Weekly Newsletter 039/2015

Weekly Newsletter 039/2015



Kenya Law

Weekly Newsletter


Casual workers cannot enjoy constitutional protection like public officers
Kenya County Government Workers’ Union v County Government of Nyeri & another
Petition 10 of 2015
Employment and Labour Relations Court Of Kenya at Nyeri
B. Ongaya J
December 11, 2015
Reported by Kipkemoi Sang
Download the Decision

Brief facts
The Respondents had engaged 238 employees being members of the Petitioner. The said employees were engaged in duties of a permanent nature which they had performed for a long time on permanent basis since their respective dates of initial engagement. The Respondent had failed to heed to their demands to place them on permanent terms and conditions of service and had threatened to replace employees in the same positions to perform the same or similar work as the Petitioner’s members
The Petitioner’s members contended that they were not casual employees within the meaning of the Employment Act, 2007 alleging that they had been employed for longer periods than 24 hours at times and some had served for over 15 years without a break and were paid at the end of each month and not on a daily basis as was the case in casual employment.
The Petitioner’s members further alleged that they had performed work which could not reasonably be expected to be completed within a period or a number of working days amounting in aggregate to the equivalent of three months or more and as such were entitled to permanent terms of service.
The Petitioner moved the court alleging violation of various fundamental rights and freedoms including inter alia the right to inherent human dignity especially in view of the values and principles of public service, on behalf of its members, right to fair labour practices comprising of, reasonable working conditions including permanent terms and conditions of service as protected by law.
The Respondent apposed the petition and alleged that the Petition was an abuse of court process since it was sub judice Cause 31 of 2013 that was pending in Court between the Respondent and the Respondent’s employee
The Petitioner therefore sought an injunction against termination or dismissal of its members from their employment without following the law and their terms and conditions of employment.

Issues:
  1. Whether the Petition was sub judice Cause 31 of 2013 that was pending in Court between the Respondent and the Respondent’s employee
  2. Whether the Petitioner had established its case and was therefore entitled to the remedies prayed for
  3. What was or amounted to the right to fair labour practices?
Constitutional Law- fundamental rights and freedoms-labour relations-right to fair labour practices- protection of public service-what was or amounted to the right to fair labour practices?-Constitution of Kenya, 2010, article 41
Labour Law-labour practice- general provision of contract of service- casual employment- constitutional protection of casual employees vis public offices-what was or amounted to the right to fair labour practices-Constitution of Kenya, 2010, article 236; Employment Act, 2007 sections 9 and 41
Civil practice and Procedure-principle of sub-judice- elements of sub-judice under civil procedure-litigation and re-litigation- whether the Petitioner had established its case and was therefore entitled to the remedies prayed for-whether the petition was sub judice Cause 31 of 2013, Civil Procedure Act, (cap 21), section 6

Constitution of Kenya, 2010
Article 41-Labour relations

(1) Every person has the right to fair labour practices.
(2) Every worker has the right—

(a) to fair remuneration;
(b) to reasonable working conditions;
(c) to form, join or participate in the activities and programmes of a trade union; and
(d) to go on strike.

(3) Every employer has the right—

(e) to form and join an employers organisation; and
(f) to participate in the activities and programmes of an employers organisation.

(4) Every trade union and every employers’ organisation has the right—

(a) to determine its own administration, programmes and activities;
(b) to organise; and
(c) to form and join a federation.

(5) Every trade union, employers’ organisation and employer has the right to engage in collective bargaining.

Article 236-Protection of public officers

A public officer shall not be—

(a) victimised or discriminated against for having performed the functions of office in accordance with this Constitution or any other law; or
(b)
ismissed, removed from office, demoted in rank or otherwise subjected to disciplinary action without due process of law.

Employment Act 2007
Section 9-General provision of contract of service

(1) A contract of service—

(a) for a period or a number of working days which amount in the aggregate to the equivalent, of three months or more; or
(b)
which provides for the performance of any specified work which could not reasonably be expected to be completed within a period or a number of working days amounting in the aggregate to the equivalent of three months, shall be in writing.

(2) An employer who is a party to a written contract of service shall be responsible for causing the contract to be drawn up stating particulars of employment and that the contract is consented to by the employee in accordance with subsection (3).
(3)
For the purpose of signifying his consent to a written contract of service an employee may—

(a) sign his name thereon; or
(b)
imprint thereon an impression of his thumb or one of his fingers in the presence of a person other than his employer.

(4) Where an employee is illiterate or cannot understand the language in which the contract is written, or the provisions of the contract of service, the employer shall have the contract explained to the employee in a language that the employee understands.

Section 41.-Notification and hearing before termination on grounds of misconduct

(1) Subject to section 42(1), an employer shall, before terminating the employment of an employee, on the grounds of misconduct, poor performance or physical incapacity explain to the employee, in a language the employee understands, the reason for which the employer is considering termination and the employee shall be entitled to have another employee or a shop floor union representative of his choice present during this explanation.
(2) Notwithstanding any other provision of this Part, an employer shall, before terminating the employment of an employee or summarily dismissing an employee under section 44(3) or (4) hear and consider any representations which the employee may on the grounds of misconduct or poor performance, and the person, if any, chosen by the employee within subsection (1), make.

Held:
  1. The elements for sub judice under section 6 of the Civil Procedure Act were only limited to: Firstly, where a matter in issue was also directly and substantially in issue in a previously instituted suit or proceeding. Secondly, where the previous suit was between the same parties or between parties under whom they or any of them claimed, litigating under the same title; and finally, where, such suit or proceeding was pending in the same or any other court having jurisdiction in Kenya to grant the relief claimed.
  2. Cause No.31 of 2013 was instituted by respondents’ employees in their individual capacities while the current petition was instituted by the union as an autonomous legal person. It could be that some or all claimants in Cause No. 31 of 2013 are also members of the union but it is clear that they are not the only members of the union. The union had filed the petition for members beyond the claimants in the earlier suit. The earlier suit was filed by or for 65 casual workers who served at the defunct Municipal Council of Karatina and who were at the time serving in the respondent’s employment.
  3. Even if the earlier suit were decided one way or the other, it would not serve to ameliorate multiplicity of suits but entertaining the current petition would serve that purpose; since the employees not being litigants in the earlier suit but being the petitioner’s members would not have to file similar suits if the petition determined their concerns. The reliefs in the petition were clearly wider in scope or different from the ones in the earlier suit. The petition was not sub judice Cause 31 of 2013.
  4. The matters of facts as pleaded by the petitioner had not been rebutted by the Respondents. That being the case, the Court finds that the law as pleaded and urged for the petitioner entitled the petitioner to the remedies as prayed for.
  5. The bundle of elements of “fair labour practices” was elaborated in article 41(2), (3), (4) and (5) of the Constitution. Under article 41(2) every worker had the right to fair remuneration; to reasonable working conditions; to form, join or participate in the activities and programmes of a trade union; and to go on strike. Under article 41(3) every employer had the right to form and join an employers’ organization; and to participate in the activities and programmes of an employers’ organization. Under article 41(4), every trade union and every employer’s organization had the right to determine its own administration, programmes and activities; to organize; and to form and join a federation. Under article 41(5) every trade union, employers’ organization and employer had the right to engage in collective bargaining. The said constitutional provisions constituted the foundational contents of the right to fair labour practices.
  6. The right to “fair labour practices” encompassed the constitutional and statutory provisions and the established work place conventions or usages that gave effect to the elaborations set out in article 41 or promoted and protected fairness at work. They included provisions for basic fair treatment of employees, procedures for collective representation at work, and of late, policies that enhanced family life while making it easier for men, women and persons with disabilities to go to work.
  7. Section 2 of the Employment Act defined a “casual employee” to mean a person the terms of whose engagement provided for his payment at the end of each day and who was not engaged for a longer period than twenty four hours at a time. In the instant case, the Petitioner’s members were not casual workers because they were engaged for a longer period than twenty four hours at a time. They served for many days without any break in their service. Each of the petitioner’s members served for more than three continuous months and the respondent was required to reduce their contract of service in writing as provided for in section 9 (1) of the Act.
  8. The standards that govern employment in the public service essentially discouraged and abolished casual employment in the public service. Casual workers did not qualify as public officers within the tests set in the standards for employment of public officers. For instance, by nature of casual service within the meaning assigned in the Employment Act, 2007, casual workers did not and could not enjoy the constitutional protection of public officers from victimization or discrimination for performing their duties and entitlement to due process in event of termination as provided for in article 236 of the Constitution and section 41 of the Employment Act.
  9. Recruitment and selection process in engagement of casuals opens itself to failure to meet the constitutional and statutory tests of participation, competition, merit, inclusivity, representation, integrity, competence and suitability. In delivery, casual workers were unlikely, and were invariably unable, to comply with the relevant public service codes of conduct, ethics and integrity which were at the core of good public service delivery. Casual employment in the public sector easily fall prey to likely corrupt practices as manifested in cleptocracy in remuneration processes; favouritism or nepotism or bribery or cronyism in appointment processes; unprofessional service delivery through intellectual dishonesty to preserve the employment; and exclusion of competent and suitable persons from otherwise permanent employment.
  10. In the instant case, the pretended casual worker was dejected and de-motivated as it happened because the legal protections were undermined in the casual employment relationship. Thus, in the event of temporary duties, employers in public service would rather invoke public procurement laws and engage private sector service providers to avoid contravention of the constitutional and statutory provisions on public employment and whose framework did not only discourage but in effect abolished casual employment in the public service. The respondents violated the petitioner’s member’s rights to fair labour practices namely reasonable working conditions including minimum terms and conditions of service as protected under article 41 (1) of the Constitution and the provisions of the Employment Act, 2007. Therefore the petitioner was entitled to the prayers as made in the petition.
Orders:
Order restraining and prohibiting the respondents from employing replacement labour or employees in the same positions to perform the same or similar work as the petitioner’s members
Order stopping the respondents from terminating or dismissing the petitioner’s members from the respondent’s employment without following the law and their terms and conditions of employment
Conversion of the terms of service of the petitioner’s members purportedly being casual employees in the service of the respondents to respondent’s employees on terms and conditions of service consistent with the Employment Act, 2007.
Respondents to pay the petitioner’s costs of the petition
Kenya Law
Case Updates Issue 039/2015
Case Summaries

COMPANY LAW Legal threshold which must be met in order to obtain leave of the court to sue on behalf of the company

Amin Akberali Manji & 2 others vs. Altaf Abdulrasul Dadani & another
Civil Appeal No. 101 of 2014
Court of Appeal at Nairobi
Waki, GBM Kariuki & Ouko JJA
September 25, 2015
Reported by Kipkemoi Sang

Download the Decision

Brief Facts:
The appellant and the respondent formed the company (ML) together in 1993, with the main object of importing and selling musical instruments. Each of them had 50% share and directorship in the company. The respondent controlled the day today operation of the company while the appellant took charge of financial matters. All was well with the company until 1999 when the appellant chose to resign from office of directorship and nominated another (Kamur), who continued his role of financial controller and another nominee (Madhani) to whom he transferred all his shares to hold in trust. He nevertheless continued to participate actively in the management of the company’s affairs.
In May 2000 the appellant allegedly refused to release money for purposes of replenishing stock and payment of creditors thereby paralyzing the company’s business. The respondent felt frustrated and the operations of the company ground to a halt. The respondent claimed that the appellant had incorporated another company (MML) which had a deceptively similar name as ML, expropriated the stock and assets of ML, and started operations of similar business in the premises of ML in conjunction with Kumar (his nominee) hence breaching fiduciary duty towards ML and that in cahoots with his nominee they intended to defraud not only ML but also the creditors of ML and the respondent. The respondent moved to court seeking leave to prosecute the suit of derivative action on behalf of ML and its creditors and indemnity by ML for all the cost and expenses reasonably incurred in prosecution. The appellant reacted to the allegation and appealed against the decision of the High court which had inter alia declared that the closure of ML was unlawful and wrongful, it had temporary injunction restraining MML from carrying on business in ML’s premises and compelled the appellant to furnish ML with audited reports. The orders of the High court to which the appellant objected included the question of leave before instituting a derivative.

Issues:

  1. Whether the instant case met the legal threshold of a derivative action at the trial stage and if so, whether the High Court erred in granting order to allow the plaintiff to be indemnified for all the expenses incurred in respect of the suit
  2. Whether the commencement of the case prior to obtaining leave of the court was fatal to the case
  3. Whether the High Court acted judiciously in the exercise of its discretion to issue the orders it did at an interlocutory stage

Company Law-derivative claims and or action-legal threshold for derivative action - derivative claims in the absence of minority shareholders- circumstances for necessary derivative actions in the absence of minority shareholders-Whether the instant case met the legal threshold of a derivative action at the trial stage and if so, whether the High Court erred in granting order to allow the plaintiff to be indemnified for all the expenses incurred in respect of the suit-Companies Act (cap 486)

Civil Practice & Procedure- leave of court-procedure for filling leave of court to sue the company- effect of clear procedure for filing leave of court to sue the company and or delivery claims-Whether the commencement of the case prior to obtaining leave of the court was fatal to the case- Whether the High Court acted judiciously in the exercise of its discretion to issue the orders it did at an interlocutory stage-In the matter of CMC Holdings Limited [2012]eKLR Civil Procedure Act (cap 21), section 3A Read More...

Held:

  1. The legal threshold which must be met in order to obtain leave of the court to sue on behalf of the company are:
    1. The aggrieved company has a cause of action, which means a “legal right that has been violated”
    2. That it is impossible for the company to sue on its own to redress the wrong or breach. Especially if the wrongdoers themselves are the directors or majority shareholders in the company and will not allow it to file suit against themselves or where there was no majority shareholding which could overrule the directors, it would be impossible to institute the suit in the name of the company, if the director fail to do so.
    3. The representative has locus standi or legal standing as a major shareholder, to commence the suit.
  2. A majority shareholder is one who “owns less than half the total shares.” The respondent who held half or 50% of the shares of ML was not a minority shareholder; he in fact had equal voting right with the appellant. It was not open for the respondent to institute a derivative suit citing the appellant (Manji or Kamur) as director, if they were in control of the company. The respondent simply had no locus standi in the instant matter.
  3. A derivative action was an American term amounting to one more than a ‘representative suit’ filed on behalf of a plaintiff (in other instances) under disability, like a minor or person or unsound mind. In the instant context, it was a suit instituted by shareholder on behalf of the company as its representative when the company itself could not sue. In the alternative if the suit was a derivative one, it required leave but none was sought or granted before the suit was filed as spelt out in the Companies Act.
  4. There was no express provision in Kenyan company laws to govern the procedure for granting leave to mount a derivative action. The procedure that was available was the English Common Law. Leave of the court should be obtained before filling a derivative suit, but could also be obtained to continue with the suit once filed. The crucial requirement was for the applicant to establish a prima facie case demonstrating that he had locus standi to institute an action, the company was entitled to the intended relief and that the action fell within any of the exceptions to the rule in Foss vs Habottle
  5. The rule in Foss vs Harbottle (the rule) established two principles. That of “proper plaintiff” and that of “the majority” where the first rule required that a wrong done to the company may be vindicated by the company alone and the second principle required that if the alleged wrong could be confirmed or ratified by a simple majority then a shareholder was barred from bringing actions. The principle effect in the rule is to bar action by minority shareholders. However, the exception to the rule in Habottle included: firstly, where what had been done amounts to fraud and the wrongdoers were themselves in control of the company, secondly; where it was alleged that personal rights of the plaintiff shareholder had been or were about to be infringed and thirdly, any other case where the interest of justice required that the general rule required suits by company to be disregarded.
  6. Where no application for leave was filed or where one was filled long after the suit was filed, different considerations would apply. The application for leave to continue with the suit filed in the instant matter was not made long after the suit was filed. Both were filed contemporaneously and were placed before a judge on the same day under the certificate of urgency and as such was heard ex parte. Owing to the need for the trial court to exercise discretion, equitable principles were applicable and ought to be exercised judiciously which the trial court observed on the basis of the prima facie case. The trial court was right in exercising the discretion to maintain the leave granted and to give the parties the opportunity to contest the real issues in controversy in the main suit.
  7. A derivative claim was necessary to rescue the company if it was truly in distress. In the instant case, there was apparent threat and mischief. Equally, there was nothing that could prevent any party from making an application to have the ex parte orders. The company was in a peculiar and unique position of having only two members who were equal in power and glory in relation to the company. There was no majority or minority shareholder. The two shareholders/directors had reached a stalemate. The property of the company was disappearing or being taken over by a third party but the company was doing nothing about it.
  1. Orders made by the High Court on the application dated 26th November, 2002 seeking to have the defence filed stack out and judgement on the prayers made by the appellant set aside.
  2. The Ruling and other orders of the High Court made on 5th April 2004 were otherwise upheld
  3. Each party to bear its own costs of the appeal and of the motions before the High Court
LAND LAW Applicability of the doctrine of lis pendens to the grant of injunctions in land disputes

Naftali Ruthi Kinyua v Patrick Thuita Gachure & another
Civil Appeal Number 44 of 2014
Court of Appeal at Nairobi
R N Nambuye, D K Musinga & A K Murgor, JJA
March 6, 2015
Reported by Beryl A. Ikamari and Robai Nasike Sivikhe

Download the Decision

Brief facts:
The appellant sued the 1st and 2nd respondent at the high court as proprietors of a parcel of Land known as Land Reference No. 8285/1522 also known as Plot No. 133 Kariobangi Light Industries, Nairobi. The appellant had purchased the suit property from Peter Muthaura on July 5th 1979 and subsequently notified the 2nd respondent about the purchase. He paid stand premiums, survey and conveyancing fees as demanded by the respondent in order to secure the title documents. The appellant was issued with a deed plan in respect of the suit property on August 9th 2011.
While waiting for issuance of the title documents, he discovered that the 1st respondent had entered the suit property and was commencing developments in the property. The 1st respondent had also acquired the relevant documents in relation to the land from the 2nd Respondent and was in the process of acquiring title documents.
In the course of proceedings, the appellant sought an injunction pending hearing and determination of the suit. The appellant argued that he had a prima facie case. His case was based on documentation which showed that he had purchased the property from Peter Muthaura and paid the relevant fee to the 2nd Respondent. Furthermore, as the lawful allottee of the suit property since 1980, he alleged that he would suffer irreparable harm and the balance of convenience tilted in his favor.
Additionally, the appellant contended that the principle of first in time was applicable since his claim dated back to 1980 while the 2nd respondent’s claim arose in 2011. Further, the appellant cited the doctrine of lis pendens under section 52 of the Transfer of Properties Act, 1882, of India (ITPA) as relevant for purposes of preservation of the suit property pending hearing and determination of the suit. However, the high court declined to issue an injunction.
The appellant appealed against the ruling on grounds that both the appellant and respondent did not have a perfected title and therefore an injunction should have been issued to preserve the suit property. It was further contended that injunctive orders restraining further dealings with the suit property should have been issued on the basis of the doctrine of lis pendens.

Issues:

  1. Whether the application met the legal threshold required for the grant of an injunction.
  2. Whether the doctrine of lis pendens was applicable to land disputes and the grant of an injunction given that the Indian Transfer of Property Act had been repealed.

Land Law-lis pendens- application of the doctrine of lis pendens - whether the doctrine of lis pendens still applied despite repeal of ITPA- whether the doctrine of lis pendens could be applied by court for preservation of property pending hearing and determination of a suit- whether the trial court had misdirected itself when it failed to consider and apply the doctrine of lis pendens- Transfer of Property Act, 1882, of India, section 52; Land Registration Act, No of 2012, section 107 (1).

Common Law- lis pendens- doctrine of lis pendens as a common law doctrine- relevance of common law to the application of doctrine of lis pendens - whether the doctrine of lis pendens, as a common law doctrine, could be applied to the preservation of property pending hearing and determination of a suit concerning the property- whether the trial court had misdirected itself when it failed to consider and apply the doctrine of lis pendens- Judicature Act, (Cap 8), section 3(1).

Civil Practice and Procedure- injunctions- interlocutory injunctions- principles applicable to the grant of an injunction - whether the appellant had met the stipulated conditions for the grant of an injunction- whether the trial court had misdirected itself when it declined to grant the appellant an injunction on grounds that he failed to establish a prima facie case with chances of success. Read More...

The Transfer of Property Act, 1882, of India
Section 52

52. Transfer of property pending suit relating thereto
During the active prosecution in any Court having authority in British India, or established beyond the limits of British India by the Governor-General in Council, of a contentious suit or proceeding in which any right to immovable property is directly and specifically in question, the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein, except under the authority of the Court and on such terms as it may impose.

Land Registration Act, No. of 2012, Laws of Kenya
Section 107 (1)

107. Savings and transitional provisions with respect to rights, actions, dispositions
(1) Unless the contrary is specifically provided for in this Act, any right, interest, title, power, or obligation acquired, accrued, established, coming into force or exercisable before the commencement of this Act shall continue to be governed by the law applicable to it immediately prior to the commencement of this Act.

Judicature Act, Cap 8, Laws of Kenya
Section 3 (1)

3. Mode of exercise of jurisdiction
(1) The jurisdiction of the High Court, the Court of Appeal and of all subordinate courts shall be exercised in conformity with—
(a) the Constitution;
(b) subject thereto, all other written laws, including the Acts of Parliament of the United Kingdom cited in Part I of the Schedule to this Act, modified in accordance with Part II of that Schedule;
(c) subject thereto and so far as those written laws do not extend or apply, the substance of the common law, the doctrines of equity and the statutes of general application in force in England on the 12th August, 1897, and the procedure and practice observed in courts of justice in England at that date:
Provided that the said common law, doctrines of equity and statutes of general application shall apply so far only as the circumstances of Kenya and its inhabitants permit and subject to such qualifications as those circumstances may render necessary.

Held:

  1. For an injunction to be granted, an applicant had to satisfy the court that he had established the existence of a prima facie case with chances of success and that he would to suffer irreparable loss which would not be compensated by an award of damages but in case the court was in doubt, the application was to be determined on a balance of convenience.
  2. The appellant had to establish that he had a prima facie case with chances of success. Therefore, the appellant had to show that he owned the suit property, or had a valid claim that was capable of defeating a claim by a third party in respect of the property in dispute.
  3. It was clear that both the appellant and 1st respondent were not in possession of title documents over the property, hence the dispute between the parties was a contest over who had a superior claim over the other. In light of those factors, it was incumbent upon the parties to produce relevant documents to support their claim over the suit property to the exclusion of the other.
  4. The appellant’s documents showed that he attempted to register his interest before the 1st respondent sought to register his. There was sufficient documentation that indicated that the appellant maintained a claim in respect of the suit property which was valid and continued to subsist. Hence, it was evident that the appellant had established a prima facie case with chances of success.
  5. The appellant was the lawful allottee to the suit property from 1980. He stood to suffer irreparable harm if the defendant was not restrained from taking over the suit property pending the hearing and determination of the suit.
  6. In case there was doubt that the appellant established a prima facie case and stood to suffer irreparable loss, the application ought to have been determined on a balance of convenience. The balance of convenience tilted towards the preservation of the property pending hearing and determination of the suit. That could only be accomplished by granting the orders of injunction.
  7. The doctrine of lis pendens was applicable to the circumstances as the case concerned a property dispute in which rights to the suit property were in contention. The doctrine was therefore of relevance to the application for an injunction.
  8. With the repeal of the ITPA by the Land Registration Act (LRA), which provided for the doctrine of lis pendens, the question of applicability of the doctrine of lis pendens arose. However, the applicability of the doctrine had to be considered in light of section 107 (1) of the Land Registration Act which provided for transitional provisions.
  9. Section 107 (1) of the Land Registration Act allowed for the continued applicability of rights and interests as provided for in legislation that governed titles and rights to property acquired prior to the repeal of such legislation. Hence, rights that flowed from section 52 of the ITPA, including the doctrine of lis pendens were to be recognized by virtue of section 107 (1) of the Land Registration Act.
  10. The doctrine of lis pendens was also a common law principle. Common law was applicable in Kenya by virtue of section 3 (1) of the Judicature Act. Therefore, the doctrine of lis pendens was part of the Kenyan law under section 3(1) of the Judicature Act.
  11. The trial court should not have disregarded the adjudicative support of the doctrine of lis pendens for purposes of preservation of the suit property until the suit was heard and determined. The trial court had erred when it failed to consider and apply the doctrine of lis pendens for purposes of the injunctive relief sought.
  12. The high court misdirected itself when it declined to grant an injunction and concluded that a prima facie case had not been established. The dispute involved competing interests between the appellant and respondent and on the basis of existing documentation, the appellant had established the existence a prima facie case.
  13. The high court misdirected itself when it failed to consider the doctrine of lis pendens for purposes of preserving the suit property pending hearing and determination of the suit.

Appeal allowed.
Ruling delivered by the high court on May 17th 2013 set aside.

JURISDICTION

The Wildlife Conservation and Management Act 2013 is the guide in determining awards for damages for death, or injuries caused by wildlife.

Joseph Munyoki Kalonzo v Kenya Wildlife Services
High Court of Kenya at Garissa
Civil case 5 of 2014
October 12, 2015
G. Dulu J
Reported by Njeri Githang’a and John Ribia

Download the Decision

Brief facts:
The plaintiff was the father of the deceased who was alleged to have been fatally injured by a crocodile while she fetched water at Tana River in Tseikuru District. The plaintiff sued the defendant as the legal representative of the estate of M M. The plaintiff sought compensation in the sum of Kshs. 5,000,000/= as provided under section 25 of the Wildlife Conservation & Management Act 2013. The plaintiff also sought special damages, costs and interest.
The defendant relied upon the doctrine of volenti non fit injuria and stated that the accident, if it occurred, was caused by the negligence of the deceased and the plaintiff. The defendants also pleaded that the suit was bad in law and did not disclose any cause of action. Through a preliminary objection, the defendant moved the court to have the suit struck out with costs and interest.
The plaintiff admitted partial liability and subsequently the parties counsel filed a written consent. The consent distributed liability at the ratio of 80:20 in favour of the plaintiff.

Issues:

  1. Whether the court had the jurisdiction to determine a claim for compensation for injuries or death caused by wildlife when section 25(1) of the Wildlife Conservation and Management Act 2013 had established a commission to deal with the same.
  2. Whether the Fatal Accidents Act and the Law Reform Act could be used to determine an award for damages for deaths and injuries caused by wildlife.
  3. Whether the Wildlife Conservation and Management Act 2013 was the guide in determining awards for damages for death, or injuries caused by wildlife.

Jurisdiction – the jurisdiction to determine a claim for compensation for injuries or death caused by wildlife- jurisdiction of the High Court vis a vis jurisdiction of the County Wildlife Conservation and Compensation Committee - whether the court had the jurisdiction to determine a claim for compensation for injuries or death caused by wildlife when section 25 (1) of the Wildlife Conservation and Management Act 2013 established a commission to deal with the same - Wildlife Conservation and Management Act 2013, section 25 (1).

Tort Law– damages- award of damages for loss of life- compensation-award for damages for deathor injuries caused by wildlife- whether the Fatal Accidents Act and the Law Reform Act could be used to determine an award for damages for deaths and injuries caused by wildlife - whether the Wildlife Conservation and Management Act 2013 was the guide in determining awards for damages for death, or injuries caused by wildlife- wildlife Conservation and Management Act 2013 section 25 (1) Read More...

Wildlife Conservation and Management Act 2013, section 25 (1)

(1) Where any person suffers any bodily injury or is killed by any wildlife listed under the Third Schedule, the person injured, or in the case of a deceased person, the personal representative or successor or assign, may launch a claim to the County Wildlife Conservation and Compensation Committee within the jurisdiction established under this Act.

Held:

  1. A suit that disclosed no cause of action was not similar to a suit that claimed a court did not have jurisdiction. Jurisdiction is the legal power of the court to hear and determine a matter. Cause of action dealt with whether the plaintiff or litigant had a legal claim which he could pursue in court. The defence did not challenge the power of the court to adjudicate over the matter, but challenged the ability of the plaintiff to sustain the claim. The defence did not raise an issue of jurisdiction.
  2. Section 25 (1) of the Wildlife Conservation and Management Act 2013 that stated that persons injured or the personal representatives of persons killed by wildlife could launch compensation claims to the County Wildlife Conservation and Compensation Committee was permissive. It used the word may, it did not specifically claim that the ordinary courts had no jurisdiction in such claims. The court had jurisdiction to determine the matter.
  3. The preliminary objection raised by the defense could not satisfy requirements for a preliminary objection. The preliminary objection was filed late on the hearing date without prior notice and it did not specify the sections or section of the Wildlife Conservation and Management Act 2013 that were violated by the proceedings, nor did it indicate the nature of the alleged violation which could amount to an abuse of court process.
  4. The consent entered into by the parties counsel with regard to liability was a proper recorded consent and as such it was contractual and binding on all parties and their counsel. The defendant took up 80% liability and the plaintiff took up 20% liability.
  5. The plaintiff was entitled to compensation under the Wildlife Conservation and Management Act 2013, which was the specific Act that dealt with accidents and fatalities associated with wildlife conservation. Since the Act was also a more recent law and since Parliament had in its wisdom decided to treat damage, injuries and deaths caused by wildlife differently, the act was the guide in determining awards for damages for death, or injuries caused by wildlife. The general law under the Fatal Accidents Act and Law Reform Act could not be used to determine damages as Parliament had made specific provision for the same under the Wildlife Conservation and Management Act of 2013.
  6. It was proved that the deceased died due to a crocodile attack, as such Kshs. 5,000,000/= was awardable to her estate as damages as compensation, as provided under section 25 of the Wildlife Conservation and Management Act 2013. The plaintiff also proved special damages of Kshs. 40,000/= for costs of litigation to obtain letters of administration. Subject to calculations varied by the consent entered into by the parties counsel, the plaintiff was entitled to Kshs. 4,032,000/= as compensation to the estate of the deceased.

Costs, interest and damages awarded to the plaintiff in the sum of Kshs. 4,032,000/=

LAND LAW Presumption of tenancy in common where the land register does not indicate whether the land is held jointly or in common

Moses Bii v Kericho District Land Registrar and 2 others
Civil suit No.8 of 2014
High Court at Kericho
October 2, 2015
Munyao Sila, J
Report by Teddy Musiga and Daniel Hadoto

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Brief facts:
The suit land was first registered in 1970 under the names of four persons, namely, Kiprono Bii, Moses Bii (the plaintiff), John Bii, and Cheriro Tuimising. As at the time of the hearing, the title deed had never been issued to them. In the course of time, John Bii and Kiprono Bii died. The plaintiff contended that despite their death, the Kericho District Land Registrar had failed to register their death certificates and refused to delete their names from the register, although he had been duly notified. The plaintiff prayed that the names of Kiprono Bii and John Bii to be deleted from the register and a title deed be issued in the names of himself and Cheriro Tuimising as joint proprietors of the suit property.

Issue:

  1. What happens where a property was registered in the name of several proprietors but there was no indication as to whether they held the property jointly or in common?

Land Law - Tenancy - Proprietorship of land - joint proprietorship and proprietorship in common – registration of more than one name but not indicating the nature of proprietorship – rule in determining form of proprietorship where more than one name is registered but there is no indication of the nature of proprietorship – The Land Registration Act, Act No. 3 of 2012 Section 91 (8); Registered Land Act, section 101 (1); 102, 103(repealed) Read More...

Section 101 (1) of Registered Land Act, Cap 300, (Repealed)

An instrument made in favor of two or more persons, and the registration giving effect to it, shall show-

(a) Whether those persons are joint proprietors or proprietors in common; and
(b) Where they are proprietors in common, the share of each proprietor.

Section 102 of the Registered Land Act (Repealed)
(1) Where the land, lease or charge is owned jointly, no proprietor is entitled to any separate share in the land, and consequently –

(a) dispositions may be made only by all the joint proprietors; and
(b) on the death of a joint proprietor, his interest shall vest in the surviving proprietor or the surviving proprietors jointly.

(2) For avoidance of doubt, it is hereby declared that -

(a) the sole proprietor of any land, lease or charge may transfer the same to himself and another person jointly; and
(b) a joint proprietor of any land, lease or charge may transfer his interest therein to all the other proprietors.

(3) Joint proprietors, not being trustees, may execute an instrument in the prescribed form signifying that they agree to sever the joint proprietorship, and the severance shall be completed by registration of the joint proprietors as proprietors in common and by filing the instrument.

Section 103 of the Registered Land Act (Repealed)

(1) Where any land, lease or charge is owned in common, each proprietor shall be entitled to an undivided share in the whole, and on the death of a proprietor his share shall be administered as part of his estate.
(2) No proprietor in common shall deal with his undivided share in favour of any person other than another proprietor in common of the same land, except with the consent in writing of the remaining proprietor or proprietors of the land, but such consent shall not be unreasonably withheld.

Section 91 (8) of the Land Registration Act, Act No. 3 of 2012

On and after the effective date, except with leave of a court, the only joint tenancy that shall be capable of being created shall be between spouses, and any joint tenancy other than that between spouses that is purported to be created without the leave of a court shall take effect as a tenancy in common.

Held:

  1. Section 101(1) of the Registered Land Act, Cap 300, (repealed) provided that in every situation where the proprietors were more than one, the register had to reflect whether their registration was joint or in common. The RLA did not envisage a situation where there were several proprietors, without it being disclosed in the register, whether they are joint proprietors or proprietors in common. Section 102 and 103 of the Registered Land Act (repealed) gave the characteristics of the two kinds of proprietorship (joint properties or proprietors in common).
  2. Where proprietorship was joint, the persons did not have any separate shares in the land, and therefore if one proprietor died, his interest automatically vested upon the surviving proprietor. Thus if land was owned jointly by A and B, and A dies, B now becomes the sole proprietor of the land and did not hold it in trust for the estate of A. There were no separate shares for the proprietors.
  3. Where land was owned in common, each proprietor had a separate share, only that the same was undivided and held together with the other proprietor/s as one whole. Thus if one proprietor died, his share did not vest in the surviving proprietor, but vests in his estate.
  4. In the instant case, the register did not show whether the proprietorship was joint or in common. The RLA did not contemplate a scenario where the register did not indicate whether land was held jointly or in common, and did not provide for the course to follow where there were several proprietors but no indication as to whether they held the land jointly or in common. If the register did not reflect whether land was held jointly or in common, the fallback position would be to presume that the land was held in common. Joint proprietorship, where the same had not been explicitly indicated, would only be presumed in the clearest of circumstances, where there could be no shred of doubt that the contemplation of the parties was to have the property held jointly.
  5. The current law, which was contained in the Land Registration Act, Act No. 3 of 2012 (which repealed the RLA and which came into effect on 2 May 2012) in fact frowned deeply on joint proprietorship. It effectively banned them unless the proprietors were spouses or unless by order of court. The operative section was Section 91 (8).
  6. In the instant case, the proprietors were four brothers. They became registered as proprietors on 16th February, 1970. The register did not show whether they were proprietors in common or whether they are joint proprietors. The courts presumption was that they were registered as proprietors in common. In fact, the nature of their holding fortified that position. The four persons were first registered proprietors. This view, pointed at a holding, which tended to be a holding in common, rather than one which was joint
  7. The Land Registrar could not be faulted for failing to presume that the proprietorship was joint, and for failing to issue a title deed only bearing the names of the surviving proprietors. It could be said that the Land Registrar was correct in registering a restriction, barring any dealings, until the interest of the survivors of one of the deceased proprietors is catered for.
  8. The suit was filed on 22nd February 2014, at a time when the Registered Land Act had been repealed at a time when Section 91 (8) of the Land Registration Act, was effective. In essence, if the new law was applied, the plaintiff automatically failed. But it didn’t matter, for even on application of the old law, the plaintiff would still fail.

Proprietorship was deemed to be a proprietorship in common.

Suit dismissed with costs
JURISDICTION Jurisdiction of the Supreme Court to review Court of Appeal decisions on certification that an intended appeal involved matters of general public importance

P M Wamae & Co Advocates v Hon Ntoitha M'mithiaru
Civil Application No 48 of 2014
Supreme Court of Kenya at Nairobi
K H Rawal DCJ & VP, P K Tunoi, J B Ojwang, S C Wanjala & S N Ndungu, SC JJ
October 19, 2015
Reported by Beryl A Ikamari

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Brief facts:
The Applicant represented the Respondent in Ntoitha M’mithiaru v Maoka Maore & 2 others, Election Petition No. 1 of 2003, High Court at Meru. When the case was concluded the Applicant presented a fee note for taxation to the Deputy Registrar, as the Taxing Master. The Bill was taxed at Ksh. 3, 236,343.68/=
The Respondent challenged the taxation at the High Court. The grounds on which the taxation was challenged included an allegation that the Applicant was a NARC Party volunteer who via a letter dated March 20, 2003, agreed to take Ksh. 400,000, for conducting the hearing on condition that if the Petition was successful, the Applicant would be entitled to receive the balance of their fees from the costs to be recovered. It was also the Respondent's contention that the Applicant was estopped from filing a Bill of Costs against him. The High Court dismissed the reference while stating that the letter did not meet the provisions of Section 45 (1)(b) of the Advocates Act (Cap 16.)
On a further appeal to the Court of Appeal, the High Court decision was overturned and the Court of Appeal held that the Applicant was bound by the representations made in the letter dated March 20, 2003. For purposes of lodging a further appeal at the Supreme Court, the Applicant sought certification that the matter was of general public importance. The Court of Appeal declined to grant the certification and elaborated that the dispute between the parties was a private one. At the Supreme Court, the Applicant sought a review of the Court of Appeal decision on certification.

Issues:

  1. Whether the Supreme Court had jurisdiction to entertain the review application.
  2. Whether the intended appeal involved matters of general public importance.

Jurisdiction-jurisdiction of the Supreme Court-certification that an intended appeal involved matters of general public importance-whether the Supreme Court had jurisdiction to review a Court of Appeal decision which entailed a denial of the requisite certification.

Jurisdiction-jurisdiction of the Supreme Court-certification that an intended appeal involved matters of general public importance-circumstances in which a matter would be found to transcend the circumstances of the case and to have a bearing on public interest-whether a dispute between an advocate and client over fees owed and representations made by the advocate on fees due, was a dispute involving matters of general public importance-Constitution of Kenya, 2010, article 163(5). Read More...

Held:

  1. The jurisdiction of the Supreme Court to review applications for certification under article 163(5) of the Constitution was to be harmonized with the Constitution. Access to justice was one of the fundamental rights recognized in the Constitution and all litigants were to be accorded an equal right to access the Court. Therefore a party could approach the Supreme Court for a review of a decision granting leave (certification) or denying leave (certification.)
  2. Whether a matter was one that involved issues of general public importance was a question to be determined on a case by case basis. Among the principles applicable to such a question was that the matter needed to be one that transcended the circumstances of the particular case and had a significant bearing on public interest.
  3. The matter in issue was a dispute between an advocate and a client over the fees owed to the advocate, wherein an advocate made representations in a letter and sought to rely on legal provisions in order to avoid the representations. It was not a general question on whether advocates fees could be based on unexecuted agreements. It was therefore not a matter that transcended the circumstances of the case.
  4. The Applicant framed the issues arising from the matter as issues relating to whether the common law doctrine of estoppel could be applied retrospectively, the circumstances in which common law principles may take precedence over written law and whether the Court of Appeal was a Court of record, in light of the provisions of Articles 162(1) and 163(7) of the Constitution. However, the record did not indicate that the issue on the common law doctrine of estoppel was determined by the Court of Appeal. A finding was not made as that was not one of the issues brought before the Court for determination. The Supreme Court as an appellate Court could not exercise jurisdiction over such an issue.

Application dismissed. (Court of Appeal ruling affirmed.)

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