Weekly Newsletter 021/2020



Kenya Law

Weekly Newsletter


A mortgagor’s right to redemption expires   as soon as the mortgagee either sells the mortgaged property by public auction or enters into a binding contract in respect of it.
 
Isaiah Nyabuti Onchonga v Housing Finance Company of Kenya Ltd & another
Civil Case 575 of 2006
High Court of Kenya at Nairobi
E Tuiyott J
January 17, 2020
Reported by Ribia John
Download the Decision
 
Banking Law – loans – default of loans – penalty interest - whether the imposition of penalty interest/default rate on loans was a contractual matter which had to be expressly provided in a contract before it could be implemented. 
Land Law – mortgages - right of redemption – expiry of right of redemption - whether a mortgagor’s right to redemption expired at the date of registration of the transfer in the name of a buyer or as soon as the mortgagee either sold the mortgaged property by public auction or entered into a binding contract in respect of it – Indian Transfer of Property Act section 60 and 69.
Advocates – ethics – duty to notify client – where a bank failed to notify a client of court orders affecting the purchase of a piece of land - whether the bank acted in bad faith in informing a buyer of suit land court orders barring the sale of the suit property late (after the consent to transfer had been issued.
 
Brief Facts:
The plaintiff (customer) was a customer of the 1st defendant (bank). The customer acquired a loan from the bank. The customer fell in default and the bank exercised its statutory power of sale. By way of private treaty, the bank as chargee, sold the property to the 2nd defendant. The events leading to the sale of the property and the circumstances of transfer were at the heart of the controversy.
The plaintiff claimed that the statutory power of sale was exercised unprocedurally and against existing court orders. Further the plaintiff claimed that he was unfairly charged penalty interest as the same was not provided in the contract issuing the loan facility. The 1st defendant claimed to have exercised the sale procedurally and to have levied penalty interest because it was part of the usage and custom of banks when dealing with defaulters. The 2nd defendant claimed to be an innocent purchaser for value and sought for mesne profits.


Issues:
  1. Whether the imposition of penalty interest/default rate on loans was a contractual matter which had to be expressly provided in a contract before it could be implemented.
  2. Whether the bank followed the required laid down procedure in exercising the statutory power of sale.
  3. Whether a mortgagor’s right to redemption expired at the date of registration of the transfer in the name of a buyer or as soon as the mortgagee either sold the mortgaged property by public auction or entered into a binding contract in respect of it.
  4. Whether the bank acted in bad faith by informing a buyer of suit land court orders barring the sale of the suit property late (after the consent to transfer had been issued.
Held:
  1. There were two schools of thought on the concept of levying default/penalty. The first school was of the thought that interest was part of Bank trade usage and custom. The other school was of the thought that the imposition of penalty interest/default rate was a contractual matter which had to be expressly provided in a contract before it could be implemented.
  2. If a bank sought to impose certain charges or interest, then it had to make that intention clear in the contract it entered with the customer.There had to be clarity on what the charges and interest were and how they were to be imposed.
  3. In the instant matter, the bank which was admittedly the author of the contract made it clear that it would charge an interest rate at 26% per annum or at such reduced or increased rate as the bank would deem as fairly representing the rate of interest commonly chargeable in Kenya. The Bank chose not to include a charge of default interest and to impose such interest through judicial fiat or craft would be to re-write the contract to the detriment of the borrower. The appellate court was unable to agree with the conclusion of trial court.It could well be laudable that a penalty interest be charged so as to discourage borrowers from defaulting in repayment of their obligations yet unless such charges were expressly provided for and defined, then the lender would have to make do with imposing the contracted interest rates even on the arrears.The alternative would be for the bank to call up payment of the debt immediately there was default.
  4. Even if the appellate court were to hold that the levying of default penalty interest and/or charge was on the basis of custom and usage in the mortgage industry in Kenya, the same needed to be proved by the bank.The bank failed to provide any proof that levying of such interest or charges was so commonplace and certain as to form a custom and usage.Further there was need for evidence as to the rate or sort of rate to be applied as default charge or interest.
  5. The doctrines of waiver or estoppell or acquiesce were not available to the bank as they were not expressly or specifically pleaded. If they were to be set up as a defence then they needed to be specifically pleaded as required by the provisions of order 3 rule 4 of the Civil Procedure Rules.
  6. The debt as on July 1, 2006 was on the sum of Kshs.2,333,326.65. The sum remained unpaid up to the time the bank sold the charged property. The bank was entitled to exercise its statutory power of sale as there was default.
  7. The bank followed procedure by serving the customer a three-month statutory power of sale. Whilst the statutory notice could have been a demand for more money that was due because of inclusion of the now impugned penalty charges and interest, still there was no evidence that the customer had paid what would have been the lawful due. Even after exclusion of the illegal charges, there was still default.
  8. The property was sold by way of private treaty, the bank relied on section 69(1) of the Transfer of Property Act in selling the property. The Customer had not been able to present any law that would have barred the Bank from selling the property by way of private treaty.The bank could not be faulted in choosing that mode of sale. The property was sold in good faith.
  9. The property was not sold below market value. The customer did not provide proof of any valuation to demonstrate that alleged sale was at an under value.In the absence of such proof, the bank was under no obligation to defend the consideration of Kshs.5,400,000.00 yielded inthe sale.
  10. The sale and transfer of the property did not disrespect the High Court orders of October 30, 2006 and November 29, 2006 which provided for a status quo to be maintained.By October 30, 2006, the bank had already entered into a contract by sale with the 2nd defendant, the same having been entered on October 24, 2006.By October 24, the status was that the customer had already lost his equity of redemption as the equity of redemption was extinguished upon the execution of a valid contract of sale. Until 1985, the equity of redemption remained in the mortgagor until the date of registration of the transfer in the name of the buyer. The mortgagor’s right of redemption was lost as soon as the mortgagee either sold the mortgaged property by public auction or entered into a binding contract in respect of it. The status quo order could not resuscitate what was already extinguished or at an end in law.
  11. A court order restricting the transfer to the 2nd defendant was made in the presence of the bank’s lawyer on November 29, 2006 and the bank was duty-bound to immediately inform the lawyers of the 2nd defendant of the order.The evidence, however, was that the bank only informed the 2nd defendant of the order on December 20, 2006, a day after the consent to transfer had been issued.In acting that late, the bank did not act in good faith in the process of transfer of the suit property.
  12. Because the instant court had been unable to fault the bank’s exercise of its statutory power of sale and that the customer’s equity of redemption was extinguished on October 24, 2006 when a valid contract was entered between the Bank and the 2nd defendant, it could be profitless to reverse the transfer.However, for purposes of striking a blow for the dignity of court process and its orders, the customer was at liberty to mount an application for contempt.
  13. There was no fault on the part of the 2nd defendant.He was an innocent purchaser for value and had demonstrated how he paid for the property. A substantial portion was through finance advanced by the bank.The customer wrongly remained in possession of the suit property and that unlawful possession commenced when he lost his equity of redemption. On mesne profits, the 2nd defendant failed to provide any proof whatsoever.
Appeal partly allowed.
Orders
  1. The 1st defendant ordered to render a true and just account of the debt as it stood on October 24, 2006 when the property was sold to the 2nd defendant.The account had to exclude all penalty interest and default charges levied and give regard to the instant court’s holding that the plaintiff owed the 1st defendant Kshs. 2,233,326.65 at July 1, 2006.Thereafter the court would make final orders including those of costs in respect to the claim by the plaintiff against the 1st defendant.
  2. Judgment entered for the 2nd defendant as against the plaintiff for vacant possession of all that property known as LR NO. 209/8343/94 situated in the City of Nairobi and registered as I.R 37621/13 in favour of the 2nd defendant.
  3. Vacant possession ordered above was to be given within 30 days of the instant order.
  4. The 2nd defendant claim for general damages for Mesne profit was dismissed.
  5. The plaintiff was to meet the 2nd defendant’s costs on the counterclaim.
Kenya Law
Case Updates Issue 021/2020
Case Summaries

CONSTITUTIONAL LAW In the absence of competency, one could not be declared competent for appointment to a position in public office

Kenya Young Parliamentarians Association & 2 others v Cabinet Secretary Labour & Social Protection & 3 others; Institute of Human Resource Management & another (Interested parties)
Petition 190 & 193 of 2019 (Consolidated)
Employment and Labour Relations Court at Nairobi
ON Makau, J
January 17, 2020
Reported by Ribia John

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Constitutional Law – leadership and integrity – national values and principles - appointment to public office – constitutional and statutory qualifications for appointment to the role of the chairperson of a public institution – competence - whether in the absence of experience in a specific field, one could be declared competent for appointment to a position in public office - Constitution of Kenya, 2010 articles 10,27, 73(2) and 232; Public Service Act (Values and Principles) Act section 10; National Employment Authority Act section 10(2)
Constitutional Law – leadership and integrity – national values and principles - appointment to public office – work experience - constitutional and statutory qualifications for appointment to the role of the chairperson of the National Employment Authority Bard - whether the 1st interested party met the required constitutional and statutory qualifications and experience for appointment to the position of the chairperson of the National Employment Authority Board - whether the appointment of the 1st interested party to the position of the chairperson of the National Employment Authority Board met the laid down substantive and procedural constitutional requirements applicable in public service appointments - whether the 1st respondent’s handpicking and appointment of the 1st interested party to the position of the chairperson of the National Employment Authority Board without following the laid out substantive and procedural, constitutional and statutory requirements applicable in public service appointments was unconstitutional - Constitution of Kenya, 2010 articles 10,27, 73(2) and 232; Public Service Act (Values and Principles) Act section 10; National Employment Authority Act section 10(2)
Labour Law – appointment – appointment to public office – appointment to the position of the chairperson of the National Employment Authority - competence – experience – requirement of having 7 years’ experience in human resource management – whether one could be appointed to the role of the chairperson of the National Employment Authority without the requisite work experience – National Employment Authority Act section 10(2)
Labour Law - roles of a chairperson of a board of a public institution – whetehr such a role could be ceremonial - whether one could be appointed to the role of chairperson of a public institution could be in a ceremonial capacity.
Words and Phrases – experience – definition of - experience as knowledge or skill gained over time - The Oxford English dictionary, 12th Edition

Brief facts:
The petitioner was aggrieved by the appointment of the 1st interested party as the chairperson of the National Employment Authority (NEA) by the Cabinet Secretary for Labour and Social Protection (1st respondent). The petitioner contended that the 1st interested party was not qualified under the law, policy and best practice to be the chairperson of the NEA; in particular that the 1st respondent did not have atleast 7 years of experience in Human Resource Management as required under section 10(2)(c) of the National Employment Authority Act

Issues:

  1. Whether the 1st interested party met the required constitutional and statutory qualifications and experience for appointment to the position of the chairperson of the National Employment Authority Board.
  2. Whether one could be appointed to the role of the chairperson of the National Employment Authority without the requisite work experience of having served 7 years in human resource management under section 10(2) National Employment Authority Act.
  3. Whether in the absence of experience in a specific field, one could be declared competent for appointment to a position in public office.
  4. Whether one could be appointed to the role of chairperson of the National Employment Authority in a ceremonial capacity.
  5. Whether the appointment of the 1st interested party to the position of the chairperson of the National Employment Authority Board met the laid down substantive and procedural constitutional requirements applicable in public service appointments.
  6. Whether the 1st respondent’s handpicking and appointment of the 1st interested party to the position of the chairperson of the National Employment Authority Board without following the laid out substantive and procedural, constitutional and statutory requirements applicable in public service appointments was unconstitutional.
  7. Whether the right of access to information was available to juridical persons.
  8. Whether the failure by the respondents to provide the petitioners with the information concerning the recruitment process of the 1st interested party as the chairperson of NEA violated the petitioners’ rights to information Read More..

Relevant Provisions of the Law
National Employment Authority Act
Section 10(2)
The Board of the Authority
A person shall be qualified for appointment as the chairperson of the Board if that person—

(a) is a citizen of Kenya;
(b) meets the requirements of Chapter Six of the Constitution; and
(c) has at least seven years' experience in human resource management or its equivalent.

Held:

  1. Human Resource Management involved the management of persons in order to achieve an organisation’s objectives. It included planning, procurement, compensation, integration among others. The Human Resource Management Professionals Act established the Human Resource Institute and provided for the regulation of the standards and practice of human resource management professionals. The 1st interested party was definitely not a human resource professional under the Human Resource Management Professionals Act according to the Institute. However, Section 10(2) of the NEA Act only required 7 years’ experience in human resource management or equivalent. Experience was knowledge or skill gained over time.
  2. The court considered the CV of the 1st interested party but found no iota of evidence that she had any experience in human resource management. The roles she had undertaken as shown in the CV could not be interpreted as being the equivalent of human resource management because there was nothing to show that she had ever held managerial and operative functions of human resource management anywhere, for 7 years. The concepts and techniques of human resource management which would lead to the experience sought under section 10(2) of the NEA Act could not be assumed to be obliquely attained. Such experience would only accrue from a background in the subject or interaction with such functions, which I find the appointee has not exhibited. Furthermore, chapter 6 of the constitution provided that the guided principles of leadership and integrity included selection on the basis of personal integrity, competence and suitability.
  3. The 1st interested party’s personal integrity was not in question. However, her competence and suitability to the appointed was questionable. In particular, that the lack of experience in human resource management or its equivalent made her incompetent and unsuitable for the position. Competence could be said to be ability, knowledge or skill that enabled a person to understand and act effectively in a job situation. It was not necessary for one to have academic qualifications in order to be competent to do a certain job or assignment. It was possible for one to have competence in a certain field out of practice and experience, for instance, having undertaken similar duties in a similar or related field for some time. Such experience would make the person competent without necessarily having attained higher academic qualification in that field. In its plain and ordinary meaning, the word “competence” meant minimum ability to do that particular job or work.
  4. The Constitution provided for competency as a principle of leadership and governance. Such competence would mean the ability by the 1st interested party to undertake the role having had experience in human resource management. In the absence of experience in the specific field, the 1st interested party was not competent for appointment to the position of Chairperson of NEA.
  5. The Cabinet Secretary (1st respondent) did not appoint the 1st interested party as a ceremonial steward to the NEA. The relevant professional qualification and skills were necessary in that role of the NEA Chairperson. As a Chairperson, the 1st interested party was not expected to be a flower-girl in NEA but the person to provide leadership to the board and the specialised Authority in order to ensure that it achieved its functions under the NEA Act. The constitutional dispensation required that value for tax payers’ money was guaranteed through meeting of thresholds before appointing persons to public positions. No one should be appointed to any public office if he or she could not meet the legitimate purpose of government in the constitutional or statutory positions.
  6. The petitioners had proved that the 1st interested party did not meet the qualifications for appointment to the position of Chairperson of NEA prescribed under section 10(2) of the National Employment Authority Act.
  7. The NEA Act did not provide for the process of recruitment of persons to the board including that the chairperson. However, any appointment of a public officer had to adhere to the values set out under article 10 and article 232 and had to take into account the provisions of chapter six of the Constitution, in particular article 73 (2). In addition, adherence had to be made to section 10 of the Public Service (Values and Principles) Act required that public appointments and promotions be on the basis of fair competition and merit.
  8. The petitioners requested for the list of shortlisted candidates, the scores of each applicant and the reviews and evaluation of each of the applicants but the respondents declined to supply the same. The respondents argued that the information was not submitted due to the short duration between the date of the letter of request and the date of filing the suit. That explanation did not hold because up to the time when the hearing was concluded, the respondents did not avail the requested information documents related to the recruitment process except the 1st interested party.
  9. It was such information that the court ought to interrogate in order to verify whether the recruitment process was in compliance with the Constitution because it was in the public interest that merit and fair competition was considered in appointing the 1st interested party as a chairperson of the Authority that was expected to provide for a comprehensive institutional framework for employment management, to enhance employment promotion interventions and to enhance access to employment for youth, minorities and marginalized groups.
  10. The 1st respondent had not proved that he competitively appointed the 1st interested party as the chairperson of the National Employment Authority. The 1st respondent also did not prove that there was a mechanism by which the public was to interrogate the integrity and competence of the appointee. The process of the 1st interested party’s appointment was flawed and in breach of the constitution and statutes.
  11. The right of access to information under article 35 of the Constitution was only available to citizens who were natural persons and not juridical persons like corporations or companies or organisations like the petitioners herein. The failure by the respondents to provide the petitioners with the information concerning the recruitment process of the 1st interested party as the chairperson of NEA did not violate the petitioners’ rights to information under article 35(1). The petitioners were not entitled to damages for violation of their alleged right to information under article 35 of the Constitution.

Petition partly allowed.
Orders

  1. Declaration that the 1st interested party did not meet the required constitutional and statutory qualifications and experience for appointment to the position of the chairperson of the National Employment Authority Board and thus she was unqualified, unsuitable and unfit to serve as chairperson of the National Employment Authority Board.
  2. Declaration that the purported appointment of the 1st interested party to the position of the chairperson of the National Employment Authority Board vide Gazette Notice No. 9815 (vol. Cxxi-no. 137) dated October 14, 2019 did not meet the laid down substantive and procedural constitutional requirements applicable in public service appointments; and was therefore unconstitutional, unlawful, irregular, null and void for being in contravention of articles 10,27, 73(2) and 232 of the Constitution of Kenya, 2010.
  3. Declaration that the 1st respondent’s purported handpicking and appointment of the 1st interested party vide Gazette Notice No. 9816 (vol. Cxxi- no. 137) dated October 14, 2019, to the position of the chairperson of the National Employment Authority Board without following the laid out substantive and procedural, constitutional and statutory requirements applicable in public service appointments, was unconstitutional, unlawful and irregular for being in contravention of articles 10, 27, 73(2) and 232 of the Constitution Of Kenya , 2010.
  4. The Gazette Notice No. 9816 (Vol. Cxxi-No.137) dated October 14, 2019 vide which the Cabinet Secretary for Labour and Social Protection purported to appoint Mary Wambui Munene as the chairperson of the National Employment Authority Board was quashed.
  5. Permanent injunction issued restraining the 1st interested party from assuming office as the Chairperson of the National Employment Authority.
  6. The 1st respondent was directed to ensure that future appointments of the Chairperson of the National Employment Authority Board had to strictly adhere to the substantive and procedural, constitutional and statutory requirement applicable in public service.
EVIDENCE LAW

Supreme Court appeal on racial discrimination dismissed on grounds that the petitioners did not prove their claim.

Samson Gwer & 5 others v Kenya Medical Research Institute & 3 others
Petition No 12 of 2019
Supreme Court of Kenya
MK Ibrahim, JB Ojwang, SC Wanjala, N Ndungu & I Lenaola, SCJJ
January 10, 2020

Reported by Beryl Ikamari

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Evidence Law - burden of proof - shifting of the burden of proof - discharge of the initial burden of proof - whether the petitioners' evidence of alleged racial discrimination was sufficient to discharge the initial burden of proof and shift the burden of proof to the respondent - Evidence Act (Cap 80), sections 108 and 109.
Evidence Law - proof of facts - alleged violations of intellectual property rights by an employer - where evidence did not show when an employee made an alleged innovation and the manner in which the alleged innovation was made - whether the evidence sufficiently proved violations of intellectual property rights.
Civil Practice and Procedure - appeals - cross-appeal - failure by the Court of Appeal to make determinations on a cross-appeal - whether the Supreme Court would refer the cross-appeal back to the Court of Appeal for a determination.

Brief Facts:
The petitioners were employees of the 1st respondent and they were also attached to the KEMRI-Wellcome Trust Research Programme, hosted by 1st respondent, as clinical researchers. They were pursuing post-graduate studies leading to the award of the degree of Doctor of Philosophy. Their contention was that under the programme they faced racial discrimination and that research grants were awarded in favour of European Economic Area residents at the expense of equally or more qualified local blacks.
The petitioners said that they were engaged under multiple and extremely short contracts and that with different contracts from the 1st respondent and the programme, there was an unclear chain of command. Contracts from the two entities differed in terms of gratuity and staff guidelines and the doctors' rights to join a trade union of their choice had been curtailed. The petitioners added that in violation of the rules of natural justice, there had been unfair dismissal effected without a hearing and without reasons being given. They said that those who raised grievances were victimized through suspension and improper indefinite leave.
The Employment and Labour Relations Court made the finding that the petitioners had been discriminated and granted various reliefs including an award of five million Kenya shillings as compensation. The Court of Appeal set aside those findings and entered judgment which was inter alia to the effect that the 1st respondent did not employ foreign researchers who retained their careers structures and terms of employment from their home institutions and universities while visiting the 1st respondent. The Court of Appeal said that the differential pay was based on the different contracts that the visiting researchers had with third parties and the 1st respondent was not privy to those contracts. An appeal was lodged at the Supreme Court. The reliefs sought by the petitioners included an interpretation as to what would amount to indirect discrimination and a declaration that institutional discrimination was part of discrimination prohibited under article 27 of the Constitution.

Issues:

  1. Whether employees of a research institution had discharged the initial burden of proof on alleged racial discrimination in the institution so as to cause the burden of proof on discrimination to shift to their employer.
  2. Whether sufficient evidence was tendered by employees to show that an employer had violated their intellectual property rights.
  3. What was the effect of a failure by the Court of Appeal to make determinations relating to a cross-appeal? Read More...

Held:

  1. A party that made an averment in validation of a claim was the one to establish the plain veracity of the claim. In civil suits the standard of proof was the balance of probability. It meant that there had to be evidence on the basis of which the court could determine that it was more probable than not that the respondent bore responsibility in whole or part for what was complained of.
  2. Section 108 of the Evidence Act provided that the burden of proof in a suit or procedure would lie on the person that would fail if no evidence at all were given on either side. Additionally, section 109 of the Evidence Act provided that the burden of proof as to any particular fact lay on the person who wished the court to believe in its existence, unless it was provided by any law that the proof of that fact had to lie on any particular person. The basic rule on the shifting of the evidential burden was that the petitioner should be under an obligation to discharge the initial burden of proof before the respondents were invited to bear the evidential burden.
  3. The petitioners had the overriding obligation to provide evidence to establish that they had suffered discrimination in the hands of the 1st respondent. Events at both superior courts below the Supreme Court showed that the burden of proof did not shift to the 1st respondent.
  4. The petitioners' allegations of discrimination were captured in various e-mails, affidavits, and the petition. The 1st respondent explained how foreign researchers were engaged and that the 1st respondent had no control over their terms of employment. That explanation was not controverted by the petitioners who merely claimed that the 1st respondent's lack of control over terms of engagement had exposed them to discrimination.
  5. Despite the fact that proof of indirect discrimination was difficult, the petitioner ought to have provided sufficient evidence before the court to enable it to make a determination. In that regard, the petitioners failed to discharge their initial burden of proof.
  6. The claim of violation of intellectual property rights had its basis on various allegations including the allegation that the 5th petitioner made an innovation while he was not in the 1st respondent's employment, that there was citation amnesia and disregard syndrome. The claim with respect to the 5th respondent could not be raised at the Supreme Court as it was not part of the pleadings at the Employment and Labour Relations.
  7. The e-mail communications used by the petitioners to prove violations of intellectual property rights did not amount to sufficient proof. It was not possible to ascertain when the alleged innovations were made and the manner in which they were made so as to dissociate them from the employment relationship.
  8. The cross-appeal entailed a claim that the trial court failed to calculate and to award benefits such as payment for unfair termination of services, payments in lieu of leave, unpaid salary in lieu of notice, and other outstanding payments. The Court of Appeal mentioned the cross-appeal but it did not make determinations on it. The petitioners did not succeed in proving that they had been discriminated and the compensation sought in the cross-appeal was for the unproven discrimination. Justice under the circumstances did not require the referral of the cross-appeal back to the Court of Appeal for determination.

Appeal dismissed. Parties were to bear their own costs.

JURISDICTION

The Court of Appeal lacks jurisdiction to hear and determine appeals about the validity of the election of a member of a county assembly.

Hamdia Yaroi Shek Nuri v Faith Tumaini Kombe & 2 others
Petition No 38 of 2018
Supreme Court of Kenya
DK Maraga, CJ & P, MK Ibrahim, JB Ojwang, SC Wanjala, N Ndungu & I Lenaola, SCJJ
December 17, 2019
Reported by Beryl Ikamari

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Jurisdiction - jurisdiction of the Court of Appeal - election petition appeals - appeals about the validity of the election of a member of a county assembly - whether the Court of Appeal had jurisdiction to hear and determine a second appeal whose subject matter was the validity of the election of a member of a county assembly - Constitution of Kenya 2010, articles 164(3)(a) & 87; Elections Act, No 24 of 2011, sections 85A & 75(4).

Brief facts:
The 1st respondent was gazetted as the 2nd respondent's nominee to the Tana River County Assembly to fill the gender top up slot. The nomination was challenged at the Chief Magistrate's Court by the petitioner on grounds that the 1st respondent was not a registered voter in Tana River County. The Chief Magistrate's Court allowed the petition and made the finding that the 1st respondent's nomination was invalid, null and void.
The 1st and 2nd respondents filed a High Court appeal. The appeal was allowed on grounds that the petitioner had not discharged her burden of proof. In response, the petitioner filed an appeal at the Court of Appeal. The appeal was dismissed on the basis that the Court of Appeal lacked jurisdiction to hear and determine election petition appeals from the High Court, emanating from an election of a member of a county assembly (MCA).
The petitioner filed a Supreme Court appeal. Amongst the grounds of appeal was the assertion that section 85A of the Elections Act was overridden by article 164(3)(a) of the Constitution to the extent of its restrictiveness and superfluity. The said section 85A of the Elections Act allowed appeals to the Court of Appeal where the dispute concerned membership of the National Assembly, Senate or the office of county governors. It did not provide for members of a county assembly.

Issue:

Whether the Court of Appeal had jurisdiction to hear and determine an appeal from the High Court as a second appeal emanating from an election of a member of a county assembly. Read More...

Held:

  1. Section 75(1A) of the Elections Act provided for the jurisdiction of the Resident Magistrate's Court as designated by the Chief Justice to hear and determine disputes as to the validity of the election of a member of a county assembly. Section 75(4) of the same Act, provided for appeals to the High Court from the Resident Magistrates Court for disputes about the election of a member of a county assembly on matters of law only but it was silent on whether there would be a second appeal on such disputes to the Court of Appeal. Section 85A of the Elections Act provided for election petition appeals from the High Court to the Court of Appeal concerning the membership of the National Assembly, Senate or the Office of county governor on matters of law only. The said section 85A made no mention of any appeal lying to the Court of Appeal in an election petition concerning the membership of a county assembly.
  2. The perceived invalidity of section 85A of the Elections Act in light of the provisions of article 164(3)(a) of the Constitution was dispelled in previous decisions of the Supreme Court. Section 85A of the Elections Act was a product of a constitutional scheme requiring election petitions to be settled in a timely fashion. It restricted the number, length and cost of petitions and by doing so it met the commands of timely resolution of election disputes under article 87 of the Constitution. The petitioner's contentions on the constitutional validity of section 85A of the Elections Act were unsustainable.
  3. Article 87 of the Constitution required Parliament to enact legislation to establish mechanisms for the timely settling of electoral disputes. The setting of timelines in legislation was one of the mechanisms. Mechanisms for the timely settlement of disputes also included the form of petitions, the manner of service of petitions, the scope of appeals and the level of appeals. As long as such mechanisms did not violate the Constitution and they were in accord with article 87 of the Constitution, their validity was not questionable.
  4. Section 75(4) of the Elections Act preserved a right of appeal to the High Court in disputes about the election of a member of a county assembly but fell short of extending that right to a second-tier level. To argue that notwithstanding non-provision for a second appeal in section 75 (4) of the Elections Act, such right of appeal nonetheless subsisted under article 164(3)(a) of the Constitution, would be subversive of article 87 of the Constitution.
  5. In the absence of an express statutory provision, no second appeal could lie to the Court of Appeal, from the High Court, from an election petition concerning the validity of the election of a member of county assembly.

Petition dismissed.
Orders:-

  1. The Judgment of the Court of Appeal dated September 21, 2018 was upheld.
  2. Costs of the appeal were to be borne by the petitioner

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