed in the application by the first applicant and all surrounding circumstances met the threshold set out in Section 14 of the Supreme Court Act so as to bring the application within the ambit of the Court's special jurisdiction. v. Whether the special jurisdiction under Section 14 was appellate in nature and therefore one of the categories of appeal contemplated by Article 163 (4) of the Constitution.
  5. Whether the Supreme Court had jurisdiction to entertain appeals from cases that were determined and finalized by the Court of Appeal before the promulgation of the Constitution of Kenya 2010.
  6. Whether the Supreme Court had jurisdiction to hear applications for leave to appeal.

Jurisdiction - special jurisdiction of the Supreme Court- special jurisdiction under Section 14 of the Supreme Court Act- where the Supreme Court Act was enacted pursuant to Article 163 (9) of the Constitution-where the Act contemplated by Article 163(9) was operational in nature-where the Act was never intended to create and confer jurisdiction upon the Supreme Court beyond the limits set by the Constitution-whether the section was constitutional insofar as it conferred "special jurisdiction" upon the Supreme Court- Constitution of Kenya, 2010 Article 163 (9)-Supreme Court Act section 14

Civil Practice and Procedure - application for leave-application for leave to appeal against the judgment of the Court of Appeal-application brought under Article 163 of the Constitution, as read together with Sections 14 to 16 of the Supreme Court Act, 2011 and Rule 21 of the Supreme Court Rules-where section 14 of the Supreme Court Act provided for review of judgment of a judge who had been removed, resigned or retired from office- whether the Supreme court had jurisdiction to entertain the application under the circumstances- Constitution of Kenya, 2010 Article 163- Supreme Court Act, 2011 Sections 14 to 16

Interpretation of statutes - retrospective or retroactive legislation- where the judgment against which an appeal was sought was delivered before the Constitution of Kenya 2010 was promulgated and the Supreme Court established-Whether Article 163 (4) (b) of the Constitution was intended to confer appellate jurisdiction upon the Supreme Court the exercise of which would have retrospective effect upon the vested rights of individuals

Jurisdiction - Appellate Jurisdiction- Supreme Court's Appellate Jurisdiction- circumstances under which to be invoked- Constitution of Kenya 2010, Article 163 (4) b)

Words and Phrases - review and appeal-where an appeal entailed some form of review of a lower Court's decision in terms of assessing that Court's interpretation and application of the law-whether " an appeal" was the same as a "review" in the technical sense-whether the two could be used interchangeably

Company Law - joinder of liquidator – lack of joinder of liquidator in a suit where the company is being wound up – whether directors or shareholders can sue on behalf of a company being wound up – whether the lack of joinder of liquidator to a suit is fatal to the suit Read More...

Section 14 of the Supreme Court Act provides:
Special Jurisdiction
14. (1) To ensure that the ends of justice are met, the Supreme Court shall, within twelve months of the commencement of this Act, either on its own motion or on the application of any person, review the judgments and decisions of any judge-

(a) removed from office on account of a recommendation by a tribunal appointed by the President, whether before or after the commencement of this Act; or
(b) removed from office pursuant to the Vetting of Judges and Magistrates Act, 2011 (No. 2 of 2011); or
(c) who resigns or opts to retire, whether before or after the commencement of this Act, in consequence of a complaint of misconduct or misbehavior.

(2) To qualify for review under subsection (1), the judgment or decision shall have been the basis of the removal, resignation or retirement of, or complaint against, the judge.

Held:

  1. A Court's jurisdiction flows from either the Constitution or legislation or both. Thus, a Court of law can only exercise jurisdiction as conferred by the constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law. The issue as to whether a Court of law has jurisdiction to entertain a matter before it, is not one of mere procedural technicality; it goes to the very heart of the matter, for without jurisdiction, the Court cannot entertain any proceedings.

  2. Where the Constitution exhaustively provides for the jurisdiction of a Court of law, the Court must operate within the constitutional limits. It cannot expand its jurisdiction through judicial craft or innovation. Nor can Parliament confer jurisdiction upon a Court of law beyond the scope defined by the Constitution. Where the Constitution confers power upon Parliament to set the jurisdiction of a Court of law or tribunal, the legislature would be within its authority to prescribe the jurisdiction of such a court or tribunal by statute law.

  3. The "special jurisdiction" conferred upon the Supreme Court by section 14 of the Supreme Court Act is not appellate in nature. The Supreme Court Act was enacted pursuant to Article 163 (9) of the Constitution. The Preamble to the Act states that it is "AN ACT of Parliament to make further provision with respect to the operation of the Supreme Court pursuant to Article 163(9) of the Constitution."

  4. The Act contemplated by Article 163(9) was operational in nature. Such an Act was intended to augment the Rules made by the Supreme Court for the purpose of regulating the exercise of its jurisdiction. It is an Act that must confine itself to the administrative aspects of the Court. It is a law that addresses the manner in which the Supreme Court exercises its jurisdiction as conferred by the Constitution or any other legislation within the meaning of Article 163 (4) (b) (ii). Such an Act was never intended to create and confer jurisdiction upon the Supreme Court beyond the limits set by the Constitution. The national legislation referred to in Article 163 (4) (b) (ii) is not the same as the one referred to in Article 163 (9). The former is capable of conferring jurisdiction upon the Supreme Court. The latter is not.

  5. Section 14 of the Supreme Court Act was unconstitutional insofar as it purports to confer "special jurisdiction" upon the Supreme Court, contrary to the express terms of the Constitution. Although Parliament had good intentions in providing for the "extra" jurisdiction for the Supreme Court, as embodied in Section 14 of the Supreme Court Act, ought to have been anchored under Article 163(4) of the Constitution, or under Section 23 of the Sixth Schedule on "Transitional Provisions".

  6. Section 241 of the Companies Act is an enabling provision, enabling the Liquidator to represent the company, but does not divest the power of the directors to sue on behalf of the company. The application of section 241 in the case in question was a procedural technicality which could not be upheld as against Article 159 of the Constitution of Kenya, 2010.

  7. A plain reading of section 241(1) of the Companies Act clearly showed that its main purpose is to establish the frontiers of the liquidator's powers in a winding-up of a company by the Court. One of those powers was to bring or defend any action or other legal proceeding in the name and on behalf of the company. However, before the liquidator commences proceedings or participates in proceedings on behalf of the company, he must obtain the sanction or leave of the Court. The requirement of sanction of the Court was directed at the liquidator.

  8. The respondents were no longer debenture-holders. Their only interest in the matter was to maintain the status quo, following the Court of Appeal's decision pursuant to which they were relieved of paying a huge sum of money to the applicants. Hence they had no interest whatsoever in the affairs of the second applicant. Neither were they affected in any way by the liquidation of the second applicant. Their opposition to the application for leave on the basis of Section 241(1) of the Companies Act was an attempt to frustrate the first applicant's pursuit of what he believed either rightly or wrongly belonged to him. Even if the respondents were debenture-holders and the second applicant had been placed under receivership at their instance, the facts in the case were such that the court would have been inclined to apply the principle in Newhart Development Ltd.

  9. Under section 14 of the Supreme Court Act, only the judgment of a judge who had been removed, resigned or retired from office could be reviewed under section 14. While the judgment of the Court of Appeal was the basis of the complaint against the three judges, (Tunoi JA, as he then was, Githinji and Onyango, JJA) none of them was removed, retired or opted to resign from office following their vetting by the Vetting Board. No other meaning could be imported into section 14. The applicant could not avail himself of the promise for justice embedded in that section.

  10. The words "review" and "appeal" could not be used interchangeably at the litigant's election when seeking a higher Court's intervention in a matter already decided by a lower Court. Neither section 23 of the "Transitional Provisions" to the Constitution of Kenya, 2010 nor Article 163 (3) and (4) of the Constitution gave the impression that an appeal bears the same meaning as a review.

  11. While an appeal entails some form of review of a lower Court's decision in terms of assessing that Court's interpretation and application of the law, it is not the same as a "review" in the technical sense. In that regard, Section 14 of the Supreme Court Act conferred powers of review upon the Supreme Court through a special jurisdictional regime. "The Supreme Court can even act on its own motion and review judgments that fall within the ambit of that section. It has powers to conduct preliminary enquiries and call for evidence." This kind of jurisdiction was inconsistent with an appellate jurisdiction whose features were readily recognizable. The application for leave to appeal could not be grounded on Section 14 of the Supreme Court Act.

  12. Only two types of appeal lay to the supreme court:

    1. The first type of appeal lies as of right if it is a case involving the interpretation or application of the Constitution. In such a case, no prior leave is required from the Supreme Court or Court of Appeal.
    2. The second type of appeal lies to the Supreme Court not as of right but only if it has been certified as involving a matter of general public importance. It is the certification by either Court which constitutes leave. That meant that where a party wished to invoke the appellate jurisdiction of the Court, then such intending appellant had to convince the Court that the case was one involving a matter of general public importance.
    The appellants could not hence base their application for leave to appeal against the decision of the Court of Appeal on section 14 of the Supreme Court Act.
  13. It would be good practice to originate the application for leave to appeal against a decision of the Court of Appeal under Article 163 (4) (b) of the Constitution of Kenya, 2010 in the Court of Appeal which would be better placed to certify whether a matter of general public importance is involved. If the Applicant should be dissatisfied with the Court of Appeal's decision in that regard, it is at liberty to seek a review of that decision by this Court as provided for by Article 163 (5) of the Constitution. To allow the applicant to disregard the Court of Appeal against whose decision it intends to appeal and come directly to the Supreme Court in search of a certificate for leave would lead to abuse of the process of Court.
  14. Article 163 (4) (b) of the Constitution of Kenya, 2010 clearly intended to give the Court of Appeal the first option to consider an application for certification. It also intended to give the would-be respondent the earliest opportunity to challenge an intended appeal to the Supreme Court. Such a party would be expected to argue that the case does not qualify to be accelerated to this Court, because it is "not one involving a matter of general public importance." Another feature of Article 163 (5) is that it affords the "intending appellant" a second chance to seek certification to appeal to the Supreme Court.

  15. Those seeking certification to appeal from the Court of Appeal on the basis of Article 163 (4) (b) have to originate their applications in that Court. The Court of Appeal when faced with such an application must entertain it notwithstanding the fact that there is no rule of procedure providing for how the said application is to be made. The right to seek certification stems from the Constitution and it is on that basis that it is exercised. For the course of experience shows cases in which appeal to the Supreme Court has been sought on grounds other than of merit, the Court of Appeal has the case-management obligation to grant leave only for weighty cause.

  16. The general rule for non-criminal legislation was that all statutes other than those which were merely declaratory or which relate only to matters of procedure or evidence are prima facie prospective, and retrospective effect is not to be given to them unless, by express words or necessary implication, it appears that this was the intention of the legislature.

  17. A retroactive law is not unconstitutional unless it:

    1. is in the nature of a bill of attainder;
    2. impairs the obligation under contracts;
    3. divests vested rights; or
    4. is constitutionally forbidden.

  18. A Constitution is not necessarily subject to the same principles against retroactivity as ordinary legislation. A Constitution looks forward and backward, vertically and horizontally, as it seeks to re-engineer the social order, in quest of its legitimate object of rendering political goods. In this way, a Constitution may and does embody retrospective provisions, or provisions with retrospective ingredients. However, in interpreting the Constitution to determine whether it permits retrospective application of any of its provisions, a Court of law must pay due regard to the language of the Constitution. If the words used in a particular provision are forward-looking, and do not contain even a whiff of retrospectivity, the Court ought not to import it into the language of the Constitution. Such caution is still more necessary if the importation of retrospectivity would have the effect of divesting an individual of their rights legitimately occurred before the commencement of the Constitution.
  19. The applicants could not reopen a case that was finalized by the Court of Appeal (by then the highest Court in the land) before the commencement of the Constitution of Kenya, 2010. Decisions of the Court of Appeal were final. The parties to the appeal derived rights, and incurred obligations from the judgments of that Court. If the Supreme Court were to allow appeals from cases that had been finalized by the Court of Appeal before the Commencement of the Constitution of Kenya, 2010, it would trigger a turbulence of pernicious proportions in the private legal relations of the citizens.
  20. A final judgment by the highest court in the land at the time vested certain property rights in, and imposed certain obligations upon the parties to the dispute. Article 163 (4) (b) is forward-looking, and does not confer appellate jurisdiction upon the Supreme Court to entertain matters that had been finalized by the Court of Appeal before the commencement of the Constitution.

Application dismissed, each party to bear its own costs

Civil Practice and Procedure Adjournment of Supreme Court's hearing

Hon. Lady Justice Nancy Makokha Baraza V The Tribunal Investigating the Conduct of the Hon. Deputy Chief Justice & Vice-President of the Supreme Court of the Republic of Kenya
Petition No. 7 Of 2012
Supreme Court of Kenya at Nairobi
Mutunga CJ; Tunoi, Ojwang, Wanjala, Ndung'u, SCJJ.
October 17, 2012
Reported by Njeri Githang'a Kamau


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Issue

  1. Application for adjournment of the hearing of an appeal on the ground of absenteeism of the appellant's counsel- The appellant's counsel having been on a retreat in Europe that had been organized by the Law Society of Kenya


Civil Practice and Procedure-adjournment-application for adjournment-appellant's advocate having been absent to prosecute the appeal without briefing another counsel to argue the matter- where the matter was of public interest-whether the application could be allowed Read More...

Held:

  1. The reasons for the counsel's absence to prosecute the appeal, and her failure to fully brief any other Counsel to argue the matter smacked of arrogance, disrespect and negligence on her part.

  2. The Court would not allow Counsel to treat it with disrespect or arrogance. The matter was one of public interest and the Court in giving Counsel the hearing date of the appeal was fully aware of that fact. The court was the Supreme Court of Kenya, the apex Court in the nation. The courts schedule would not be based on the convenience of Counsel and all counsel appearing before the Supreme Court needed to take heed.

  3. The advocate would personally pay the costs of the adjournment.

Orders:

  1. Application for adjournment allowed.
  2. Appeal to be heard at 10.00 a.m. on October 23, 2012.
  3. The Court would not entertain further applications for adjournment.
  4. If the appellant wished to respond to the Respondent's submissions then this had to be done on or before Monday, October 22, 2012.
  5. Mrs. Guserwa (advocate for the appellant) to personally pay the costs of the adjournment.

Editorial Note

The appellant, Nancy Makokha Baraza, the Hon. Deputy Chief Justice & Vice-President of the Supreme Court of the Republic of Kenya resigned on October 18, 2012.

Jurisdiction Kenyan Courts have Jurisdiction to try Piracy Offences.

Attorney General v Mohamud Mohammed Hashi & 8 others
Court of Appeal, at Nairobi
Civil Appeal No. 113 of 2011
J.W. Onyango Otieno, Alnashir Visram, M. K. Koome, H. M. Okweng, D. Maraga JJ A.
October 18, 2012.
Reported by C W Lupao

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Issues
  1. Whether Kenyan courts have jurisdiction to try suspects in respect of Piracy Jure Gentium committed outside the Kenyan Territorial Waters i.e., in the High Seas.
  2. Is the law of piracy jure gentium a crime recognized under the International Law?
  3. Which court in Kenya has jurisdiction to try the offence of piracy, the High Court or the Subordinate Courts?
  4. Whether there is a "legislative" misnomer regarding the provisions of Section 69 (1) of the Penal Code as read with Section 5;
  5. Does the repeal of a section of an Act of parliament have an effect on the prosecution of a criminal case which occurred before the repeal of the section?
Jurisdiction- - concept of universal jurisdiction -jurisdiction of the states to try extra -territorial offences that threaten peace-nature of the offences to be tried under universal jurisdiction-nature of courts with jurisdiction to try piracy offences in Kenya

Statutes - interpretation of statutes-whether a repeal of a section of an Act of parliament has any effect on the prosecution of a criminal case which occurred before the repeal of the section

Statutory Law -international statutes- Kenya being a signatory to an international statute i.e. United Nations Law of the Sea Convention [UNCLOS] of 1982-applicability of the statute to the Kenyan Jurisdiction-Constitution of Kenya, 2010, Article 2(5) and (6). Read More...

Words and phrases:

Piracy jure gentium - The phrase "piracy jure gentium" is a Latin phrase which means piracy by the law of nations or piracy as known in international law.

A pirate is defined as one who, without legal authority from any State, attacks a ship with intention to appropriate what belongs to it. The pirate is a sea brigand.

High Seas- means "all parts of the sea that are not included in territorial sea or internal waters of a State.

The Concept of Universal Jurisdiction- The principle of universal jurisdiction holds that certain crimes are of such a serious nature that any state is entitled, or even required, to apprehend and prosecute alleged offenders regardless of the nationality of the offenders or victims, or the location where the offence took place.

Held:

  1. Though the suspects had been charged under section 69 of the Penal Code which was subsequently repealed by the Merchant Shipping Act, 2009, the repeal of section 69 of the Penal Code did not affect the continued prosecution of the case against the suspects. By dint of Section 23 (3) of the Interpretation and General Priorities Act, a repeal of a law unless a contrary intention is expressly provided does not affect an ongoing prosecution
  2. The repealed section 69 fell within Chapter VIII of the Penal Code which dealt with "offences affecting relations with foreign states and external tranquility" which provided in very clear terms and gave jurisdiction to Kenyan courts to deal with crimes of piracy jure gentium which were committed in the "territorial waters or upon the high seas".
  3. Section 5 of the Penal Code provided for local jurisdiction while Section 69 (1) as read with Section 69 (3) of the Code donated as at that effective time jurisdiction to try piracy Jure Gentium on the High Seas. The High Court misconstrued the territorial application of the law as provided for under Section 5 of the Penal Code, which defined the geographical jurisdiction of the courts. There was therefore no basis for the court's finding that Section 5 superseded Section 69. That section should have been read together with Section 69 which extended the jurisdiction of offences partly committed in Kenya and beyond the Kenyan courts. Thus, the Kenyan courts have jurisdiction to try such cases.
  4. Even if the High Court found that there was legislative misnomer, that could easily have been resolved by falling back on the provisions of the United Nations Law of the Sea Convention [UNCLOS] of 1982, to which Kenya is signatory and by dint of Article 2 (5) of the Constitution, UNCLOS is part of the Kenyan laws. UNCLOS provides for offences of piracy and gives any state jurisdiction to try them. Any crime committed outside the jurisdiction of any state is governed by international law. So the impression the High Court created that by repealing Section 69 of the Penal Code Parliament abolished the international crime of piracy in Kenya was clearly wrong.
  5. Even if the repeal of Section 69 of the Penal Code abolished the international crime of piracy, that could not have availed the suspects in this matter in view of Section 23(3) of the Interpretation and General Provisions Act. The relevant portions of the latter in essence provides that the repeal of a statutory provision does not affect any existing legal proceeding under it and that the same shall proceed "as if the repealing written law had not been made."
  6. The customary international law gives universal jurisdiction to all countries to deal with crimes committed outside the territorial jurisdiction. Offences that threaten world peace are also threats to humanity and the courts have ruled that such crimes are punishable in martial courts. Piracy jure gentium has for centuries been considered a universal jurisdiction crime based also on international agreements that authorizes all nations to capture and punish a pirate.
  7. Based on the rationale that the international community should ensure there is no safe haven for those responsible for the most serious crimes, the concept of universal jurisdiction therefore allows all international states to bring the perpetrators to justice. This authority derives from the principle that every state has an interest in bringing to justice the perpetrators of international crimes. All states are therefore obliged to act as guardians of international law and on behalf of the international community to prosecute international crimes regardless of the place of commission of the crime, or the nationality of the author or of the victim.
  8. The offence of piracy jure gentium is an offence against international customary law; it is part of the laws of nations. The offence of piracy jure gentium is codified through treaties and also domesticated through the penal code and presently the Merchant Shipping Act.
  9. For the piracy offences committed after the 27th August 2010 when the Constitution of Kenya, 2010 ,was promulgated, Article 2(5) and (6) which have respectively incorporated the general rules of international law and the treaties Kenya has and continues to ratify into Kenyan law, Kenyan courts, have added constitutional authority to prosecute piracy and other international crimes.
  10. It is the Kenyan subordinate courts presided over by a Chief Magistrate, a Senior Principal Magistrate, a Principal Magistrate or a Senior Resident Magistrate, which have jurisdiction to try the offence of piracy.
  11. The High Court, in making its decision based on some seminal materials that had been canvassed at a seminar outside Kenya. These were, as is normal with seminars and conferences, proposals that were canvassed, but they remained no more than that. They never crystallized into any legal authorities that could be relied upon to make a judicial decision of the magnitude that was made by the High Court.
  12. (Obiter Per Koome, JA): ''This judgment also failed to recognize that Kenyan courts were beginning to develop jurisprudence in this area of law along the internationally recognized principles which were sadly set back by this judgment under review. For example, in the case of United States District Court For Eastern District of Virginia Norfolk Division, USA v. Mohamed Madin Hassan & 4 Others, a court in the United States made reference to the application of UNCLOSS as part of customary international law and also made reference to a Kenyan decision as thus:

    "Moreover, the courts of other countries have held UNCLOSS to be applicable as customary international law in concrete cases, as reflected in recent judicial decisions from Kenya, the country currently handling many modern piracy cases. Courts in Kenya have relied on the piracy provisions in UNCLOSS to interpret their own domestic criminal code proscribing general piracy."

This decision as rightly observed even by the US Federal Court in the case of USA v. Hassan (supra) represents the correct interpretation of the law.

Criminal Practice and Procedure Application for Environment and Land proceedings to transfer to High Court

Vincent Ayieko Chiaga v Joseph Oyoo [2012] eKLR
Misc. App. No. 215 OF 2012
High Court at Kisumu
H.K. Chemitei, J.
October 15, 2012
Reported by Sylvie Nyamunga

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Issue
  1. Whether proceedings dealing in land and environmental issues in a subordinate court can be transferred to a superior court

Criminal Practice and Procedure --transfer of case- application seeking an order for the transfer of case to court with superior jurisdiction- environment and land issues- whether practice directions issued by the Chief Justice on Environment and Land Court apply- jurisdiction of the lower court to hear the case - Gazette Notice No. 1617 Read More...

Held:

  1. From the practice directions issued by the Chief Justice following the establishment of the Environment and Land Court, matters filed and pending at the lower court does not enjoy the alternatives of being transferred to the Environment and Land Court or the high court.
  2. The lower court can hear the same provided that it has the jurisdiction to determine. As the matter had been filed and was yet to be heard, it would be difficult for the court to transfer the same as it is not aware whether the trial court is seized of jurisdiction or not. It is only the lower court which is capable of determining.

Application is stayed with the liberty to the applicant or the respondent to apply to the land and environment court for the relevant orders as and when it is constituted here at the Kisumu High Court.

Constitutional Law Children's Court Can Hear Cases of a Constitutional Nature

Violet Kedogo Kiharangwa v Preston Ngira Obadiah [2012] eKLR
Petition No. 339 of 2011
High Court of Kenya at Nairobi
Constitutional and Human Rights Division
I. Lenaola, J.
October 12, 2012
Reported by Sylvie Nyamunga

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Issue
  1. Whether the High Court has the jurisdiction to determine the matter or whether the matter ought to be transferred to the Children's Court for determination.
Constitutional Law - fundamental rights and freedoms-where the petitioner is seeking declaration that the child's constitutional and statutory right have been violated- whether the high court has jurisdiction to hear the matter because of its constitutional nature- whether the matter should be heard in the Children's Court- Children Act- Constitution of Kenya, 2010 -Article 22, 35 and 164 of the Constitution Read More...

Held:

  1. The High Court has original jurisdiction in civil and criminal cases under Article 164(3)(a) of the Constitution. Article 22 allows access to any person to approach this Court on claims of violations of any of the fundamental rights and freedoms enunciated in the Bill of rights.Therefore the High Court has jurisdiction to hear the matter.
  2. The provisions must be read together with the specific rights of the children protected under Article 53 of the Constitution and the Children Act. Those rights being paramount are best protected by having a full hearing in the Children's Court. The Children's Court established in Part VI of the Children Act is the Proper Court with jurisdiction to determine matters relating the welfare of children, including custody and maintenance issues.

Proceedings transferred to the Children's Court at Nairobi for hearing and determination and no order as to costs

Constitutional Law Validity of any award issued by the then Industrial Court since the promulgation of the Constitution, 2010

Nzoia Sugar Company v Attorney General & 2 others [2012] eKLR
Petition No. 212 of 2012
High Court at Nairobi
Constitutional & Human Rights Division
I. Lenaola, J
October 12, 2012
Reported by Sylvie Nyamunga

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Issues
  1. Whether judges of the former Industrial Court as constituted under the now repealed Labour Institutions Act are State Officers within the meaning of Article 260 of the Constitution to whom the provisions of the Constitution, in particular Article 74, apply.
  2. The effect of the said judges not taking an oath under the Constitution with regard to the validity of any award issued by the then Industrial Court since the promulgation of the Constitution, 2010.
Constitutional Law - oath of office of state officers- whether judges of the former industrial court were state officers- whether they were required to take oath- effect on validity of awards made by the judges- repealed Labour Institutions Act- Constitution of Kenya, 2010- article 74 of the Constitution of Kenya, 2010- Section 260 of the Constitution- Section 31 and 13 of the Sixth Schedule of the Constitution Read More...

Held:

  1. The former Industrial Court was an inferior tribunal and was not intended to be transformed into a superior court within the meaning of Article 165 of the Constitution. Article 74 therefore did not also impose a constitutional obligation on them to take an oath of office as any oath taken by the judges and members of that court in the past was taken not under the former Constitution but rather under an Act subordinate to the Constitution.
  2. That the judges and members of the former Industrial Court were not required to take an oath of office under the Constitution, therefore they were properly in office before the establishment of the Court Article 162 (2). They are not holders of state offices within the meaning of Article 260 of the Constitution and the award given by a properly established tribunal is valid and it is therefore my finding that the award given was valid and enforceable.

Petitions dismissed. Petitioner to pay costs

Constitutional Law Right to fair hearing before suspension/expulsion from school

B.G.N. (a minor) v S.N.S School [2012] eKLR
Petition No. 290 of 2012
High Court at Nairobi
Constitutional and Human Rights Division
D.S. Majanja, J
October 8, 2012
Reported by Sylvie Nyamunga

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Issue
  1. Whether the decision by the Respondents, servants and or agents to expel the minor from S.N.S. School was against the principles of natural justice, arbitrary, capricious, not in the best interest of the minor and therefore unlawful and further constituted a violation of his rights that are enshrined in Articles 2(6), 3(1) 27(5), 36(1), 43(f), 47(1) and 53(1) (b), (d), (2) of the Constitution of Kenya, 2010 and Sections 4, 5 and 7 of the Children's Act.
Constitutional Law-fundamental rights and freedoms- children's right- best interests of a child- whether a child suspended from school indefinitely before his final year is in his best interest-principles of natural justice- whether a school should have fair process consistent with principles of natural justice- Article 53 Constitution of Kenya, 2010 Read More...

Held:

  1. The school has a set of rules and a code of conduct which must be adhered to by the child and it is the duty of the guardian to ensure that the child is familiar with these rules and regulations and abides by them. On the other hand, the school is required to have a fair process, consistent with the rules of natural justice, in which an errant child can be disciplined.
  2. By not providing the necessary procedures to demonstrate that the child and guardian were given a hearing before the separation letter dated 6th June 2012, the respondent did not adhere to rules of natural justice. Furthermore the letter did not stipulate the nature of separation or a specific suspension period.
  3. Article 53 of the Constitution now recognizes the general principle that the best interests of the children is the paramount consideration in any matter concerning children. The best interests of the child must be such that the child and his guardian are given an opportunity to answer allegations against the child and such procedure must be one that is suitable for this purpose. There is also a responsibility to be borne in respect of that one child, one that flows from the human rights and fundamental freedoms of each individual. These cannot be subordinated to others merely because the interests of the other children are greater. There must be a good reason to do so consistent with the values and principles of the Constitution.
  4. Expulsion or suspension of a child from school may negatively affect him particularly in a situation where he has only one year to finalize high school. This would be contrary to his best interests.

Child re-admitted to the respondent school forthwith and upon complying with the normal conditions imposed by the school for re-admission.

Labour Law What Amounts to a Trade Union?

Central Organization of Trade Unions (COTU) v Registered Trustees of the Confederation of Kenya Trade Unions
Cause No 1107 of 2011
Industrial Court of Kenya
October 5, 2012
S. Radido, J.
Reported By Andrew Halonyere

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Issues
  1. Whether the Registered Trustees of The Confederation of Kenya Trade Unions (respondent) could be classified as a trade union within the frame work of the labour laws of Kenya.
  2. Whether the Industrial Court has jurisdiction to arbitrate on a dispute between a duly registered trade union and a body registered under a different regime of law but whose objectives appear to suggest it is a trade union.
  3. Whether the Industrial Court has Jurisdiction in terms of Article 165 (3) (b) of the Constitution as read with Articles 162 (2) and 165(5) (b).
Labour Law -trade unions – entity registered under a different regime of law but whose objectives appears to suggest it is a trade union - whether such entity is a trade union under the labour laws of Kenya – whether the Industrial Court has jurisdiction to arbitrate on a dispute between a duly registered trade union and such entity

Statutes -interpretation of statutes – definition of a trade union – Constitution of Kenya, 2010, Article 162 (2)- Labour Relations Act 2007, section 2 – Industrial Court Act 2011, section 12, (1),(2)

This was a preliminary objection application challenging the Industrial Court's jurisdiction to entertain a claim on the ground that the respondent was not a Trade Union within the meaning of the labour laws of Kenya. Read More...

Held:

  1. Section 2 of the Labour Relations Act 2007, indicates that two different types of entities are contemplated. These are 'registered trade union' which is defined as a trade union registered or deemed to be registered as a trade union under the Act and a 'trade union' which is defined as an association of employees whose principal purpose is to regulate relations between employees and employers including any employers' organisation. The Industrial Court Act, 2011 has in its interpretation part at section 2 defined a trade union to mean a registered association of employees whose principal purpose is to regulate relations between employees and employers and includes an employers' organisation. Therefore the respondent, considering its objectives though not a registered trade union, is a trade union none the less for the purposes of the Labour Relations Act.
  2. The statutory underpinning for the jurisdiction of the Industrial Court is found in section 12 of the Industrial Court Act, 2011. The relevant provision is section 12(2) which is to the effect that an application, claim or complaint may be lodged with the Industrial Court against a trade union. Section 12(2) however should not be interpreted in isolation from section 12(1) which gives the Industrial Court exclusive original and appellate jurisdiction to determine all disputes referred to it in accordance with Article 162(2) of the Constitution and other laws including 'disputes between an employer's organisation and a trade union's. Therefore the Industrial Court has the jurisdiction to determine the claim filed by COTU (K) against the respondent.
  3. (Obiter) "I do not think it is appropriate to attempt to answer the issue on the Constitutional jurisdiction of the Industrial Court at this stage. I am also aware of 2 recent conflicting decisions of the High Court given in Nairobi High Court Petition No.170 of 2012 United States International University (USIU) v The Attorney General & others (2012) eKLR and Nairobi High Court Petition No. 341 of 2011, Samuel G. Momanyi v the Attorney General & Another [2012] eKLR on the jurisdiction of the Industrial Court regarding enforcement and interpretation of the Bill of Rights as implicated in employment and industrial relation matters. I am fortified in not making a decision thereon with the realisation that the determination of that question is central to the resolution of the core issues raised in the Statement of Claim herein and raises a substantial question of law as envisaged under section 21 of the Industrial Court Act, 2011 and I do not want to pre-empt such resolution."

Preliminary objection dismissed. Respondent ordered to file response on or before October 5, 2012. The registrar of the industrial court directed to place the file after a lapse of ten days before the chief Justice for purposes of assigning an uneven number of judges of the Industrial Court.

Employment Law Termination of work contract does not automatically terminate insurance medical cover

Jackline Wanjiku Munyua & another v AAR Health Services Limited [2012] eKLR
Civil Suit No. 602 of 2009
High Court at Nairobi
G.V. Odunga, J.
October 2, 2012
Reported by Sylvie Nyamunga

Download the Decision

Issues
  1. Whether the relationship between the plaintiff and the defendant was that of employer/employee.
  2. Whether the defendant was justified in terminating the 1st plaintiff's contract.
  3. Whether the termination of the said contract automatically terminated the insurance medical cover.
  4. Whether at the time of the 1st plaintiff incurred the contested medical expenses, there was in force a valid insurance medical cover.
Employment Law - contract of employment –whether an Agent Agreement is a contract of employment- termination of the contract- whether termination procedures were properly followed-whether termination of contract automatically terminated medical insurance-claim against the respondent for payment of medical bills – Insurance Act Cap 487- Employment Act, 2007 Read More...

Held:

  1. The Agent Agreement between the 1st plaintiff and the defendant was an employment contract and not a "contract for services". Therefore the 1st plaintiff was an employee of the defendant and her relationship with the defendant was regulated by the provisions of the Employment Act, 2007.
  2. The termination was unlawful firstly because the mandatory procedures under the Employment Act were not complied with and secondly, the reason for termination was not merited because the defendant was obliged to explain the reasons for the termination in the presence of a third party described by the Act and to hear any representation that might be made by the applicant.
  3. The termination of the contract did not automatically terminate the insurance cover because the two contracts were different. On termination of the former, the latter would remain in force save that the benefits accruing thereto as a result of the former would cease to be enjoyed with the result that the 1st plaintiff would be obliged to pay the full amount.
  4. The defendant ought to have given the 1st plaintiff seven day notice of termination of medical cover. Therefore the defendant was liable to meet the 1st plaintiff's medical expenses arising from the accident in which the 1st plaintiff sustained injuries notwithstanding that it was entitled to terminate the medical cover at a later stage. The defendant is liable to settle the doctor's bills as well as the medical bills incurred by the plaintiff.

In the result the Plaintiff is awarded General Damages in the sum of Kshs. 450,000.00 and special damages of Kshs. 223,540.00 Costs awarded to the 1st plaintiff

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