Weekly Newsletter 034/2014

Kenya Law Weekly | Issue 034/2014



Kenya Law

Weekly Newsletter


Prerequisite for Foreign Contract of Employment

Charles Opati Ogeyo v W.E. Tilley (Muthaiga) Ltd 2011 [2014]
Cause No 393 of 2012
Industrial Court of Kenya at Nairobi
N Makau J
July 31st, 2014

Reported by Emma Kinya Mwobobia and Opiyo Lorraine

Download the Decision

Brief facts:
The Claimant in the instant matter instituted proceedings against the Respondent in respect of work done for the Respondent in Tanzania. He claimed that he was the Respondent’s employee and that he had been posted in Tanzania to construct a factory where he got injured and could no longer perform his duties. He claimed that the Respondent failed to renew his work permit and pay him the necessary benefits. In addition he stated that he was forced to sign a letter of resignation by the ‘employer’ and thus was the basis for his claim before Court. The Respondent herein however denied the fact that the Petitioner was his employee.

Issues

  1. Whether the Claimant was the Respondent’s employee
  2. hether the resignation of the Claimant was constructive dismissal from employment
  3. Whether the Respondent followed the guidelines set out in the Employment Act in terminating the employment services of the Claimant
  4. Whether the reason(s) for termination of the Claimant’s employment were justified and whether the same were fair.
  5. Whether there were any remedies available to the Claimant

Employment Law – foreign contracts – status of a person employed under a foreign contract - whether a person who had been contracted for services in a foreign country could be said to be an employee and whether such a person was entitled to receive the requisite employment benefits.

Employment Act 2007
Part XI
Section 83
A foreign contract of service shall be in the prescribed form, signed by the parties thereto, and shall be attested by a labour officer.”

Section 84

A foreign contract of service shall not be attested unless the labour officer is satisfied
(a) that the consent of the employee to the contract has been obtained;
(b) of the absence of any fraud, coercion or undue influence, and any mistake of fact, or misrepresentation which might have induced the employee to enter into the contract;
(c) that the contract is in the prescribed form;
(d) that the terms and conditions of employment contained in the contract comply with the provisions of this Act and have been understood by the employee;
(e) that the employee is medically fit for the performance of his duties under the contract; and
(f) that the employee is not bound to serve under any other contract of service during the period provided in the foreign contract.”

Section 85
“(1) When the employer who enters into a foreign contract of service does not reside or carry on business within Kenya, the employer shall, or where the employer resides in Kenya, the labour officer may require the employer to, give security by bond in the prescribed form, with one or more sureties resident in Kenya and approved of by the labour officer for the due performance of the contract in such sums as the labour officer considers reasonable.
(2) Where the employer has an authorized agent resident in Kenya, the Minister may require that the security bond specified in subsection (1) be given by the agent and the agent shall personally be bound by the terms of the bond notwithstanding the disclosure of his principal.”

Held

  1. The Claimant had no contract of service and if indeed he was hired to work in Tanzania then he ought to have obtained a contract in terms of Section 83 and 84 of the Employment Act. The records showed that the Claimant was not an employee of the Respondent at the material times. He thus had no valid claim against the Respondent who had what appeared to be a hawala system of payments.
  2. The Claimant was not an employee of the Respondent and his resignation did not amount to a constructive dismissal from appointment. The Respondent did not terminate the services of the Claimant based on the guidelines in the Employment Act.
  3. As to whether the reason(s) for termination of the Claimant’s employment were justified and whether the same were fair, there was no termination of employment and thus the issue did not arise. Consequently there were no remedies available to the Claimant.
Suit dismissed no order as to costs.
Kenya Law
Case Updates Issue 34/2014
Case Summaries

CONTRACT LAW Rights to land acquired by adverse possession are not extinguished even after the death of the adverse possessor

Peter Mbiri Michuki v Samuel Mugo Michuki
In The Court Of Appeal Nyeri
Civil Appeal No. 22 Of 2013
A Visram, J Otieno – Odek, M Koome, JJA
October 8, 2014
Reported By Teddy Musiga And Getrude Serem

Download the Decision

Brief facts:
The parties had entered into a sale agreement in 1964 wherein the respondent paid Ksh. 300/= being the purchase price for the parcel of land. In 1978, the appellant changed his mind about selling the land and through his advocates deposited the Ksh 300/= for transmission to respondent. In 1970 the plaintiff/ respondent constructed a house on the suit property and put his elder brother in actual or physical possession and occupation. In 1971, the plaintiff/ respondent together with the appellant went to the lands office in Murang’a and found that the suit property was not registered in the correct names of the appellant. In 1978, the appellant wrote to the plaintiff/ respondent indicating that the appellant had changed his mind to sell the suit property. That notwithstanding, the respondent continued to be in both actual and constructive possession of the suit property openly and uninterruptedly since 1964 when they had entered into the agreement. In 1991, the plaintiff/ respondent instituted a claim for adverse possession at the trial court for which the trial court held that the plaintiff/ respondent had acquired the interests in land through adverse possession. The appellant then lodged the instant appeal to the Court of Appeal.

Issues:

  1. Whether there was a valid sale agreement between the parties
  2. Whether the transaction entered into by the parties required the consent of the land control board
  3. Whether an oral contract for the disposition of land complied with the provisions of the Law of contract for not being in writing and signed by all parties.
  4. Whether a claim of adverse possession could be established where transactions leading to the possession of the suit land commenced by way of an oral contract and part performance of the said contract.
  5. Whether the claim of adverse possession survived the death of the adverse possessor.

Contract Law – sale agreements – validity of sale agreement on land – oral land sale agreements – exceptions to written sale agreements – where the agreement is coupled by part performance - Law of Contract Act 2003 Section 3(3) (repealed),

Land law – adverse possession – condition for adverse possession – whether adverse possession could pass in circumstances where the proprietor was dead. Read More...

Section 3(3) of the Law of Contract Act 2003 (repealed),

(3) No suit shall be brought upon a contract for disposition of an interest in land unless the agreement upon which, the suit is founded, or some memorandum or note thereof, is in writing and is signed by the party to be charged or by some person authorized by him to sign it;
Provided that such a suit shall not be prevented by reason only of the absence of writing, where an intending purchaser or lessee who has performed or is willing to perform his part of a contract-
(1) Has in part performance of the contract taken possession of the property or any part thereof; or
(11) Being already in possession continues in possession in part performance of the contract and has done some other act in furtherance of the contract. '

Held:

  1. The parties entered into a valid sale agreement, that was because the purchase price had been paid as evidenced by the corroborative evidence by the appellants illustrating that a sale agreement had been entered into between the parties and purchase price had been paid.
  2. The sale agreement and transaction between the parties thereto was entered into in 1964 and in the same year, the plaintiff/ respondent took possession of the suit property. The commencement date of the Land Control Act is 12th December, 1967. The Act did not operate retroactively. Transactions entered into before the commencement of the Act did not require consent of the Land Control Board.
  3. The agreement between the parties having been entered into in 1964 was outside the purview of the Land Control Act. Section 3(3) of the Law of Contract Act provided that no suit based on a contract of disposition of interest in land could be entertained unless the contract was in writing, executed by the parties and attested. Section 3(7) of the Law of Contract Act excluded the application of Section 3(3) of the said Act to contracts made before the commencement of the subsection. Section 3(3) of the Law of Contract Act, came into effect on 1st June, 2003. The trial court found that the sale agreement between the parties was an oral agreement made in 1964 between the appellant and the plaintiff.
  4. Notwithstanding the fact that the sale agreement made by the parties in 1964 was not in writing, the plaintiff/ respondent had to satisfy the trial court that he either, took possession of the suit property in part performance of the said oral contract, or that being already in possession of the suit property, he continued to be in possession in part performance of the oral contract. Therefore, the plaintiff/ respondent proved that he had actual and/ or constructive possession of the suit property since 1964 and the possession was open, uninterrupted and continuous.
  5. Section 3(7) of the Law of Contract Act made exception to oral contracts for sale of land coupled with part performance. Section 3(3) of the Law of Contract Act came into effect in 2003 and did not apply to oral contracts concluded before section 3(3) of the Act came into force. The proviso to section 3(3) of the Law of Contract Act applied in the instant matter to the effect that the sale agreement between the appellant and the plaintiff did not violate or offend provisions of the Law of Contract Act.
  6. The respondent proved both actual and constructive possession of the suit property. The elder brother of the plaintiff/ respondent was in possession of the suit property by license and permission of the plaintiff/respondent. In law, actual possession of any property by a licensee was constructive possession thereof by the licensor (the respondent).
  7. There were four alternative timelines that could be used to compute when time began to run for purposes of the Plaintiff’s claim for adverse possession; they were 1964, 1970, 1971 or 1978. 1964 was the year of the sale agreement and the year the respondent took legal possession of the suit property. In 1970 the plaintiff/ respondent constructed ha house on the suit property and put his elder brother in actual or physical possession and occupation. In 1971, the plaintiff/ respondent together with the appellant went to the lands office in Murang’a and found that the suit property was not registered in the correct names of the appellant. In 1978, the appellant wrote to the plaintiff/ respondent indicating that the appellant had changed his mind to sell the suit property.
  8. From whichever year(1964, 1970, 1971 or 1978) adverse possession was computed, as at the time of filing the application at the trial court in 1991, twelve (12) years had lapsed and the plaintiff’s right and claim based on adverse possession had arisen, accrued and vested. The record showed that the plaintiff’s possession of the suit property was nec vi, nec clam and nec precario; (possession by the plaintiff continued uninterrupted and without force) until his death on 25th December, 2002; after his death, possession by the plaintiff continued through his dependents and personal representative until 2011.
  9. The plaintiff/ respondent entered into the suit property pursuant to a sale agreement in 1964 as a bona fide purchaser for value. That entry was with permission of the appellant qua vendor (in his capacity as vendor)
  10. Adverse possession could be calculated from the date of payment of the purchase price to the full span of twelve years if the purchaser took possession of the property because from that date, the true owner was dispossessed off possession. A purchaser in possession of the land purchased, after having paid the purchase price, was a person in whose favour the period of limitation could run. By 1971, the appellant had not transferred the suit property to the respondent. In 1978, if any permission or license to enter the suit property had been given by the appellant, the same was terminated by the appellant’s letter to the respondent changing his mind in selling the suit land. Therefore, from 1978 onwards, the continued occupation and possession of the suit property by the plaintiff/ respondent was adverse to the appellant’s title.
  11. Rights of a person in possession or occupation of land were equitable rights which were binding on the land and the land was subject to those rights. Section 16 of the Limitations of Actions Act provided that actions for the recovery of land, an administrator of the estate of a deceased person could be taken to claim as if there had been no interval of time between the death of the deceased person and the grant of the letters of administration. The effect of that provision was that when the letters of administration was granted for the estate of the plaintiff in the instant case, the administration of the estate dated back to the date of the death and an order reviving an abated suit did not operate prospectively to establish an interval of time between the abatement and revival of the suit but was retroactive.
  12. In adverse possession, the title of a registered proprietor was not extinguished but was held by him in trust for the person who, by virtue of the Limitations of Actions Act, had acquired title against the proprietor. In the instant case, the plaintiff was in occupation of the suit property and his possessory rights were not only equitable rights but over riding interests binding on the land.
  13. When the appellant entered into a sale agreement with the plaintiff in 1964 and received the purchase price for the suit property, the appellant became a trustee holding the suit property in favour of the plaintiff. The plaintiff having paid the purchase price and took possession acquired an equitable beneficial interest in the suit property. The right to recover the suit property was not extinguished by death of the plaintiff. The plaintiff having been in possession of the suit property, Section 13 (1) of the Limitation of Actions Act applied as it provided that a right of action to recover land did not accrue unless the land was in the possession of some person in whose favour the period of limitation could run.

Appeal dismissed.
Respondent proved adverse possession.

CONSTITUTIONAL LAW Not all differential treatment violates equality rights under the Constitution

Republic v Tanathi Water Services Board & 2 others Ex parte Senator Johnstone Muthama
Judicial Review No. 374 of 2013
High Court of Kenya at Nairobi
GV Odunga, J
October 24, 2014
Reported by Phoebe Ida Ayaya & Kipkemoi Sang

Download the Decision

Brief facts:
On 11th June 2013, the applicant (Senator of Machakos County, Johnson Muthama) filed a Notice of Motion through a judicial review seeking several orders against the defendant, on behalf of the large Machakos County, disputing the Trans-County and National Project in which he alleged that the decision of the respondent to have the natural resources disseminated to Kitui could deprive the people of Machakos County several rights under the Constitution. The applicant averred that such a decision was deceptive, sham, illegal and discriminatory and a strategy to gain political mileage by the respondent at the expense of the poor and deserving residents of Machakos County who needed the resources to enhance and improve their livelihood.
The Tanathi Water Project in Machakos County was founded to facilitate the people of Machakos a constitutional guarantee to be free from hunger, and to have adequate food of acceptable quality as provided under article 43(1) (c) of the Constitution. The respondent had designed the project in a manner likely to delineate and discriminate against the people of Machakos County in favour of the people of Kitui County hence violating Article 27 of the Constitution that guaranteed equality before the law. The applicant faulted the act of the respondent alleging that it went against the principles of legitimate expectations and reasonability in exercise of constitutional and statutory powers hence it was irrational, corrupt and tainted with illegalities.

Issues:

  1. Whether there was a recognizable public law wrong that had been committed by the respondent to warrant judicial review
  2. Whether judicial review allowed the court of review to examine the evidence with a view of forming its own opinion on the substantial merits of the case
  3. Whether a declaration falls under the purview of judicial review that would require viva voce evidence to be adduced for the determination of the case
  4. Whether a claim for differential treatment could be properly adjudicated by way of affidavit evidence
  5. Whether judicial review cases which were neither criminal or civil required Civil Procedure Act (cap 21) to apply
  6. Whether there was considerable differential treatment between the people of Machakos and the people of Kitui that could amount to discrimination outlawed by the Constitution

Constitutional Law-discrimination-differential treatment- equality- whether differential treatment results in equality- Whether there was considerable differential treatment between the people of Machakos and the people of Kitui that could amount to discrimination outlawed by the Constitution-Constitution of Kenya, 2010 articles 27, 43(1)(c)

Judicial Review-orders of mandamus, certiorari and prohibition-whether judicial review orders allow the High Court of review to examine the evidence with a view of forming its own opinion about the substantial merits of a case-Law Reform Act (cap 26) sections 8 & 9

Civil Practice and Procedure -procedural law – affidavit evidence -whether a claim for differential treatment could be properly adjudicated by way of affidavit evidence- whether judicial review cases which were neither criminal or civil required the application of the Civil Procedure Act (cap 21)- Civil Procedure Rules (cap 21 Sub Leg) Order 53. Read More...

Words and phrases
Black’s Law Dictionary defines discrimination as follows: “The effect of a law or established practice that confers privileges on a certain class or that denies privileges to a certain class because of race, age, sex nationality, religion or handicap or differential treatment especially a failure to treat all persons equally when no reasonable distinction can be found between those favoured and those not favoured.”
The Bill of Rights Handbook, Fourth Edition 2001, defines discrimination as follows: - “A particular form of differentiation on illegitimate ground.…”

Held:

  1. Judicial review was premised on the grounds of illegality, irrationality and procedural impropriety. Decision maker needed to understand correctly the law that regulated his decision-making power and ought to give effect to it. Irrationality meant, applying the decision which no sensible person who had applied his mind to the question to be decided would have arrived at it. Procedural impropriety meant the failure to observe basic rules of natural justice or failure to act with procedural fairness towards the person who would be affected by the decision.
  2. Judicial review was a special supervisory jurisdiction which was different from both ordinary (adversarial) litigation between private parties and an appeal (rehearing) on the merits. There ought to have been a recognizable public law wrong that had been committed as opposed to private law proceedings that involved claimant asserting rights.
  3. Judicial review was an important control ventilating a host of varied types of problems ranging from matters of grave public concern to those of acute personal interest, from general policy to individualized discretion; from social controversy to commercial self-interest.
  4. Judicial review was constitutional supervision of public authorities involving a challenge to the legal validity of the decision. It did not allow the court of review to examine the evidence with a view of forming its own view about the substantial merits of the case. Exploring evidence in order to see if the decision was vitiated by legal deficiencies, was perfectly clear that review, was distinct from an ordinary appeal, the court ought not to set about forming its own preferred view of the evidence for it was concerned with the decision making process and illegality or otherwise the decision rather than with the merits.
  5. Declarations did not fall under the purview of judicial review for it required viva voce evidence to be adduced for the determination of the case on merit before declaring ownership. Judicial review did not deal with ownership of disputed property but only determined the jurisdiction of the decision makers. Therefore an applicant bringing judicial review proceedings with a view to determining contested matters of facts and in effect determine the merits of the dispute the Court did not have jurisdiction in a judicial review proceeding to determine such a dispute and could leave the parties to ventilate the merits of the dispute in the ordinary civil suits.
  6. Resolution of the dispute before court required the court to make a determination on disputed issues of facts and this was not suitable for judicial review. Judicial review jurisdiction was a special jurisdiction which was neither civil nor criminal and the Civil Procedure Act did not apply. It was governed by sections 8 and 9 of the Law Reform Act being the substantive law and Order 53 of the Civil Procedure Rules being the procedural law. Section 8 of the Law Reform Act specifically sets out the orders that the High Court could issue in judicial review proceedings and the orders were, mandamus, certiorari and prohibition.
  7. The law did not prohibit discrimination but rather unfair discrimination. Unfair discrimination implied treating people differently in a way which impaired their fundamental dignity as human beings, who were inherently equal in dignity. Unlawful or unfair discrimination could be direct or subtle. Direct discrimination involved treating someone less favourably because of their possession of an attribute such as race, sex or religion compared with someone without that attribute in the same circumstances. Indirect or subtle discrimination involved setting a condition or requirement that was a smaller proportion of those with the attribute were able to comply with, without reasonable justification.
  8. A classification which was unfair in one contest may not have necessarily been unfair in different context. Not all distinctions resulting in differential treatment could properly be said to violate equality rights as envisaged under the constitution. The appropriate perspective from which to analyse a claim of discrimination was both a subjective and an objective component which required the view from a larger social political and legal context other than to look at the impugned legislation which created the distinction whether differential treatment resulted in equality.
  9. Even if the court was to find there was differential treatment between the people of Machakos and the people of Kitui that alone could not necessarily amount to discrimination as was outlawed by the Constitution. Certain instances raising issues of discrimination could properly be adjudicated by way of affidavit evidence which failed the candidature of judicial review.
  10. In order to determine the conflicting positions with respect to the aforesaid larger social, political and legal context, affidavit evidence would not suffice and that it would be necessary to take viva voce evidence which would have to be subjected to cross examination to verify its veracity and probative value.

Notice of Motion struck out for incompetence and no orders as to costs

CONSTITUTIONAL LAW Court upholds the constitutionality of Kiambu Alcoholic Drinks Control Act, 2013

John Kinyua Munyaka & 11 others v County Government of Kiambu & 3 others
Petition No. 3 of 2014
High Court at Muranga
J Ngaah, J
October 10, 2014
Reported by Andrew Halonyere & Valarie Adhiambo

Download the Decision

Brief facts:
The Kiambu County Government (respondents) enacted the Kiambu Alcoholic Drinks Control Act, 2013 whose object was to regulate the production, sale and distribution of alcoholic drinks. The legislation contained provisions specifying by exclusion where liquor was to be sold who could be licensed to sell liquor, hours within which liquor could be sold and it created offences and penalties for non-compliance. The petitioners (Kiambu welfare group) then sought to have the Act declared unconstitutional on grounds that it contravened their constitutional rights, it was retrospective and further that there was no public participation in its enactment.

Issues:

  1. What considerations were to be taken into account before declaring a statute to be unconstitutional
  2. Whether section 14 (2) of the Kiambu Alcoholic Drinks Control Act specifying by exclusion, where liquor business outlets were supposed to be, contravened the right to acquire and own property under the Constitution
  3. Whether section 15 (1) (b) of the Kiambu Alcoholic Drinks Control Act prohibiting persons with criminal records of particular offences from trading in alcoholic drinks was discriminatory.
  4. whether section 26(4)of the Act creating offences and penalties for non-compliance contravened the Constitution on distribution of functions between the national government and the county governments
  5. Whether section27 of the Act that purported to oust jurisdiction of the courts was unconstitutional
  6. Whether a provision of a statute specifying the hours within which alcohol was to be sold contravened consumer rights as provided for in the Constitution
  7. Whether the Kiambu Alcoholic Drinks Control Act was enacted without public participation contrary to the Constitution
  8. Whether the Kiambu County Alcoholic Drinks Control Act, 2013 and the regulations made thereunder were unconstitutional given that it was retrospective in nature

Constitutional Law-fundamental rights and freedoms-right to own property-freedom from discrimination-consumer rights and protection-contention that a provision of the statute prohibiting sale of alcohol in certain places contravened the right to own property-where it was alleged that denying people with previous criminal records licenses to trade in alcohol was discriminatory-whether section 14 (2) of the Kiambu Alcoholic Drinks Control Act specifying by exclusion, where liquor business outlets were supposed to be, contravened the right to acquire and own property under the Constitution-whether section 15 (1) (b) of the Kiambu Alcoholic Drinks Control Act prohibiting persons with criminal records of particular offences from trading in alcoholic drinks was discriminatory- Whether a provision of a statute specifying the hours within which alcohol was to be sold contravened consumer rights as provided for in the Constitution-Constitution of Kenya,2010 ,article 40, 27, and 46.

Constitutional Law-devolved government-county governments-legislative authority of the county assembly-where it was contended that it was the National Assembly and not county assemblies that could enact legislations creating offences and penalties for non-compliance-whether a section of the act creating offences and penalties for non-compliance contravened the Constitution on distribution of functions between the national government and the county governments-Constitution of Kenya,2010,article 185.

Statutes-constitutionality of statutes-factors to consider in determining the constitutionality of a statute-contention that retrospective statute was ipso facto unconstitutional-what considerations were to be taken into account before declaring a statute to be unconstitutional-whether the Kiambu County Alcoholic Drinks Control Act, 2013 and the regulations made thereunder were unconstitutional given that it was retrospective in nature.

Constitutional Law –legislature-parliament general procedures and rules-public access and participation-what amounted to public participation-whether the Kiambu Alcoholic Drinks Control Act was enacted without public participation contrary to the Constitution Read More...

Held:

  1. To determine the constitutionality of statutes, the court had to consider the purpose and effect of the impugned statutes and section thereof. If the purpose was not to infringe a right guaranteed by the constitution, the court had to go further and investigate the effect of its implementation. If either the purpose or the effect infringed a right guaranteed by constitution, the statute or section in question was to be declared unconstitutional.
  2. The object of the Kiambu County Alcoholic Drinks Control Act, 2013 from the preamble was to provide for the licensing and regulation of the production, sale, distribution, consumption and outdoor advertising, of alcoholic drinks and for connected purposes. The provisions and the regulations made thereunder were meant to achieve that purpose and it was inevitable that one could not consider the constitutionality of the impugned provisions without necessarily considering the object of the entire Act.
  3. while people had every right to take as much alcohol as they could stomach, that right had to be regulated as far as it was necessary to protect the rights of other members of society who had little or nothing at all to do with alcohol but whose rights could in one way or another be affected by the unfettered production, sale and consumption of alcohol. Considering the likely side effects of alcoholic drinks on the health and well-being of the consumers, it was not only necessary but it was also an obligation on any responsible government to protect the public from such harmful effects that flowed from the production, sale and consumption of alcoholic drinks. It was the responsibility of the Government through its legislative arm to legislate and provide guidelines that was to ensure that the section of the populace enjoyed their rights without interfering unnecessarily with the rights of others, and the Alcoholic Drinks Control Act, 2010 and the Kiambu County Alcoholic Drinks Control Act, 2013 were the sort of legislation that the governments at both levels had come up with in delivering on that important responsibility.
  4. Section 14(2) (b) of the Kiambu Alcoholics Drinks Control Act did not deprive the petitioners of their right to property. The provision simply specified, by exclusion, where liquor business outlets were supposed to be; in other words, the petitioners could operate their liquor businesses anywhere else apart from those places specified in the Act as premises where a fuel station was situated or a fast food restaurant. The rationale behind that provision was to restrict easy accessibility to alcohol by motorists who drove to fuel stations to fuel their vehicles or by people, such as children who were by law prohibited from taking alcohol but who could find themselves in a fast food restaurant. Such restriction was meant to protect the lives of those motorists and other road users as well as the lives of vulnerable children. The petitioners had the right to own and run businesses but children, motorists and other road users had a right to life too, amongst other rights that were likely to be infringed if the motorists, for instance, accessed alcohol while driving.
  5. The right to acquire and own property was guaranteed under article 40 of the Constitution; however, that right was one of those rights that, under article 24(1) of the same Constitution, could be limited so long as such limitation was justifiable in an open and democratic society and with particular regard to the larger public interest. If in the petitioners’ view, their rights under article 40 of the Constitution had been undermined by section 14 (2) (b) of the Alcoholic Drinks Control Act, the respondents had demonstrated to the satisfaction of the Court that the relevant factors enumerated in article 24(1) of the Constitution were taken into account in limiting the petitioners’ constitutional rights under that article and the limitation was proportional to the overarching objective of the Kiambu County Alcoholic Drinks Act, 2013.
  6. A legislation that was retrospective in nature was not ipso facto unconstitutional as long as it was apparent either by express words or by necessary implication that that was the intention of the legislature. Such an intention was found in section 68 of the Kiambu County Alcoholic Drinks Act, 2013 and in view of the express provision of that section, there was no basis upon which the Act or any provision thereof including section 14(2) (b) could be assailed on the ground of being retrospective in its application.
  7. The concept of equality as understood in the Constitution did not connote absolute equality; one could be classified and such classification was not necessarily unconstitutional if it was based on a reasonable basis and free from artificiality and arbitrariness. There was no hint of artificiality or arbitrariness in the requirement that those in the business or aspiring to be in the business of manufacture, sale or trade in alcoholic drinks had to be people of certain disposition. That threshold was not discriminatory against a certain class of persons in the society in accessing available business opportunities and further the requirement was not unique to alcohol business alone, as employers both in private and public sector often wanted to know whether their potential employee had been convicted of any offence before.
  8. As far the impugned provision was concerned, the Kiambu County Assembly, in its wisdom, had thought it necessary that persons with criminal records of particular offences were not to trade in alcoholic drinks, and that was a policy decision that the Court was ill-equipped to interrogate. It was not proper for one to assume that what Parliament had done in a lengthy process of legislation was unfair but rather assume that what had been done was fair until the contrary was shown. Further it was not the function of the Court to form its own judgment as to what was fair and then to amend or supplement it with new provisions so as to make it conform to that judgment.
  9. section 15 (b) of the Kiambu Alcoholic Drinks Control Act, 2013, as were the rest of the provisions that the petitioners had impugned, was a replica of section 13(1) of the Alcoholic Drinks Control Act, 2010 which was the national legislation for the regulation of the production, sale and consumption of alcoholic drinks. The relevance of that section was that even if section 15 (2) (b) of the Kiambu County Alcoholic Drinks Control Act, 2013 was to be nullified; the petitioners were still to be caught out by the same law at the national level.
  10. The Kiambu County Alcoholics Drink Control Act, 2013 was enacted by the County Assembly of Kiambu County Government in exercise of its legislative authority with which it was vested under article 185(1) of the Constitution. Article 185(3) was clear that a county assembly could make laws that were necessary for or incidental to, the effective performance of the functions and exercise of the powers of the county government under the Fourth Schedule. Some of the functions for which the County could legislate for effective performance and exercise of the powers of the County government were control of public nuisances and liquor licensing. Such control could not be exercised other than through a legislative instrument that was backed by proportionate sanctions in the event of non-compliance and section 26(4) was in that context. The county government had not just been loaded with functions but it had also been endowed with the necessary mechanisms to ensure that those functions were effectively delivered; such mechanisms were the power to legislate laws with sanctions to ensure compliance.
  11. Article 50(1) guaranteed every person a right to have any dispute resolved by an independent and impartial tribunal or body. Article 159 (1) on the other hand vested judicial authority in courts and tribunals. A reading of section 27 of the Act revealed that it was more of an equivocal provision rather than an unconstitutional one since the intention of the legislature was not clear. The lack of clarity did not necessarily render that provision of the law unconstitutional but was an ambiguity that could be cured by an amendment. The provision was similar, word for word, with section 23 of the Alcoholic Drinks Control Act, 2010 and nullifying it while the national legislation remained intact was to be an exercise in futility, assuming there was a genuine case for its nullification.
  12. Article 46 protected the rights of consumers to have goods and services of reasonable quality; to have information necessary for maximum benefit of the goods and services; to protect their health safety and economic interest; and to be compensated for loss or injury arising from defects in goods and services. Those rights were more to do with the consumers than retailers who in that case were the petitioners. However, regardless of whether they were pursuing to enforce their own rights or whether they were petitioning on behalf of their clientele the regulation of drinking hours could not, by any stretch of imagination, be construed to interfere with consumer rights. If anything, article 46 itself was clear that a consumer’s right to health and safety was paramount; the right was certainly to be compromised if the consumers were exposed to unbridled consumption of alcohol.
  13. On the concept of public participation the common denominator was that what mattered in the ultimate was that a reasonable opportunity had been given to the members of the public and all interested parties to know about the issue and to have an adequate say. There was a caveat, however, that it could not be expected of the legislature that a personal hearing would be given to every individual who claimed to be affected by the laws or regulations that were being made. What was necessary was that the nature of the concerns of different sectors of the parties was to be communicated to the law maker and taken in formulating the final regulations. If the petitioners had the opportunity to participate in the meetings that came up with the Act and the regulations, it meant that their view must have been considered and it was beyond the Court to determine how much was to be levied as rates payable by the petitioners or any other person seeking a license to retail liquor.

Petition dismissed.

CONSTITUTIONAL LAW Government policy of funding public secondary schools to the exclusion of private ones is not discriminatory

Gabriel Nyabola v Attorney General & 2 others
Petition No 72 of 2012
High Court of Kenya at Nairobi
D S Majanja, J
October 10, 2014

Reported by Andrew Halonyere & Anne Mbuthia

Download the Decision

Brief facts:
The Petitioner brought the suit challenging the Government policy of funding public secondary schools to the exclusion of private ones. He argued that the policy was discriminatory and a violation of the Constitution, the Children Act and various international instruments to which Kenya was a party; and that the right to basic education included secondary education which ought to have been enjoyed by every Kenyan child, irrespective of whether he or she attended public or private secondary school.

Issues:

  1. What was the nature and extent of the right to education and what obligations did it place on the State?
  2. What was the meaning of “basic education” in the context of the right to free and compulsory basic education?
  3. What did progressive realisation of the right to education entail?
  4. Whether there was a contradiction in the Basic Education Act, 2013 on account of the fact that section 28(1) thereof provided for the right of every child to free and compulsory basic education whereas section 29(1) of the same Act made a provision for free tuition in public schools only
  5. What did the principle of equality entail?
  6. Whether the Government’s policy confining funding and in kind support only to public secondary schools was discriminatory

Constitutional Law- fundamental rights and freedoms- right to education- right to free and compulsory basic education- the nature and extent of the right to education- what obligation did the right to education place on the State?- meaning of basic education- Constitution of Kenya, 2010 articles 21(1), 43(1) (f) & 53(1)(b); Basic Education Act, 2013, sections 2 & 28

Constitutional Law –fundamental rights and freedoms – socio-economic rights – progressive realisation of socio-economic rights - right to education – claim that the State ought to ensure that the right to free basic education is enjoyed by students in both public and private secondary schools- what did progressive realisation of the right to education entail?- Constitution of Kenya, 2010, articles 21 (2) & 43 (1) (f)

Constitutional Law- fundamental rights and freedoms- right to equality and freedom from discrimination- what did the principle of equality entail?- where the Government had a policy for the funding of public secondary schools- whether that policy was discriminatory of students in private schools- Constitution of Kenya, 2010, article 27

Statutes- interpretation of statutes- contradictory provisions- Basic Education Act, 2013- whether section 29(1) of the Basic Education Act, 2013 that made a provision for free tuition in public schools only contradicted section 28(1)of the same Act which provided for the right of every child to free and compulsory basic education- Basic Education Act, 2013, sections 28 (1) & 29 (1)e Read More...

Held:

  1. The right to education was one of the new generation of fundamental rights protected under article 43(1) (f) the Constitution. Under the Universal Declaration of Human Rights and the International Covenant on Economic Social and Cultural Rights (ICESR),the right was recognised as having been directed to the full development of the human personality and the sense of its dignity. The Universal Declaration on Human Rights embraced education as a basic human right. Those instruments constituted part of the law of Kenya by virtue of article 2(6) of the Constitution.
  2. The right to education, like all human rights, imposed on States the obligations to respect, protect and fulfill. Article 21(1) of the Constitution enshrined those duties.The obligation to respect required States to avoid measures that hindered or prevented the enjoyment of the right to education. The obligation to fulfill incorporated both an obligation to facilitate and an obligation to provide. The obligation to protect required States to take measures that prevented third parties from interfering with the enjoyment of the right to education. The obligation to fulfill or facilitate required States to take positive measures that enabled and assisted individuals and communities to enjoy the right to education.
  3. An analysis of the provisions of the Constitution, the Children Act, Basic Education Act and the international law imposed on the State an obligation to provide free and compulsory basic education. Although the term “basic education” had not been defined in the Constitution or the Children Act, various international instruments gave an indication as to its meaning.
  4. The Basic Education Act, 2013 did not make a distinction between primary and secondary education. Section 2 of the Act defined “basic education” as the educational programmes offered and imparted to a person in an institution of basic education, including adult basic education and education offered in pre-primary educational institutions and centres.
  5. The State, through the Basic Education Act, 2013, had taken a much broader approach to the definition of basic education than that obtaining in international instruments and the Children Act. Under section 28 of the Act, every child had the right to free and compulsory basic education. A child under the Act and under the Children Act was any person who had not attained the age of eighteen years. Therefore, every person under the age of eighteen years was entitled to primary and secondary education in Kenya that was free and compulsory.
  6. Article 21(2) of the Constitution obliged the State to take legislative, policy and other measures, including the setting of standards, to achieve the progressive realisation of the rights guaranteed under article 43. The right to education, having been a right protected under article 43, was subject to article 21(2).
  7. The realisation of the right to education over time, that is “progressively”, ought not to have been interpreted as depriving States obligations of all meaningful content. Progressive realisation meant that States had a specific and continuing obligation to move as expeditiously and effectively as possible towards the full realisation of the right. The State was therefore obliged to take steps to the maximum of its available resources, with a view to achieving progressively the full realisation of the rights.
  8. The obligation to take reasonable steps meant steps that were based on coherent policies and programs that were reasonable both in conception and implementation (Government of the Republic of South Africa v Grootboom). As concerns the right to education, progressive realisation did not mean mere paper policies but deliberate and concrete steps taken to achieve free basic education for all on a non-discriminative basis, deployment of maximum available resources to ensure realisation, avoid retrogressive measures and monitor enjoyment of the right.
  9. There was no contradiction or ambiguity within the Basic Education Act, 2013. Section 28(1) of the Act was clear and required no more than a literal interpretation. It imposed on the Cabinet Secretary for Education the responsibility of implementing the State’s obligation to provide free and compulsory basic education for children. The manner in which the Cabinet Secretary discharged that obligation, within the parameters set by the Constitution and the Statute, were matters within the policy discretion of the national government and the Court could not interfere in such policies unless it had been shown that the Cabinet Secretary had been in violation of the Constitution. Section 29 (1) of the Act was also clear and unambiguous in providing that public schools ought not to have charged any fee on behalf of a pupil in the school. That was a logical consequence of the State’s own undertaking to provide free and compulsory basic education.
  10. While the realisation of the right to basic education might have been progressive, the right to non-discrimination was immediate. Article 27 guaranteed equality for all persons and prohibited discrimination. The term “discrimination” implied any distinction, exclusion, restriction or preference which was based on any ground, including race, sex, pregnancy, marital status, health status, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, dress, language or birth. In the context, it referred to any distinction, exclusion, limitation or preference based on those grounds which had the purpose of nullifying or impairing equality of treatment in education.
  11. Inequality in treatment was not per se prohibited. The question as to whether discrimination was fair or unfair, hence illegal, was to be weighed against the rationality test. The aim of the inequality ought to have been aimed at achieving a certain legitimate governmental objective.
  12. All the Court needed to be satisfied of was that the object of differentiation bore a rational relationship to a legitimate government purpose compatible with the principles and values of the Constitution. Such a test maintained fidelity to the principle of separation of powers that was one of the pillars of the Constitution. The question for determination then was not merely whether the provisions were discriminatory or amounted to unequal treatment, but whether the different treatment of children in public and private schools in the circumstances of the case bore a rational connection with legitimate governmental purpose.
  13. In order to have progressively realised the free secondary school education, the Government had to give priority to public schools which served the majority of students across the country. Under article 43(3) of the Constitution, the State had the obligation to give priority to the most vulnerable and marginalized in the society. That meant that the funding of children in private schools, while a goal to be progressively realised, its immediate application would have undermined affirmative action.
  14. The failure by the State to provide financial and in kind assistance to private schools was not discriminatory. The distinction between children in private and public school was intended to achieve the overall goal of progressively providing free education to all children in the future.

Petition dismissed with no order as to costs.


Long'et Terer - CEO and Editor

e: editor@kenyalaw.org

t: @LongetTerer

The Kenya Law Team

Where Legal Information is Public Knowledge.

The National Council for Law Reporting | P.O Box 10443 - 00100, Nairobi Kenya. | www.kenyalaw.org