Section 65 of the Kenya Ports Authority Act is Unconstitutional for Imposing a Requirement that Notice be Issued as a Pre-requisite to a Competent Suit

Bob Thompson Dickens Ngobi v Kenya Ports Authority and 2 others

Civil Suit No 87 of 2013

High Court at Mombasa

 P J O Otieno, J

 December 22, 2017

Reported by Ian Kiptoo

Constitutional Law-fundamental rights and freedoms-right of access to justice-enforcement of fundamental rights and freedoms-where a provision sought to hinder access to justice-whether a requirement, under section 65 of the Kenya Ports Authority Act, that notice be issued against the 1^st Defendant before commencing a suit failure to which would render a suit incompetent, was a violation of the Plaintiffs’ right to justice under article 48 of the Constitution of Kenya, 2010-Constitution of Kenya, 2010, article 48; Kenya Ports Authority Act, section 65

Limitation of Actions-institution of suit against a public authority-barring of suit by a statute-where a Plaintiff instituted a suit 12 months beyond the stipulated time-whether the suit against the 3^rd Defendant was barred by statute as time had elapsed for which the Plaintiff could bring an action

Statutes-interpretation of statutes-interpretation of the applicability of Public Authorities Limitation of Action Act vis-à-vis the Limitation of Action Act-where a public authority sought to rely on the Public Authorities Limitation of Action Act-whether the 3^rd Defendant could rely on the Public Authorities Limitation of Action Act as opposed to the Limitation of Action Act by virtue of the use of the word authority- Public Authorities Limitation of Action Act, section 39(1); Kenya Ports Authority Act, section 3(2)

Brief Facts

Before court for determination were two Notices of Preliminary Objection by the 1^st and 3^rd Defendants. The Defendants contended that failure to issue a notice pursuant to section 65 of the Kenya Ports Authority Act rendered the suit incompetent and that section 39(1) of the Public Authorities Limitation of Action Act barred the suit that was filed.

Issues

1. Whether a requirement, under section 65 of the Kenya Ports Authority Act that notice be issued against the 1^st Defendant before commencing a suit failure to which would render a suit incompetent, was a violation of the Plaintiffs’ right to justice under article 48 of the Constitution of Kenya, 2010.
2. Whether the suit against the 3^rd Defendant was barred by statute as time had elapsed for which the Plaintiff could bring an action.
3. Whether the 3^rd Defendant could rely on the Public Authorities Limitation of Action Act as opposed to the Limitation of Action Act by virtue of the use of the word authority.

Relevant Provisions of the Law

Kenya Ports Authority Act

Section 65     

 (1) No person shall be entitled to compensation for non-delivery of the whole of a consignment of goods, or for any separate package forming part of such consignment, accepted by the Authority for handling or warehousing unless a claim in writing, giving such particulars as may reasonably be necessary, is given to the Managing Director within six months of the date upon which such goods were accepted by the Authority.

 (2) No person shall be entitled to compensation for any goods missing from a packed or unpacked consignment or, or for misdelivery of, or damage to, any goods accepted by the Authority for handling or warehousing unless:-

 a. The Managing Director is notified of such fact in writing within four days of the date upon which such goods were delivered to the consignee or person entitled to take delivery thereof; and

 b. A claim in writing, giving such particulars as may reasonably be necessary, is given to the Managing Director within one month of such date.

 (3) Where the person claiming compensation proves that it was impracticable for him to notify the Managing Director, or give the Managing Director his claim, as set out in subsection (1) and (2) within the time specified therein and that such notification or claim was made or given in reasonable time nothing in those subsections shall prejudice the right of such person to obtain compensation

Section 66

Where any action or other legal proceeding is commenced against the Authority for any act done in pursuance or execution, or intended execution, of this Act or of any public duty or authority, or in respect of any alleged neglect or default in the execution of this Act or of any such duty or authority, the following provisions shall have effect:-

 a) The action or legal proceeding shall not be commenced against the Authority until at least one month after written notice containing the particulars of the claim, and of intention to commence the action or legal proceeding, has been served upon the Managing Director by the plaintiff or his agent.

 b) The action or legal proceeding shall not lie or be instituted unless it is commenced within twelve months next after the act, neglect or default complained of or, in the case of continuing injury or damage, within six months next after cessation thereof

The Kenya Revenue Authority Act

Section 3(2)

“The Authority shall be a body corporate with perpetual succession and a common seal and shall, subject to this Act, be capable in its corporate name of:- 

 a)  Suing and being sued: Provided that any legal proceedings against the Authority arising from the performance of the functions or the exercise of any of the powers of the Authority under section 5 shall be deemed to be legal proceedings against the Government within the meaning of the Government Proceedings Act;

 b)  Taking, purchasing or otherwise acquiring, holding, charging or disposing of movable and immovable property;

 c)  Borrowing or lending money;

 d) Doing or performing all other things or acts for the furtherance of the provisions of this Act, which may be lawfully done or performed by a body corporate”.

Government Proceedings Act Chapter 40

Section 13A

(1) No proceedings against the Government shall lie or be instituted until after the expiry of a period of thirty days after a notice in writing has been served on the Government in relation to those proceedings.

 (2) The notice to be served under this section shall be in the form set out in the Third Schedule and shall include the following particulars:-

 a. The full names, description and place of residence of the proposed plaintiff;

 b. The date upon which the cause of action is alleged to have accrued;

 c. The name of the Government department alleged to be responsible and the full names of any servant or agent whom it is intended to join as a defendant;

 d. A concise statement of the facts on which it is alleged that the liability of the Government and of any such servant or agent has arisen;

 e.  The relief that will be claimed and, so far as may be practicable, the value of the subject matter of the intended proceedings or the amount which it is intended to claim.

Section 16

(1) In any civil proceedings by or against the Government the court may, subject to the provisions of this Act, make any order that it may make in proceedings between subjects, and otherwise give such appropriate relief as the case may require:

 Provided that:-

 (i)  Where in any proceedings against the Government any relief is sought as might in proceedings between subjects be granted by way of injunction or specific performance, the court shall not grant an injunction or make an order for specific performance, but may in lieu thereof make an order declaratory of the rights of the parties; and

 (ii)    In any proceedings against the Government for the recovery of land or other property the court shall not make an order for the recovery of the land or the delivery of the property, but may in lieu thereof make an order declaring that the plaintiff is entitled as against the Government to the land or property, or to the possession thereof.

Held

1. The 1^st and 3^rd Defendants suit was bad for having been filed prior to the notices that were considered mandatory and was also brought after the prescribed period had lapsed and hence time barred. After the promulgation of the Constitution of Kenya 2010, (Constitution) certain provisions of the hitherto existing laws had the option of being read as being modified by the Constitution so as to be compliant or just be rendered and declared unconstitutional. One of the many hallmarks of Kenya’s Constitution was the entrenched Bill of Rights with various rights including right to access justice unhindered.
2. Various superior courts in Kenya had said more than once that a statutory provision that sought to hinder any person’s access to justice, impose hurdles on the way of citizens from seeking accountability, openness and efficiency in service delivery by government or government agencies had to be seen to violate article 48 of the Constitution and would be held to be unconstitutional for being antibusiness, oppressive and suppressed the need to interrogate the Constitutional values of accountability, transparency and efficiency expected of State Agencies.
3. The 1^st and 3^rd Defendants were created by Acts of parliament and both had been given legal personality in that they were capable of suing and being sued independent of the office of the Attorney General. Furthermore, the two statutes creating the two Defendants were explicit and the two ran as distinct corporates not as a government department. Both recruited their personnel including their legal personnel independent of the office of the Attorney General whose involvement was limited to representation in the board of directors.
4. A statutory corporation, unless the creating statute said otherwise, was not an appendage or department of the Government as contemplated under the Government Proceedings Act. One needed not invite the application of the Government Proceedings Act when parliament in its own wisdom had spent time and public resources to enact a statute to regulate the body so desired to be created.
5. The provisions of section 65 of the Kenya Ports Authority Act were in Pari materia to sections 13A of the Government Proceedings Act and 3(2) of the Kenya Revenue Authority Act. That being so the interpretation which the superior courts had given to section 13A of the Government Proceedings Act and 3(2) of the Kenya Revenue Authority Act would apply to section 65 of Kenya Ports Authority Act. Being fully persuaded by the decisions of the High Court and fully bound by the findings of the Court of Appeal, section 65 of the Kenya Ports Authority Act was in violation of article 48 of the Constitution and to that extent unconstitutional. For that reason, the two limbs in the two Notices of Preliminary Objection could not stand but would fail and were dismissed.
6. In any event section 65(3) also provided for a window for a claimant to explain inability to give the Notice. Such an explanation could only be given by evidence adducing facts hence that was a point that ought not to have been canvassed as a Notice of Preliminary Objection.
7. The 3^rd Defendant being a creature of the specific statute did not need to seek resort in other legislations on matters otherwise fully covered and which ought to have been covered by its parent statute. The Public Authorities Limitation Act did not apply to Kenya Revenue Authority at all. The use of the word public authority by itself did not invite the Application of the Act to the 3^rd Defendant. Having stated that the 3^rd Defendant was not a government department or a local authority and could not get refuge behind The Public Authorities Limitation Act.  That being the position the law on limitation pertaining to the 3^rd Defendant, its parent act having not provided for limitation, had to be the limitation of Actions Act Cap 22. Accordingly, reliance by the 3^rd Defendant upon the Public Authorities Limitation Act was ill founded conceived and advised and could not be sustained.
8. In regards to the 1^st Defendant, parliament had specifically provided a prescription on timelines within which to file suit to be twelve months after the act. In the instant case it was pleaded that the loss sued upon occurred on October 25, 2011 and the suit was not filed till July 19, 2013. That was clearly outside the time prescribed by the statute and it was not difficult to find that the Suit when filed was statute barred and had to be struck out as against the 1^st Defendant.
9. The Plaintiff pleaded and prayed specifically against the 2^nd Defendant regarding the cost of freight and demurrage charges. Whether or not such claims were merited had to be left to the realm of trial by production and could not be adequately and lawfully determined by an application to strike out. It was not in dispute that striking out of a pleading was a drastic and draconian remedy that the Court had to never resort to freely and every time but would only be available for the clear of the clearest cases.
10. The dispute on the demurrage charges was not available for determination if the 2^nd Defendant was not a party to the suit, being the party claims was made against. In the instant level and before evidence was led, the Plaintiff was not nonsuited against the 2^nd Defendant as there was no reasonable claim shown against the 2^nd Defendant.

 Application partly allowed

Orders

1. The Notice of Preliminary Objection by the 1^st Defendant was upheld and the Suit against that 1^st Defendant was struck out with costs for having been filed out of time statute barred.
2. The Notice of Preliminary Objection by the 3^rd Defendant being grounded upon the Provisions of section 3(1) Kenya Ports Authority Act and section 13A of the Government Proceedings Act lacked merit, was misconceived and therefore dismissed.
3. The Application by the 2^nd Defendant lacked merit and was dismissed.
4. By way of directions the suit would proceed as between the Plaintiff, 2^nd and 3^rd Defendants and would be mentioned for case conference. For that reason, leave was granted to any party who desired to file any additional witness statements or bundles of documents to do so within 30 days from date of the ruling.
5. Costs awarded to the Plaintiff.