Weekly Newsletter 027/2018

Weekly Newsletter 027/2018



Kenya Law

Weekly Newsletter



A Reference in a Document to an Annexure Had the Effect of Incorporating The Contents of the Annexure in The Document
Mbaraka Issa Kombe v. Independent Electoral and Bounderies Commission (Iebc) & 2 others [2018] eKLR
Election Petition Appeal No. 3 Of 2017
Court of Appeal
At Malindi
A. Visram, W. Karanja & M.K Koome, JJ.A
May 10, 2018
Reported By Felix Okiri
Download the Decision

Electoral Law – election petition – parliamentary election- form of an election petition – where a petitioner had not included in the petition the particulars of the declared results and the date those results were declared- whether that omission adversely affected the substance of the petition and was thus non-curable – whether a reference in a document to an annexure had the effect of incorporating the contents of the annexure in the document - Election Petition Rules, Rules 8(1) & 12
Statutes – interpretation of statutes – Interpretation of electoral law - whether common law or the principles of equity applied to interpretation of electoral law – whether article 159 of the Constitution and the oxygen principles were applicable in interpreting electoral law

Brief facts:
Following the general elections held on August 8, 2017, the 3rd Respondent was declared as the duly elected Member of the National Assembly of the Ganze Constituency. The Appellant contended that the election in question was not free and fair as envisioned under article 38 of the Constitution. As a result, he filed an election petition challenging the results.
The 3rd Respondent raised a preliminary objection challenging the competency of the Petition on grounds that both the Petition and the supporting affidavit thereto did not comply with rules 8(1) & 12 of the Election Petition Rules. In the 3rd Respondent’s view, the omission rendered the petition fatally defective.
The Court decided for the 3rd Respondent on grounds that the particulars of the declared results and the date those results were declared had not been disclosed in the Petition.
It was that decision that the Appellant had appealed against.

Relevant provisions of the law
Election Petition Rules
Rule 8(1)
An election petition shall state-
(a) the name and address of the petitioner;
(b) the date when the election in dispute was conducted;
(c) the results of the election, if any, and however declared;
(d) the date of the declaration of the results of the election;
(e) the grounds on which the petition is presented; and
(f) the name and address of the advocate, if any, for the petitioner which shall be the address for service.

Rule 5(1)
The effect of any failure to comply with these rules shall be determined at the Court’s discretion in accordance with the provisions of Article 159 (2)(d) of the Constitution.

Issues:

  1. Whether non-compliance with rule 8(1)of the Election Petition Rules by not including in the Petition the particulars of the declared results and the date those results were declared was a violation that went to the root of the petition, and one that adversely affected its substance and was thus not curable.
  2. Whether common law or the principles of equity applied to interpretation of electoral law.
  3. Whether a reference in a document to an annexure had the effect of incorporating the contents of the annexure in the document.
Held:
  1. The provision in rule 8(1) of the Election Petition Rules made it mandatory for certain particulars to be stated in the body of the Petition. Moreover, such an omission could not in any way be equated to a technicality because it went to the root and substance of the Petition. Similarly, the Appellant could not take refuge under article 159(2) (d) of the Constitution of Kenya, 2010 (Constitution).
  2. Article 159 of the Constitution and the oxygen principles which both commanded courts to seek to do substantial justice in an efficient, proportionate and cost-effective manner and to eschew defeatist technicalities were never meant to aid in the overthrow or destruction of rules of procedure and to create an anarchical free for all in the administration of justice. Courts were never to provide succor and cover to parties who exhibited scant respect for rules and timelines.
  3. Rules and timelines for filing pleadings served to make the process of judicial adjudication and determination fair, just, certain and even-handed. Courts could not aid in the bending or circumventing of rules and a shifting of goal posts for, while it may have seemed to aid one side, it unfairly harmed the innocent party who strived to abide by the rules. It was in the even handed and dispassionate application of rules that courts gave assurance that there was clear method in the manner in which things were done so that outcomes could be anticipated with a measure of confidence, certainty and clarity where issues of rules and their application were concerned.
  4. The appeal turned on the construction of of the . It was trite that electoral law was a special jurisdiction whose interpretation was strictly confined within the parameters of the and relevant electoral statutes.
  5. In discerning the intention of the Rules Committee in making the rule 8(1) of the Election Petitions Rules, that discernment could not be solely based on the language employed thereunder. Regard had to be given to the parent statute (the as well as the context within which both the parent statute and the were formulated.
  6. Article 87 (1) of the Constitution granted Parliament the latitude to enact legislation to provide for timely resolution of electoral disputes. That provision had to be viewed against Kenya’s electoral history. The Constitutional sensitivity about ‘timelines and timeliness’ was intended to redress that aberration in the democratic process. The country’s electoral cycle was five years. It was now a constitutional imperative that the electorate was to know with finality, and within reasonable time, who their representatives were.
  7. Vide article 87 (1) of the Constitution, the legislature enacted a number of electoral statutes, key among them being the Elections Act. Pursuant to section 96(1) of the Elections Act, the Rules Committee made the Election Petition Rules regulating the practice and procedure at the Election Court with respect to election petitions. It followed that interpretation and application of provisions relating to resolution of electoral disputes were to be geared towards facilitating the aforementioned constitutional objective, that was, the expedient resolution of electoral disputes.
  8. Accordingly, the Rules Committee in of the set out the contents that an election petition was to have for purposes of advancing the said objective. Those particulars gave clarity to both the parties and the Court as to the issue in dispute; it enabled the concerned parties to prepare suitable defence; and it enabled parties not to stray from the issues identified; all of which facilitated expedient resolution of the dispute in issue.
  9. The whole object of pleadings was to bring the parties to an issue, and the meaning of the rules was to prevent the issue being enlarged, which would prevent either party from knowing when the cause came on for trial, what the real point to be discussed and decided was. The whole meaning of the system was to narrow the parties to define issues, and thereby diminish expense and delay, especially as regards the amount of testimony required on either side at the hearing.
  10. There were different schools of thought in considering whether rules were mandatory or not. The first school of thought considered the rules as mandatory in nature, but would hesitate to take steps to strike out pleadings for such shortcomings. Anchoring the petition on rule 4 of the Election Petition Rules as well as article 159(2) (d) of the Constitution of Kenya, the proponents of this approach would save the petition. On the other hand, was the school of thought that considered non-compliance with the said rule a violation that went to the root of the petition, and one that so adversely affected its substance. For those who followed that school of thought, non-compliance with rule 8(1) was non-curable violation of article 87 of the Constitution which detrimentally affected the timelines within which an election petition was to be heard and determined.
  11. Whether non- compliance could warrant striking out or saving of the petition was a determination that could be made on a case by case basis. In addition to the constitutional timeline objective the Court was to be guided by of the which required it to give effect to the overriding objective thereunder.
  12. The goal of the overriding objective principle was to enable a court to achieve fair, just, speedy, proportionate, time and cost saving disposal of cases before it.
  13. The overriding objective principle conferred courts with considerable latitude in the exercise of its discretion in the interpretation of the law and rules made thereunder. However, its application did not operate to uproot established principles and procedures but emboldened the court to be guided by a broad sense of justice and fairness.
  14. The Court was also to take into account of the in exercising its discretion. Article 159(2)(d) advocated that a court in exercising judicial authority was not to pay undue regard to procedural technicalities. Article 159(2) (d) accorded precedence to substance over form. Rules of procedure were meant to be handmaidens and were never to be elevated to the status of mistresses of justice. In totality, the Election Court was to look into the nature of the non-compliance, that is, whether it went to the jurisdiction of the Court, root of the dispute or whether it occasioned prejudice to the other party.
  15. In the instant appeal, of the required results of the election in issue to be set out on the face of the petition.The Appellant, save for naming the candidates who vied for the post in question, only set out the 3rd Respondent’s results in the petition. The non-compliance did not render the petition defective because the Appellant disclosed the declared results in his affidavit in support of the petition. That supporting affidavit was part and parcel of the petition. He did so by annexing thereto form 35 which was the prescribed form for tallying, announcement and declaration of the final results from each polling station in a constituency for the election of a Member of National Assembly. Equally, the reference of the annexure in question in the supporting affidavit incorporated the contents of form 35 into the petition. As a general rule, a reference in a document to an annexure had the effect of incorporating the contents of the annexure in the document.
  16. The Court erred in ignoring the contents of the Appellant’s supporting affidavit and form 35 annexed thereto. In as much as the results were not set out on the face of the petition, the Respondents as well as the Election Court were not in the dark with regards to that issue. Therefore, the omission did not go to the jurisdiction of the Court or go to the root of the dispute nor did it prejudice the Respondents.
Appeal allowed.
Kenya Law
Case Updates Issue 027/2018
Case Summaries

JURISDICTION Section 26(2) of the Employment Act (EA) empowers the Employment and Labour Relations Court (ELRC) to issue terms that are more favorable than the minimum terms and conditions of employment set out by the Employment Act and Wages Order

Kenya Tea Growers Association v. Kenya Plantation & Agricultural Workers Union [2018] eKLR
Civil Appeal No. 207 of 2017
Court of Appeal at Nairobi
A Visram; W Karanja; M K Koome JJA
February 16, 2018.

Download the Decision

Jurisdiction - jurisdiction of the Employment and Labor Relations Court (ELRC) – where the Court imposed favorable terms into a Collective Bargaining Agreement (CBA) - what was the jurisdiction of ELRC in resolving disputes between the parties to a CBA - what was the extent of the ELRC’s role in resolving the dispute pertaining to the terms of the CBA in question - Constitution of Kenya, 2010 article 162(2); ELRC Act, section 12; Labor Relations Act, section 62.
Labour Law – employment relationships- Collective Bargaining Agreements (CBAs) – where the annual wage increment resulted in the cumulative wage increase surpassing the general inflation thus warranting reconsideration- what were the factors that the Court was to consider before making an order for wage increment
Evidence Law – evidence – expert evidence – admissibility of expert witness evidence – who was an expert witness – what were the grounds of admitting evidence from an expert witness
Statutes – interpretation of statutes – the presumption against tautology in the interpretation of statutes – what was the presumption against tautology in the interpretation of statutes
Words and phrases – adjudication - interpretation of the word adjudication - the legal process of resolving a dispute; the process of judicially deciding a case - The Black’s Law Dictionary 9th Edition.

Brief Facts:
The Appellant was an organization of employers within the tea sector. The Respondent was an association of unionisable employees drawn from the Appellant’s members. Both the Appellant and Respondent were registered under the Trade Unions Act repealed by the Labor Relations Act (LRA) and are now recognized under that Act.
The parties were unable to reach a consensus on 10 items for the Collective Bargaining Agreement (CBA)relating to the 2014/2015 period including:- rates of pay, gratuity, hours of work, annual leave, travel allowance, medical treatment, sick leave, summary dismissal, retirement age, day of worship and baggage allowance.
By dint of section 62 of LRA the parties reported the same as a trade dispute to the Cabinet Secretary in charge of Labour who then appointed a conciliator over the dispute. Upon the conclusion of the conciliation, the parties only managed to agree on one issue.
Subsequently, the parties filed a suit at the Employment and Labor Relations Court (ELRC) seeking resolution of the stalemate between them. The Applicants predicated the suit on the following grounds among others - the economic hardship facing the tea industry; the annual wage increment given by the Appellant’s members was above that which was provided in the General Wages and Agricultural Wages Order resulting in the cumulative wage increase surpassing the general inflation thus warranting reconsideration.
On June 20, 2016, the Trial Court entered judgment in favor of the Respondent. It was that decision that sparked the instant appeal on grounds that the ELRC had issued favorable terms in the CBA thereby substituting its preference with that of the parties.

Issues:

  1. Whether the ELRC had jurisdiction to impose more favorable terms into a Collective Bargaining Agreement (CBA)?
  2. What were the factors that the Court was to consider before making an order for wage increment?
  3. What were the grounds for admitting evidence from an expert witness? Read More...

Relevant provisions of the law
The Constitution of Kenya, 2010
Article 162 (2)(a)
2. Parliament shall establish courts with the status of the High Court to hear and determine disputes relating to –
(a) employment and labour relations;…
Labor Relations Act (LRA)
Section 2
„trade dispute? means a dispute or difference, or an apprehended dispute or difference, between employers and employees, between employers and trade unions, or between an employers? organisation and employees or trade unions, concerning any employment matter, and includes disputes regarding the dismissal, suspension or redundancy of employees, allocation of work or the recognition of a trade union;…
EA
Section 26(2)
Where the terms and conditions of a contract of service are regulated by any regulations, as agreed in any collective agreement or contract between the parties or enacted by any other written law, decreed by any judgment award or order of the Industrial Court are more favorable to an employee than the terms provided in this Part and Part VI, then such favorable terms and conditions of service shall apply.

Held:

  1. Article 162 (2) (a) of the Constitution of Kenya, 2010 (the Constitution) delineated the broad principles and aspirations of the people of Kenya for the formation of a Court specifically to determine disputes relating to employment and labour relations. The details and actualization of those aspirations and principles were left to several Acts of Parliament and Regulations relating to such disputes which had since been enacted.
  2. The Employment and Labour Relations Court Act (ELRC Act) established the Employment and Labour Relations Court (ELCR) and set out its jurisdiction. ELRC’s jurisdiction was also set out in various legislations relating to employment and labour issues. The Labor Relations Act (LRA) not only recognized CBAs but also set out the procedure to be followed in their negotiation and registration. The LRA also provided an elaborate procedure for settling trade disputes arising thereunder in parts VIII and IX. Section 2 of the LRA described what a trade dispute was.
  3. Under Part IX LRA, when a trade dispute was not resolved through conciliation, section 73(1) of the LRAstipulated that such a dispute could be referred to the ELRC by either of the parties. The role played by the ELRC in that instance was clearly provided by the title of part IX as adjudication of disputes.
  4. The ELRC at that stage was tasked with the responsibility of determining the trade dispute between the parties which included the disagreement with regard to the terms of the CBA or the economic dispute between the parties. The presumption against tautology in the interpretation of statutes was that every word in a statute was presumed to make sense and to have a specific role to play in advancing the legislative purpose. When the legislature enacted a particular phrase in a statute, the presumption was that it was saying something which had not been said immediately before. The rule that a meaning was to be if possible, be given to every word in the statute implied that, unless there was good reason to the contrary, the words added something which had not been said immediately before.
  5. The ELRC could only assume jurisdiction to adjudicate on an economic dispute after the compulsory dispute resolution procedure under part VIII of the LRA had been followed.
  6. The extent of the ELRC’s role in resolving the dispute pertaining to the terms of the CBA was restricted to implementing the minimum standards set out under the Employment Act (EA) or wages orders published by the government under the Labour Institutions Act.
  7. Section 26(2) of the EA not only allowed parties to a CBA to agree on terms that were more favorable than the minimum terms and conditions of employment set out by the EA and Wages Order but also empowered the ELRC to issue such favorable terms.
  8. The power of ELRC to issue such favorable terms were to be exercised judiciously and on a case by case basis where parties were unable to agree on the terms of a CBA. The Court was to ensure that it did not substitute its preference with that of the parties’ freedom to agree on the terms of employment. The Court was to be guided by the Wage Guidelines issued by the government. In that case, the applicable guidelines were the revised guidelines which came into force on November 1, 2005.
  9. Under those guidelines, the prime elements of determining wages were listed as realized productivity gains, the ability of the economy and employers to sustain increased labor costs and the cost of living. The ability by the employer to pay was a principal criterion in wage determination. It was important to note that such compensation was not to result in an unsustainable wage bill.
  10. The purpose of wage increment was to cushion the worker from inflation by enhancing purchasing power. However, that could only be effectively achieved against a background of improved performance and sustainability of the wage bill. A wage increment whose effect could have triggered the journey to collapse of an organization was harmful to the selfsame worker it was intended to benefit.
  11. A court faced with a question of wage increment was to take into account productivity, cost of living and the ability to pay by the employer. The Trial Court erred by ignoring the expert evidence adduced on behalf of the Appellant that the cost of production at the material time was higher than the tea prices which had taken a plunge and that the tea producers were not in control of tea prices which were normally fixed by the market. Wage increase as suggested by the Respondent was not viable. That evidence was unchallenged and went to establish the Appellant’s member’s ability to pay.
  12. Expert witnesses had the advantage of a particular skill or training. That not only enabled them to form opinions and to draw inferences from observed facts, but also to identify facts which were obscure or invisible to lay persons. Where the expert who was properly qualified in his field gave an opinion and gave reasons upon which such opinion was based, and where there was no other evidence in conflict with such opinion, the Court did not have any basis upon which such opinion could be rejected. Where however the Court was satisfied on good and cogent ground(s) that the opinion of an expert was not soundly based, then the Court could reject it.
  13. The Trial Court also erred in the rate of inflation relied on in determining the wage increase for that period. From the CPI and inflation rates released by the KNBS it was clear that the inflation rate stood at 7.15% in December, 2013. Taking into account that inflation rate, the evidence tendered on the productivity, as well as the Appellant’s member’s ability to pay, the Court found that a wage increase of 8% across the board for the period of 2014/2015 was reasonable in the circumstances.
  14. The Appellant adduced cogent evidence to warrant the revision of the productivity rate of a tea plucker from 862kg per month to 1170 kg per month. That was based on the evidence that tea yield had since improved as well as the leaf weight rendering the previous productivity rate unrealistic.
  15. The suit challenging the provisions relating to the National Social Security Fund (NSSF) contributions under the National Social Security Fund Act was still pending and it was not prudent to make a finding on that issue. However, the gratuity for the period in question ought to have remained as per the terms of the previous 2012/2013 CBA. The same applied to the annual leave which the Respondent conceded to.
  16. The annual leave and travel allowance was to be adjusted in accordance with the distance to be covered. There was no legal basis for paid rest day. Under section 27 of the EA, all an employee was entitled to was at least one rest day every week. Similarly, there was no provision under the EA or the Constitution that obligated an employer to set aside a particular day as a day of worship. There was also no justification to vary the amount of Kshs.27, 500 paid by the employer to cover funeral expenses for an employee or his/her spouse. Equally, there was no justification of including baggage allowance which was never a term under the previous CBA. The Trial Court had no basis for reviewing the retirement age as had been agreed to by the parties in the previous CBA.

Appeal allowed
Orders

  1. Rate of pay (basic wage/salary) was awarded at 8%:8% for the 2014/2015 CBA across the board.
  2. Retirement was to be at 55 years with the option of voluntary retirement at 50 years.
  3. There was to be one rest day every working week without any additional payment.
  4. Annual leave travelling allowance was adjusted for a distance of 0-3km at 3%, 31-60km at 3%, 61-610km at 0% and over 611km at 3%.
  5. Medical treatment and sick (sic) allowance awarded at Kshs.30,000.00 was set aside and the amount of Kshs.27,500 provided for funeral costs in the previous CBA was to be retained in the 2014/2015 CBA.
  6. Baggage allowance awarded at Kshs.30,000.00 was set aside.
  7. The order that parties review the CBA 2014/2015 and any antecedent policy to accommodate the Union member’s right to observe their day of worship within reasonable limitations was set aside.
  8. Annual leave and gratuity was to remain as under the CBA 2012/2013.
EVIDENCE LAW A violent attack by one section of the population on grounds such as religion or race, would not be described as a popular rising

Ukwala Supermarket (Kisumu) Limited v. Kenindia Assurance Company Limited [2017] eKLR
Civil Suit No. 153 of 2009
The High Court at Nairobi
Milimani Law Courts
Commercial and Tax Division
O. Sewe, J
November 17, 2017
Reported by Felix Okiri

Download the Decision

Evidence Law – evidence – expert evidence – admissibility of expert witness evidence – who was a competent expert witness – what were the grounds of admitting evidence from an expert witness
Evidence Law - burden of proof - reverse burden clause – where insurers sought to shift the burden of proving that the loss was excluded by a particular exception – whether the insurers could bring the reverse burden clause into play simply by asserting that the loss was excluded by a particular exception, and challenging the insured to prove the contrary – Evidence Act, section 109
Words and Phrases - the definition of the word expert - a person who, through education or experience, had developed skill or knowledge in a particular subject, so that he or she could form an opinion that would assist the fact-finder - Black's Law Dictionary, 8th Edition; Evidence Act, section 48.

Brief facts:
The Plaintiff was carrying business of running a chain of supermarkets in Kenya, including Kisumu. The Plaintiff took out the following insurance policies with the Defendant: Fire and Special Perils Policy; Electronic Equipment Policy; and Cash in Transit Policy to protect its business against perils such as fire, theft and other similar risks.
During the subsistence and validity of the said policies, on the December 29, 2007 general elections, its supermarkets in Kisumu were broken into by a mob and as a result, its property, equipment and money was stolen and the premises set on fire. As a consequence of the foregoing, the Plaintiff alleged it suffered substantial loss and damage, amounting to Kshs. 181,593,208/=.
It was the Plaintiff's contention that the aforesaid loss was fully and expressly covered by the policies, and added that, having duly paid the Defendant all the agreed insurance premiums for the year 2007, it was eligible for indemnity.

Issues:

  1. Whether the loss suffered by the Plaintiff was occasioned by acts falling outside the exclusion clauses contained in the said insurance policies.
  2. Who was a competent expert witness?
  3. Who bore the burden of proving that a loss allegedly covered by an insurance policy was excluded by a particular exception?
  4. What was the meaning of the phrase civil commotion assuming the proportion of or amounting to a popular uprising? Read More..

Relevant provisions of the law
Evidence Act
Section 109
The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence...
Civil Procedure Act
Section 26(1)
.. where and in so far as a decree was for the payment of money, the court may, in the decree, order interest at such rate as the court deemed reasonable to be paid on the principal sum adjudged from the date of the suit to the date of the decree in addition to any interest adjudged on such principal sum for any period prior to the institution of the suit, with further interest at such rate as the court deems reasonable on the aggregate sum so adjudged from the date of payment or to such earlier date as the court thinks fit ...

Held:

  1. The definition the word expert according to Black's Law Dictionary, 8th Edition accorded well with the text of section 48 of the Evidence Act in terms of the pertinence of specific skill, whether derived from academic pursuits or experience. An expert, in order to be competent as a witness, needed not have acquired his knowledge professionally; an expert could be a competent witness even where he had made a special study of the subject, or acquired a special experience therein.
  2. Expert evidence was evidence given by a person skilled and experienced in some professional or special sphere of knowledge of the conclusions he had reached on the basis of his knowledge, from facts reported to him or discovered by him by tests, measurements and among others. Their duty was to furnish the judge or jury with the necessary scientific criteria for testing the accuracy of their conclusions, so as to enable the judge or jury to form their own independent judgment by the application of that criterion to the facts put in evidence.
  3. From the evidence adduced, there was no dispute that the Plaintiff obtained the policies in contention. There was also no disputation that following the violence that erupted following the December 27, 2007 general elections, incidents of violence and looting were reported in Kisumu even before the announcement of the presidential election results. The Plaintiff's contention that it suffered damage as a result of the riots and looting that occurred on the December 29, 2007, was similarly uncontroverted. The Plaintiff had demonstrated to the requisite standard, that its two outlets in Kisumu were broken into and property looted therefrom by a riotous mob. In the case of the former, the supermarket was set ablaze thereafter and thus completely destroyed.
  4. The exclusion clauses in the impugned policies exempted damage occasioned by civil commotion assuming the proportions of or amounting to a popular rising; and acts of terrorism committed by a person or persons acting on behalf of or in connection with any organization. The phrase civil commotion assuming the proportion of or amounting to a popular uprising meant the same as an insurrection. There had to be some unanimity of purpose among those participating, and also that the purpose had to involve the displacement of the government. A violent attack by one section of the population on the other on grounds, for example of religion or race, would not be described as a popular rising.
  5. An insurrection meant a violent uprising with the main object of overthrowing the government, the events that occurred in Kisumu on December 29, 2007 could not be classified as civil war or civil commotion assuming the proportion of a popular uprising.
  6. Section 109 of the Evidence Act provided that the burden of proof was on he who alleged. The insurers could not bring the reverse burden clause into play simply by asserting that the loss was excluded by a particular exception, and challenging the insured to prove the contrary. They had to produce evidence from which could reasonably be argued that: - a state of affairs existed or an event occurred falling within an exception and; the excepted peril directly or indirectly caused the loss. It was only when an arguable case of this nature was made out that the insured was required to disprove it.
  7. It was thus incumbent upon the Defendant to demonstrate, on a balance of probabilities, that the loss and damage suffered by the Plaintiff was attributable to civil war, or civil commotion assuming the proportion of a popular uprising. Hence, the evidence that was adduced by the Plaintiff, which remained uncontroverted, was that the loss was occasioned by sporadic activities of looters who were acting for personal gain and not for any organized cause, let alone the cause of overthrowing the Government. Similarly, it could also not be said that the loss was an act of terrorism because the looting was neither occasioned by an organized group, nor was it done for the purpose of causing fear on a section of the public within the purview of the definition of terrorism in the said policies.
  8. The Defendant having failed to prove that the events complained of by the Plaintiff fell outside the scope of cover envisaged by the respective insurance policies taken by the Plaintiff, the said loss and damage was indemnifiable by the Defendant under the respective policies.
  9. Based on section 26(1) of the Civil Procedure Act, the courts had discretion to award interest. However, where damages had to be assessed by the Court, the right to those damages did not arise until they were assessed hence interest was only given from the date of judgment. Section 26(1) of the Civil Procedure Act provided three instances in which interest was awardable:-
    1. Where interest was adjudged on the principal sum from any period prior to the institution of the suit. Under this instance, the Court had to first decide on the evidence, the question of awardability of that interest and then on the rate at which it was to be awarded if any.
    2. Interest on the principal sum adjudged from the date of filing the suit to the date of the decree. In the instant section, the Court decided at its discretion, the rate of interest to be awarded; and
    3. Interest on the aggregate sum so adjudged from the date of decree to date of payment in full.
  10. The Plaintiff was not entitled to interest on the principal sum for the reason that it did not pray for it. The only way to raise issues for determination by the Court was through pleadings and it was only then that a Claimant was to be allowed to proceed to prove them.
  11. The proviso to section 27(1) of the Civil Procedure Act was explicit that costs were to follow the event, the instant event being that the Plaintiff was successful against the Defendant in respect of its claim for Kshs. 181,593,208/=. Similarly, section 27(2) of Civil Procedure Rules recognized that interest on costs was awardable at any rate not exceeding 14% per annum.

Claim allowed
Orders

Judgment was entered for the Plaintiff in the sum of Kshs. 181,593,208/= together with costs of the suit and interest on costs as prayed for in the Plaint dated February 10, 2009.

CONSTITUTIONAL LAW It is unlawful for the Salaries and Remuneration Commission to undertake job evaluations whose outcome is to vary employees' remuneration and benefits to the employees' disadvantage.

Kamau Aidi & 47 others v Salaries and Remuneration Commission (SRC)
Constitutional Petition No 6 of 2017
Employment and Labour Relations Court at Nyeri
Nzioki wa Makau, J
June 4, 2018
Reported by Beryl A Ikamari
Download the Decision

Constitutional Law-fundamental rights and freedoms-enforcement of fundamental rights and freedoms-right to fair labour practices and right to fair administrative action-allegations that there was inadequate participation afforded to the affected persons in a job evaluation which erroneously lead to a downgrade in job groups and a reduction in remuneration-Constitution of Kenya 2010, article 41, 47 & 230(5); County Governments Act, No 17 of 2012, section 138.

Brief facts:
The Respondent undertook a job evaluation whose outcome was that the Petitioners were placed in a lower job group with lower remuneration. The Petitioners complained that the evaluation was done without their participation and was contrary to fair trade practices and was also a breach of their right to fair administrative action. They asserted that under section 138 of the County Governments Act 2012, no employee could be evaluated with the resultant outcome being that the employee would earn less or have his benefits diminished. The Petitioners also said that under article 230(5) of the Constitution, there was need to ensure transparency and fairness in job evaluation.

Issues:

  1. Whether the job evaluation for the Clerks of County Assemblies was conducted in accordance with constitutional provisions on the right to fair labour practices, the right to fair administrative action and transparency and fairness.
  2. Whether the persons affected by a job evaluation were afforded an opportunity to participate in the job evaluation.
  3. What remedies were appropriate? Read More...

Held:

  1. As a constitutional body, the Respondent was bound to undertake its duties while following the dictates of the Constitution. Key dictates included fairness and application of the law. The SRC had a constitutional mandate but it was not allowed to act wantonly and where there was a breach of legal principles courts would not hesitate to step in and correct the error.
  2. The County Government was a microcosm of the National Government. The County Assembly's character mirrored that of the National Government. The Clerk of the County Assembly was not a middle level management role but in the band of senior specialists and top executives. The Clerk of the County Assembly would fit into band E of the Patterson Banding and not D.
  3. As the CEOs of the County Assemblies and the Clerks of the County Assemblies could not be deemed to be in a subordinate position. The Salaries and Remuneration Commission erred in banding a Clerk of the County Assembly in band B and D of the Patterson classification instead of B and E3.
  4. In the job evaluation, the Petitioners were afforded an opportunity to participate and the extent of their involvement was as required. They were not expected to key in or be present during the keying in of specifications.
  5. The Respondent was a public body executing a constitutional mandate. The fact that it fell into error was a misstep for which an order of costs would be an additional blow. Therefore, each party ought to bear its costs.

Petition allowed.
Orders:-

  1. A declaration was issued to the effect that the Salaries and Remuneration Commission erred in banding the Clerks of the County Assembly in band B and D of the Patterson classification instead of B and E3.
  2. A declaration was issued to the effect that the job evaluation accorded an opportunity to the Petitioners to contribute and their involvement was as required.
  3. A declaration was issued to the effect that the classification of Clerks of County Assemblies at class D while other accounting officers and CEOs were placed at E was discriminatory and had to be varied forthwith
  4. A declaration was issued to the effect that the downgrading and loss of remuneration of the 1st to 47th Petitioners was unlawful.
  5. A permanent stay of the implementation of the Job Evaluation for the Public Sector, in as far as it related to the Clerks of the County Assembly and the grading structure of the 1st to 47th Petitioners, was issued.
  6. Each party was to bear its own costs.
CONTRACT LAW It is necessary to prove that there are repayment terms in order to show that a loan agreement is in existence.

K N v J M T
Civil Appeal No 51 of 2016
High Court at Kitui
L N Mutende, J
April 19, 2018
Reported by Beryl A Ikamari
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Contract Law-illegality-contracts promoting sexual immorality-where monetary compensation was sought for an alleged loan which was said to constitute sums of money paid for an immoral consideration and not an actual loan-whether such a contract was enforceable.
Evidence Law-burden of proof-proof of the existence of certain facts-proof of the existence of a loan agreement-where the financial statements offered as proof did not show that the money received was subject to repayment terms-where it was alleged that the loan was not a loan but was money paid for immoral purposes-whether the existence of a loan was proved under those circumstances-Evidence Act (Cap 80), section 107(1).

Brief Facts:
At the Trial Court, the Respondent successfully made a claim for Kshs. 260, 000/= with respect to an alleged loan that he gave the Appellant. He said that he had given the Appellant a total of Kshs. 290,000/= via M-pesa service between the years 2010 and 2015 and she was supposed to repay the loan by March, 1, 2015 but only Kshs. 30,000/= was repaid.
While stating that the Trial Court made a finding on the basis of extraneous matters, the Appellant filed an appeal at the High Court. She said that the award of damages was erroneous as it was the Respondent who breached the agreement and the Respondent's case was not proved on a balance of probabilities. She explained that the sums of money were paid as consideration for love and affection.

Issues:

  1. What nature of proof relating to a promise to repay was necessary in order to show the existence of a loan agreement?
  2. Whether a contract whose basis was alleged to be immoral consideration was enforceable.Read More...

Held:

  1. As the first Appellate Court, the Court was bound to re-evaluate the evidence, assess it and come to its conclusions while bearing in mind that it did not have the opportunity to see or hear the witnesses who testified at the trial.
  2. The Trial Court was faulted for not conducting a pre-trial conference. Additionally, the Respondent filed issues for determination but the Trial Court failed to comply with order 21 rule 4 of the Civil Procedure Rules which required defended suits to contain a statement of the case, points for determination and reasons for the decision. That non-compliance did not go to the substance of the matter and it would not per se cause the appeal to be allowed.
  3. The claim was for a liquidated sum of Kshs. 260, 000/= which was the alleged outstanding balance for a loan of Kshs. 290, 000/=. Under section 107(1)(2) of the Evidence Act, it was necessary for the alleged facts to be proved by the person who alleged that they existed. The elementary principle of law is that he who alleges must prove.
  4. The Respondent provided his M-pesa statement as evidence that he gave the Appellant money. The Appellant admitted that she received the money but stated that it was given to her in consideration of love and affection. The defence raised questions as to whether the debt was founded on immoral consideration and was capable of being enforced.
  5. Ordinarily a loan would be granted on the basis of a promise to repay it on a specific date. The M-pesa statement did not suggest that the money sent was a loan and it did not specify when the money would be repaid. There was no indication of an obligation to repay the money that was being received.
  6. The obligation that ought to arise from a contract was difficult to enforce. The arrangement between the Respondent and the Appellant did not amount to that of a lender and a borrower. It was apparent that it was founded on immoral consideration and it was not legally enforceable.

Appeal allowed.

JURISDICTION Election results for the gubernatorial elections of August 8, 2017 for Machakos County nullified by the Court of Appeal

Wavinya Ndeti & another v Independent Electoral & Boundaries Commission & 2 others
Election Petition Appeal No 8 of 2018
Court of Appeal at Nairobi
W Ouko, M Warsame & S Gatembu Kairu, JJ A
June 8, 2018
Reported by Beryl A Ikamari

Download the Decision

Jurisdiction-appellate jurisdiction-jurisdiction of the Court of Appeal-election petition appeals-appeals relating to matters of law-the meaning given to a matter of law in an election petition appeal-where it was alleged that the assessment of the evidence was erroneous-conclusions that were unsupported by factual evidence or conclusions which no court would reasonably deduce from the facts-Elections Act, No 24 of 2011, section 85A.
Electoral Law-conduct of an election-election malpractices and irregularities-recruitment of public officers, who had served under the leadership of an incumbent Governor, by the IEBC to conduct an election in which the incumbent was a gubernatorial candidate-whether without adducing further evidence, such recruitment in itself negatively affected the IEBC's impartiality-Elections (General) Regulations, 2012, regulation 5 & 6.
Electoral Law-election offences-participation in elections by public officers-County Government officer serving as an agent of a gubernatorial candidate-where it was alleged that a County Government senior staff serving as a Chief Officer, Public Works acted as an agent of a gubernatorial candidate-nature of evidence necessary to prove the offence-Election Offences Act, No 37 of 2016, section 15(1).
Electoral Law-election petition-precision in drafting pleadings-particulars concerning the grounds on which an election petition was presented-where it was alleged that an issue was only raised in submissions but not disclosed in the pleadings-considerations of the Court in determining whether an issue had been pleaded sufficiently-Elections (Parliamentary and County Elections) Petition Rules, 2017, rule 8.
Electoral Law-conduct of an election-election malpractices and irregularities-failure by a County Returning Officer to make reference to Form 37A when preparing and declaring results in Form 37C-whether the County Returning Officer had a duty to verify the results presented in Form 37C using the primary documents which were Forms 37A-Elections (General) Regulations 2012 , regulation 87(1).
Electoral Law-statutory forms-forms used to declare the result of an election-the validity of Form 37C-legal requirements as to the form and content of Form 37C-effect of failure to state in Form 37C the results from all polling stations for each candidate in the election-Constitution of Kenya 2010, article 86; Elections Act, No 24 of 2011, section 39(1)(B); Elections (General) Regulations, 2012, regulation 87(2); Interpretation and General Provisions Act (Cap 2), section 72; Statutory Instruments Act, No 23 of 2013, section 26.
Electoral Law-conduct of an election-election offences-ineligibility of a candidate to contest in an election-where ineligibility to contest as alleged was based on the commission of an election offence under section 15(3) of the Election Offences Act-nature of proof necessary to establish an allegation that such a candidate knowingly aided in the commission of the election offence-Election Offences Act, No 37 of 2016, section 15(1) & 15(3).

Brief Facts:
There were four candidates in the gubernatorial elections for Machakos County held on August 8, 2017. The declared result of the election showed that the 1st Appellant was the second best candidate with 209,141 votes and the 3rd Respondent was declared the winning candidate with 249,603 votes.
While stating that the election was marred by electoral malpractices and irregularities, the Appellants filed a petition at the High Court. The Appellants sought various reliefs from the Court. The reliefs included declarations to the effect that the 3rd Respondent was not duly elected as Governor and that the non-compliance, irregularities and improprieties in the election substantially and significantly affected the results.
The Respondents denied that there were electoral malpractices and irregularities in the conduct of the election. They stated that the election was free and fair and that the result was a true reflection of the will of the people of the County.
After a full hearing, the election petition was dismissed and the High Court upheld the declaration by the IEBC that the 3rd Respondent was duly elected as Governor. An appeal was lodged at the Court of Appeal against the High Court's decision.

Issues:

  1. Whether the Court of Appeal had jurisdiction to hear and determine the election petition appeal.
  2. Whether the recruitment by the IEBC of public officers from a County Government to conduct an election, where the public officers had served under an incumbent Governor who was also a candidate in the election, was an irregularity which affected the independence of the IEBC in the election.
  3. How the Court would determine whether an issue raised during submissions was sufficiently pleaded for and was part of the averments contained in the election petition.
  4. Whether a County Returning Officer had a duty to make reference to Form 37A and verify the results of a gubernatorial election as declared in Form 37C.
  5. What was the effect of failure by the County Returning Officer to state the results for each candidate in the election from all polling stations in Form 37C.
  6. What level of proof was required to prove ineligibility to contest on an election on grounds of commission of an offence under section 15(3) of the Election Offences Act? Read More..

Held:

  1. Under section 85A of the Elections Act, the jurisdiction of the Court of Appeal in relation to appeals arising from election petitions was confined to matters of law. Matters of law included a decision which was erroneous in law if it was one which no Court could reasonably reach at; a decision of fact which was unsupported by evidence. Generally matters of law in election petitions would also include questions on interpretation of the Constitution, statutes subsidiary legislation or legal doctrine and also the application of the Constitution, statutes, subsidiary legislation or legal doctrine to a set of facts or evidence on record.
  2. An appellate court would not interfere with a factual finding unless a trial court clearly failed on some material point, to take into account particular circumstances, probabilities material to an estimate of the evidence tendered before it, or the Trial Court failed to appreciate an important and relevant point in the case, or it misapprehended or misapplied the law on the facts thereby arriving at an outrageous conclusion which was inconsistent or a departure from the evidence adduced by the parties.
  3. The drafting of pleadings entailed a technical matter. Inelegant drafting would not be a reason to decline to hear a litigant where the Trial Court had deduced unknown legal principles from the facts in order to arrive at his conclusion. Poorly drafted pleadings were not part of what section 85A of the Elections Act would shut out.
  4. It could be difficult to separate points of law from factual determinations. In such situations the Appellant would be required not to simply ask the Court to reassess the evidence but to demonstrate that the assessment of the evidence by the Trial Court was wrong.
  5. To the extent that the appeal raised questions as to whether the election Court properly considered whether constitutional principles were violated during the impugned election, whether there were illegalities and irregularities in the conduct of the election and whether they affected the results of the elections, whether the declaration of the results was constitutional and valid and whether election offences were committed and their impact on the validity of the election, the appeal raised issues concerning matters of law. Over such issues the Court of Appeal could assume jurisdiction under section 85A of the Elections Act.
  6. The constitutional standard by which an election would be judged was set out in article 81 and 86 of the Constitution as amplified by the Elections Act and the Regulations made thereunder. Article 81 provided that elections had to be free and fair, be conducted by an independent body, be transparent and be administered in an impartial, neutral, efficient, accurate and accountable manner. Under article 86 of the Constitution, the IEBC was enjoined to ensure, among other things, that at every election, the electoral system was simple, accurate, verifiable, secure, accountable and transparent, that the votes cast were counted, tabulated and the results announced promptly by the presiding officer at each polling station and that the results from the polling station were openly and accurately collated and promptly announced by the returning officer.
  7. In assessing the allegation that 300 County Government workers were hired by the IEBC to conduct the election and that thus the impartiality of the workers who rendered services under the leadership of the 3rd Respondent, was in question, the Trial Court considered the evidence of PW2. The Trial Court found that the witness did not provide a list of the 300 workers and the Court could not determine who they were and where they served. Had the Trial Court also considered evidence provided in the petition and the 1st Appellant's supporting affidavit, it would have found that the list of employees of the County, their names, their identification numbers, the polling stations at which they were allegedly deployed and the position or designation they held as presiding officer or deputy presiding officer or as clerks at the polling stations, was provided.
  8. Although the particulars provided related to 167 employees as opposed to 300 employees, there was sufficient evidence that County Government staff were used by the IEBC to conduct the election. However, the Trial Court could not be faulted for the finding that the Appellants did not demonstrate how the engagement of County Government workers in the election by the IEBC compromised the election or made the IEBC's independence doubtful.
  9. No provision of law was cited to show that the IEBC was barred from engaging public officers as returning officers, presiding or deputy presiding officers or as clerks for purposes of conducting elections. No evidence was tendered to show that the workers did anything that they ought not to have done or omitted to do something that they ought to have done.
  10. Under Regulations 5 and 6 of the Elections (General) Regulations, 2012, the IEBC had to exercise diligence not to engage persons who had potential conflicts of interest and who could possibly undermine its independence and the integrity of the election. It was the constitutional and statutory duty of IEBC to ensure that candidates were given equal treatment. In that regard the process of recruitment or employment of presiding officers or deputy officers or polling clerks had to be open, transparent and accountable. IEBC ought to, as a matter of policy, require its potential recruits to disclose details pertaining to their employment.
  11. Section 15(1)(a) of the Election Offences Act provided that it was an offence for a public officer to engage in the activities of any political party or candidate or to act as an agent of a political party or a candidate in an election. An office in the County Government was a public office as defined in article 260 of the Constitution. The Appellants alleged that 26 public officers of Machakos County served as agents of the 3rd Respondent at polling stations in the election.
  12. Evidence was tendered to show Urbanus Wambua Musyoka served as an agent of the 3rd Respondent and he was a public officer in the County Government. The Trial Court found that the names Urbanus Wambua Musyoka were common in the County and there was need for further evidence to show that the person serving as an agent of the 3rd Respondent was the same person serving at the County Government. It was also the Trial Court's finding that the Appellants ought to have sought information under article 35 of the Constitution to corroborate or verify the evidence tendered. In making the finding, the Trial Court put an unreasonable standard of proof on the Appellants. After the existence of Urbanus Wambua Musyoka as an agent was established by the Appellant, the burden shifted to the Respondents to rebut that evidence. The Trial Court therefore misdirected itself on the question of the burden of proof.
  13. Where the burden of proof shifted to the Respondents, they had to prove compliance with the law. The 3rd Respondent did not discharge his burden of proof by merely stating that the individual names, Urbanus or Wambua or Musyoka were common names in the community. They had to show that the person known as Urbanus Wambua Musyoka who worked at the County Government was a different person from the person that had the same name but had served as the 3rd Respondent's agent.
  14. An issue was raised by the Appellants on the validity of the Form 37C which did not conform with the requirements of regulation 87(2) of the Elections (General) Regulations, 2012. The Form 37C did not contain the results of all polling stations for each candidate and reflect constituency subtotals and county totals. However the Respondent pointed out that the issue could not be determined as it was raised in submissions and not the pleadings. The County Returning Officer gave evidence stating that she did not make reference to Forms 37A from 1332 polling stations when she declared results in Form 37C.
  15. Under rule 8 of the Elections (Parliamentary and County Elections) Petition Rules, 2017, the grounds on which an election petition was presented had to be stated in the petition and a petitioner was not allowed to make a case outside the pleadings. Pleadings played a critical role in defining the scope of the dispute which the Court was called upon to adjudicate. They had the function of setting out the case to be established at trial, giving a party sufficient notice of the opponent's case and defining and clarifying the issues between the parties.
  16. The issue concerning the validity of Form 37C was raised in the pleadings. The petition stated that the IEBC was required to exercise its powers and perform its functions in conducting elections in accordance with the Constitution and national legislation. With respect to Mwala Constituency, the Appellants pleaded that reliance was placed on the wrong total votes cast for the Petitioner and the 3rd Respondent in declaring the results of the Machakos County gubernatorial elections in Form 37C. Paragraphs 73 and 76 of the petition contained averments relating to the validity of Form 37C.
  17. Complaints regarding the validity of Form 37C and the declaration of results were anchored in the petition and the Respondent had due notice of the grievances. The issue about the validity of Form 37C was sufficiently pleaded.
  18. Regulations 87(1) of the Elections (General) Regulations 2012 required the Constituency Returning Officer to deliver collated results to the County Returning Officer in Forms 37B and the County Returning Officer would then tally and announce the results of County Governor and complete Form 37C. What was to be declared by the County Returning Officer in Form 37C included the votes cast for each candidate or referendum side in each polling station. Therefore, the prescribed form required verification with a Form 37A to ensure that results from each polling station were captured in the form.
  19. Part of the County Returning Officer's verification role was to ensure that the results delivered by the Constituency Returning Officer in Form 37B were an accurate record of the results tallied, verified and declared at the respective polling stations. The County Returning Officer had to be concerned with Forms 37A as the primary documents that captured the results at the polling station.
  20. In the same way that Form 34A, as the primary document, was the basis of all verification in presidential elections, Form 37A was basis for verification in gubernatorial elections. The National Returning Officer’s duty in verification of presidential election results was not different from the County Returning Officer's verification duties in gubernatorial elections. Both returning officers were enjoined to have regard to the results declared at the polling station.
  21. The complaint with respect to the validity of Form 37C was not a matter of form. Section 72 of the Interpretation and General Provisions Act provided that a deviation from the form prescribed in law, with respect to an instrument or document which purported to be in the prescribed form, would not render that instrument or document void if the deviation did not affect the substance of the instrument or document. Section 26 of the Statutory Instruments Act was to the same effect. Neither section 72 of the Interpretation and General Provisions Act nor section 26 of the Statutory Instruments Act was applicable to the circumstances.
  22. The election results declared by the County Returning Officer for the position of Machakos County Governor failed the constitutional test of verifiability and the declaration made to the effect that the 3rd Respondent was duly elected had no legal basis. Consequently, the Trial Court erred in holding that the election was conducted in accordance with the constitutional principles under articles 81 and 86 of the Constitution.
  23. Section 15(1)(a) of the Election Offences Act provided that a public officer who engaged in the activities of any political party or candidate or acted as an agent of a political party or a candidate in an election committed an offence and was liable on conviction, to a fine or imprisonment or both. Under section 15(3) of the Election Offences Act, a candidate who knowingly aids in contravention of section 15(1) of the Act was not eligible to contest in the election. It was said that the 3rd Respondent's ineligibility to contest on the gubernatorial election was based on the stated section 15(3) of the Election Offences Act.
  24. The 3rd Respondent testified that the recruitment of agents was a party affair undertaken by the Chief Executive Officer of the sponsoring political party and that he had no role in the recruitment. The evidence did not establish, to the required standard, beyond reasonable doubt, that the 3rd Respondent knowingly aided in the contravention of Section 15(1)(a) of the Election Offences Act.

Appeal allowed.
Orders

  1. The Appellants’ appeal was allowed and the judgment and order of the High Court given on February 9, 2018 was set aside.
  2. It was declared that the 3rd Respondent was not validly declared as the Governor of Machakos County.
  3. IEBC was directed to organize and conduct a fresh election for the position of Governor Machakos County in conformity with the Constitution, the Elections Act and the relevant Regulations.
  4. The certificate issued by the Election Court pursuant to Section 86 of the Elections Act was set aside and substituted with a certificate that the 3rd Respondent was not validly declared as having been elected as Governor during the elections held on the August 8, 2017.
  5. The 1st and 2nd Respondents had to pay the Appellants costs incurred before the election court, to be taxed, but not to exceed Kshs. 1,500,000.00.
  6. The 3rd Respondent had to pay the Appellants costs incurred before the election court, to be taxed, but not to exceed Kshs. 1,500,000.00.
  7. The 1st and 2nd Respondents had pay the Appellants costs of the appeal to be taxed, but not to exceed Kshs. 1,000,000.00.
  8. The 3rd Respondent had to pay the Appellants costs of the appeal, to be taxed, but not to exceed Kshs. 1,000,000.00.

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