Newsletter Issue 006/2013

04-12-2013 Kenya Law Newsletter | Issue 006/2013



Kenya Law

Weekly Newsletter


Scope of medical fitness screening in the context of employment relationships
V M K v C U E A
Cause No. 1161 of 2010
Industrial Court of Kenya at Nairobi
M N Nduma, J
November 8, 2013
Reported by Teddy Musiga

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Brief facts:
The claimant alleged discrimination against the respondent, particulars being; keeping her on casual employment selectively; paying her an inordinately low salary for equal work compared to her counterparts; refusing her recruitment on permanent basis and continuing to employ her on casual basis with very low pay compared to her colleagues in the same position for long period; testing her for HIV status without her consent; disclosing her HIV status to her superiors and colleagues and thereby violating her right to privacy; keeping her on short and progressively shorter contracts, with unequal terms due to her HIV status; refusing her paid maternity leave followed by an immediate termination of employment upon return from unpaid maternity leave.

Issues:
  1. Whether HIV screening in the workplace for purposes of recruiting, retaining or promotion of employees is legal.
  2. Whether employers are entitled to scrutinise the medical fitness of employees to be absorbed in their permanent services.
  3. Whether the termination of employment based on HIV status and pregnancy is lawful.
 
Employment Law – employer & employee relationship – termination of employment – termination on grounds of HIV status and pregnancy - whether the termination of employment based on HIV status and pregnancy is lawful – Employment Act, section 29
 
Employment Law – Fair labour practices - fair remuneration – equal work for equal pay – reasonable working conditions – Employment Act, Section 5, Constitution of Kenya, 2010 article 41
 
Employment Law – employer & employee relationship – medical fitness scrutiny of employees – considerations/ tests for medical fitness scrutiny - Whether HIV screening in the workplace for purposes of recruiting, retaining or promotion of employees is legal - Whether employers are entitled to scrutinise the medical fitness of employees to be absorbed in their permanent services
 
Article 27 of the Constitution of Kenya, 2010 provided that;
“Women and men have the right to equal treatment, including the right to equal opportunities in political, economic, cultural and social spheres.”

Article 28 of the Constitution of Kenya, 2010 provided that;
“Every person has the inherent dignity and right to have that dignity respected and protected.”

Article 41(2) of the Constitution of Kenya, 2010 provided that;
“Every person has the right to fair labour practices which includes the right to fair remuneration and reasonable working conditions.”

Section 5 of the Employment Act provided that;
“(2) An employer shall promote equal opportunity in employment and strive to eliminate discrimination in any employment policy or practice.
(3) No employer shall discriminate directly or indirectly against an employee or prospective employee or harass an employee or prospective employee on the grounds of race, color, sex, language, religion, political or other opinion, nationality, ethic or social origin, disability, pregnancy, mental status or HIV status in respect of recruitment training, promotion and terms and conditions of employment or other matters arising out of the employment.
(4)An employer shall pay his employees equal remuneration for work of equal value.”

Held:
1. Article 1 of the Convention Concerning Discrimination in respect of Employment and Occupation, 1958 proscribed discrimination which had the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation. Therefore, the conduct of the respondent systematically and completely killed any of the claimant’s chance of employment with the respondent mainly because of her sex, pregnancy and HIV status.

2. No employer in Kenya should require HIV screening for purposes of recruiting, retaining or promotion of employees at the work place. (Conditions of Work Digest, Volume 12.2/1993 at page 53)

3. Employers were entitled to scrutinise the medical fitness of their prospective employees. However, the actual test or consideration to be applied for judging the medical fitness in the context of employment had to necessarily correlate to the requirements of the job, and interests of the persons and property at the work place. In the employment context, an otherwise qualified person was one who could perform the essential functions of the job in question.

4. The right to life to a workman included the right to continue in permanent employment which was not a bounty of the employer nor could its survival be at the volition and mercy of the employer. Income was the foundation to enjoy many fundamental rights and when work was the source of income, the right to work then became such a fundamental right. (Air India Statutory  Corporation v United Labour Union [1997] AIRSCW 430)

5. An employee could not be medically unfit merely by virtue of having been infected by HIV. Therefore, the respondent grossly erred in refusing the claimant employment on a permanent basis on the ground of her HIV status. They also breached her right to employment and equal treatment by subjecting her continuously to casual employment and inferior remuneration purely on the basis of her HIV status. Further that the respondent erred by terminating her employment under the pretext that her short term contract had expired when the sole reason for the adverse decision was her HIV status.

6. Section 29 of the Employment Act, 2007 provided that female employees were entitled to three months maternity leave with full pay. Therefore, the respondents unlawfully withheld the claimant’s salary while she was on maternity leave.

7. The cumulative effect of the respondent’s actions against the claimant constituted gross affront on her dignity contrary to article 28 of the Constitution of Kenya, 2010, a gross violation of her right to fair labour practices which included a right to fair remuneration and to reasonable working conditions contrary to article 41 of the constitution. Further, that the respondent grossly violated article 27 of the Constitution and in particular her right to equal benefit of the law and equal enjoyment of all rights was grossly violated by the discriminative conduct of the respondent in spite of the specific provisions of labour laws that guaranteed the claimant specific rights and equality at the work place.

Industrial cause allowed. Respondents to pay claimant total of Ksh. 6,971,346/= being damages for discrimination of the claimant on the basis of her HIV status and gross violation of her human dignity.
 

 

Kenya Law
Case Updates Issue 38/2013
Case Summaries  

ELECTORAL LAW Irregularities attributed to an innocent mistake cannot constitute a reason for impeaching an election result

Paul Gitenyi Mochorwa v Timothy Moseti E Bosire & 2 others
Election Petition No 8 of 2013
High Court at Kisii
Edward M Muriithi J
September 30, 2013
Reported by Njeri Githang’a Kamau & Victor L Andande

Download the Decision

Brief Facts:
This was a petition against the declaration of the 1st respondent (Timothy Moseti) as the Member of the National Assembly for Kitutu Masaba Constituency by the 2nd Respondent, who was the Returning Officer of the 3rd Respondent (Independent Electoral and Boundaries Commission), following the General Election of the 4th March 2013, whereupon the 2nd Respondent certified that the 1st Respondent had received the highest number of votes in the said parliamentary election. The Petition was premised on grounds which included bribery, misspelling of the petitioner’s names, deployment of relatives as polling clerks and alterations in form 35 among others.

Issues:

  1. What was the standard of proof for the offence of bribery in an election petition?
  2. Whether misspelling of a candidate’s name could lead to nullification of an election.
  3. Whether the deployment of relatives of a candidate as polling clerks could be said to affect the election outcome.
  4. Whether alterations in form 35 which were not countersigned could be said to have affected the accuracy of the election results.

Electoral Law –election petition – standard of prove in election petitions – where there were allegations of bribery – testimony by witnesses that they witnessed bribery of voters – where the testimony was premised on the 1st respondent’s dress code on the voting day – whether in the circumstances the offence of voter bribery had been proved.

Electoral Law -election results – accuracy in recording election results – where there had been alterations on form 35 which were not countersigned – claim by the petitioner that such alterations affected the accuracy of the results – whether alterations on form 35 could be said to affect the final result.

Electoral Law-invalidation of elections – where there were allegations of breach of election law – whether non-compliance with election law could lead to invalidation of elections – the Constitution of Kenya, 2010, article 105; the Elections Act 2011, section 83. Read More...

Held:

  1. The standard of proof for election offences which were of criminal nature had to be proved to the same standard of beyond reasonable doubt applicable to criminal proceedings.
  2. Clear and unequivocal proof was required to prove an allegation of bribery. Mere suspicion was not sufficient. Though it was not easy to prove bribery, more especially where it was done in secrecy. In such cases, perhaps bribery could be inferred from some peculiar aspects of the case but when it was alleged that bribery took place publicly and in the presence of many people, the court could not be satisfied by anything less than the best evidence which was always direct evidence given first hand. Simon Nyaundi Ogari & another v Hon. Joel Omagwa Onyancha & 2 others [2008] KLR.
  3. The Petitioner had to show more than just consistent dress of the 1st respondent in various polling stations in proving that he or his agents bribed voters to vote for him. That type of evidence was in this petition short in coming and of lower degree than the required standard of beyond a reasonable doubt. In view of the seriousness of the charge it would be expected that the petitioner and the witnesses would have reported the matter to the police and follow up with the arrest and prosecution of the 1st respondent for the election offence.
  4. The legal burden of proof was on the petitioner with the evidential burden shifting from time to time in the course of the petition proceedings upon proof by firm and credible evidence.
  5. It could not be strongly argued that on the basis only of distant degree of consanguinity, the polling clerks could be presumed to carry out their duties in a manner to favour the 1st Respondent or otherwise result in a conflict of interest between carrying out their statutory duties and any loyalty. Further, no allegation was made and proved that the 1st Respondent benefitted in any way from the deployment of the said clerks at the Polling station.
  6. No matter how close the affinity or relationship of itself was not sufficient; it had to be shown that it had an effect on the election, that the relative of the candidate was in a position to and did alter or otherwise influence the outcome of the election. This was not the case in the instant petition.
  7. Irregularities which could be attributed to an innocent mistake or an obvious human error could not constitute a reason for impeaching an election result. The court was mindful of the fact that at the stage where election officials were required to tally the results, some of them would have stayed awake for more than thirty-six hours and therefore simple arithmetical mistakes were bound to happen. (Joho v Nyange (2008) 3KLR (EP) 500.)
  8. The General Election of 2013 comprised elections to six different elective positions; this must have increased six-fold the probabilities of innocent human errors in computation of the figures entered as votes for the respective candidates, the tallying and subsequent record thereof in the Constituency Form 36. It was not inconceivable and therefore definitely not inexcusable that the election officials who conducted the six elections over a period of three days would have in human probability made errors in their record of the elections.
  9. There was no requirement that the entries on Form 35 or any other form be without alteration. The constitutional requirement for accuracy in election system could not be construed to mean that the statutory forms for the recording of the results of an election must never have errors, corrections or alterations. Accuracy did not mean free from error which had been corrected, an impossibility in all human endeavour; accuracy would be served, if there existed a means of verification of the entries to test for their accuracy and it necessarily imported corrections by alterations, whether countersigned or not.
  10. For the non-compliance of the election law to be held to affect the result, it had to affect the final outcome of the election: that an outcome substantially different from that declared would on account of the irregularities or breaches of the law result. The proved non compliance with the election law did not affect the result and the final outcome, of the election in terms of section 83 of the Elections Act, the election could not be invalidated.
  11. The name of a candidate was not the only means of identification in a ballot paper. There were other means which included the candidates' political party's name, symbol and colour. The irregularity in the misspelling of the name of one of the candidates (PW2) was not a substantial non compliance with the election law and did not in any way affect the result of the election.

Petition dismissed with costs to the respondents.

ELECTORAL LAW Petition challenging the election of the Member of Parliament for Taveta Constituency in the general elections dismissed

Basil Criticos v Independent Electoral & Boundaries Commission& 2 others
Election Petition No 3 of 2013
 High Court at Mombasa
Fred A Ochieng, J
September 27, 2013
Reported by Nelson K Tunoi & Beatrice Manyal

Download the Decision

Issues:
  1. Whether the election of the Member of National Assembly for Taveta Constituency held on 4th March 2013, (was credible, free and fair), whether it was in conformity with the Constitution of Kenya 2010, the Elections Act and Regulations, and other Laws relating to elections.
  2. Whether the declaration of Naomi Hamsi Shaban (3rd respondent) as the Member of National Assembly for Taveta Constituency ought to be nullified and Hon. Basil Criticos (petitioner) declared the Member of National Assembly.
  3. Whether the election results should be nullified due to election offences and malpractices, and fresh elections ordered by the court.
Electoral Law –election petition – parliamentary elections – petition seeking the nullification of election results for the Member of National Assembly for Taveta Constituency – whether the election for the Member of national assembly was free and fair – whether it was in conformity with the Constitution and the electoral laws – claims of voter bribery, intimidation – claims that the petitioners agents were denied entry into the polling stations while some were ejected from the polling stations – that some of the form 35 were not signed by the agents – whether the election should be nullified and the petitioner declared winner – whether the High Court should order for fresh elections – Constitution of Kenya, 2010 articles 10, 20(1),38; Public Officers Ethics, 2003 Section 16; Elections (General) Regulations, 2012, Regulations 62(1)(c),66,,67 and 70 79 Read More...

Held:

  1. Under section 83 of the Election Act an election could not be declared void for non-compliance with written law if it was conducted according to the principles of law. The High Court was therefore enjoined to look not only at the end result but the process as well.
  2. Regulation 62 (1) (c) of the Elections (General) Regulations of 2012 mandated the presiding officer to regulate the number of voters to be admitted to the polling station at the same time and could exclude all other persons except authorized agents. An authorized agent was one who had a letter of appointment, an Oath of Secrecy and a declaration.
  3. The petitioner's agent in 9 of the polling stations were denied entry as they lacked the Oath of Secrecy which was one of the cardinal documents although they were later allowed in on presentation of the letter of appointment and the Oath of Secrecy. However these requirements applied to all agents of all parties and not the petitioner’s agents alone as alleged by the petitioner. There was no conspiracy between the respondents to lock out the petitioners agents. In any event, regulation 62(3) made it clear that the absence of agents would not invalidate the proceedings at a polling station.
  4. The fact that there was an alteration on form 35 in Rekeke Primary School polling station (of the figure 250, which was replaced by 310, as the votes cast for the 3rd respondent, Naomi Shaban) did not, of itself, advance the petitioner's case at all. The Petitioner did not say that he or any of the other candidates were allocated fewer votes than was allocated to them on the Form 35. But even more significantly, the petitioner’s agent, signed the Form 35, thus confirming the accuracy of the contents.
  5. The Petitioner failed to satisfy the High Court that the respondents committed any election offence, or that there were any significant breaches of the Regulations or the laws governing elections. There were no widespread electoral irregularities or malpractices that would have impugned the results of the elections. The margin by which the 3rd Respondent won the election was small, but that was no reason to upset it
  6. The 3rd respondent, Naomi Namsi Shaban was the validly elected member of the National Assembly for Taveta Constituency. Hon. Basil Criticos was not the validly elected Member of the National Assembly for Taveta Constituency. There was therefore no reason in law, and in fact, to order that a fresh election be conducted for the Member of the National Assembly for Taveta Constituency.

Petition dismissed; certificate to issue in accordance with section 86(1) of the Elections Act, 2011 to the IEBC; Petitioner to bear the costs of the petition as against the 1st and 2nd respondents jointly Kshs1.5 million only, as against the 3rd respondents, Kshs. 1.5 million only.

ELECTION LAW Review of Court orders in election petitions

Godfrey Masaba v IEBC & 2 others
Petition No 8 of 2013
High Court at Bungoma
H A Omondi, J
September 25, 2013
Reported by Lynette A Jakakimba

Download the Decision

Issues:

  1. Whether an election court had power to review its orders.
  2. On what grounds or circumstances could an election court review its orders?
  3. Whether the finding of the court that the applicants did not file a response to the election petition was an error apparent on the face of the record and in respect of which the court ought to review its orders.
  4. Whether a Court ought to give parties to a proceeding an opportunity to submit on costs awardable to them before making a decision on the maximum amount payable to the parties.

Election Law election petition-costs – mode of apportioning cost in an election petition – where one of the respondents to an election petition did not file a response

Election Law- election petition – review of court orders – whether an election court had powers to review its orders – on what grounds or circumstances could an election court review its orders – whether the finding of the court that the applicants did not file a response to the election petition was an error apparent on the face of the record and in respect of which the court ought to review its orders – Election (Parliamentary and County) Rules rule 15(7)-Civil Procedure Rules order 45 (1)-Constitution of Kenya, 2010 article 20 and 35.Read More...

Election (Parliamentary and County)Rules
Rule 15 (7)

The provision of Order 19 of the Civil Procedure Rules, 2010 and the Oaths and Statutory Declarations Act shall apply to affidavits under this rule. [L.N. 151 of 2010, Cap. 2.]

Civil Procedure Rules
Order 45(1)

(1) Any person considering himself aggrieved-
(a)by a decree or order from which an appeal is allowed, but from which no appeal has been preferred; or
(b) by a decree or order from which no appeal is hereby allowed, and who from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or the order made or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree or order, may apply for review of judgment to the court which passed the decree or made the order without unreasonable delay.

Constitution of Kenya, 2010
Article 35

(1) Every citizen has the right of access to—
(a) information held by the State; and
(b) information held by another person and required for the exercise or protection of any right or fundamental freedom.
(2) Every person has the right to the correction or deletion of untrue or misleading information that affects the person.
(3) The State shall publish and publicise any important information affecting the nation.

Article 20 (3)

In applying a provision of the Bill of Rights, a court shall—
(a) develop the law to the extent that it does not give effect to a right or fundamental freedom; and
(b) adopt the interpretation that most favours the enforcement of a right or fundamental freedom.

Held:

  1. The Elections Act and the Elections (Parliamentary and County Elections) Petition Rules 2013 made no provision for an Election Court to review its orders. Further the Election (Parliamentary and County) Petition Rules were complete and the only instances that the Civil Procedure Rules were invoked were as provided under rule 15 (7) of the Election (Parliamentary and County) Rules.
  2. Article 35(2) of the Constitution guaranteed every person the right to correction or deletion of untrue or misleading information that affects the person. Article 20(3)(a) on the other hand, enjoined a court when applying a provision of the Bill of Rights, to develop the law to the extent that it did not give effect to a right or fundamental freedom. By failing to make provision for the court to review its orders in the appropriate circumstances, especially where there was a mistake or error apparent on the face of its record that needed to be corrected or deleted in order to set the record straight, it would appear that the Elections Act, and the Rules made thereunder offended the spirit and letter of article 20(3)(a) as read with article 35(2) of the Constitution.
  3. Notwithstanding the lack of any express provisions for review in the Election Act and the Rules, an election court had power to review its order if doing so would serve a useful purpose in the just determination of the issue before it.
  4. Although order 45(1) of the Civil Procedure Rules was not one of the portions applicable to Election Petitions under the Elections (Parliamentary and County Elections) Petitions Rules, 2013, the conditions set therein gave rational parameters for review of an order of an election court.
  5. Owing to the special nature of election disputes not all the tests under order 45(1) of the Civil Procedure Rules could be applicable in an application for review of the orders of an Election Court. An Election court had to review its orders on account of some mistake or error apparent on the face of the record. The court would fail in its mandate of administering justice to parties, if, because the rules of procedure didn't clothe it with power to correct its mistake or error, it allowed wrong or misleading record to stand.
  6. It was significant that although the applicants contended that they had filed their response way before the court wrote its ruling and within the time ordered by the court, the said response was not in the court record when the court wrote its ruling. In fact it’s because the applicants response was conspicuously missing in the court file that the court awarded them lesser costs compared to the 3rd respondent.
  7. Ordinarily a court ought to give parties an opportunity to submit on costs awardable to them before making a decision on the maximum amount payable to the parties. Where a court made its decision without giving the parties an opportunity to be heard on the quantum of costs that would not automatically constitute a good reason for review of its order on costs. The applicants had to demonstrate by way of evidence that the court estimate on the maximum costs payable to the parties was erroneous or too low to enable them recoup their expenses and make a return on their investment.
  8. The court was duty bound to distinguish the costs payable amongst the respondents as the record showed that the work done by the parties in defending the petition was not the same. The 3rd respondent, in addition to preparing and filing a response to the petition, was obviously entitled to more costs than the applicants who according to the record had not filed any response to the petition.

Application dismissed with costs to the petitioner being borne by 1st and 2nd respondents.

CONSTITUTIONAL LAW Court rules on the constitutionality of sections 16(2)(b) of the Supreme Court Act, 2011

Commission on Administrative Justice v Attorney General & Law Society of Kenya (Interested Party)
Petition No 284 of 2012
High Court at Nairobi
Isaac Lenaola, J
September 19, 2013
Reported by Phoebe Ida Ayaya and Derrick Nzioka

Download the Decision

Issues
  1. Whether section 16(1) & (2)(b) of the Supreme Court, 2011 were ultra vires article 163 of the Constitution of Kenya, 2010 to the extent that they added to the jurisdiction of the Supreme Court to determine appeals where the court was satisfied that it was in the interests of justice for the court to hear and determine the proposed appeal or where a substantial miscarriage of justice may have occurred or may occur unless the appeal was heard.
  2. Whether section 23(2) of the Supreme Court Act was ultra vires the Constitution to the extent that it provided that any two judges may act as the court.

Constitutional Law -constitutionality of a statutory provision – constitutionality of sections 16(1) & 2(b) and 23(2) of the Supreme Court Act – claim that sections 16(1) & 2(b) and 23(2) of the Supreme Court Act were ultra vires the constitution of Kenya, 2010 – where the Supreme Court had previously held that sections 16(1) & 2(b) were not ultra vires the Constitution of Kenya, 2010 – where the High Court held that additional words not considered by the Supreme court in its previous ruling regarding the constitutionality of section 16(2)(b) of the Supreme Court Act, rendered the section ultra vires the Constitution of Kenya, 2010 – where the Supreme Court previously settled the issue of the constitutionality of section 23(2) of the Supreme Court Act – Supreme Court Act, sections 16(1) & 2(b) and 23(2). Read More...

Supreme Court Act
Section 16

(1) The Supreme Court shall not grant leave to appeal to the Court unless it is satisfied that it is in the interests of justice for the Court to hear and determine the proposed appeal.
(2) It shall be in the interests of justice for the Supreme Court to hear and determine a proposed appeal if—

(a) the appeal involves a matter of general public importance; or
(b) a substantial miscarriage of justice may have occurred or may occur unless the appeal is heard.

(3) The Supreme Court shall not grant leave to appeal against an order made by the Court of Appeal or any other court or tribunal on an interlocutory application unless satisfied that it is necessary, in the interests of justice, for the Supreme Court to hear and determine the proposed appeal before the proceedings concerned is concluded.
(4) The Supreme Court may grant leave to appeal subject to such conditions as it may determine.
(5) The Supreme Court may, on application, vary any conditions imposed under subsection (4) if it considers it fit.

Section 23b

(1) For the purposes of the hearing and determination of any proceedings, the Supreme Court shall comprise five Judges.
(2) Any two or more judges of the Supreme Court may act as the Court—
(a) to decide if an oral hearing of an application for leave to appeal to the Court should be held, or whether the application should be determined solely on the basis of written submissions; or
(b) to determine an application for leave to appeal to the Court.

Constitution of Kenya, 2010
Article 163

(1).The Supreme Court shall have—

(a)exclusive original jurisdiction to hear and determine disputes relating to the elections to the office of President arising under Article 140; and
(b) subject to clause (4) and (5), appellate jurisdiction to hear and determine appeals from—
(i). the Court of Appeal; and
(ii). any other court or tribunal as prescribed by national legislation.

(2).Appeals shall lie from the Court of Appeal to the Supreme Court—

(a) as of right in any case involving the interpretation or application of this Constitution; and
(b) in any other case in which the Supreme Court, or the Court of Appeal, certifies that a matter of general public importance is involved, subject to clause (5).

Held:
  1. Regarding the constitutionality of section 16 of the Supreme Court Act, the Supreme Court settled the meaning to be attributed to the term “a matter of general public importance” in the case of Hermans Phillipus Steyn v Giovanni Guecchi – Ruscone [2013] eKLR.
  2. The High Court was a court subordinate to the Supreme Court and therefore bound by the provisions of article 163(7) of the Constitution of Kenya, 2010, which stated that all courts, other than the Supreme Court, were bound by the decisions of the Supreme Court.
  3. Section 16 of the Supreme Court Act however introduced the words “in the interests of justice” and “substantial miscarriage of justice” over and above “a matter of general public importance”. Section 16(2) used the word “or” to denote that “substantial miscarriage of justice” was an alternative to proof of “a matter of general public importance” as a criterion for leave to appeal to the Supreme Court. The addition of the words “a substantial miscarriage of justice” served to grant the Supreme Court extra criteria and jurisdiction to hear and determine applications for leave to appeal to that court.
  4. The constitutionality of section 23 of the Supreme Court Act was settled as the argument that two judges of that Court could not constitutionally constitute a panel for the purposes of determining certain matters that may be placed before it was dismissed in the case of Rai v Rai Petition No4 of 2012.
  5. The truth of the matter was that the petitioner's argument could hardly be challenged and the respondents failed to point to the constitutionality of the said provisions.

Section 16(2)(b) of the Supreme Court Act 2011 was declared to be ultra vires the Constitution, 2010 to the extent that it added to the jurisdiction of the Supreme Court to determine appeals where the Court was satisfied that a substantial miscarriage of justice may have occurred or may occur unless the appeal was heard.

ELECTORAL LAW Significant breaches of official duties and election rules, so long as they do not affect the result of an election, are deemed to be within the law.

Charles Oigara Mogere v Christopher Mogere Obure and 2 others
Election Petition No 9 of 2013
High Court at Kisii
Ruth Nekoye Sitati, J
September 16, 2013
Reported by Emma Kinya Mwobobia and Obura Paul Michael

Download the Decision

Brief Facts:
The petition concerned the Senatorial elections for Kisii County whereby the petitioner challenged its validity, citing significant breaches of official duty and election rules regarding the electoral process. He alleged that votes lawful cast and counted in favour of his principal were excluded from the final tally; that instances where votes neither cast nor counted were factored in favour of various candidates; that there were instances of multiplication, repetition and duplication of votes; and finally that there was a failure by agents to sign forms 36 and lack of statutory comments.
The respondents however questioned the competency of the petition that the petitioner failed to state the date of the declaration of results contrary to the election regulations.

Issues:
  1. Whether failure by the petitioner to state the date of the declaration of the results of the senatorial elections, rendered the petition incompetent.
  2. Whether the electoral process and election results were valid.
  3. Whether the declaration and the subsequent gazettement of the 1st respondent as the duly elected Senator was valid.
  4. Whether failure by the returning officer to sign some of the Forms 36 was fatal to the result of the election.

Electoral law –petition – competency of an election petition – where the petitioner failed to state the date of the declaration of the results – whether the failure rendered the petition incompetent in the circumstances – Election Petition Rules, rule 10

Electoral Law invalidation – invalidation of elections – invalidation of senatorial elections for Kisii County – where the returning officers failed to sign some of the forms 36 – whether the failure was fatal to the result of the election in the circumstances – Elections (General) Regulations, 2012, regulation 79(6), 83, 87(3) Read More...

Held:

  1. The position taken by the respondents notwithstanding, the issue of the legality of the petition ought to have been taken before the pre-trial conference as a preliminary point of law to be determined before the petition proceeded. The respondents having not taken that course of action, the issue did not fall for determination. The petition would have therefore died a natural death if the argument had been raised as a preliminary objection.
  2. Inspite of certain breaches of the rules, where one or more of the candidates would have polled more or less votes than were recorded at the count, but the same candidate would still have been elected, the result of the election would not have been affected and the election can only be declared invalid if it appeared to the court that the election was not so conducted as to be substantially in accordance with the law as to elections.
  3. The errors pointed out by the petitioner were not a substantial departure from the law and principles as to elections, and that the votes which should have been included in the petitioner’s principal final tally had not affected the result of the Senatorial election since the 1st respondent would still have had a substantial lead and the petitioner’s principal would still have maintained his third position in the race.
  4. In relation to instances where votes neither cast nor cured were factored in favour of various candidates, there was no evidence on record to show that any of the other candidates complained that they had been given votes they were not entitled to, or votes that were either more or less than the votes they actually polled. The only error found in Form 36 for Bomachoge Borabu Constituency was immaterial, it was arithmetical and did not affect the result of the election.
  5. On the claims of multiplication, repetition, duplication, of votes, the error affected all the candidates, and no single candidate could be said to have benefited from the error. There was also no evidence to show that the number of votes cast exceeded the number of registered voters at the contested polling stations.
  6. The petitioner failed to prove that the results contained in the Form 36 for Bobasi Constituency did not agree with the results in the primary documents, Forms 35, so as to make the said results invalid. According to regulation 83 of the Elections (General) Regulations, 2012 (Regulations), the petitioner’s allegations remained mere allegations without any iota of evidence to support them.
  7. Courts would strive to preserve an election as being in accordance with the law, even where there have been significant breaches of official duties and election rules, providing the result of the election, was unaffected by those breaches. This was because where possible, the courts sought to give, effect to the will of the people. (John Fitch –v- Tom Stephenson & 3 others QBD [2008] EWHC 501)
  8. Failure to sign the declaration forms 35 did not in itself give rise to the invalidation of the election result. Further, regulation 79 (6) of the Regulations was clear that the refusal or failure of a candidate or an agent to sign a declaration form under sub-regulation (4) or to record the reasons for their refusal to sign as required under the same regulation shall not by itself invalidate the results announced under sub-regulation (2) (a). The gazettement of the 1st respondent as the duly elected Senator for Kisii County was valid in accordance with regulation 87.
  9. It was the duty of the Independent Electoral and Boundaries Commission to gazette the 1st respondent as the duly elected Senator for Kisii County as provided under section 60 of the Evidence Act, Cap 80 Laws of Kenya. It was only through such gazettement that the citizens of this country would be informed of who the duly elected Senator for Kisii County was.

Petition dismissed, Christopher Mogere Obure declared as validly elected Senator for Kisii County, the petitioner to pay costs amounting to Kshs.1.8 million to the 1st respondent and Kshs.1.0 Million to the 2nd and 3rd Respondents, which shall be taxed.

ELECTORAL LAW Declaration of a candidate as winner at the tallying centre does not necessarily make the candidate the final winner of the election

Steven Kariuki v George Mike Wanjohi & 2 others
Election Petition No 2 of 2013
High Court at Nairobi
G K Kimondo, J
September 13, 2013
Reported by Phoebe Ida Ayaya and Derrick Nzioka

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Brief Facts:
Upon tallying of votes at the constituency tallying hall, the returning officer publicly announced that the petitioner had won and issued a certificate of results in Form 38 of the Elections (General) Regulations 2012 to the petitioner. Two days later, the IEBC cancelled that certificate and issued a fresh one to the 1st respondent, after the returning officer had re-tallied the votes and found that the 1st respondent had garnered more votes, and that the first time she had made an error. The IEBC then declared in a formal instrument, The Kenya Gazette, that the 1st respondent was duly elected.

Issue:

  1. Whether a returning officer had the power to cancel a certificate of results issued in the form of Form 38 of the Elections (General) Regulations 2012 which had been issued to a candidate after the returning officer had made a public announcement that the candidate had won.

Electoral Law- election petition – declaration of a winning candidate in a member of national Assembly election – claim that the declaration of a winner and subsequent issuance of form 38 at the tallying centre amounted to a final declaration – where the returning officer issued a form 38 to a candidate but later a different candidate was gazetted as the winner – where the candidate issued with the form 38 averred that the declaration of the returning officer that he was the winner, and subsequent issuance of form 38 to him marked a final declaration of results of the election – where the returning officer averred that the form 38 issued to the candidate had errors, and upon re-tallying it was discovered that another candidate had won the election, which candidate was later gazetted – whether the returning officer had the power to cancel the results issued in the form 38 given to a candidate after a public announcement on the said results had been made – Elections (General) Regulations, regulations 84 & 87(9). Read More...

Held:

  1. It was the petitioner’s duty to show sufficient evidence that re-tallying of votes took place outside the tallying centre, but this was not done. The evidence adduced by the returning officer showed that although she re-tallied votes after presenting form 38 to the petitioner, it was done at the tallying centre in the presence of the deputy returning officer and some agents. Therefore, the final tally of results that placed the 1st respondent ahead was conducted at the constituency tallying hall in accordance with regulation 84 of the Elections (General) regulations 2012.
  2. In considering whether the original announcement that the petitioner had won was a final declaration, regulation 87(9) provided that the results announced by the returning officer at the tallying hall and the certificate in form 38 were provisional. Therefore, there was a small open window for review of provisional results by the Commission between the announcement of provisional results at the tallying centre and the formal gazettement of the winner.
  3. The announcement of tallying results and issue of the form 38 by the returning officer at the tallying hall was only provisional, the final or binding declaration of results was done by the Independent Electoral and Boundaries Commission in the formal instrument of The Kenya Gazette.
  4. The 1st respondent and not the petitioner was determined, declared and published by both the 3rd respondent and the Independent Electoral and Boundaries Commission as elected member of National Assembly for Mathare Constituency.

Petition dismissed.

CONSTITUTIONAL LAW Spouse compensated for psychological torture after husband’s physical torture and death in “Nyayo House

Jaoko Noo Ooro & 5 others v Attorney General
Petition Nos 35, 37, 39, 40 of 2010; 68 of 2011, 133 of 2013 (Consolidated)
High Court at Nairobi
I Lenaola, J
September 2, 2013
Reported by Cornelius Lupao and Mercy Ombima

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Brief facts
The petitioners brought a consolidated petition alleging various violations of their human rights during their detention in the infamous “Nyayo House Torture Chambers”. The petitioners, except for one petitioner, alleged that they had been arrested, tortured, kept in custody for varying periods of time and released without charge. Some of the petitioners however were charged in court after being subjected to torture but were later released.
One of the petitioners had neither been arrested nor tortured physically, but she claimed that she had undergone psychological torture after her husband was illegally detained. She claimed that during the arrest of her late husband, important documents like her children’s birth certificates and school testimonials had been destroyed. She also alleged that the incident traumatized both her and her children who developed fear of even attending school.

Issues:

  1. Whether the petitioners, who were victims of arbitrary arrest, detention and torture by the police, were entitled to compensation under the Constitution of Kenya (repealed).
  2. Whether a spouse of a deceased person, who had died during detention in the infamous nyayo house torture chambers, was entitled to compensation for psychological torture and mental anguish.
Constitutional Law fundamental rights and freedoms – right to freedom and association – where the police arbitrarily arrested, detained and tortured the petitioners – claim that the petitioners were detained in the infamous “Nyayo house torture chambers” – where some of the petitioners were released without being charged – where charged petitioners were not arraigned in court within twenty four hours – whether the petitioners were entitled to compensation – Constitution of Kenya (Repealed) section 72; 79(1); 80(1) African Charter on Human and Peoples' Rights article 5 Read More...

Held:

  1. All the petitioners, except one, had been arrested with no reasons, detained for more than twenty four hours and were not arraigned in court to be charged. For the petitioners that were arraigned in court, no reasonable cause was shown by the state as to why they were not produced in court within twenty four hours. A reading of section 72 of the repealed Constitution revealed that no person should be deprived of his personal liberty except as was authorized by law.
  2. A person who was arrested or detained had a right to be informed, as soon as was reasonably practicable and in a language that he understood, of the reasons for his arrest or detention. The arrested person was required to be brought to court within twenty four hours. The Respondent had therefore breached the Petitioners’ rights as was enshrined in the repealed constitution.
  3. Further, international laws such as the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and the African Charter on Human and Peoples' Rights [Banjul Charter], in article 5, had established that treatment would be considered inhuman when it caused intense, physical or mental suffering. Inhuman acts would amount to torture when used to deliberately cause serious and cruel suffering. Punishment would be degrading if it humiliated and debased a person beyond that which was usual from punishment.
  4. Although the Respondent had not physically tortured one of the petitioners, she had been subjected to a non-physical form of torture due to her association with her husband. That had caused her mental anguish and distress, which was tantamount to psychological torture. Mental suffering was as outlawed as was physical suffering
  5. When it came to the freedom of association, whether individual or collective, that right was hinged on the liberty to assemble and pursue common interests. Indeed the Petitioners' arrest, searches and interrogations were all based on suspicions of their anti-Government associations and yet the state did not go forward and prove those suspicions to the required standard in law. The government had instead resorted to torture as a tool of curtailing that freedom. No court could countenance such conduct. The Respondent had infringed on the rights of the Petitioners as provided for in sections 79(1) and 80(1) of the repealed Constitution of Kenya.

Petitions allowed.

CONSTITUTIONAL LAW City Council of Nairobi has a duty to ensure that people carrying out business within its jurisdiction are not unfairly exploited

Boniface Muigai Wanjenga & 318 others v City Council of Nairobi & 7 others
Petition No 88 of 2012
High Court at Nairobi
M Ngugi, J
August 30, 2013
Reported by Lynette A Jakakimba

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Brief Facts:
The petitioners had been allocated Temporary Occupation Licence (TOL) to an open air market at Gikomba by the City Council of Nairobi (the 1st respondent) for which they paid cess on daily basis to the City Council and an amount of Kshs 2,500 demanded as rent by the 2nd – 8th respondents who were individuals operating as an association known as Muungano Jua Kali Association within the market. The City Council of Nairobi had previously issued a TOL to Muungano Association over the same open air market, which was subsequently cancelled.
It was on the basis of that TOL that the 2nd- 8th respondents claimed ownership over the suit property further they alleged that the property was not an open air market but an enclosed area which their association had developed and thus were entitled to collect rent from the petitioners.
The petitioners submitted that the 2nd-8th respondents had no right to claim rent as they were neither licensees of the City Council nor owners of the suit property. The petitioners further contended that they were being subjected to double jeopardy as they had been made to pay twice for use of the same land and this was in violation of their rights as guaranteed under articles 28, 29, 40 and 46 of the Constitution..

Issues:

  1. Whether a private association could levy rent or fees over public property owned by a public entity.
  2. Whether the requirement that the petitioners pay cess to the City Council of Nairobi and rent to the Muungano Jua Kali Association was in violation of the petitioner’s constitutional rights.
  3. Whether the respondents infringed on the petitioners’ consumer rights as guaranteed by article 46 of the Constitution by demanding payment of both cess and rent for the same property.
  4. Whether the respondents infringed on the petitioners’ right to acquire property through trading as guaranteed under article 40 by demanding both payment of cess and rent over the same property.
  5. Whether the demand of payment of rent to the respondents who were not owners of the suit property was violation of the petitioners’ freedom from torture and right to dignity as guaranteed under articles 29 and 28 of the Constitution.

Constitutional Law fundamental rights and freedoms – right to dignity, personal liberty and security of the person – freedom from torture – whether the requirement that the petitioners pay cess to the City Council of Nairobi and rent to the respondents who were not owner of the suit property was in violation of the petitioner’s constitutional rights – Constitution of Kenya , 2010 article 28,29,40,43 and 46 – Convention against torture and other cruel, inhuman or degrading treatment or punishment article 3

Administrative Law - County Government – management of public property – authority over management of public property – whether a private association could levy rent or fees over public property owned by a public entity Read More...

Constitution of Kenya,2010
Article 28

Every person has inherent dignity and the right to have that dignity respected and protected.

Article 29

Every person has the right to freedom and security of the person, which includes the right not to be—

(a) deprived of freedom arbitrarily or without just cause;
(b) detained without trial, except during a state of emergency, in which case the detention is subject to Article 58;
(c) subjected to any form of violence from either public or private sources;
(d) subjected to torture in any manner, whether physical or psychological;
(e) subjected to corporal punishment; or
(f) treated or punished in a cruel, inhuman or degrading manner.

Article 40

40. (1) Subject to Article 65, every person has the right, either individually or in association with others, to acquire and own property––
(a) of any description; and
(b) in any part of Kenya.

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.

Convention Against Torture And Other Cruel, Inhuman Or Degrading Treatment Or Punishment Article 3

For the purposes of this Convention, torture means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purpose as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.’

Held:

  1. The petitioners did not adduce any evidence to show how their right to dignity guaranteed under article 28 of the Constitution had been violated. Similarly, with regard to the right to personal liberty and security of the person, there was no evidence to support the allegation that the right had been violated. Further the respondents’ demand for rent from the petitioner fells far from the definition of torture recognized in law as contained in article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (ICAT).
  2. Article 46 which applied to the quality of goods and services offered by private and public entities to consumers could not apply to the present case. The petitioners were aggrieved, not by the nature or quality of goods or services provided by the City Council, but by what they saw as its failure to control the manner of dealing with its property to protect them from exploitation and extortion by the 2nd to 8th respondents.
  3. Article 40 protected an owner of property from being deprived of that property without compensation. As the petitioners were not the owners of the subject property which belonged to the City Council, they had no basis for alleging violation of their rights under article 40.
  4. While the petitioners had not established a violation of the constitutional rights they alleged violation of, on the basis of the evidence from the petitioners and the respondents, it was clear that the respondents had no legal basis for demanding rent from the petitioners.
  5. The City Council of Nairobi had a duty, as a public entity in which public land was vested to ensure that none of the people within its jurisdiction was unfairly exploited. To allow the 2nd to 8th respondents, to demand rent on a monthly basis from each of the petitioners, for the right to trade on land that belonged to neither of them was to permit exploitation of the petitioners. This would be to adversely affect their right to a livelihood implicit in the rights guaranteed under the Constitution, particularly at article 43.
  6. The City Council and its successor, the County Government of Nairobi, had a duty to manage its properties in such a way that it gave equal opportunity to all parties within its jurisdiction to fairly trade and carry out business. In this regard, it had to balance the conflicting interests of the petitioners and the 2ndto 8th respondents by ensuring access to them all to space on which they could carry out their trades.

Orders
i. The 2nd-8th respondents, their servants or agents are hereby restrained from demanding or collecting any rent or other payment from the petitioners in respect of Gikomba Gorofani open air market.
ii. The 1st respondent is hereby directed to ensure that only such payments as are lawfully due to it from traders in the said market are levied by its officers and official receipts duly issued.

ELECTORAL LAW Standard of proof in election petitions

Benjamin Ogunyo Andama v Benjamin Andola Andayi & 2 others
Petition No 8 of 2013
High Court at Kakamega
G Dulu, J
August 29, 2013
Reported by Mercy Ombima

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Brief Facts:
The petitioner lost the seat for Khwisero Constituency, to the first respondent during the 4th March 2013 general elections. He challenged the outcome of those elections claiming that they had been marred by irregularities. He asked the court to annul the election results for Khwisero Constituency, claiming that the counting and tallying of votes was not accurate and that the Petitioner’s agents had been were excluded from the tallying and counting exercise.

Issues:

  1. On whom did the burden of proof lie in an election petition?
  2. What was the standard of proof required in election petitions?
  3. What were the circumstances in which a court could allow a petitioner to discuss complaints that had not been specifically pleaded in an election petition?
  4. Whether the Petitioner had the right to inspect election documents in custody of the returning officer, after the election results had been announced.
  5. What was the procedure of inspecting electoral documents in custody of the Independent Electoral and Boundaries Commission?

Electoral Lawelection malpractices – where the petitioner claimed that the second respondent (the returning officer) had illegally made alterations and changes on electoral documents after announcing the election results – claim that the changes had been done to correct errors and were thereafter counter-signed – where the election results were never projected on the projector of the constituency tallying centre of Khwisero Primary School – whether the inconsistencies would be such as to render the election results null - Elections Act No. 24 of 2011section 83.

Electoral Law - inspection of electoral documents – inspection of documents after election results have been announced – claim that the petitioner was denied access to forms 35 – where the petitioner’s advocate’s request to inspect form 35 was denied – where the request was made after the election results had been announced – whether the returning officer was obliged to allow the petitioner to inspect the electoral documents after the election results had been announced – Elections (General) Regulations, 2012; Legal Notice No. 128 of 2012 Read More...

Held:

  1. In an election petition, the burden of proof was always on the petitioner, to establish through tangible evidence that there had been irregularities which required the election results to be rendered null and void. That legal principle, that he who alleges must prove, had been enacted under section 107 of the Evidence Act Cap 80. The evidential burden could shift, depending on how the petitioner discharged his burden of establishing his case. The petitioner was also required to state the specific complaints or violations he relied upon, and tender firm and credible evidence to prove the same. Generalized allegations would not suffice in discharging the burden of proof.
  2. Aside from the special requirements to determine an outright win, in presidential elections under article 38 (4) of the Constitution of Kenya, the standard of proof in all election petitions in Kenya, fell into two categories;-
    1. Firstly, for alleged irregularities which were not criminal in nature, the standard of proof was above the balance of probabilities, but not as high as beyond any reasonable doubt.
    2. Secondly, for all allegations or irregularities that could amount to criminal offences, the burden of proof was that of beyond any reasonable doubt.
  3. It was trite that the parties to the case be bound by their pleadings. A party could not be allowed to come to court and attempt to prove complaints which were not pleaded, unless a request for amendment of pleadings was considered and granted by the court. Evidence, whether by affidavit or otherwise, was meant to support what was contained in a party’s pleadings and not to expand the cause of action. Affidavits being evidence, could not attempt to bring evidence of allegations or complaints not contained within the ambit of the petition, or the answers to the petition.
  4. The Petitioner had not proved several of his allegations, including the allegation that he was the winner. However, the Second Respondent had admitted that an irregularity was committed by him, in attempting to correct or reconcile election results after announcement of the results. That was an irregularity as the action was contrary to the law and the regulations made thereunder.
  5. The argument that the Petitioner was denied a chance to access forms 35 and 36 could not stand because those forms could only be provided to the Petitioner or his agents at the polling station or tallying centre on request. After the results were announced at the tallying centre, inspection of any documents in the custody of the third Respondent (the Independent Electoral and Boundaries Commission) could only be done through an application to the High Court as provided by regulation 93 (2) of the Elections (General) Regulations, 2012 – Legal Notice No. 128 of 2012. The Petitioner had not requested for supply of the forms through the court, hence the third Respondent had no obligation to provide him with forms in contravention of the law.
  6. It was for the Petitioner to demonstrate that irregularities had occurred, which rendered the election null and void. However, not every minor irregularity would render an election null and void. That principle had been aptly captured in section 83 of the Elections Act No. 24 of 2011. Although various irregularities had been occasioned, the only major irregularity disclosed was the attempt by the second Respondent to reconcile or correct errors in form 36 unilaterally, after announcement of the election results. The second Respondent did not have any legal authority to reconcile or correct errors in the number of votes in any document, after the announcement of the election results.

Petition dismissed.

EMPLOYMENT LAW Extent of applicability of labour laws & institution of wrongful termination suits by public officers in employment contracts for posts specifically created by statute

Tom Otieno Odongo v Cabinet Secretary Ministry of Labour Social Security and Services & another
Cause No 1174 of 2013
Industrial Court of Kenya at Nairobi
Nzioki wa Makau, J
August 12, 2013
Reported by Beryl A Ikamari

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Brief Facts:
In a wrongful termination suit, a former managing trustee for the National Social Security Fund (NSSF) sought the remedy of reinstatement to duty, or damages in the alternative. Questions were raised as to whether the employment contract of the former NSSF managing trustee would allow for the grant of the remedies sought. In opposing the claim, on behalf of the Cabinet Secretary Ministry of Labour Social Security and Services, counsel elaborated that the former managing trustee's contract was terminated as per the terms of his employment contract and that executive power was not used.
It was stated that the contract allowed for the termination of the employment contract of the former managing trustee by giving 3 months' notice or by giving 3 months' pay in lieu of notice. Further, it was explained that the termination of the contract was carried on in compliance with the notice or pay stipulations under the contract. The Cabinet Secretary's counsel made a preliminary objection on the basis that termination was carried on in exercise of a contractual right and that there could be no reasonable cause of action in such a situation.

Issues:

  1. Whether, the legal provisions applicable to the employment contract of a Managing Trustee of the National Social Security Fund, (NSSF) would allow a former Managing Trustee to institute proceedings for wrongful termination of employment, seeking reinstatement to duty or damages.
  2. Whether it would be proper to seek the dismissal of a suit on grounds that it did not disclose a cause of action, by way of a preliminary objection, where the law made provision for a different procedure, entailing the making of an application, for such situations.

Employment Law– public officers – employment contracts with statutory underpinnings – the employment contract of the Managing Trustee of the National Social Security Fund – the nature of legal provisions, including statutory law, that would be applicable to the employment contract of a Managing Trustee of the NSSF – whether a former Managing Trustee of the NSSF could institute proceedings for wrongful termination and seek the remedy of reinstatement or damages, in the alternative – National Social Security Fund Act (Cap 258); section 33, and Civil Procedure Rules, 2010; order 2 rule 15(1)(a) & 15(1)(d).

Civil Practice and Procedure - cause of action – alleged failure to disclose a cause of action in a suit – whether a preliminary objection would be the proper mode of seeking the dismissal of a suit on grounds that it did not disclose a reasonable cause of action – Civil Procedure Rules, 2010; order 2 rule 15(1)(a) & 15(1)(d). Read More...

Held:

  1. The application took the form of a preliminary objection as the applicant was not asking the court to exercise its discretion but asked the court to dismiss the claim on grounds that the applicable statutory provisions did not permit the claimant to seek the remedies that he sought.
  2. Where it was claimed that a suit disclosed no cause of action or was an abuse of court process, order 2 rule 15(1)(a) & 15(1)(d) of the Civil Procedure Rules, 2010, provided for the procedure for making an application for the striking out of a claim. Such an application, in the applicant's circumstances would have been apt.
  3. The claimant was appointed via Gazette Notice No. 17406 of Vol. CXIV of November 23, 2012, to serve in the capacity of Managing Trustee of the National Social Security Fund. In the same Gazette Notice, which was signed by the then Minster for Labour, the then immediate former Managing Trustee's appointment was revoked. However, it was the letter confirming his appointment, which set out the terms and conditions of the claimant's appointment. For purposes of section 33 of the National Social Security Fund Act (Cap 258), the confirmation letter was the claimant's instrument of appointment and he was to hold office subject to the terms and conditions specified in it.
  4. A reading of section 33 of the National Social Security Fund Act (Cap 258), indicated that the Cabinet Secretary, Ministry of Labour Social Security and Services, had a critical role in the appointment of the Managing Trustee of the National Social Security Fund but there was no similar role for the Cabinet secretary in the appointment of other officers, inspectors and servants of the Fund.
  5. Clause 20(i) of the claimant's instrument of appointment allowed for the termination of the claimant's contract via the issuance of 3 months’ notice or 3 months’ pay in lieu of notice.
  6. The claimant's employment contract had a statutory underpinning. It entailed a contract to which most labour law provisions would be inapplicable. A reading of the 20 clauses of the claimant's employment contract revealed that the contract was of a nature concerning which sections of the Employment Act, 2007 would not apply.
  7. Unless clear breaches of constitutional provisions were demonstrable, a contract of service would fall within the domain of employment law. The claimant's contract was special and it had statutory underpinnings but it did not give rise to rights of a constitutional nature.
  8. The nature of the claimant's employment contract was not one that would not allow the claimant to seek remedies availed in the provisions of the law. Similarly, the law in the United Kingdom progressed from the former position where crown employees were appointed and held office at the king's pleasure. The level of progress achieved in legal provisions meant that such employees could maintain suits for wrongful termination of employment contracts.
  9. The termination of an employment contract was both a question of law and of fact. An inquiry into the circumstances of the termination of an employment contract was necessary to determine whether the termination was wrongful.

Preliminary objection dismissed.

ELECTORAL LAW Instances when a prayer for scrutiny of votes may be granted

Abdinasir Yasin Ahmed & 2 others v Ahmed Ibrahim Abass & 2 others
Petition No 9 of 2013
High Court at Garissa
A Mabeya, J
August 7, 2013
Reported by Cornelius Lupao and Mercy Ombima

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Brief Facts:
The petitioners filed an election petition to challenge the outcome of the gubernatorial election results for Ijara Constituency. They alleged that the electoral process in thirteen polling stations had been stained by various inconsistencies. There were allegations that some serial numbers of ballot papers had never recorded and that there had been multiple cancellations and alterations in various electoral forms. The petitioners thought scrutiny would be the only sure way to clear the doubt as to the authenticity of the election in Ijara Constituency.
The respondents admitted that there had been alterations in some of the documents (Forms 35), but that the alterations were not such as to materially affect the results of the election.

Issues:

  1. Whether it was proper for the petitioners to institute an application for scrutiny of votes during the final stages of election proceedings
  2. Whether a petitioner must lay a basis for an order of scrutiny to issue
  3. Whether material alterations and cancellations of statutory forms of electoral documents could form a basis for scrutiny

Electoral Law- election petition – electoral malpractices – allegations of alterations, cancelations and inconsistencies in data entered in electoral documents – claim that the petitioners’ agents were denied a chance to sign some electoral documents (Forms 35) – where the petitioners instituted an application for scrutiny of votes at the last stage of the election petition – whether the irregularities had substantially affected the election results – Constitution of Kenya 2010 articles 82; 86; 88, Elections Act, 2011 section 82, Elections (Parliamentary and County Elections) Petition Rules, 2013 rule 33(1), Elections Petition (General) Regulations, 2012 regulations 64(4); 72(6). Read More...

Held:

  1. A reading of section 82 of the Elections Act and rule 33(1) of the Election Petition Rules showed that an application for scrutiny could be made at any stage of the proceedings before judgment. To rule otherwise would be to curtail the wide discretion given to the court by the law. The words “at any stage” used in rule 33 presupposed at any time before judgment was pronounced. The Petitioner’s application was therefore properly before court. In any event, when an application for scrutiny was made at the close of trial, the court was well placed to ascertain whether the allegations in the petition had been qualitatively established to warrant an order for scrutiny.
  2. The cumulative effect of articles 82, 86 and 88 of the Constitution of Kenya was to require the Independent Electoral and Boundaries Commission to ensure that the system of voting was simple, verifiable, accountable, secure and transparent. It was to ensure that when queries arose about the electoral process, such queries were settled swiftly without any complications. Additionally, regulations 64(4) and 72(6) of the Election Regulations required a presiding officer to give a detailed report of when polling hours had been extended, as well as record in the register, instances where a voter had been assisted and give reasons therefor.
  3. Registers would be required to be scrutinized where there was credible evidence that there was vote stuffing or that the number of votes cast superseded the number of registered voters in a particular polling station. A petitioner who desired an order of scrutiny was required to specifically plead in his petition and lay a basis for such scrutiny. Scrutiny would only issue where there were allegations that were properly backed by evidence. It was then that scrutiny of such documents would be of assistance to the court in gauging the credibility of an election.
  4. There had been material and immaterial alterations in the election documents that were the subject of the suit. Material alterations were those that were likely to affect the results of the elections. The Respondent had been able to explain some of the alterations. However, there were unexplained alterations to Forms 35, especially the portion touching on the candidates’ votes. The unexplained alterations were therefore material since they touched on the results entered for the candidates and they were likely to affect the results of the elections.

Scrutiny and recount in these seven (7) polling stations to be undertaken under the direct supervision of the Deputy Registrar of the High Court.

EMPLOYMENT LAW Termination of an employee’s contract of service on the ground of pregnancy nullified by Court

G M V v Bank of Africa Kenya Limited
Cause Number 1227 of 2011
Industrial Court at Nairobi
James Rika, J
July 31, 2013
Reported by Phoebe Ida Ayaya and Derrick Nzioka

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Issue:

  1. Whether an employer could terminate an employee’s contract of service on the ground of pregnancy or on any other ground related to the employee’s pregnancy.

Employment Law - termination of employment – termination of employment on grounds of pregnancy – claim that the termination of employment on the ground of pregnancy was discriminatory – where the employee averred that the termination of her contract of service was based on her pregnancy or grounds related to her pregnancy – where the employer denied that termination was based on her pregnancy but failed to show evidence that the termination was based on any other justifiable grounds – Employment Act, sections 5(3) & 46. Read More...

Held:

  1. Section 5(6) of the Employment Act 2007, stated that in any proceedings where a contravention of section 5(3) was alleged, the employer would bear the burden of proving that the discrimination did not take place as alleged, and the discriminatory act was not based on any grounds specified in section 5(6). The burden of proof was therefore placed on the employer and not the employee. This position had support in section 43 of the Act which required the employer to prove the reason for termination.
  2. Once an employee established a prima facie case, the burden shifted to the employer, to show a legitimate explanation for termination. Where the employee demonstrated a prima facie case, a presumption that the employer discriminated against the employee was raised, and the employer then had to articulate a clear, specific, and non-discriminatory reason for termination.
  3. The allegation that an employee was discriminated against, on account of her pregnancy was a serious one that had to be subjected to strict proof although there was no requirement for the employee to strictly prove that she was indeed discriminated against on such ground. The obligation of the employee therefore was not to establish that she had been discriminated against, on strict proof, but only to show that she had a prima facie case, and that the reasons advanced by the employer were unworthy of credence.
  4. The employee gave adequate evidence to show at first instance, that an adverse employment decision was made by the employer, because of her pregnancies by showing that poor appraisals were timed to coincide with her pregnancies; she was subjected to appraisal by her peer yet there was no document varying her contract of employment to say that she could report to her fellow branch manager; the appraisals did not categorically state the targets she was supposed to attain, meaning they were flawed and therefore could not be relied upon to justify the termination; she had asked for training in both years the appraisals were done, and although the management agreed that there was need for her to be trained it had not been done; and, there was one letter of complaint from a customer about poor services from her, which the employer became aware of, yet she was only required to explain about it a year later, when she was pregnant and due for termination.
  5. The falsity of the explanations by the employer in justifying termination enabled the court to infer that the employer was pretending to cover up for a discriminatory purpose and once the employer’s justification had been eliminated, discrimination was most likely to be the alternative explanation. The employee’s prima facie case, combined with the employer’s limping asserted justification, was sufficient to permit the court to conclude that the employee was unlawfully discriminated against on account of her pregnancies.
  6. The court discouraged employees from claiming multiple remedies arising from the same wrongdoing on the part of the employer, whether the violations were claimed to infringe the Constitution, the Statute or the Contract. Ultimately, the purpose of compensatory awards was not to punish errant employers but to ensure any economic injury suffered by an employee was adequately redressed. Therefore, where a fundamental right was regulated by legislation, such legislation, and not the underlying constitutional right, became the primary means for giving effect to the Constitutional right.
  7. Section 5(3) of the Employment Act outlawed discrimination on the basis of pregnancy, while section 46 made termination on the basis of a female employee’s pregnancy, or any reason connected with her pregnancy, an automatically unfair decision. Remedies for such discrimination were found in section 49 of the Act, which granted inter alia, compensation equivalent to a maximum of 12 months salary, based on the gross monthly salary at the time of dismissal.
  8. The Industrial Court could not be limited by the capping of compensatory awards fixed at a maximum of twelve months as a pregnancy discrimination claim could not be adequately redressed through the remedy of compensation granted under the Employment Act. There were far too many basic rights that were infringed, whenever an employer discriminated against an employee, on the basis of pregnancy, which called upon the Industrial Court to move beyond the remedy of twelve months’ gross salary in compensation. However, not all conceivable contractual, statutory or Constitutional rights violated deserved a separate award of damages.

The employee’s termination of service was based on her pregnancy, and therefore discriminatory, and the employer to pay her combined damages at Kshs. 3,000,000; salary in lieu of notice; service/gratuity pay; outstanding leave; and 3 days worked in March 2011 at Kshs. 1,473,006; a total of Kshs. 4,473,006.


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