Weekly Newsletter 023/2016

Weekly Newsletter 023/2016



Kenya Law

Weekly Newsletter


Children’s Court Has Jurisdiction to Give Effect to the Rights of the Child Irrespective that the Child resides Outside the Court’s Jurisdiction
 
Republic v Resident Magistrate (Hon. B. Koech) ex-parte H L &another
Miscellaneous Civil Application 3 of 2016
High Court at Mombasa
M J Emukule, J
July 15, 2016
Reported by Nelson Tunoi & Silas Kandie
Download the Decision
 
Constitutional Law Rights of the Child – best interests of a child - right to shelter, parental protection and education – whether the best interests of the child were considered by the Children’s Court when it granted orders that barred the child from returning to his father – where the child was not residing within the jurisdiction of the Children’s Court – whether the Children’s Court had jurisdiction to give effect to the rights of the child regardless of the origin of the child - Constitution of Kenya, 2010 article 53(2); Children Act, 2001, section 4(2)
 
Judicial Review – application for judicial review orders of certiorari and prohibition – application challenging the jurisdiction and the orders of the Children’s Court – where the applicant sought leave to be exempted from the requirement to exhaust alternative remedies as required by provisions of the Fair Administrative Action Act - whether the orders of certiorari and prohibition could issue against the respondent – whether the Children’s Court had jurisdiction to give effect to the rights of the child regardless of the origin of the child – whether the application had merit - Constitution of Kenya, 2010, article 165(6); Fair Administrative Action Act, 2015, section 7(2), 9 & 12 ; Children Act, 2001, section 80
 
Brief facts:
The Applicant and the Interested Party were married in Dar-es-Salaam, Tanzania and were blessed with one issue, LL. They separated few years later and the Interested Party, a Kenyan citizen, moved to and resided in Mombasa, Kenya. By a Settlement Agreement dated December 20, 2010 between the Applicant and the Interested Party, the Interested Party was granted sole primary custody of LL but that the Interested Party would consult the Applicant if the child’s school would be changed or if the Interested Party and LL were relocating from Mombasa. The Settlement Agreement granted the Applicant access and visitation rights and the right to take LL during school holidays subject to prior agreement with the Interested party, and that the Interested Party would be entitled to keep the child for at least two (2) weeks per annum, again subject to agreement on the appropriate dates when the child would be with the Interested Party. The child went to stay with the Applicant for the July, 2015 holidays, when the Applicant made a decision that the child would remain with him, and proceeded to enroll the child at a school in Dar-es-Salaam. Few months later the child travelled alone to Mombasa from Dar-es-Salam to be with the Interested Party, expressing her desire not to return to Dar-es-Salaam since the Applicant had subjected her to verbal abuse. The Interested Party filed proceedings at the Children’s Court at Tononoka, Mombasa and the orders made by the Children’s Court, the child was prevented from returning to her father or to her school in Dar-es-Salaam.
Consequently, the Applicant filed a judicial review application before the High Court and sought for: leave to be exempted from the requirement to exhaust alternative remedies as required under section 9 of the Fair Administrative Action Act, 2015; an order of certiorari to quash the proceedings and orders issued on December 22, 2015; an order of prohibition prohibiting the Children’s Court from further entertaining the proceedings in Children Case No. 496 of 2015; an order restoring status quo ante; and a declaration that the rights of ex-parte Applicant and the intended interested party in so far as they related to the proceedings in Children Case No. 496 of 2015 be determined by the Tanzania Courts.
 
Issue:
  1. Whether the Children’s Court had jurisdiction to issue orders to parties who did not reside in Kenya.
Held:
  1. A statute which restricted access to the courts must be construed strictly.What the Fair Administrative Action Act defined as , were decisions by or which actions or decisions or omissions adversely affected the rights or interests of any person to whom the actions, decisions or omissions related.Such actions, decisions or omissions related to actions, decisions and omissions by such authorities as the rating authorities, rent tribunals, tax tribunals, and such like. With respect, they did not relate to judicial decisions by subordinate courts.Such actions or decisions were liable to appeal as of right or judicial review under article 165(6) of the Constitution in exercise of the court’s supervisory jurisdiction and on the well-trodden common law grounds of illegality, irrationality or procedural impropriety (now also given statutory underpinning by section 12 of the Fair Administrative Action - this Act was in addition to and not in derogation from the general principles of common law and the rules of natural justice), and the more extensive new statutory grounds set out in section 7(2) of the Fair Administrative Action Act.
  2. Section 80 of the Children Act, 2001, merely gave a general right of appeal from a decision of the Children Court to the High Court, and from a decision of the High Court to the Court of Appeal.An appeal to the High Court was not a condition precedent to filing a Judicial Review application.Consequently, under both article 165(6) of the Constitution of Kenya, 2010 andsections 7(2) and 12 of the Fair Administrative Action Act 2015, the Applicant had an unqualified right to commence Judicial Review proceedings.There was no need to seek exemption under section 9(4) of the said Act, to commence Judicial Review proceedings.
  3. The Children Court Magistrate had the necessary jurisdiction to make the orders she made. The orders were in accord with the relevant law, the Children Act. The preamble to the Act provided that an Act of Parliament to make provision for parental responsibility fostering, adoption, custody, maintenance, guardianship, care and protection, to make provision for administration of children’s institutions, to give effect to the principles of the convention on the Rights of the Child and the African Charter on the Rights and Welfare of the Child and for connected purposes. Further, section 5 of the Children Act provided that no child shall be subjected to discrimination on the ground of origin, sex, religion, creed, custom, language, opinion, conscience, colour, social, political, economic, or other status, race, disability, tribe, residence or local connection.
  4. Section 73 of the Children Act established the Children Court and section 76(1) of the Act conferred upon that Court a wide discretion. Section 76(1) provided that subject to section 4 where a court was considering whether to make one or more orders under the Act with reference to a child, it shall not make the order or any other orders unless it considered that doing so would be more beneficial to the welfare of the child than making no order at all.
  5. The Courts of Kenya had the jurisdiction to give effect to the rights of the child, irrespective of the origin of such child.It did not matter that that child came from the howling sands and winds of the Sahara Desert, the depths of the Congo forests, the Miombo woodlands of Tanzania, the windswept Drakensberg mountains of the South of the continent, the steppes of outer Mongolia or the fringes of the world’s oceans and seas, the Courts of Kenya would give shelter and succour to that child.Under the Constitution of Kenya, 2010, the rights of the child were paramount.It would be unworthy of the Constitution if jurisdiction was denied to the Kenyan Courts.
  6. The judicial review orders of certiorari and prohibition did not lie against the respondents. Thus the question of restorative orders to the status quo ante immediately prior to the grant of the order issued on December 22, 2015 did not arise. It was a matter that should be heard and determined in terms of section 4(4) of the Children Act, which provide that in matters of procedure affecting a child, the child should be accorded an opportunity to express his opinion, and that opinion should be taken into account as may be appropriate, taking into account the child’s age and the degree of maturity.
  7. The Court of Judicial Review was not the proper Court to hear and determine the evidence of the child.That was a question of merit, not process of decision-making.For instance the Notice of Motion dated and filed on May 12, 2016 seeking the production of the child before the Court was incompetent because the Judicial Review Court had no jurisdiction to hear evidence on merit and was a matter to be placed before the Children Court, and not the Judicial Review Court.
  8. The Applicant had sought a declaration that the rights of the Applicant and Interested party, so far as they related to the matters in issue in the proceedings filed in the Children’s Court Case at Tononoka, Mombasa, be determined by the Tanzania Courts. Having come to the conclusion that the Children Court at Tononoka had jurisdiction to determine matters of children, and the child in particular, and denied the orders of certiorari and prohibition, a declaration to the contrary would be a negation of those orders. In any event the matters before the Tanzania courts were divorce proceedings between the Applicant and the Interested Party and had their own course to run.Therefore, no orders as to application for determination of the dispute in Tanzanian Courts.
Notice of motion dismissed with costs against the ex parte Applicant; custody and welfare of the child ‘LL’ to be determined by the Children’s Court at Tononoka, Mombasa.
Kenya Law
Case Updates Issue 023/2016
Case Summaries

JURISDICTION

Circumstances under which a paying bank would be liable with respect to losses arising from irregularities in cheques

Shalimar Flowers Self Help Group v Kenya Commercial Bank
Civil Cause No 17 of 2015
High Court at Naivasha
C W Meoli, J
March 18, 2016
Reported by Beryl A Ikamari

Download the Decision

Brief Facts:
A sum of 43,817.00 Euros was paid out of the Plaintiff's foreign account and a total sum of Kshs. 2,216,182.00 was paid from the Plaintiff's local currency account at the Kenya Commercial Bank. The payments were made by the Defendant, Kenya Commercial Bank, after cheques which purportedly bore the signatures of the Plaintiff's authorized officials.
In part, the payments were purportedly made for purposes of the supply of water pumps and the supply of standby UPS, networking accessories, lap tops and printers to the Plaintiff. It was explained that withdrawals from the Plaintiff's accounts required the resolution of the members and the approval of the Farm Manager or Fair Trade Officer. The Plaintiff contended that the payments were not authorized and that the Defendant bank was negligent in verifying and confirming the authenticity of the signatures on the cheques. The Plaintiff stated that the Defendant had breached the duty it owed customers by making the illegal payments.
The Defendant said that it verified the signatures on the cheques as per the mandate of the Plaintiff. According to the Defendant, out of extra caution, the bank would also call the customer to confirm the cheque payment. When the Plaintiff complained, the Defendant advised the Plaintiff to report the matter to the police. The investigations led to the identification of the former Chairman and Secretary of the Plaintiff as the suspected culprits. Evidence produced at the trial against the Accused persons exonerated the bank from blame and indicated that the security of the cheque books was the customer's responsibility.

Issues:

  1. The extent of liability of a paying bank with respect to losses arising from irregularities in cheques.
  2. The nature of duties owed by a bank to its customer when making payments for cheques from a customer’s account.
  3. Whether the standard of skill and care required of a banker when making payments for cheques from a customer’s account was affected when a transaction was apparently exceptional and unusual.

Banking Law-bills of exchange-cheques-irregularities in cheques-claims of forged signatures and cheques drawn without authorization-liability of a paying bank with respect to losses arising from payments made for a cheque with irregularities- whether the standard of reasonable care and skill was affected when a transaction involved unusually large amounts of money-Cheques Act (Cap 35), section 4(1); Bills of Exchange Act (Cap 27), section 60.

Banking Law-banker and customer relationship-the duty of care a bank owed its customers-duties owed by a bank in situations where a cheque was presented for payment-whether there was both a duty to verify the signatures on the cheque and to call the customer to confirm the payments. Read More...

Cheques Act (Cap 35), section 4(1);
4. Protection of paying banker

(1) Where a banker, in good faith and in the ordinary course of business, pays a prescribed instrument drawn on him to a banker, he does not in doing so incur any liability by reason only of the absence of, or irregularity in, endorsement of the instrument, and—
(a) in the case of a cheque, he is deemed to have paid it in due course; and
(b) in the case of any other prescribed instrument, the payment discharges the instrument.

Bills of Exchange Act (Cap 27), section 60;
60. Banker paying demand draft whereon endorsement is forged

(1) When a bill payable to order on demand is drawn on a banker, and the banker on whom it is drawn pays the bill in good faith and in the ordinary course of business, it is not incumbent on the banker to show that the endorsement of
the payee or any subsequent endorsement was made by or under the authority of the person whose endorsement it purports to be, and the banker is deemed to have paid the bill in due course, although such endorsement has been forged or made without authority; and in this subsection “bill payable to order on demand” includes a prescribed instrument within the meaning of the Cheques Act (Cap. 35), which is payable to order.

Held:

  1. It was the Plaintiff's duty to prove the allegations it made against the Defendant with respect to payment instructions. The Defendant had a duty to ensure that the signatures compared well with the signature specimen provided by the Plaintiff but that duty did not include a requirement for the bank to call any signatory to confirm the payments.
  2. The bank's obligations with regard to cheque payments were reflected in the specimen card. As per the mandate in the specimen card, the bank was to allow payment upon verification of the signatures of the four signatories which included the mandatory signature and to direct all correspondence to the telephone numbers supplied.
  3. The Defendant's duty to the Plaintiff, on the basis of the Plaintiff's instructions as a customer to the bank, was to ensure that transactions on the Plaintiff's account were properly authorized by recognized signatories and to direct any inquiries or correspondence to the numbers given by the customer. The Defendant's employees, not being handwriting experts, were only required to compare the signatures on the instructions presented against the specimens held at the bank.
  4. Section 4(1) of the Cheques Act and section 60 of the Bills of Exchange Act offered protection to a paying bank against liability for any defects in the instrument drawn for purposes of the payment instructions (for example a cheque) where the bank made payments in good faith and in the ordinary course of business.
  5. For the bank to be protected from liability, it would have to make payments in good faith and in the ordinary course of business. Therefore, the Plaintiff as the customer had the burden to prove that there was negligence while the collecting bank would aim to show that it acted without negligence.
  6. DW1's evidence was that the signatures were verified and that he called the first number on the specimen card to confirm the payment instructions. It was apparent that DW1 acted in good faith but whether he acted with reasonable skill and care was a matter to be questioned. The cash transfers he approved were exceptional by purpose, amount and chronology, especially in view of the nature of the Plaintiff group. Obvious questions would have arisen as to whether the Plaintiff which was mostly composed of flower farm labourers was operating a computer business or school. The equipment being paid for via cheque was sophisticated and the Plaintiff's members had little formal education. A reasonable banker would question whether those signatures were in accordance with the customer's mandate.
  7. The circumstances surrounding the cheque payments in question required the Defendant to exercise reasonable skill and care and to make a more extensive inquiry beyond the minimum verification of signatures and placing a call to a signatory who on all accounts misled the bank. Under the circumstances, it did not matter that the signatures were on the face of it genuine, the bank ought to have satisfied itself that the signatories were not misusing their positions to defeat the intentions and purposes of the group.
  8. There were red flags which if the Defendant was exercising reasonable skill and care, it would not have missed or ignored. On a balance of probabilities, the Defendant bank was negligent in the manner in which it handled and approved the payments in question.
  9. It was almost impossible for ordinary members of the Plaintiff to pre-empt collision amongst its officials to steal from the bank accounts. There was no basis for the Plaintiff to be found liable for contributory negligence.

Judgment entered for the Plaintiff against the Defendant.

TORT LAW The scope of Employer’s liability, for the acts of an Employee carried out within the scope of Employment even though not expressly authorized by the Employer.

Rashid Ali Faki v A.O Said Transporters
Appeal Number 1 of 2015
Employment and Labour Relations Court at Mombasa
J Rika J
March 18, 2016
Reported by Phoebe Ida Ayaya

Download the Decision

Brief facts:

The Appellant filed a Claim against the Respondent, through a Plaint where he stated that the respondent employed him as a Turn Boy. At the time of the accident subject of the claim, he had accompanied the Driver to a garage at a place called Corner Port within Mombasa as a part of the Oil Truck assigned to the Driver and the Appellant, required welding. During welding, the part that was being welded became very hot and burnt the Appellant. He claimed to have suffered 30% body surface area burns. He blamed the Respondent for the accident and the injuries. He sued the Respondent for general damages, special damages and costs. The Court dismissed the Claim in its totality, finding the Appellant failed to prove his case on the balance of probability. The Appellant hence lodged an Appeal against that decision


Issues:

  1. What was the difference between a frolic and a detour
  2. Apportionment of liability with regard to frolic and detour
  3. What was difference between an Employee who caused an accident and injury to self or to others, through a frolic of his own and an Employee who did so through a detour?
  4. What were the obligations of an Employer to an Employee with regard to Employee safety under the Occupational Safety and Health Act 2007
  5. What was the scope of Employer’s liability, for the acts of an Employee carried out within the scope of employment, even though not expressly authorized by the Employer
  6. Circumstances where contributory negligence would be considered rather than the application of the principle of volenti non fit injuria 

Tort Law-liability of employers-mitigating factors-frolic and detour-action for general and specific damages for injuries sustained in the course of duty- difference between an Employee who caused an accident and injury to self or to others, through a frolic of his own and an Employee who did so through a detour- apportionment of liability
Employment Law- Occupational Safety and Health- employee safety-appellant seeking to be paid damages on account of injuries that he alleged to have sustained while in the employment of the respondent - the obligations of an Employer to an Employee with regard to Employee safety under the Occupational Safety and Health Act 2007--whether adequate protective gear was given to the Appellant when he was involved in hazardous undertakings - Occupational Safety and Health Act 2007

Tort Law -negligence-defences – defence of volenti non fit injuria-defence of contributory negligence - application of the principle of volenti non fit injuria, vis a vis a consideration of contributory negligence-scope of Employer’s liability, for the acts of an Employee carried out within the scope of employment, even though not expressly authorized by the Employer-concept of activities carried out on one’s own frolic, and activities in the nature of a detour- circumstances where contributory negligence would be considered rather than the application of the principle of volenti non fit injuria  Read More...

Held:

  1. The defence of volenti non fit injuria was premised on the principle that to one who volunteered, no harm was done. It must be shown that the Plaintiff engaged in the conduct leading to his injury freely, and had full knowledge of the circumstances. The Plaintiff’s conduct must be shown to be so extreme and glaring.
  2. Any reasonable person, with minimal knowledge of petroleum products, would be expected to know the slightest application of fire to petrol, or its residue, would result in a fire incident. The Claimant had worked for 5 years, and ought to have known he would be injured if he stayed at the top of the Tanker as it was welded. He was said to have moved closer to the centre of the action, even closer than the Welder did. He was quite negligent. The trial court correctly found his conduct discordant with that of a sensible man.
  3. The trial court did not however, adequately examine whether the Appellant was in the course of his employment, and whether the accident was closely related to an authorized act, before absolving the Respondent from any liability. Courts had moved from merely applying the common law concept of volenti not fit injuria that readily absolved Employers from all liability. Courts had moved in the direction of carefully considering apportionment of liability, by examining the mutuality of obligations in an employment relationship.
  4. There was a significant difference between an Employee who caused an accident and injury to self or to others, through a frolic of his own and an Employee who did so through a detour. The first related to an Employee who acted completely in his own capacity, rather than following the instructions of the Employer. The Employee took a major departure from the instructions given by the Employer. He took such departure for his own benefit. If there occurred an accident and injuries ensued to the Employee or 3rd Parties during such a frolic, the Employer could not be held liable.
  5. A detour on the other hand involved minor departures by the Employee from the instructions of the Employer. In detouring, the Employee’s conduct was to remain within the scope of employment. That meant the Employee’s conduct was to be of a kind the Employee was hired to perform; occurred substantively within the prescribed time and space; and at least in part conduct purposed on serving the Employer.
  6. The trial court was wrong in finding that the Appellant was entirely at fault, and that the Respondent could not be called upon to shoulder part of the liability. The Appellant and the Driver, in taking the Tanker to Corner Port Reitz instead of the Respondent’s Bamburi Yard, made a detour rather than engage in a frolic of their own. The trial court approached liability as though the Appellant and the Driver were involved in a frolic of their own, when the accident occurred, which they were not.
  7. Though the appellant were under instructions, which they did not stick to, they were still within the scope of their instructions to deliver the fuel and return to base, when they detoured. The accident occurred within the time and the journey map given by the Respondent. It was never in dispute that the Tanker suffered some form of defect, and needed welding. The welding though done in a Garage outside Bamburi was meant to benefit the Employer’s business, not personally benefit the Appellant and the Driver.
  8. There was evidence that the Appellant and the Driver had been taking the Tanker to other garages while out of Mombasa for repairs. Their decision to do so while in Mombasa was perhaps as a result of their usage while out of Mombasa, and clearly outside the Respondent’s instructions and policy, but certainly not a frolic of their own, so as to consider the Respondent completely discharged from liability. The principle in Salmond on Torts 17th Edition,that the Employee’s conduct was to be in the course of business so as to form part of it, and not merely coincident in time with it, was to be read within the demarcation placed in the concepts of a frolic and a detour. It was merely co-incident in time, where the Employee frolics. It was in the course of business, where the Employee detoured.
  9. The role of the Appellant could not be reduced to mere loading and offloading, where only an overall and gloves were required for discharge of his role. It was to be asked what material was being loaded and offloaded. In the particular case, the Appellant was tasked with loading and offloading of super petrol, not cereals. Transportation and handling of highly flammable super petrol would require much more than an overall and a glove as protective apparel.
  10. Transportation, loading and offloading of super petrol called for greater thought from the Respondent, in designing a safe working environment for the two Employees. Even assuming the Appellant did not engage in conduct which was equivalent to intermeddling with an unexploded bomb, there could have been other 3rd Party interventions in the journey map, which could result in similar incidents as occurred at Corner Port Reitz.  There was a statutory and common law obligation to provide the Appellant with apparel and tools of trade, capable of minimizing the risks posed by movement of hazardous material.
  11. The Occupational Safety and Health Act 2007, and not the repealed Factories and Other Places of Work Act as cited by the Appellant, required adequate protective gear was given to an Employee involved in hazardous undertakings. The obligation was replete in a myriad of judicial authorities. It was a common law obligation as well as a statutory law obligation.
  12.  It was not enough for the Employer to supply safe working system or appliances; the Employer must ensure the system was followed and user trained. The Respondent did not adduce evidence demonstrating the Appellant had been issued proper protective apparel suitable to his fuel transportation role, or that he had been trained in handling flammables. It was not sufficient to offer the Appellant an overall and gloves. The measures adopted by the Respondent did not match the common law duty to take all reasonable steps to ensure the Employee’s safety.
  13.  It was not sufficient that there were protective apparels at the Garage within the Bamburi Yard; the Appellant’s workplace comprised the Tanker, a mobile workplace, and the Tanker had to be a safe working environment.
  14. The fact that the Appellant was instructed to assist the Welder by the Driver did not have any effect on liability. It was, from the evidence of the Parties, within the duties of the Appellant to ensure the Tanker was in a good, motorable condition. His climbing the top of the Tanker was within his job description, though discharged contrary to the Employer’s instructions.  It was not material that the Driver was, or was not, in a supervisory role to the Appellant, or that he instructed the Appellant.  It sufficed that ensuring the Tanker was in good condition fell within the duties of the Appellant.
  15. The trial court failed to adequately analyze the scope of Employer’s liability, for the acts of an Employee carried out within the scope of employment, even though not expressly authorized by the Employer. The concept of activities carried out on one’s own frolic, and activities in the nature of a detour, were blurred, leading ultimately to wholesale application of the principle of volenti non fit injuria, rather than a consideration of contributory negligence.
  16. The Respondent as an Employer instructing Employees to transport super petrol, a highly flammable material, did not demonstrate to have availed to the Employees a safe system of work. The Appellant on his part, intermeddled with an unexploded bomb, and was severely injured. He detoured.  He bore most of the blame.

Appeal partly allowed on the following terms: -

a) Liability apportioned at 60% on the Appellant and 40 % on the Respondent, Assessment of general damages at Kshs. 600,000, In total the Respondent to pay to the Appellant general damages at Kshs. 240,000 and special damages at Kshs. 2,000- total Kshs. 242,000, to be paid within 30 days of the delivery of the judgment.
 b)Parties to meet their costs of the Trial and the Appeal
c)
The principal amount to attract an interest of 14% p.a. from the date of the Judgment, if the amount remained unpaid 30 days after delivery of the Judgment.

CONSTITUTIONAL LAW Publication or use of the images of an individual without his consent violates that person’s Right to Privacy

TOS v Maseno University & 3 others
Petition No 7 of 2015
High Court of Kenya at Kisumu
HK Chemitei J
March 10, 2016
Reported by Phoebe Ida Ayaya

Download the Decision

Brief facts
The Petitioner, in another suit, had sued the 4th Respondent together with Riley Falcony Security Services Limited and the Public Procurement Oversight Authority (PPOA) over the security tender in respect to Maseno University, the 1st Respondent.  The Petitioner averred that among the documents exhibited by the 4th Respondent in that suit included the medical records containing the names and photographs of his wife and children who were minors. It also contained work details of the Petitioner's wife and their place of residence.   He alleged that the documents were private and confidential and they did not have any connection with the suit at all and were only meant to embarrass him and his family.  He therefore contended that by such disclosures he had suffered psychologically and that the safety of his family's confidential documents had been contravened. His claim was that the constitutional right to privacy of his family had been violated and hence sought inter alia damages and compensation for the injury caused.

Issues:

  1. What was the scope of the right to privacy?
  2. Factors considered when determining whether the right to privacy was violated in line with the information in question.
  3. Whether the publication or use of images of an individual without his consent violated that person’s right to privacy

Constitutional Law- fundamental rights and freedoms -right to privacy- scope of the right to privacy -disclosure of confidential information- where confidential information of the petitioner and his family was disclosed- factors considered when determining whether right to privacy was violated in line with the information in question- whether the publication or use of images of an individual without his consent violated that person’s right to privacy-whether the leaking or disclosure of confidential information thereof violated the constitutional rights of the petitioner's family and whether he suffered any injury or harm –Constitution of Kenya, 2010 article 31; European Convention on Human Rights article 8(2)

Constitutional Law-right to privacy-minor’s rights to privacy- where photographs, names, and place of residence and personal details of minors who were not parties to a suit were exposed without consent- whether there was wrongful invasion of the minors' right to privacy- Constitution of Kenya, 2010 article 31(c); Children Act, section 19 Read More...

Relevant Provisions of the Law
Article 31 of the Constitution states as follows
 31.    Every person has the right to privacy, which includes the right not to have—

 (a) Their person, home or property searched;
 (b) Their possessions seized;
 (c) Information relating to their family or private affairs unnecessarily required or revealed; or
(d) the privacy of their communications infringed.

Article 8(2) European Convention on Human Rights,
Provides for the right to privacy of an individual as follows;

 The right to privacy consists essentially in the right to live one’s own life with a minimum interference. It concerns private family and home life, physical and moral integrity, honour and reputation, avoidance of being placed in a false light, non-revelation of irrelevant and embarrassing facts, unauthorized publication of private photographs, protection from disclosure of information given or received by the individual confidentially.

Held:

  1. While dealing with the question of the scope of the right to privacy, in the final conclusions of the Nordic Conference on the Right to Respect for Privacy of 1967, the following additional elements of the right to privacy were listed;
    1. the prohibition to use a person’s name, identity or photograph without his or her consent,
    2. the prohibition to spy on a person,
    3. respect for correspondence and
    4. the prohibition to disclose official information.
  2. The factors considered when determining whether the right to privacy was violated in line with the information in question were: -
    1. whether the information was obtained in an intrusive manner;
    2. whether it was about intimate aspects of the Applicants’ personal life;
    3. whether it involved data provided by the Applicant for one purpose which was then used for another;
    4. whether it was disseminated to the press or the general public or persons from whom the applicant could reasonably expect such private information would be withheld.
  3. It was clear that publication or use of the images of an individual without his consent violated that person’s right to privacy. A person's life was a restricted realm in which only that individual had the power to determine whether another may enter, and if so, when and for how long and under what conditions. However, the right to privacy was not absolute. As a common law right of personality it was necessarily limited by the legitimate interests of others and the public interest. Such a situation could arise where it became important to expose an individual's criminality or misconduct in order to protect the public.
  4. The document in question contained photographs, names and details of the Petitioner's wife and his children. It also contained work details of the Petitioner's wife and their place of residence. It was not clear how the 4th Respondent got hold of the document but what was clear was that the consent of the Respondent or his wife was not sought before the document was exposed to third parties.
  5. There was wrongful invasion of the minors' right to privacy. The 4th Respondent went ahead to expose photographs, names, and place of residence and personal details of minors who were not parties to the suit without consent. That was in clear violation of section 19 of the Children Act that guaranteed a child's right to privacy. The exposure of the document was intentional. It was clear from the pleadings in HCCC No. 25 OF 2014 that the 4th Respondent intended to demonstrate the Petitioner's involvement in termination of its security services contract with the 1st Respondent through his wife who was a legal officer of the 1st Respondent. Thus the Petitioner's rights and those of the minors were infringed upon.
  6. Though the Petitioner averred that the Respondents were responsible for the leakage of the material document, he had failed to demonstrate how they were involved in the leakage. It was possible that the document originated from the offices of the 1st Respondent but there was no evidence to demonstrate that. The 4th Respondent had also not stated where he obtained the document. It could have been obtained from anywhere. The Petitioner therefore had not proved the involvement of the 1st, 2nd and 3rd Respondents in the leakage of the information and they could therefore not be held liable.

   Petition dismissed with costs.

LABOUR LAW Dismissal or termination of employment services is at the discretion of the employer

William Kiaritha Gacheru v East African Packaging Industries
Cause No. 797 of 2013
Employment and Labour Relations Court at Nairobi
Abuodha J N, J
February 26, 2016
Reported by Teddy Musiga

Download the Decision

Brief facts:
The claimant filed the instant claim seeking compensation for unlawful termination and also for award of damages for alleged defamation. The background to the claim was that, the respondent being concerned over loss of paper materials which it suspected was an inside job decided to use polygraph testing to unravel the suspects. The claimant was in the category of employees who were selected to undergo the polygraph test. Subsequent to the tests, the employment services of the claimant were terminated. He then filed the suit for unlawful termination and also that the inclusion of the claimant’s name in the list of people suspected to be involved in the paper theft cartel which was circulated amongst staff was defamatory.

Issues:

  1. Whether the termination of an employee’s services based on the results of polygraphic test was unlawful and unfair in the context of the Employment laws.
  2. Whether the polygraphic report, the basis upon which the claimant’s services were terminated defamed the claimant to warrant an order for damages for defamation.

Labour Law – employment – employment relations – termination of employment services – claim where an employee’s employment services were terminated on account of allegations of theft from the employer; allegations which were based on a polygraph report – Employment Act, section 41.

Tort Law – defamation – libel – defamation in the context of employment relationships – claim where an employee challenged an employer’s letter to be defamatory because it was addressed to other employees listing employees to be investigated for an alleged theft at the work place – Defamation Act, section 3Read More...

Held:

  1. Reluctance and circumspection had to be exercised when considering issues and procedures in employment which were purely within the margin of managerial discretion. The Court could not usurp that discretion from the management and replaced it with its own.
  2. Polygraph testing as it then stood could do no more than show the existence of or non-existence of deception. Due to its several limitations and margin of error, it was not safe to rely on and could not itself be used as a conclusive proof of guilt of crime or misconduct. Besides, a person could lie without necessarily being guilty of the crime or misconduct he was alleged to have been involved in.
  3. Section 41(2) of the Employment Act required that before termination, an employer had to hear and consider any representation which the employee concerned made. That inherently called for some sort of hearing, however informal, prior to dismissal. To that extent, whilst there was nothing wrong with taking the claimant through polygraphic testing, it was unfair to rely on the result of the test alone to terminate the claimant’s contract, further it was unfair not to afford the claimant an opportunity to defend himself prior to terminating his services.
  4. If the claimant was to be terminated normally, he would have been given a month’s notice or pay in lieu, salary for days worked, leave earned but not taken and pension contributions. The claimant being a contributor to NSSF would not be entitled to service pay.
  5. The claimant’s services were unfairly terminated in terms of reason and procedure. Where a court came to such a conclusion, the claimant was entitled to an award of up to 12 months’ salary as compensation. The award under that head was compensatory and did not take into account terminal benefits which were payable as per contract of employment or in accordance with statute.
  6. An award for unfair termination was compensatory. It took into account the inconvenience, breach of fair administrative process, violation of rules of natural justice and often times, constitutional rights in the context of employment relations. Those rights and inconveniences to an employee were so profound that could not be contracted out. They were provided under section 45 and 46 of the Employment Act hence no party could make a contract or agreement to exclude them. To do so amounted to contracting out of statute without an express provision to do so.
  7. Section 3 of the Defamation Act provided that defamation was a publication without justification, lawful excuse which was calculated to injure reputation, credit or ridicule. It was not enough that the words or material complained about was defamatory, there had to be evidence of publication. Nothing in the letter could be said to have injured or brought the claimant into disrepute in eyes of right thinking members of the community in order to amount to defamation.
  8. Termination and dismissal from employment had to be for a valid reason. The validity of the reason was tested against a matter or matters which the employer at the time of termination or dismissal genuinely believed to exist and which caused the employer to dismiss or terminate the services of an employee.
  9. Dismissal or termination of employment was a matter of management discretion and the Court had to be reluctant to intervene unless for breach of provisions of statute or contract of employment or both. Further an allegation of involvement in theft or other crime against an employer or its property leading to termination or dismissal was tested at a lower standard of proof than when those allegations were prosecuted in a court of law. That was why an acquittal for criminal offence was not a barrier to an employer in deciding whether to dismiss or terminate the services of such employee on the same facts.
  10. Subjecting the claimant to polygraph examination and eventually relying on the report to terminate the claimant’s services did not defame the claimant with the consequence that the claim for defamation had no merit.

Claim for unfair termination partially succeeded. The Court awarded the claimant four months’ salary as compensation for unfair termination.
Claim for defamation dismissed.

JURISDICTION Legal provisions applicable to the removal of members of the Public Accounts Committee from the Committee at the National Assembly

Republic v National Assembly Committee of Privileges & 2 others Ex-parte Hon Ababu Namwamba
JR Case No 129 of 2015
High Court at Nairobi
Judicial Review Division
W Korir, J
February 23, 2016
Reported by Beryl A Ikamari

Download the Decision

Brief Facts:
The Applicant was the immediate former chairman of the Public Accounts Committee (PAC) of the National Assembly. Some members of that committee (PAC) made allegations against other members within the committee. The Speaker of the National Assembly tasked the Committee of Privileges to investigate those allegations. The Committee of Privileges prepared a report dated March 31, 2015 and the report was discussed and adopted by the National Assembly on April 14, 2015.
The consequences of the report were that the Public Accounts Committee was suspended for 21 days and the committee was to be dissolved and re-constituted with 5 of its members being ineligible for purposes of a fresh nomination. It was decided that others persons would also not be eligible for nominations to the reconstituted Public Accounts Committee. The ineligible persons included members Committee of Privileges and the co-opted members who served during the inquiry into the allegations made and members of the Public Accounts Committee who made allegations against other members of their committee and failed to substantiate them within the required period.
The Applicant averred that the Respondent's actions amounted to errors of fact, a denial of the right to a fair trial, ultra vires, Wednesbury unreasonableness, bad faith and a breach of legitimate expectations. The Applicant elaborated that the Respondents actions were ultra vires and that particularly, the National Assembly (Powers and Privileges) Act and the Standing Orders of the National Assembly did not give the Committee of Privileges powers to recommend the dissolution of another committee or to bar any members of the National Assembly from being considered for appointment to a committee. The Applicant also stated that although he was assured that there were no accusations made against him, he was removed as the chairman of the Public Accounts Committee. He also said that during the inquiry into the investigations, the evidence was handled in a casual manner and that some strangers sat as special members of the Committee of Privileges. The Applicant also said that he was denied an opportunity to participate in the discussion of the report made by the committee.
The orders the Applicant sought included a certiorari to quash the decision to suspend the Public Accounts Committee and to dissolve it and reconstitute it through fresh nominations. The Applicant also sought orders of prohibition to prevent the implementation of the report prepared by the Committee of Privileges after conducting investigations.
According to the 1st Respondent, the Applicant could not be granted the orders that he sought as they would amount to a breach of article 124 & 117 of the Constitution which provided for Parliament's role in establishing committees and providing for the powers and privileges of committees. Furthermore, the 1st Respondent stated that the orders sought violated the principle of separation of powers.
Additionally, the 2nd Respondent said that the exercise of the Court's jurisdiction under article 165 of the Constitution required the Applicant to show that there had been a violation or threatened violation of the Constitution. The 2nd Respondent elaborated that the Applicant's assertions did not show that the provisions of the Constitution had been violated. According to the 2nd Respondent, the Applicant was seeking to question the merits of the decision taken and not a review of the process used to arrive at the decision and that in those circumstances judicial review proceedings were not appropriate.

Issues:

  1. Whether the High Court had jurisdiction to hear and determine matters concerning the appointment and removal of members of the Public Accounts Committee at the National Assembly.
  2. The nature of legal provisions applicable to the appointment and removal of members of the Public Accounts Committee at the National Assembly.
  3. Whether members of the Public Accounts Committee could be removed from the committee pursuant to a report prepared by the Committee of Privileges which was adopted by the National Assembly.

Jurisdiction-jurisdiction of the High Court-principle of separation of powers-whether the High Court had jurisdiction to inquire into the appointment and removal of members of the Public Accounts Committee from the committee by the National Assembly-Constitution of Kenya 2010, article 165(3).

Constitutional Law-parliament-appointment and removal of members from a committee at the National Assembly-scope of legal provisions applicable to the appointment and removal of members from the Public Accounts Committee-National Assembly (Powers and Privileges) Act (Cap 6), section 10(6); National Assembly Standing Orders, Standing Orders No. 1, 173(1), 176 & 193. Read More...

Held:

  1. Like any other constitutional organ, Parliament had to comply with the Constitution and where it made rules to guide its operations, it had to comply with such rules. The Court's intervention was permissible in situations where the legislature failed to comply with rules which regulated the conduct of business by the legislature.
  2. The Standing Orders made provisions relating to the appointment and removal of a member, vice-chairperson or chairperson of a select committee. Under Standing Order 173(1) appointment and removal from a committee was to be done by the Committee on Selection upon consultations with parliamentary parties. Also, a member of a committee could be discharged via a written notice addressed to the Speaker under Standing Order 176. Additionally, Standing Order 193 provided for the removal of the chairperson or vice-chairperson through a resolution supported by a majority of the members of a particular committee.
  3. Under section 10(6) of the National Assembly (Powers and Privileges) Act the National Assembly had powers to take disciplinary action against a member in accordance with the rules provided in that section of the Act. That disciplinary action would include suspension from the service of the National Assembly.
  4. Committees were empowered to make recommendations but those recommendations had to be lawful. A recommendation for removal from the service of the Assembly would include removal from a committee. With respect to the nature of sanctions that could be issued, the Standing Orders had to be read together with the National Assembly (Powers and Privileges) Act.
  5. The work of the Committee of Privileges was governed by the National Assembly (Powers and Privileges) Act. Its mandate included inquiring into any alleged breaches of the Code of Conduct or the conduct of any member of the National Assembly. In considering a report from the Committee of Privileges, the National Assembly would act in accordance with the rules made by it and take disciplinary action as provided for by its rules.
  6. According to the report of the Committee of Privileges, the three members described by the Applicant as strangers who were allowed to sit at the inquiry, were co-opted members. Section 10(3) allowed a Committee to regulate its meetings and procedures and the decision to co-opt other members could not be faulted without reference to the procedures of the Committee.
  7. The decision to suspend the operations of the Public Accounts Committee for 21 days was not supported by a provision in the Standing Orders. However under Standing Order 1, the Speaker had leeway to decide on any procedural question which was not expressly provided for in the Standing Orders.
  8. The decision of the Committee of Privileges did not usurp the role of the Ethics and Anti-Corruption Commission and in its report the committee stated that it had no mandate or capacity to investigate allegations of corruption. The Committee of Privileges left the matter of alleged corruption for the Ethics and Anti-Corruption Commission and other agencies to investigate.
  9. Committees were important in the operations of the National Assembly and strict compliance with Standing Orders in the appointment and removal of members of such committees was necessary. The procedure used to remove the Applicant and other members of the Public Accounts Committee from the committee was one that should be used sparingly as it could easily turn into a weapon for manipulating the operations of the Assembly. It was not a procedure to be resorted to without good cause.

Judicial Review Application dismissed.

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