Weekly Newsletter 037/2020



Kenya Law

Weekly Newsletter


Failure to reduce school fees upon the change of the mode of teaching by a school does not per se violate the right to education, rights of children and consumer rights
 

 

OAPA (Suing as Parents and/or Guardians of student minors currently schooling at Oshwal Academy) v Oshwal Education Relief Board & 2 others [2020] eKLR
Petition No. 158 of 2020
High Court at Nairobi
WK Korir, J
September 3, 2020
Reported by Kakai Toili
Download the Decision


 

Constitutional Law – fundamental rights and freedoms – enforcement of fundamental rights and freedoms - right to education, rights of children and consumer rights – claim that a school failed to reduce school fees upon the change of the mode of teaching from physical to use of online platforms – whether the failure to reduce the school fees violated the right to education, rights of children and consumer rights - Constitution of Kenya, 2010, articles 43, 46 and 53; Basic Education Act, 2013, section 2; Consumer Protection Act, 2012, sections 12 and 13. 

Constitutional Law– constitutional petitions – matters to be litigated through constitutional petitions – disputes arising from breach of contract -  where a party to the dispute alleged violation of his constitutional rights – whether a constitutional petition could be used to litigate disputes arising from breach of contracts.

Evidence Law – evidence – expert evidence – where a party sought an inquiry in respect of the use of online platforms to deliver the education curriculum – factors to consider - whether expert evidence was necessary - Basic Education Act, 2013, section 2.

Jurisdiction – jurisdiction of the High Court – jurisdiction to interfere with the amount of fees charged by a school - whether the High Court could interfere with the amount of fees payable to schools, and if so, under what circumstances.

 
Brief facts:

The petitioners filed the instant petition challenging online classes introduced by the 1st respondent following the closure of Kenyan schools as a result of the declaration of the coronavirus disease as a pandemic. The petitioners contended that through an email notification, without any consultation with them and in breach of the enabling provisions of the laws of Kenya, the 1st respondent rolled out a format of online classes across all year groups. They further contended that to facilitate the e-learning programme, they were required to ensure that the students had access to laptops, desktops, tablets or smart phones as well as access to WIFI connection. The petitioners additionally averred that the e-learning programme required constant supervision by parents or guardians or a responsible adult. Therefore, the petitioners contended that the added responsibilities were financially burdensome and had left many parents to relinquish their jobs so as to supervise their children.
The petitioners also contended that in April 17, 2020, the 1st respondent circulated an email advising them to pay the full school fees in respect of term three on or before May 15, 2020 to be eligible for a nominal discount of Kshs. 5,000 translating to 4.2% of the fees. They further contended that the e-mail was accompanied by a threat that non-compliant students would be deregistered from the programme and by extension the school for reason of non-payment of fees. The petitioners averred that in violation of article 46 of the Constitution of Kenya, 2010 (Constitution), the 1st respondent had continued to demand school fees at the rate equivalent to what was payable when the students were physically present in school. The petitioners further averred that a contractual relationship was impliedly created by an admission form filled by parents before a student was accepted and therefore the 1st respondent violated the Consumer Protection Act, 2012 (CPA) by failing to give them the information they needed in order to make informed decisions.
The respondents were accused of violating section 55(3) of the Basic Education Act, 2013 (BEA) by failing to establish a parents and teachers’ association. Aggrieved by the actions of the 1st respondent the petitioners filed the instant petition seeking among others a declaratory order that the 1st respondent was obliged under the law to consider the best interests of the children in the school whenever they made policy decisions and had to consult and obtain the consent of parents before implementing the same.

 
Issues:

  1. Whether the failure to reduce school fees upon the change of the mode of teaching by a school violated the right to education, rights of children and consumer rights.
  2. Whether a constitutional petition could be used to litigate a dispute arising from a breach of contract in which a party claimed violation of constitutional rights.
  3. What were the factors to consider before commissioning of an inquiry to look into the use of online platforms to deliver the education curriculum?
  4. Whether expert evidence was necessary in seeking an inquiry in respect of the use of online platforms to deliver the education curriculum.
  5. Whether the High Court could interfere with the amount of fees payable to schools, and if so, under what circumstances?
 

Relevant provisions of the law
Constitution of Kenya, 2010
Article 46

(1) Consumers have the right—

(a) to goods and services of reasonable quality;
(b) to the information necessary for them to gain full benefit from goods and services;
(c) to the protection of their health, safety, and economic interests; and
(d) to compensation for loss or injury arising from defects in goods or services.

(2) Parliament shall enact legislation to provide for consumer protection and for fair, honest and decent advertising.
(3) This Article applies to goods and services offered by public entities or private persons.
 

Basic Education Act, 2013
Section 2

ICT Integration and Education” means the seamless incorporation of information communication technologies to support and enhance the attainment of curriculum objectives, to enhance the appropriate competencies including skills, knowledge, attitudes and values and to manage education effectively and efficiently at all levels
 
Held:
  1. When a person was seeking redress from the High Court on a matter which involved a reference to the Constitution, it was important (if only to ensure that justice was done to his case) that he should set out with a reasonable degree of precision that of which he complained, the provisions said to be infringed, and the manner in which they were alleged to be infringed. In the instant case the petitioners could not be said to have failed the drafting test.
  2. Parties should be discouraged from using constitutional petitions to litigate matters which could be prosecuted through other statutory processes. The core issue in the petition was the alleged breach of the contracts entered between the 1st respondent and the petitioners for the provision of education services at a fee. However, the matter would not be resolved without considering the issues raised by the petitioners about the alleged violation of their rights as consumers and the rights of their children to basic education. Constitutional issues raised in the petition took a higher pedestal as the court was called upon to apply and interpret the Constitution. Redress through other litigation processes could not provide an adequate remedy, if any, to the petitioners.
  3. The rights of consumers found firm root in article 46 of the Constitution, which under sub-article 3 stipulated that it applied to goods and services offered by public entities or private persons. The preamble of the Consumer Protection Act (CPA) provided that the enactment was an Act of Parliament to provide for the protection of the consumer, prevent unfair trade practices in consumer transactions and to provide for matters connected with and incidental thereto. Article 46 and the Consumer Protection Act (CPA) applied to the instant dispute.
  4. A sense of fairness should be infused into transactions between private persons. The strong party in a contractual relationship should not be allowed to steamroll over the weaker party. That was in line with the jurisprudential trajectory that required constitutional values to be infused into contracts. If that was not so, the Kenyan people would not have found it necessary to include article 46 in the Constitution and follow it with the legislation of the Consumer Protection Act (CPA) to specifically protect the rights of consumers.
  5. The petitioners did not explain how online delivery of the curriculum by the 1st respondent violated or infringed the stated rights. By seeking that the 3rd respondent be directed to investigate whether online teaching met the basic education requirements under the Constitution and the Basic Education Act, 2013 (BEA), the petitioners were actually fishing for evidence to use in demonstrating that virtual education did not meet the standards of face-to-face learning. They had actually not stated why they held the view that online education did not meet the requirements of the Constitution and the Basic Education Act (BEA). They simply wanted an inquiry without establishing a basis for such an investigation.
  6. The Basic Education Act (BEA) provided for online learning at section 2. The only change introduced by online education was the mode of the delivery of the curriculum. The petitioners had not claimed that the manner of teaching had negatively impacted on the content of the learning material. They had therefore not made out a case for the commissioning of an inquiry in respect of the use of online platforms to deliver the curriculum. In order to make headway on that particular point, they ought to have availed expert evidence. They did not do so.
  7. It was difficult to understand how article 10 of the Constitution on national values and principles of governance was applicable to State organs, State officers and all persons whenever executing the responsibilities therein could be applied to a private contract. The 1st respondent tabled evidence, which was not rebutted by the petitioners, showing that they consulted the parents and the students and even trained them. On the evidence on record, the petitioners had therefore failed to establish violation of any constitutional provision as a result of the alleged failure to consult them.
  8. The issue as to the amount of fees payable to schools by parents did not ordinarily fall within the remit of courts. The school had to be allowed to govern its student body on the basis of the provisions of the Basic Education Act (BEA) and its code of conduct, and the court would be very reluctant to interfere unless very strong and cogent reasons for interfering with the decisions were placed before it.
  9. The petitioners had not placed any evidence to show that the 1st respondent had made savings on its recurrent costs upon closure of schools. They had not given evidence of the parameters of parity in respect of other schools in terms of fees and facilities. Their claim that other schools of the same parity had offered higher discounts was therefore unsupported. In any case not one school could be equated to another school in terms of teaching, facilities and services. The petitioners therefore had not made out a case to warrant a dictation by the court on the fees to be charged by the respondents.
  10. The petitioners had not pointed to any law that would allow the court to determine the fees payable to the 1st respondent. The petitioners had alleged violation of their rights as consumers. However, they did not provide any evidence to support their claims that the decision by the 1st respondent to give a discount of Kshs. 5,000/- was unconscionable and unfair.
  11. Sections 12 and 13 of the Consumer Protection Act (CPA) provided the parameters to be taken into account in determining allegations of false representation and unconscionable representation respectively. A contract could therefore be invalidated on those grounds. For instance, section 13(2)(b) of the Consumer Protection Act (CPA) provided that one of the factors to be taken into account in determining whether a representation was unconscionable was if the price grossly exceeded the price at which similar goods or services were readily available to like consumers. The petitioners could have succeeded in invalidating the contracts they had signed with the 1st respondent if they had provided evidence to show that the fees charged grossly exceeded the fees charged by other schools offering the same standard of education and facilities.
  12. As the petitioners had failed to establish that their rights as consumers were violated by the 1st respondent, the right to free and basic education and the principle of the paramountcy of the best interests of the child in matters concerning the child had not been infringed. It was only if the petitioners had established violation of article 46 of the Constitution that the court could have proceeded to consider the issue of the alleged violation of the other rights. The petitioners had not adduced any evidence or even explained why they thought that online education negatively impacted on children with special needs.
  13. Section 55(2) and (3) of the Basic Education Act (BEA) stipulated that a private school should establish a parents and teachers’ association to carry out the functions outlined in the Third Schedule of the BEA. The 1st respondent had not established parents’ associations in its schools therefore the law had not been complied with in that particular respect.
  14. As the petitioners had not established violation of their rights under article 46 of the Constitution, there was no basis for the court to order a reduction, increment or alteration of the levies imposed by the 1st respondent. The prayers for issuance of orders against the 3rd respondent failed in that the petitioners had not proved that they had asked the Cabinet Secretary to act and he had refused to do so. Furthermore, no evidence was adduced to demonstrate serious breaches of the law to warrant the issuance of mandatory orders. Issuance of any orders that would lead to the suspension of online learning would actually violate instead of enhancing the right of the petitioners’ children to basic education. It was not the business of the courts to micromanage other State organs by telling them what to do and when to do it.
  15. The petitioners had indicated in their petition that no party should be awarded costs. That was the way to go in a delicate relationship like that between the petitioners and the 1st respondent. Although the petitioners had not obtained the majority of the prayers they sought, they remained the victors. The size of the prize did not matter.
 
Petition partly allowed; each party to bear its own costs of the proceedings.
Orders
  1. A declaration was issued that the 1st respondent was obliged under the Constitution and by law to consider the best interests of the child whenever they made policy decisions and had to consequently consult and obtain the consent of parents before implementing such decisions.
  2. An order of mandamus was issued directing the 1st respondent without further delay, and in any case not later 120 days from the date of the judgment, establish a parents and teachers’ association in terms of section 55(3) of the Basic Education Act, 2013.
  3. A declaration was issued that the petitioners were entitled by virtue of section 55(2) and the Third Schedule of the Basic Education,2013 to establish a parents’ association that was recognized and was able to engage the 1st respondent.

Kenya Law
Case Updates Issue 037
/2020

Case Summaries

CONSTITUTIONAL LAW Failure to give an opposing party in a tender dispute a confidential report submitted to the Public Procurement Administrative Review Board does not violate the right to fair trial

Republic v Public Procurement Administrative Review Board & another; Premier Verification Quality Services (PVQS) Limited (Interested Party) Ex Parte Tuv Austria Turk [2020] eKLR
Miscellaneous Civil Application No. 60 of 2020
High Court at Nairobi
JM Mativo, J
August 5, 2020
Reported by Kakai Toili

Download the Decision

Constitutional Law – fundamental rights and freedoms - right to fair administrative action, right to fair hearing and right to fair trial - distinction between the right to fair administrative action and the right to fair hearing –– claim by a tender bidder that his right to fair trial had been violated by the submission of a confidential report to the Public Procurement Administrative Review Board (the Board) in a tender dispute – where the bidder had not requested for the information – whether the failure to give an opposing party in a tender dispute a confidential report submitted to the Public Procurement Administrative Review Board violated the right to fair trial - Constitution of Kenya, 2010, articles 47, 50 and 227; Public Procurement and Asset Disposal Act, 2015 section 67(3); Fair Administrative Actions Act, 2015, section 4.
Procurement Law – public procurement – formalities involved in public procurement – process to be followed by public bodies in awarding tenders - claim that a tender bid was not responsive for failure to provide security as required in the tender advertisement – claim that failure to provide the security was a minor deviation - factors to consider in determining whether a non-conformity was a minor deviation or material non-conformity - when was a deviation considered to be immaterial - whether a tender containing minor deviations that did not materially alter the substance of the tender could be regarded as responsive - Public Procurement and Asset Disposal Act, 2015 section 79.
Jurisdiction – jurisdiction of the High Court – jurisdiction of the High Court sitting as a judicial review court – role of a judicial review court - nature of a judicial review process - interference with the exercise of discretion of a public body - what were the circumstances in which a court could interfere with the exercise of discretion of a public body - what were the factors to be considered in rendering an administrative decision ultra vires - Constitution of Kenya, 2010, article 227.

Brief facts:
In December 2019, the 2nd respondent (procuring entity) advertised an international tender for enlargement of provision of pre-export verification of conformity (PVoC) to standard services. The applicant was among the bidders of the tender which closed in January 2020. The bids were subsequently opened in the presence of all the bidders’ representatives. It was claimed that the applicant was in January 2020 invited through its agent to participate in the financial proposal opening when she was served with a notification of regret indicating that its tender was substantially non-responsive to the terms set for the preliminary evaluation. Aggrieved, the applicant challenged the letter of notification of regret before the 1st respondent (Board) for among others being devoid of reasons, failure to be notified personally on all addenda issued amending the subject tender and, unfair and unprocedural rejection of its tender at the preliminary stage.
It was alleged that the applicant did not avail a security document as required by the tender advertisement. The Board allowed the request for review in as far as the letter of notification was concerned on grounds that the letter failed to meet the threshold of section 87(3) of the Public Procurement and Asset Disposal Act (the Act) as read with article 47 of the Constitution. The Board also allowed the procuring entity to proceed with the procurement. Aggrieved by the Board’s decision, the appellant filed the instant application and sought for among others an order prohibiting the procuring entity from awarding the tender and an order of mandamus directing the procuring entity to terminate the procurement process.

Issues:

  1. Whether the failure to give an opposing party in a tender dispute a confidential report submitted to the Public Procurement Administrative Review Board violated the right to fair trial.
  2. What were the formalities involved in public procurement?
  3. What was the process to be followed in awarding tenders by public bodies?
  4. Whether a tender containing minor deviation that did not materially alter the substance of the tender could be regarded as responsive and when was a deviation considered to be immaterial?
  5. What were the factors to consider in determining whether a non-conformity was a minor deviation or material non-conformity?
  6. What was the distinction between the right to fair administrative action and the right to fair hearing?
  7. What were the circumstances in which a court could interfere with the exercise of discretion of a public body?
  8. What was the nature of a judicial review process and what was the role of a judicial review court?
  9. What were the factors to be considered in rendering an administrative decision ultra vires? Read More..

Held:

  1. The administration of justice was highly contextual and fact sensitive; what could amount to a fair-minded exclusion of a bidder on grounds of non-responsiveness in one context could not be regarded as fair in a different context. Judicial utterances on the issue of bid responsiveness had to therefore be understood within the factual matrix of each decided case and the governing statute.
  2. A proper construction of section 79 of the Public Procurement and Asset Disposal Act (the Act) showed that the requirement of responsiveness operated in the following manner; a bid only qualified as a responsive bid if it met with all requirements as set out in the bid documents. Bid requirements usually related to compliance with regulatory prescripts, bid formalities, or functionality/technical, pricing and empowerment requirements. Bid documents could provide for provision of security. Bid formalities usually required timeous submission of formal bid documents such as tax clearance certificates, audited financial statements, accreditation with standard setting bodies, membership of professional bodies, proof of company registration, certified copies of identification documents and the like. Indeed, public procurement practically bristled with formalities, which bidders often overlooked at their peril.
  3. The formalities were usually listed in bid documents as mandatory requirements; they were a sine qua non for further consideration in the evaluation process. The standard practice in the public sector was that bids were first evaluated for compliance with responsiveness criteria before being evaluated for compliance with other criteria, such as functionality, pricing or empowerment. Bidders found to be non-responsive were excluded from the bid process regardless of the merits of their bids. Responsiveness thus served as an important first hurdle for bidders to overcome.
  4. In public procurement regulation, it was a general rule that procuring entities should consider only conforming, compliant or responsive tenders. Tenders should comply with all aspects of the invitation to tender and meet any other requirements laid down by the procuring entity in its tender documents. Bidders should, comply with tender conditions; a failure to do so would defeat the underlying purpose of supplying information to bidders for the preparation of tenders and amount to unfairness if some bidders were allowed to circumvent tender conditions. It was important for bidders to compete on an equal footing. Moreover, they had a legitimate expectation that the procuring entity would comply with its own tender conditions. Requiring bidders to submit responsive, conforming or compliant tenders also promoted objectivity and encouraged wide competition in that all bidders were required to tender on the same work and to the same terms and conditions.
  5. Under section 79(2)(a) and (b) of the Act, the procuring entity could regard a tender as responsive even if it contained minor deviations that did not materially alter or depart from the characteristics, terms, conditions and other requirements set out in the solicitation documents or if it contained errors or oversights that could be corrected without touching on the substance of the tender. A bid that contained minor informalities was not considered non-responsive.
  6. A minor informality or irregularity was defined as one that was merely a matter of form and not of substance. It also pertained to some immaterial defect in a bid or variation of a bid from the exact requirements of the invitation that could be corrected or waived without being prejudicial to other bidders. The defect or variation was immaterial when the effect on price, quantity, quality or delivery was negligible when contrasted with the total cost or scope of the supplies or services being acquired. The contracting officer either would give the bidder an opportunity to cure any deficiency resulting from a minor informality or irregularity in a bid or waive the deficiency, whichever was to the advantage of the Government.
  7. The decision as to whether or not a particular non-conformity constituted a minor deviation or informality under procurement law had sometimes been characterised as a discretionary one. However, the major focus had to be on the prejudice to other bidders rather than on the degree of non-conformity in determining if a bid was non-responsive. A material nonconformity that gave the bidder in question no advantage or operated to the disadvantage only of the bidder would thus not result in rejection. The tender evaluation committee could, under limited circumstances, require the waiver of an otherwise significant deviation where no competitive advantage would result. However, in the case of material non-conformities, it was immaterial whether the nonconformity was deliberate or occurred by mistake, or whether the bidder was willing to correct or modify the bid to conform to the terms of the invitation.
  8. Article 227 of the Constitution provided that when procuring entities contracted for goods or services they had to comply with the principles of fairness, equity, transparency, competitiveness and cost-effectiveness. For there to be fairness in the public procurement process, all bids should be considered on the basis of their compliance with the terms of the solicitation documents and a bid should not be rejected for reasons other than those specifically stipulated in the solicitation document.
  9. The bid requirements were clear; it was inconceivable why the applicant who admitted having not complied with the bid terms would expect the Board to allow its request. Allowing the request for review on the face of the glaring omission to provide tender security was an open invitation to the Board to throw out of the window the tenets of fairness provided under article 227 of the Constitution by subjecting the applicant’s tender to different terms other than those in the bid documents thereby according it preferential treatment different from the one accorded to the other bidders.
  10. The confidential file was submitted to the Board in conformity with the law. The applicant was at all material times aware of the case mounted by the respondent and the interested party having been served with their pleadings and was ably represented by an advocate. The applicant selectively cited the provisions of the law governing fair trial and avoiding section 67(3)(e) of the Act which entitled him to request for the information. The applicant never invoked the said provision. Ironically, the alleged information was an e-mail address provided by its own agent. Having failed to utilize such a clear provision of the law, the applicant could not turn around to blame the Board.
  11. The applicant appeared to have confused a fair trial under article 50 of the Constitution and a fair administrative action guaranteed under article 47 of the Constitution and section 4 of the Fair Administrative Actions Act (FAA Act). Article 47 codified every person’s right to fair administrative action that was expeditious, efficient, lawful, reasonable and procedurally fair. Procedural fairness contemplated by article 47 and the FAA Act demanded a right to be heard before a decision affecting ones right was made.
  12. The standards of fairness were not immutable. They could change with the passage of time, both in the general, and in their application to decisions of a particular type. The principles of fairness were not to be applied by rote identically in every situation. What fairness demanded was dependent on the context of the decision, and that was to be taken into account in all its aspects.
  13. Fair administrative action broadly referred to administrative justice in public administration and it was concerned mainly with control of the exercise of administrative powers by State organs and statutory bodies in the execution of constitutional and statutory duties. Such bodies exercised their functions guided by constitutional principles and policy considerations. The right to a fair administrative action, though a fundamental right, was contextual and flexible in its application and could be limited by law. Fair hearing under article 50(1) of the Constitution applied in proceedings before a court or independent and impartial tribunals or bodies.
  14. If in the exercise of its discretion on a public duty, an authority took into account considerations, which the courts considered not to be proper, then in the eyes of the law it had not exercised its discretion legally. On the other hand, considerations that were relevant to a public authority’s decision were of two kinds. They were mandatory relevant considerations (that was, considerations that the statute empowering the authority expressly or impliedly identified as those that had to be taken into account) and discretionary relevant considerations (those which the authority could take into account if it regarded them as appropriate). If a decision-maker had determined that a particular consideration was relevant to its decision, it was entitled to attribute to it whatever weight it thought fit, and the courts would not interfere unless it had acted in a Wednesbury-unreasonable manner. That was consistent with the principle that the courts were generally only concerned with the legality of decisions and not their merits.
  15. Once the decision-maker had taken into account the relevant considerations, the courts were reluctant to scrutinize the manner in which the decision-maker balanced the considerations. The necessity to comply with the obligations imposed by article 227 of the Constitution relating to public procurement policies and procedures to be adopted by organs of State had resulted in the enactment of numerous interrelated statutes, regulations and directives. That, in turn, had given rise to a convoluted set of rules and requirements. In practice, procuring entities usually included a condition in their tender documents that bidders had to provide contact details. By referring to the confidential file submitted to it under the law, the Board properly took into account relevant considerations and arrived at the correct decision.
  16. Each case depended on its own facts and a close similarity between one case and another was not enough because even a single significant detail could alter the entire aspect. In deciding cases, one should avoid the temptation to decide cases by matching the colour of one case against the colour of another. Precedent should be followed only so far as it marked the path of justice, but one had to cut the dead wood and trim off the side branches.
  17. Judicial review did not deal with contested issues of facts which required parties to adduce evidence and be cross-examined. Judicial review was about the decision making process, not the decision itself. The role of the court in judicial review was supervisory. Judicial review was the review by the High Court of a decision; proposed decision; or refusal to exercise a power of decision to determine whether that decision or action was unauthorized or invalid.
  18. Judicial review was referred to as supervisory jurisdiction, reflecting the role of the courts to supervise the exercise of power by those who held it to ensure that it had been lawfully exercised. Judicial review was more concerned with the manner in which a decision was made than the merits or otherwise of the ultimate decision. As long as the processes followed by the decision-maker were proper and the decision was within the confines of the law, a court would not interfere.
  19. The matters raised in the issue of whether the Board misconstrued the provisions of the Act in concluding that an e-mail address was sufficient evidence to prove that an e-mail correspondence bearing any of the six addenda was sent by the procuring entity to the alleged e-mail address were contested questions of fact which should not be subject to intrusive judicial oversight by way of judicial review. Where the existence or non-existence of a fact was left to the judgment and discretion of a public body and that fact involved a broad spectrum ranging from the obvious to the debatable to the just conceivable, it was the duty of the court to leave the decision of that fact to the public body to whom Parliament had entrusted the decision-making power save in a case where it was obvious that the public body, consciously or unconsciously, were acting perversely.
  20. A statute could grant significant decisional authority to an administrative decision-maker, which a court paying due respect to the value of democracy would be obliged to take into account. The Legislature could entrust the tribunal or body with a jurisdiction, which included the jurisdiction to determine whether the preliminary state of facts existed as well as the jurisdiction, on finding that it existed, to proceed further or do something more. In such a case it was an erroneous application of the jurisdictional error formula to say that the tribunal could not give themselves jurisdiction by wrongly deciding certain facts to exist, because the Legislature gave them jurisdiction to determine all the facts, including the existence of the preliminary facts on which the further exercise of their jurisdiction depended. The court declined the invitation to venture into contested issues of fact.
  21. The task for the courts in evaluating whether a decision was illegal was essentially one of construing the content and scope of the instrument conferring the duty or power upon the decision-maker. The instrument would normally be a statute or regulations. The courts when exercising the power of construction were enforcing the rule of law, by requiring administrative bodies to act within the four corners of their powers or duties. They were also acting as guardians of Parliament’s will, seeking to ensure that the exercise of power was in accordance with the scope and purpose of Parliament’s enactments. Where discretion was conferred on the decision-maker, the courts also had to determine the scope of that discretion and therefore needed to construe the statute purposefully. One could confidently assume that Parliament intended its legislation to be interpreted in a meaningful and purposive way giving effect to the basic objectives of the legislation.
  22. The grounds for the court to intervene and render an administrative decision and/or action ultra vires were; illegality, irrationality, procedural impropriety and proportionality. Illegality as a ground for judicial review was that the decision-maker had to understand the law that regulated his decision-making and had to give effect to it. Irrationality was unreasonableness in the Wednesbury case while procedural impropriety included those heads of judicial review, which upheld procedural standards to which administrative decision-makers had to, in certain circumstances, adhere. Once a judicial review court failed to sniff illegality, irrationality or procedural impropriety, it should down its tools forthwith.
  23. The enabling statute conferred mandate upon the Board. Placing the impugned decision side by side with section 28 and 173 of the Act. There was nothing to suggest that the Board acted ultra vires. A decision did not involve an error of law unless the error was material to the decision in the sense that it contributed to it so that, but for the error, the decision would have been, or could have been different. There was no error of law in making a wrong finding of fact. The Board’s decision was supported by the law and the facts. It could not be described as tainted by an error of law.
  24. An acceptable tender had to be construed against the background of the system envisaged by article 227(1) of the Constitution, namely one which was fair, equitable, transparent, competitive and cost-effective. Whether the tender in all respects complied with the specifications and conditions set out in the bid documents had to be judged against those values. An acceptable tender meant any tender, which, in all respects, complied with the specifications and conditions of tender as set out in the tender document. The applicants could not pass an article 227(1) analysis test. Subjecting the entire procurement process to the values set out in article 227(1), the tender process could be read in a manner that was consistent with the values and the dictates of the procurement laws and regulations.

Application dismissed with costs to the respondents and the interested party.

CIVIL PRACTICE AND PROCEDURE

Supreme Court lacks the jurisdiction to determine novel issues introduced via an appeal.

FNH v Housing Finance Company of Kenya Limited & another
Petition No. 46 of 2019
Supreme Court of Kenya
DK Maraga, CJ and P; PM Mwilu, DCJ and VP; MK Ibrahim, SC Wanjala and SN Ndungu, SCJJ
September 4, 2020
Reported by Ribia John

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Civil practice and Procedure – appeals – appeals to the Supreme Court – appeal to the Supreme Court as of right in a case involving the interpretation of the constitution – supreme court’s jurisdiction where a novel issue is introduced - whether the Supreme Court had the jurisdiction to determine a novel issue on appeal where the said issue had not progressed through the normal appellate mechanisms – Constitution of Kenya, 2010 article 163(4)(a)

Brief facts:
The applicant sought determination of the status of representation by counsel in a cause pending before the Supreme Court. The appellant had donated a power of attorney to an advocate who represented the appellant in the High Court and in the Court of Appeal.
While the matter was pending in the Supreme Court the respondents approached the appellant directly with a settlement offer. Having being troubled with the protracted litigation process, the appellant sought the services of a new advocate and later signed the deed of settlement and on the same day she wrote to her previous advocated and terminated the power of attorney and the advocate’s services. The donee of the power of attorney filed the instant application seeking to continue litigating the matter in the Supreme Court on grounds that the revocation of the power of attorney was null and void.

Issues:

Whether the Supreme Court had the jurisdiction to determine a novel issue on appeal where the said issue had not progressed through the normal appellate mechanisms. Read More...

Held:

  1. An appeal to the Supreme Court had to originate from a Court of Appeal case where issues of contestation revolved around the interpretation or application of the Constitution. An appellant had to be challenging the interpretation or application of the Constitution which the Court of Appeal used to dispose of the matter in that forum. Such a party had to be faulting the Court of Appeal on the basis of such interpretation. Where the case to be appealed from had nothing or little to do with the interpretation or application of the Constitution, it could not support a further appeal to the Supreme Court under the provisions of Article 163(4)(a).
  2. The gravamen of the instant matter was a dispute on representation. Neither the High Court nor the Court of Appeal delved into the issues of representation. It was a novel issue that was coming before the instant court for the very first time and was yet to progress through the normal appellate mechanism, so as to reach the Supreme Court in proper form. The Supreme Court lacked the requisite jurisdiction to entertain the instant application.

Application dismissed; applicant bore the costs.

CONSTITUTIONAL LAW Whether a public officer could hold two public offices

Nicholas Rono v County Secretary County Government of Bomet & 3 others [2020] eKLR
Petition No. 3 of 2019
Employment and Labour Relations Court at Kericho
M Mbaru, J
July 30, 2020
Reported by Chelimo Eunice

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Constitutional Law – interpretation of constitutional provisions – interpretation of article 260 as read together with articles 10 and 77 of the Constitution on the meaning of a public officer - who was a public officer and what was the difference between a public officer and a state officer – whether article 77(1) of the Constitution, which barred a full time state officer from participating in any other gainful employment, was applicable to a public officer - whether a person holding the position of a municipal manager with a county government was a public officer - whether a public officer could hold two public offices – where a party held two public offices, as a municipal manager with a county government and a member of a county assembly service board – whether the functions of a municipal manager and a member of a county assembly service board were co-relating and reinforcing – Constitution of Kenya, 2010, articles 10, 77 and 260;
Civil Practice and Procedure – pleadings – constitutional petition – content of a constitutional petition - particulars to be pleaded in a constitutional petition – requirement that a litigant in a constitutional petition had to set out with reasonable degree of precision in particular how the alleged acts amounted to infringement of the litigant’s constitutional rights – whether a petition challenging the constitutionality of public officers holding two public service offices met the threshold of a constitutional case - Employment and Labour Relations Curt (Procedure) Rules, rule 7.

Brief facts:
The petitioner sought various orders, including a declaration that the appointment of the 4th respondent as a member of the Bomet Municipal Board (municipal manager) by the 1st respondent was unconstitutional; a declaration that the appointment of the 1st respondent as a member of the 2nd respondent’s board (board member) wasunconstitutional and an order of refund of all the salaries and/or allowances received by the 4th respondent as a result of his appointment to the above positions.
The petitioner argued, among others, that the 4th respondent was appointed to the position of a municipal manager on a 5 years’ renewable contract vide an appointment letter dated September 10, 2018. Then, while still a municipal manager, he was appointed a board member of the 2nd respondent vide Gazette Notice No. 10671 dated October 11, 2018, hence occupying two public offices at the same time and earning two separate salaries from the public coffers contrary to law. He argued that those appointments were all targeted and aimed at the 4th respondent and no advertisement was done.
The 4th respondent opposed the petition arguing, among others, that the nomination as a board member was a part time responsibility and at no time was he paid salary for the nomination, that at the time of appointment as a municipal manager he was not in any other gainful employment as alleged by the petitioner, that he had never earned two salaries, that he had since terminated his contract as a municipal manager due to job dissatisfaction and that he was never a state officer. The 1st respondent supported the 4th respondent’s arguments.
It was the 1st, 2nd and 3rd respondent’s case that the 4th respondent was a public officer and not a state officerand was hence not barred from holding and being in gainful employment while in the service of the 3rd respondent. That constitutional provisions relating to state officers did not apply to him.
The 2nd respondent on its part stated that through a regrettable oversight caused by misrepresentation and concealment of information by the 4th respondent, the 4th respondent was further appointed as a board member. That due process was followed, save the 4th respondent was deceitful and failed to disclose the fact that he was already employed by the 3rd respondent as a municipal manager.

Issues:

  1. Whether a petition challenging the constitutionality of public officers holding two public service offices met the threshold of a constitutional case.
  2. Who was a public officer and what was the difference between a public officer and a state officer?
  3. Whether article 77(1) of the Constitution, which barred a full time state officer from participating in any other gainful employment, was applicable to a public officer.
  4. Whether a person holding the position of a municipal manager with a county government was a public officer.
  5. Whether a public officer could hold two public offices.
  6. Whether the two functions of a municipal manager and a member of a county assembly service board were co-relating and reinforcing. Read More..

Relevant provisions of the Law
Constitution of Kenya, 2010;
Article 77 - Restriction on activities of State officers
1) A full-time State officer shall not participate in any other gainful employment.

Article 260 - Interpretation
“public officer” means-

(a) any State officer; or
(b) any person, other than a State Officer, who holds a public office;

Held:

  1. A person seeking redress from the court on a matter which involved a reference to the Constitution, had to set out with reasonable degree of precision in particular how the alleged acts amounted to infringement of the person’s constitutional rights.
  2. In the body of the petition, the petitioner had enumerated various articles of the Constitution which were said to have been contravened by the actions and conduct of the respondents and gave particulars. The foundation of each contravention was addressed with details.
  3. At the core of the petition was the appointment of the 4th respondent. The court appreciated and understood the exact nature of the petitioner’s case of public officers holding two public service jobs. The petition, thus, was properly before the court pursuant to rule 7 of the Employment and Labour Relations Curt (Procedure) Rules, read together with the Constitution and the Rules thereto.
  4. Article 10 of the Constitution bound all state organs, state officers, public officers and all persons whenever they applied or interpreted the Constitution, enacted, applied or interpreted any law, made or implemented any public policy decision, to national values and principles of governance which included participation of the people, human dignity, equity, social justice, inclusiveness, equality, human rights, non-discrimination and protection of the marginalized, good governance, integrity, transparency and accountability and sustainable development.
  5. Although the national values and principles of governance enshrined in article 10 of the Constitution were not on their own justiciable, they and the preamble of the Constitution had to be given effect wherever it was fairly possible to do so without violating the meaning of the words used.
  6. Articles 260, 77 and 10 of the Constitution were all reinforcing. Whereas under article 260 of the Constitution, a public officer was any person other than a state officer who held public office, the fundamental connection was that of a person holding such an office, being sustained in terms of remuneration and benefits from the public exchequer. Being a public officer was all inclusive. For article 10 of the Constitution to bear fruit and have its full force, the provisions of articles 260 and 77(1) of the Constitution could not be read alone.
  7. Strictly speaking, the proper meaning of public officer was that embodied in article 260 of the Constitution. The different definitions in other statutory provisions ought not take precedence over the constitutional provisions. Thus, the proper meaning of public officer was a state officer or any other person who held public office, an office within the national government, county government or public service, a person holding such an office, being sustained in terms of remuneration and benefits from the public exchequer.
  8. The 4th respondent was appointed as a municipal manager under the provisions of section 29 of the Urban Areas and Cities Act and issued with a 5 years’ contract. The position was full time and with a given salary. Employment commenced on September 10, 2018. The position of municipal manager was advertised in the print media. There was no breach of article 35 of the Constitution as alleged in the petition. However, while serving the 3rd respondent as a municipal manager under the 5 years’ contract, the 4th respondent accepted the nomination as member of the 2nd respondent.
  9. According to the provisions of section 12 of the County Government Act, duties and functions of a board member included, providing services and facilities to ensure the efficient and effective functioning of the county assembly, constituting offices in the county assembly service, and appointing and supervising office holders and preparing annual estimates of expenditure of the county assembly service and submitting them to the county assembly for approval, and exercising budgetary control over the service.
  10. On the other hand, under sections 28 and 29 and Second Schedule to the Urban Areas and Cities Act, the municipal manager was the principal manager of the municipal pursuant to article 184 of the Constitution. Such office was to provide for the classification, governance and management of urban areas and cities, to provide for the criteria of establishing urban areas, to provide for the principle of governance and participation of residents and for connected purposes.
  11. The two functions of municipal manager and member of county assembly service board were not reinforcing. Each was an independent office with different functionalities and constituted under different legal regimes.
  12. The respondents in the appointment of the 4th respondent as municipal manager and board member could not extricate themselves from the requirements of the Constitution and the law. Being a public officer carried with it an all overriding duty of integrity in a manner that maintained public confidence and professionalism within the organization being served whether it be county government or public service. The 4th respondent holding the public office of municipal manager held such an office and was being sustained in terms of remuneration and benefits from the public exchequer. He could not hold another public office, being sustained in terms of remuneration and benefits from the public exchequer whether on part time basis or full time. Both offices were hence held in conflict of interest.
  13. Public officers ought to be appointed on the basis of the criteria set out in chapter 6 of the Constitution. They had, in addition, be appointed in accordance with the national values and principles set out in article 10 of the Constitution. The 4th respondent failed the test of the Constitution and the law.
  14. To allow the 4th respondent to hold both offices was unconstitutional and went contrary to sections 13 and 26 of the Leadership and Integrity Act, which required the 4th respondent not to hold any other office for gainful employment while in the full time service of the municipal and the 3rd respondent.
  15. To hold dual offices with the 1st and 2nd respondents without disclosure to the 2nd respondent was contrary to section 22 of the Public Officer Ethics Act. That depicted the 4th respondent as a liar, dishonest and person lacking integrity to hold public office. The overt acts of misrepresentation before the 2nd respondent, the concealment of relevant information and leading to his holding dual positions in the public service placed him in conflict with the provisions of article 10 read together with article 77(1) of the Constitution, the Leadership and Integrity Act and the Public Officer Ethics Act. Such conduct made him unfit to hold public office.
  16. It was regrettable that the 1st respondent took such a view that the 4th respondent while in the service of the municipal as manager could hold another position with the 2nd respondent since it was part time. That was absurd taking into account the position held by the officer in the administration of the 3rd respondent. To allow the 4th respondent hold dual offices remunerated from the exchequer whether directly or indirectly was to place an unnecessary burden on the taxpayer and contrary to article 226 of the Constitution.
  17. The 4th respondent on his replying affidavit reinforced a background of deceit, falsehoods and one not to be trusted and relied upon as a public officer. The appointment as municipal manager came in first. During such appointment, he accepted appointment with the 2nd respondent. Yet his affidavit was tailored and couched to give an impression that while serving under the 2nd respondent, he applied for the position of municipal manager and later due to job dissatisfaction he terminated the contract. The 4th respondent was aware, at all material times, that while serving as municipal manager, he accepted another appointment and he hence became conflicted.
  18. Whereas the 4th respondent accepted the appointment as municipal manager while he was not employed elsewhere and that was allowed under the law and pursuant to section 28 and 29 of the Urban Areas and Cities Act, on the same breath his appointment as a board member pursuant to section 12 of the County Government Act read together with articles 10 and 77(1) of the Constitution was null and void ab initio. The 4th respondent should not have been holding two public offices which did not co-relate.
  19. Tax-payers ought not be unduly burdened by being compelled to shoulder the consequences of people whose actions contravened the Constitution, the social contract between the governors and the governed, and expect the people, the principals of the governors on whose behalf the governors exercise sovereign power, to pay for the governors’ sins. There were cases where public officers would be held personally liable.
  20. The proceeds received from the 2nd respondent as remuneration, allowances and benefits ought to be quantified and he ought to refund the same to the 2nd respondent for use and in the public benefit. Such was to be applied in terms of article 226(5) of the Constitution, which provided for the personal liability of any holder of an office who caused misuse of public funds contrary to law.
  21. In the circumstances, the misrepresentation and concealment of information by the 4th respondent for appointment as a board member being in breach of the Leadership and Integrity Act and also the Public Officer Ethics Act placed him in bad standing to hold any public office. Having put public resources and funds into waste by deception and concealment, the 4th respondent did not stand in good stead.

Petition allowed.
Orders

  1. Declaration issued that the 4th respondent’s appointment as member of the Bomet County Assembly Service Board vide Gazette Notice No. 10671 was unlawful and unconstitutional, null and void.
  2. Declaration issued that actions of the 4th respondent contravened the Constitution, Leadership and Integrity Act and Public Officer Ethics Act and he stood unfit to hold public office.
  3. Gazette Notice No.10671 dated October 11, 2018 and published on October 19, 2018, appointing the 4th respondent as member Bomet County Assembly Service Board was revoked.
  4. The 4th respondent was ordered to refund all monies received from the 2nd respondent in form of remuneration, allowances and benefits for the entire duration he was a member of Bomet County Assembly Service Board and within ninety (90) days of the judgment.
  5. The clerk to the 2nd respondent ordered to quantify all proceeds received from the 2nd respondent as remuneration, allowances and benefits for use and benefit of the 4th respondent for his refund and report to the court within ninety (90) days of the judgment.
  6. Failure to refund the monies as ordered, the 4th respondent would not hold office in any capacity as a public officer or in any public office.
  7. The 4th respondent ordered to pay the petitioner his costs together with costs incurred by the 2nd respondent and the attendant costs, but the 1st and 2nd respondents were to meet own costs.
CONSTITUTIONAL LAW The exhibition of a medical scheme beneficiary form as evidence in court does not amount to wrongful invasion of the right to privacy

TOS v Maseno University & 3 others
Civil Appeal 112 of 2016
Court of Appeal at Kisumu
DK Musinga, SG Kairu & F Sichale, JJA
August 7, 2020
Reported by Sharon Sang & Kakai Toili

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Constitutional Law – fundamental rights and freedoms – enforcement of fundamental rights and freedoms - right to privacy – where a medical scheme beneficiary form was produced in court as an exhibit – where the form showed the relationship between the contributor and the beneficiaries – whether a medical scheme beneficiary form was a medical record - whether the exhibition of the medical scheme beneficiary form in court amounted to wrongful invasion of the contributor’s and beneficiaries’ right to privacy – Constitution of Kenya, 2010, article 31.
Jurisdiction – jurisdiction – jurisdiction of the Court of Appeal – jurisdiction as a first appellate court - what was the role of the Court of Appeal as a first appellate court.
Jurisdiction – jurisdiction of the Court of Appeal – jurisdiction to interfere with the High Court’s exercise of discretion to award costs – what were the circumstances in which an appellate court could interfere with the exercise of discretion of the trial court in awarding costs.
Words and Phrases – medical records – definition of medical records - a chronological written account of a patient’s examination and treatment that includes the patient’s medical history and complaints, the physician’s physical findings, the results of diagnostic tests and procedures, and medications and therapeutic procedures - Dictionary.Com

Brief facts:
The appellant filed a petition at the trial court on behalf of two children, one who was his child and the other one was under his guardianship. The children were beneficiaries of the 1st respondent’s medical scheme, being dependants of the appellant’s wife who was the 1st respondent’s legal officer. In July 2014 the 4th respondent filed a suit against the 1st respondent (where the appellant was a director), and the Public Procurement Oversight Authority. The suit was about alleged interference with a procurement contract that had been awarded to the 4th respondent by the 1st respondent. Among the documents exhibited by the 4th respondent in that suit were papers containing names and photographs of the two children and the appellant’s wife.
The appellant contended that the information was private medical record and was not open to the 4th respondent or the general public and that publication of the information was a violation of various provisions of the Constitution. The trial court held that the consent of the appellant or his wife was not sought before the documents were exposed to third parties and that that there was wrongful invasion of the children’s right to privacy However, the trial court held that the appellant had failed to demonstrate how the 1st, 2nd and 3rd respondents were involved in the leakage of the information and proceeded to dismiss the petition with costs. Being aggrieved by the trial court’s decision, the appellant preferred the instant appeal.

Issues:

  1. Whether the exhibition of a medical scheme beneficiary form in court amounted to wrongful invasion of the contributors’ right to privacy as well as that of the two beneficiaries.
  2. Whether a medical scheme beneficiary form which revealed the relationship between the contributor and beneficiaries was a medical record.
  3. What was the role of the Court of Appeal as a first appellate court?
  4. What were the circumstances in which an appellate court could interfere with the exercise of discretion of the trial court in awarding costs? Read More..

Relevant provisions of law
Constitution of Kenya, 2010
Article 24 – Limitation of rights and fundamental freedoms
1. A right or fundamental freedom in the Bill of Rights shall not be limited except by law, and then only to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including –

a. the nature of the right or fundamental freedom;
b. the importance of the purpose of the limitation;
c. the nature and extent of the limitation;
d. the need to ensure that the enjoyment of rights and fundamental freedoms by any individual does not prejudice the rights and fundamental freedoms of others; and
e. the relation between the limitation and its purpose and whether there are less restrictive means to achieve the purpose.

Article 31 – Privacy
Every person has the right to privacy, which includes the right not to have –

a. their person, home or property searched;
b. their possession seized;
c. information relating to their family or private affairs unnecessarily required or revealed; or
d. the privacy of their communications infringed

Held:

  1. Being a first appeal, the court’s primary role as a first appellate court namely, to re-evaluate, re-assess and re-analyze the extracts on the record and then determine whether the conclusions reached by the trial court were to stand or not and give reasons either way.
  2. Article 53(1)(d) of the Constitution of Kenya, 2010 (Constitution) stipulated that every child had the right to be protected from abuse, neglect, harmful cultural practices, all forms of violence, inhuman treatment and punishment, and hazardous or exploitative labour. Under article 53(2) a child’s best interests were of paramount importance in every matter concerning the child. The appellant had not demonstrated any violation of article 53(1)(d) and (2).
  3. The right to privacy was not absolute; it could legitimately be limited by interests of others as well as public interest.
  4. The material complained about by the appellant was not a medical record. What was exhibited was a medical scheme beneficiary form that revealed the relationship between the appellant and the 1st respondent’s legal officer. Below the name of the appellant’s wife were the names of their two children, who were also named as beneficiaries of the 1st respondent’s medical scheme, courtesy of their relationship with the appellant’s wife, which was factually correct.
  5. The 4th respondent’s objective in annexing that document to his statement in the 4th respondent’s suit against the 1st respondent was to prove that the legal officer who had advised the 1st respondent to terminate the security contract that had been awarded to the 4th respondent was the wife of the appellant, a director of a rival company that had earlier been awarded a similar contract, and was competing against the 4th respondent for renewal of the lucrative contract. That relationship was not denied by the appellant.
  6. Article 31(c) of the Constitution provided that a person’s right to privacy included the right not have information relating to their family or private affairs unnecessarily required or revealed. In the circumstances, it was necessary to annex the said document to the 4th respondent’s statement in support of the suit filed as long as it was correct and truthful. There were certain constitutional rights that were not absolute and could be limited in certain instances as provided for under article 24(1) of the Constitution.
  7. What article 31(c) of the Constitution prohibited was unnecessary revelation of information relating to one’s family or private affairs. Accurate and truthful documents that were filed by parties in court for purposes of proving issues or questions in dispute in order to enable a court reach a fair determination could not be said to amount to violation of articles 31(c).
  8. The trial court erred in finding that the exhibition of the medical scheme beneficiary form amounted to wrongful invasion of the appellant’s right to privacy as well as that of the two minors.
  9. Costs followed the event except where for good reasons the trial court ordered otherwise. The appellant had filed the petition for the benefit of both himself and the two children. It was not demonstrated that the trial court in ordering the appellant to bear the costs of the suit exercised his discretion injudiciously.

Appeal dismissed with costs to the 4th respondent.

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