Kenya Law: Weekly Newsletter 031/2018

Weekly Newsletter 031/2018

Weekly Newsletter 031/2018



Kenya Law

Weekly Newsletter


Reversal of traditional gender role is a factor a court ought to consider where a husband applies for maintenance from his wife
M E K v G L M
Court of Appeal at Eldoret
Civil Appeal No 66 of 2015
E M Githinji, H Okwengu, J Mohammed, JJA
May 31, 2018
Reported by Ian Kiptoo
 
Statutes- interpretation of statutes- interpretation of section 25 of the Matrimonial Causes Act (repealed)-whether the application for order of maintenance of a spouse was gender neutral-Constitution of Kenya, 2010, article 45(3); Marriage Act No 4 of 2014, section 77; Matrimonial Causes Act (repealed), section 25
Statutes-interpretation of statutes-interpretation of section 25 of the Matrimonial Causes Act (repealed)-applicability of the repealed Act-where a suit was instituted prior to the repeal of the Act-whether the repealed Matrimonial Causes Act was applicable in determination of the suit-Matrimonial Causes Act (repealed), section 25; Interpretation and General Provisions Act, section 23(3)(b); Transitional and Consequential Provisions in the Sixth Schedule to the Constitution, section 7
Family Law-spousal maintenance-order for spousal maintenance-factors a court takes into consideration in making an order for spousal maintenance-whether the reversal of traditional gender role was a factor a court ought to have considered when a husband applied for maintenance against his wife
Civil Practice and Procedure-orders-maintenance orders-application for maintenance orders-form and content-affidavit of means-whether failure to file an affidavit of means affected the Courts discretion to make an order of maintenance-Matrimonial Cause rules (repealed), rule 44
 
 
Brief facts:
The matter before the Court was an appeal from the Judgement of the Trial Court in which the Appellant challenged the order for maintenance after a finding made that the marriage between the Appellant and the Respondent had irretrievably broken down through cruelty and desertion as both the Petitioner and the Respondent had deserted the marriage; that the couple had lived apart for 18 years; and that the marriage was a dry shell.
On the other hand, the Respondent opposed the appeal and prayed for enhancement of the maintenance amount contending that the appeal did not disclose any reasonable grounds and that the appellant had not disclosed to the Court her income or property to justify review.
 
 
  Issues:
  1. Whether failure to file an affidavit of means affected the courts discretion to make an order of maintenance.
  2. Whether the repealed Matrimonial Causes Act was applicable in determination of the suit.
  3. Whether the application for order of maintenance of a spouse was gender neutral.
  4. Whether the reversal of traditional gender role was a factor a court ought to have considered when a husband applied for maintenance against his wife.
Relevant Provisions of the Law
Constitution of Kenya, 2010
Article 45(3)

Parties to a marriage are entitled to equal rights at the time of the marriage, during marriage and at the dissolution of the marriage.
 
 
Marriage Act No. 4 of 2014
Section 77(1)

The court may order a person to pay maintenance to a spouse or a former spouse –
 (d) when granting or after granting a decree of separation or divorce.
 
 
Matrimonial Causes Act (repealed)
Section 25
25. Alimony Pendete Lite, alimony and maintenance

 “(1) In any suit under this Act, the wife may apply to the court for alimony pending the suit, and the court may thereupon make such order as it may deem just:
 Provided that alimony pending the suit shall in no case exceed one fifth of the husband’s average net income for the three years next preceding the date of the order, and shall continue in the case of a decree nisi of the dissolution of marriage until the decree is made absolute.
 (2) The court may, if it thinks fit, on any decree for divorce or nullity of marriage, order that the husband shall, to the satisfaction of the court, secure to the wife such gross sum of money or annual sum of money for any term, not exceeding her life, as, having regard to her fortune, if any, to the ability of her husband and to the conduct of the parties, the court may deem to be reasonable.
 (3) In any such case as aforesaid the court may, if it thinks fit, by order, either in addition to or instead of an order under subsection (2) of this section, direct the husband to pay to the wife during the joint lives of the husband and wife such monthly or weekly sum for her maintenance and support as the court may think reasonable:
 Provided that—
(i) if the husband, after any such order has been made, becomes from any cause unable to make the payments, the court may discharge or modify the order, or temporarily suspend the order as to the whole or any part of the money ordered to be paid, and subsequently revive it wholly or in part as the court thinks fit; and ?
(ii) where the court has made any such order as is mentioned in this subsection and the court is satisfied that the means of the husband have increased, the court may, if it thinks fit, increase the amount payable under the order”
 
Matrimonial Causes Rules, (repealed)
Rule 44

 (1) Where a husband is served with a petition in which alimony pending suit is claimed, he shall within fourteen days after entering an appearance file an affidavit setting out full particulars of his property and income.
 (2) Where a husband is served with a notice of an application for alimony pending suit, permanent alimony, maintenance, maintenance of the children, a secured provision, periodical payments or securing periodical payments to a wife, he shall, within fourteen days after service of the notice upon him or, if he has not at the time of such service entered an appearance, within fourteen days after entering an appearance, file an affidavit setting out full particulars of his property and income, unless in the case of any such application other than an application for alimony pending suit the wife at the time of service of the application therefor gives notice to him or to his advocate of her intention to proceed with the application upon the evidence already filed on her application for alimony pending suit.
 (3) Where a wife is served with a notice of an application for alimony pending suit, a permanent alimony, maintenance, a secured provision or periodical payments, the provisions of paragraph (2) of this rule shall apply to the filing of an affidavit by the wife setting out full particulars of her property and income as they apply to the filing of an affidavit by the husband as to his property and income.
 
Held:
  1. The Appellant’s petition for divorce was filed in 2000 when the Matrimonial Causes Act (repealed) was still in force and therefore the proceedings were governed by the Act. It was clear from section 25 that as at the time of passing the Matrimonial Causes Act(repealed), the intention was that only a husband would pay maintenance to a wife, and not vice versa. The only exception was in a situation where the wife sought divorce on ground of the husband’s insanity, in which case under section 31(2) of the Matrimonial Causes Act (repealed) an order for payment of maintenance could be made in favour of the husband. That was understandable because the husband could not maintain himself due to his mental state.
  2. The promulgation of the Constitution of Kenya, 2010(Constitution) ushered in a new era of equality among spouses under article 45(3) of the Constitution. The issue was whether that equality applied to spousal maintenance and if so how it would be applied in making an order for maintenance. The Appellant’s Petition for the dissolution of the marriage was filed before the Constitution of Kenya, 2010 came into effect, section 7 of the Transitional and Consequential Provisions in the Sixth Schedule to the Constitution, required that all law in force immediately before the effective date of the Constitution be construed with the alterations, adaptations, qualifications and exceptions necessary to bring it into conformity with the Constitution.
  3. Article 45(3) of the Constitution ought to be read into section 25(2) of the Matrimonial Causes Act (repealed) with the result that both spouses would have an equal right to apply for maintenance, and therefore the husband’s right to apply for maintenance was no longer limited to only cases where he suffered from insanity. That was consistent with the position under the Marriage Act No 4 of 2014, section 77 which gave the Court the power to order payment of maintenance to a spouse or former spouse, so that maintenance could be paid to either a wife or husband.
  4. Whether the maintenance order would issue or not was a matter dependent on the discretion of the Trial Court to be exercised judicially taking into account the circumstances of the particular case. Section 25 of the Matrimonial Causes Act (repealed), indicated some of the factors that ought to be taken into account in making an order for maintenance which included the fortune, if any, of the spouse in whose favour the order was to be made; the ability of the spouse against whom the order was made and the conduct of the spouses.
  5. Equality in marriage was not a principle to be applied blindly nor was it intended to encourage dependency by one spouse. It was a situation where each party made a contribution. In other words, it was not shifting the burden, but the sharing of responsibilities and benefits taking into account the gender limitations. Therefore, in an application by the husband, among the factors that would be relevant was the justification for the reversal of the traditional gender role expectation that a man would ordinarily provide for his family.
  6. Both the Appellant and the Respondent were under an obligation to comply with rule 44 of the Matrimonial Causes Rules (repealed) and file an affidavit of means setting out full particulars of their property and income within 14 days after service of the Petition/Cross Petition. The provision to section 25(1) of the Matrimonial Causes Act (repealed)placed a fetter on the Court’s discretion by directing that no more than one fifth of the husband (read in ‘or wife’s’) average income for the last three years preceding the order, would be awarded as alimony pendent lite. To be able to make a decision that confirmed to that requirement, it was imperative that information be availed to the Court concerning the assets and income of each party as well as their financial needs and obligations.
  7. Even though section 25(1) of the Matrimonial Causes Act (repealed) addressed only the need for information on the income of the party against whom the order of alimony was sought, a fair decision could not be arrived at without knowing the assets and income if any, and the needs of the party seeking alimony. Section 25(2) provided a more balanced view by requiring the Court to take into account the conduct of the parties in addition to the financial position of both parties. Therefore, without the Court having the benefit of the affidavit of means from each of the parties giving their particulars of property, income and expenditure, the Court could not exercise its discretion judicially, but would be groping in the dark, and the resultant amount awarded, nothing more than guess work.
  8. None of the parties filed an affidavit of means as required under rule 44 of the Matrimonial Causes Rules (repealed). The Respondent did file an application that was stated to be under Matrimonial causes Act (repealed) rule 31, 40(1) 44(3) and 43 in which he sought alimony pending suit, permanent alimony, maintenance and a secured provision. The Court appreciated that the Respondent did not have the benefit of counsel and assumed that the rules, which he referred to in his application, were the Matrimonial Causes Rules (repealed). Those were the Rules that were applicable in such an application.
  9. Maintenance was neither a right nor an entitlement. It was a discretionary order the availability of which was dependent on the circumstances of the case. It was imperative for the Trial Court to have appropriate information upon which it could judicially exercise its discretion. In that regard, the Appellant having failed to file any affidavit of means had only herself to blame. Although the Respondent had maintained that the deceased was married to another woman, there was no evidence in support of that.
  10. There was no evidence in support of the conclusion that the Respondent was impecunious, and not a man of means. Besides, the fact that one was not in salaried employment did not necessarily make one impecunious or destitute. Furthermore, there was no evidence at all to show what efforts he had made to alleviate that burden from the Appellant. For a man who was under no disability, it looked like he did not do much to improve his standard of living. Further, there was no evidence tendered to prove that after the parties stopped living together in 1996, the Appellant continued to maintain the Respondent or provided an exclusive financial basis for the Respondent to rely on.
  11. It would be wrong to allow the Respondent to treat the divorce as a windfall to improve his standard of living by extracting maintenance from the Appellant. The Appellant could not be faulted for the Respondent’s inability to get a well-paying job nor could the Respondent strictly take credit for the Appellant’s progression in her career. Moreover, the Respondent did not demonstrate that he had been subjected to a defined standard of living that would change due to the dissolution of the marriage. The parties’ had not lived together since 1996 when the Respondent packed his bags and walked out of the matrimonial home then in the University where the Appellant worked. The Respondent had not provided any basis for an order to be made for his maintenance by the Appellant eighteen years later. If he truly required maintenance, he would have sought it soon after the separation. Therefore, in the circumstances of the case, the conduct of the Respondent was such that he was not deserving of maintenance from the Appellant.
  12. Evidence before the Trial Court did not justify the exercise of the Court’s discretion in ordering maintenance in the Respondent’s favour nor did it have sufficient information upon which it could make an informed decision regarding the financial ability of the Appellant and the requirements of the Respondent. It would have been against public policy to encourage a situation where a spousal maintenance order was granted to a man for the simple reason that the woman had proved more industrious than the man. The order of maintenance issued in favour of the Respondent was nothing more than the sword of Damocles hanging over the Appellant’s head to remind her of her failed marriage. Such an order was neither fair nor just.
Appeal allowed and orders for maintenance set aside.
The Prayer for enhancement of the maintenance amount was rejected; being a family dispute, each party would bear their own costs.

Per E M Githinji, JA
  1. At the time the Petition was filed, the Marriage Act and the Matrimonial Causes Act were in operation. However, the Marriage Act No. 4 of 2014 which commenced on May 20, 2014 was enacted which consolidated various laws relating to marriage and divorce and repealed previous laws including the former Marriage Act and the Matrimonial Causes Act.
  2. The Marriage Act provided for maintenance in sections 77- 83. Section 77 spelt out the grounds for an order of maintenance. Section 95 of the Marriage Act gave power to the Rules Committee established under the Civil Procedure Act to make Rules regulating court practice or procedure under the Act. It seemed that no such Rules had been made especially relating to maintenance orders and how the discretion of the Court to make maintenance orders ought to have been exercised.
  3. In the absence of any statutory guidelines of specific factors to be taken into account in exercising discretion to grant maintenance to a spouse, courts would no doubt consider all the circumstances of the case and exercise the discretion judicially. The specific factors stipulated in section 25(2) of the Matrimonial Causes Act (repealed), that was, the fortune of the spouses; ability of the spouse and the conduct of the parties would continue to be relevant. Other relevant factors included the income of the respective spouses, financial needs, obligations and responsibilities present and in future and the duration of the marriage.
  4. Under article 45(3) of the Constitution of Kenya, 2010(Constitution), either spouse had a right to apply for maintenance from the other spouse. Section 77(1) of the Marriage Act used the word in relation to powers of the Court to order maintenance which connoted neutral gender leaving no doubt that the Court had power to order either spouse to pay maintenance to the other. Therefore, it was crystal clear from article 45(3) of the Constitution and section 77(1) of the Marriage Act that the obligation of spouses as regards maintenance was equal and reciprocal. In any case, the Appellant did not contend in the appeal that the Court had no jurisdiction to order a wife to pay maintenance to a husband.
  5. The provisions of the repealed Matrimonial Causes Act relating to maintenance were applicable to the case by virtue of section 23(3) (b) of the Interpretation and General Provisions Act which provided that the repeal of a law did not affect the previous operation of the law. Furthermore, in the absence of full disclosure by the parties of their means, there was no sufficient evidence on which an order of maintenance could have been judicially assessed and an order made. Therefore, the assessment of maintenance at Kshs.20,000/= per month was arbitrary.
  6. The factor that when a husband applied for maintenance from his wife, the Court would first consider as a relevant factor that the husband was traditionally and ordinarily expected to provide for his wife and then make a finding whether or not there was justification for departure from that responsibility before the order of maintenance was made presented a problem with the application in that after the Matrimonial Causes Act was repealed it currently had no statutory underpinning. Moreover, the repealed Matrimonial Causes Act was itself based on outdated English legislation which had notions of the Ecclesiastical Courts that a wife was entitled to be maintained by her husband. That notion was justified by the fact that a wife would very unlikely have an income in those days. The English Matrimonial Causes Act, 1973 reformed the law. It, among other things, gave power to courts to order either spouse to provide maintenance for the other regardless of who was seeking divorce
  7. The second problem was the source of the section 77 of the Marriage Act, 2014 entitled either spouse to seek maintenance from the other spouse; either spouse was by virtue of article 27(1) of the Constitution entitled to equal protection and equal benefits of the law.
  8. The so called traditional gender role had been superseded by the provisions of the Constitution and Marriage Act, 2014 and was therefore not a relevant factor in determining whether or not an order for maintenance ought to have been made in favour of a husband.Justification for the reversal of the traditional gender role was the Constitution and Marriage Act, 2014. The primary and relevant consideration when either spouse sought maintenance from the other spouse was the financial affairs of the spouses.
Appeal was allowed; order of the High Court granting the Respondent maintenance against the Appellant was set aside. Each party would meet their own costs of the appeal.
Kenya Law
Case Updates Issue 031/2018
Case Summaries

LAW OF TORTS Licensing of a single collective management organisation to the exclusion of another does not violate article 36 of the Constitution of Kenya, 2010 on freedom of association

Laban Toto Juma and 4 others v The Kenya Copyright Board and 9 others
Petition No 3b of 2017
Consolidated With
Petition No 11 of 2017
High Court at Kakamega
R N Sitati, D S Majanja, T W Cherere, J
July 13, 2018
Reported by Ian Kiptoo

Download the Decision

Constitutional Law-fundamental rights and freedoms-limitation of fundamental rights and freedoms-freedom of association-where a licensing authority licensed a copyright society to the exclusion of another-claim that the action violated the Petitioners’ freedom of association-whether registering of one Collective management organisation (CMO), MPAKE, to the exclusion of another, MCSK, in which the 1st and 2nd Petitioners were members violated their right to freedom of association-Constitution of Kenya, 2010, article 36; Copyright Act, section 46
Constitutional Law-fundamental rights and freedoms-enforcement of fundamental rights and freedoms-right to fair administrative action-claim that a licensing authority’s decision was not subjected to public participation of stakeholders-whether the process of issuance of a license by KECOBO to MPAKE under section 46 of the Copyright Act violated the Petitioners right to fair administrative action as the process was not subjected to public participation-Constitution of Kenya, 2010, articles 10 and 47; Fair Administrative Action Act, section 5 (1); Copyright Act, section 46

Brief facts:
The 1st and 2nd Petitioners, who were music artists and members of Music Copyright Society of Kenya (MCSK), lodged their petition against The Kenya Copyright Board (KECOBO) and the Attorney General. The gravamen of their case was that the action by KECOBO of registering Music Publishers Association of Kenya (MPAKE) to the exclusion of MCSK violated their freedom of association, right to property and right to fair administrative action protected under articles 36, 40 and 47 of the Constitution of Kenya, 2010 (Constitution) respectively.
The 1st and 2nd Petitioners complained that following the licencing of MPAKE as a CMO to the exclusion of MCSK, the Petitioners would not enjoy their intellectual property rights as they were not members of MPAKE. That the decision took away their rights, as copyright holders, to collect royalties for use of their works through their society. They contended that MPAKE only represented publishers and would collect payment but not remit it to copyright owners who were not its members. Furthermore, the Petitioners contended that the decision by KECOBO effectively forced them to join MPAKE in order to collect their royalties in contravention of article 36(2) of the Constitution.

Issues:

  1. Whether registering of one collective management organisation (CMO), MPAKE to the exclusion of another, MCSK, in which the 1st and 2nd Petitioners were members, violated their right to freedom of association.
  2. Whether the process of issuance of a license by KECOBO to MPAKE under section 46 of the Copyright Act violated the Petitioners right to fair administrative action as the process was not subjected to public participation. Read More..

Relevant Provisions of the Law
Constitution of Kenya, 2010
Article 36
(1) Every person has the right to freedom of association, which includes the right to form, join or participate in the activities of an association of any kind.
(2) A person shall not be compelled to join an association of any kind.
(3) Any legislation that requires registration of an association of any kind shall provide that:

(a) registration may not be withheld or withdrawn unreasonably; and
(b) there shall be a right to have a fair hearing before registration is cancelled.

Article 40
(1) Subject to Article 65, every person has the right, either individually or in association with others, to acquire and own property—

(a) of any description; and
(b) in any part of Kenya.

(2) Parliament shall not enact a law that permits the State or any person—

(a) to arbitrarily deprive a person of property of any description or of any interest in, or right over, any property of any description; or
(b) to limit, or in any way restrict the enjoyment of any right under this Article on the basis of any of the grounds specified or contemplated in Article 27 (4).

(3) The State shall not deprive a person of property of any description, or of any interest in, or right over, property of any description, unless the deprivation—

(a) results from an acquisition of land or an interest in land or a conversion of an interest in land, or title to land, in accordance with Chapter Five; or
(b) is for a public purpose or in the public interest and is carried out in accordance with this Constitution and any Act of Parliament that—

(i) requires prompt payment in full, of just compensation to the person; and
(ii) allows any person who has an interest in, or right over, that property a right of access to a court of law.

(4) Provision may be made for compensation to be paid to occupants in good faith of land acquired under clause (3) who may not hold title to the land.
(5) The State shall support, promote and protect the intellectual property rights of the people of Kenya.
(6) The rights under this Article do not extend to any property that has been found to have been unlawfully acquired.

Copyright Act, No 12 of 2001
Sections 46: Collective Administration of Copyright
(1) No person or association of persons shall commence or carry on the business of a copyright collecting society except under or in accordance with a certificate of registration granted under this section.
(2) Applications for registration as collecting societies shall be made to the Board accompanied with the prescribed fees and the Board, by a Gazette notice is empowered to declare a body which has applied for registration a collecting society, for all relevant copyright owners or for such classes of relevant copyright owners as are specified in the notice.
(3) Every certificate issued to a collecting society shall be in the prescribed form and shall unless cancelled be valid for a period of twelve months from the date of issue.
(4) The Board may approve a collecting society if it is satisfied that—

(a) the body is a company limited by guarantee and incorporated under the Companies Act (Cap. 486);
(b) it is a non-profit making entity;
(c) its rules and regulations contain such other provisions as are prescribed, being provisions necessary to ensure that the interests of members of the collecting society are adequately protected;
(d) its principal objectives are the collection and distribution of royalties; and
(e) its accounts are regularly audited by independent external auditors elected by the society.

(5) The Board shall not approve another collecting society in respect of the same class of rights and category of works if there exists another collecting society that has been licensed and functions to the satisfaction of its members.

Copyright Regulations, 2004
Regulation 16
16. Application for registration of a collecting society
(1) An application for registration of a collecting society under section 46(2) of the Act shall be made on Form No. CR 12 accompanied by the following documents—

(a) a certificate of registration as a company limited by guarantee and incorporated under the provisions of the Companies Act, cap. 486
(b) a certified copy of a society’s Memorandum and Articles of Association;
(c) where applicable, a certified copy of the society’s annual return filed with the Registrar of Companies showing the corporate structure of the society during the period of January to December of the previous year;
(d) where applicable, audited accounts of the society for the five years preceding the date of its application for registration as a collecting society under the Act and these Regulations
(e) a full list of the names and addresses of all the members of the society; and
(f) any other document or information that the Board may require the society to produce

(2) A certificate of registration of a collecting society shall be in Form No. CR 13.
(3) An application for renewal of registration of a collecting society and certificate of renewal of registration of such society shall be in Form No. CR 14 and Form No. 15 respectively

Fair Administrative Action Act, No. 4 of 2015
Section 5(1)
5(1) In any case where any proposed administrative action is likely to materially and adversely affect the legal rights or interests of a group of persons or the general public, an administrator shall-

(a) issue a public notice of the proposed administrative action inviting public views in that regard;
(b) consider all views submitted in relation to the matter before taking the administrative action;
(c) consider all relevant and material facts; and
(d) where the administrator proceeds to take the administrative action proposed in the notice-

(i) give reasons for the decision of administrative action as taken;
(ii) issue a public notice specifying the internal mechanism available to the persons directly or indirectly affected by his or her action to appeal; and
(iii) specify the manner and period within which such appeal shall be lodged.

Held:

  1. MCSK and MPAKE were collective management organisations (CMOs). Under section 48(4) of the Copyright Act (Act), a Collecting Society meant an organization which had as its main objects, or one of its main objects, the negotiating for the collection and distribution of royalties and the granting of licenses in respect of copyright works or performer’s rights. All parties agreed that CMOs were a necessary incident of enjoyment of copyright in artistic works. Their necessity and rationale had been recognised and explained in several cases within Kenya’s jurisdiction.
  2. It was well established that every statute enjoyed a presumption of legality and it was the burden of the Petitioners to show or demonstrate otherwise. In order to determine whether the statute was unconstitutional, the Court must have had regard not only to its purpose but also its effect.
  3. Licensing of a single organization under section 46 of the Copyright Act did not restrict the rights of any copyright holders from engaging with a CMO of their choice or compel them to join an organization against their choice or participate in the activities of the organization.
  4. It was readily apparent from section 30A of the Copyright Act (repealed by Act No. 11 of 2017) that it was mandatory for the user to be paid through the CMO hence a user was compelled to join a CMO to realise his or her payment. Thus in the case of Mercy Munee Kingoo and Another v Safaricom and Another MLD Petition No. 5 of 2016 [2016] eKLR, the Court had no difficulty in finding the provision unconstitutional. However, the Trial Court did not proceed to consider whether the violation was justified under article 24 of the Constitution of Kenya, 2010 (Constitution).
  5. The 1st and 2nd Petitioners did not argue that their rights to acquire and own property had been violated nor had it been contended that the State had attempted to acquire their property. The Petitioners had assigned their intellectual property rights to MCSK for management and collection of royalties. Thus, the Petitioners had not demonstrated any violation of article 40 of the Constitution.
  6. Nothing in the Act compelled the 1st and 2nd Petitioners’ to forego their intellectual property rights assigned to MCSK. They had a right to join and participate in the activities of an association of their choice. Furthermore, there was nothing in the Act that compelled them to join another association or limited the ability of MCSK to collect royalties on their behalf. The licensed CMO was required to collect royalties on behalf of non-members and it was up to MCSK to decide how it wanted to collect royalties on behalf of its members. In that respect, the decisions cited relating to section 30A of the Act could be distinguished. Furthermore, even assuming that section 46 of the Act violated the freedom of association, the violation was justified under article 24(1) of the Constitution.
  7. The reason CMOs were provided for was consistent with the State’s responsibility to promote and protect intellectual property, of which copyright in artistic works was a component. Article 40 (5) of the Constitution, which anchored that responsibility, provided that the State would support, promote and protect the intellectual property rights of the people of Kenya. Furthermore, in a developing country such as Kenya, well managed CMOs would assist in nurturing artists by protecting their intellectual property rights.
  8. The effects of licensing one CMO for a class of rights holders were ameliorated by a rigorous licensing regime that required full transparency under the superintendence of KECOBO. That was the reason, for example, that the license was tenable for only one year and the licensed CMOs were required to provide details of its accounts and payment of royalties to both members and non-members. On the whole therefore, if there was a limitation on freedom of association, it was reasonable and in line with the objects and purposes of the Constitution.
  9. Pursuant to article 47(3) of the Constitution, Parliament enacted the Fair Administrative Action Act, No. 4 of 2015 (the FAA) to elaborate and enhance the right to fair administrative action. Section 46(2) of the Copyright Act provided the framework for application for the license while regulation 16 of the Regulations merely provided for the documents that were to accompany the application. Having considered the evidence and depositions in the matter, there was no doubt that KECOBO complied with regulation 16 of the Regulations.
  10. Under section 3, the FAA applied to all state and non-state agencies including any person exercising administrative authority, performing a judicial or quasi-judicial function under the Constitution or any written law or whose action, omission or decision affected the legal rights or interests of any person to whom such action, omission or decision related. Thus the FAA applied to all actions by KECOBO. Whereas the FAA left any administrator to utilize its own procedures, the argument that public participation was not required under the Act was rejected by the Court.
  11. A reading of section 5 of the FAA opened with the phrase, In any case, which meant that the provision was applicable notwithstanding the provisions of section 4(6) of the FAA Act. Furthermore, section 5 of the FAA was an elaboration of public participation, which was a national value, recognised in article 10(2) (a) of the Constitution and was thus implied in any process for issuing of licenses under the Act.
  12. There was no evidence that KECOBO issued a public notice inviting public views in regard to the license proposed to be issued in line with section 5(1) of the FAA. Although MPAKE raised an attractive argument in regard to the capacity of the 1st and 2nd Petitioners as shareholders of MCSK to participate in the proceedings in their own right, the right of public participation was wider than the right of the Petitioners as shareholders of MSCK. It was a right of the public to participate in the decision making process that affected them.
  13. In the context of the Copyright Act, the provisions of section 5(1) of the FAA assumed greater significance due to the fact that only one CMO was licensed to represent a particular class of right holders and category of works. Those right holders included non-members of CMOs who had to be able to ventilate their views and have an interest in whichever CMO was selected to act on their behalf. Therefore, the process of issuing a license by KECOBO on March 27, 2017 under section 46 of the Act violated section 5 (1) of the FAA.
  14. It was noted by the Court that it was the duty of KECOBO to treat every applicant for the license fairly as no CMO was entitled to the license as a matter of course. In addition, the Regulations did not provide datelines for applications. In that respect, MSCK was provided an advantage not afforded to other applicants to furnish its documents late. Furthermore, there was what amounted to ex-parte communication between KECOBO and MSCK. It was suggested that KECOBO promulgate clear regulations regarding timelines for submissions and consideration of applications to avoid allegations of unfairness.
  15. The Competent Authority was empowered to intervene where KECOBO unreasonably refused to grant a certificate of registration in respect of a collective society or imposed unreasonable terms and conditions on the granting of such certificate. It might also have intervened where a collective society unreasonably refused to grant a license in respect of a copyright work or imposed unreasonable terms or conditions on the granting of such a license. Judicial notice was taken that the Attorney General appointed members of the Authority by Gazette Notice No. 29 dated March 2, 2018.
  16. Since the 3rd, 4th and 5th Petitioners were aggrieved by conservatory orders issued in Kakamega Petition 3B of 2017, they ought to have applied to be parties to that petition or challenged the order as it affected them. It was improper to launch a collateral challenge to an order issued in pending proceedings through another suit. However, the issues raised by the Petitioners were not idle. The license issued by KECOBO to MCSK for the year 2016 expired on December 31, 2016. Under section 45(1) of the Act, no person was allowed to collect royalties unless they were licensed and issued with a certificate which was tenable for a period of 12 months under the Act.
  17. There was evidence that MCSK was collecting royalties despite the fact that its license had expired. The collections were through the Interested Parties who were acting as their agents for purposes of collection. Therefore, an appropriate relief was to order MCSK to give an account of all license fees and royalties collected after its license expired on December 31, 2016.

Petition allowed
Orders

  1. The Court declared that section 46 of the Copyright Act did not violate the right to property under article 40 of the Constitution or the freedom of association under article 36 of the Constitution.
  2. The process of issuing the license on March 27, 2017 by KECOBO to MPAKE violated the provisions of section 5 of the Fair Administrative Actions Act and article 47(1) of the Constitution and the license was declared null and void.
  3. The Music Copyright Society of Kenya was directed to account for all the license fees and royalties collected from January 1, 2017 to date within the next thirty (30) days from the date thereof. The accounts would be delivered to the Kenya Copyright Board which would be at liberty to issue any further orders and directions.
  4. All interim orders issued in the matter were discharged and for the avoidance of doubt, the Kenya Copyright Board would be at liberty to proceed with the process of calling for new applications for Collecting Societies under section 46(2) of the Copyright Act.
  5. No order as to costs.
CONSTITUTIONAL LAW Retention of public officers who have attained the age of retirement on a fixed term contract is lawful

Okiya Omtatah v Kenya Revenue Authority Board of Directors and 2 others
Petition no 103 of 2017
Employment and Labour Relations Court at Nairobi
J N Abuodha, JJ
June 29, 2018
Reported by Ian Kiptoo

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Constitutional Law-constitutional petitions-locus standi-where a petitioner challenged the appointment of a public officer-petition challenging the appointment of the Commissioner General of KRA-whether the Petitioner had the locus standi to institute the Petition challenging the constitutionality of the appointment of the Commissioner General of KRA-Constitution of Kenya, 2010, articles 22(2) and 232
Constitutional Law-public bodies-state corporations-whether KRA was a state corporation of a sui generis nature as certain functions performed under section 5 of the Kenya Revenue Authority Act were considered as actions of the Central Government-Kenya Revenue Authority Act, sections 3 and 5; State Corporations Act, section 2
Constitutional Law-public officers-appointment and retention of public officers-appointment to state corporations-where a public officer had attained the retirement age of 60 years-whether the appointment of the Interested Party as Commissioner General of KRA was unconstitutional for not adhering to government policies and circulars on retention of public officers-Public Service Commission Act, section 80(2); Government circular Ref. No. OP.CBA.2/7A ’Review of the mandatory Retirement Age’; The Code of Governance for State Corporations (Mwongozo)

Brief Facts:
The Petitioner in the instant petition sought an order prohibiting the 1st and 2nd Respondents from contracting the Interested Party as the Commissioner General of the Kenya Revenue Authority (KRA) for any length of time, even in an acting capacity for one day, upon the expiry of his second and final term. The Petitioner stated that it would be irregular and contrary to both the Constitution and Statute to retain the Interested Party in the public service beyond the mandatory retirement age of 60 years.
On the other hand, the 1st Respondent and Interested Party contended the Petition had been brought by a person other than those listed under section 12 of the Employment and Labour Relations Court Act hence the Court lacked jurisdiction.

Issues:

  1. Whether the Petitioner had the locus standi to institute the Petition challenging the constitutionality of the appointment of the Commissioner General of KRA.
  2. Whether KRA was a state corporation of a sui generis nature as certain functions performed under section 5 of the Kenya Revenue Authority Act were considered as actions of the Central Government.
  3. Whether the appointment of the Interested Party as Commissioner General of KRA was unconstitutional for not adhering to government policies and circulars on retention of public officers. Read More...

Relevant Provisions of the Law
Constitution of Kenya, 2010
Article 22
Enforcement of Bill of Rights
1) Every person has the right to institute court proceedings claiming that a right or fundamental freedom in the Bill of Rights has been denied, violated or infringed, or is threatened
2) In addition to a person acting in their own interest, court proceedings under clause (1) may be instituted by-

a) a person acting on behalf of another person who cannot act in their own name;
b) a person acting as a member of, or in the interest of, a group or class of persons;
c) a person acting in the public interest; or
d) an association acting in the interest of one or more of its members.

Kenya Revenue Authority Act
Section 11(1)
“There shall be a Commissioner General of the Authority who shall be appointed by the Minister upon recommendation of the Board on such terms as the minister may in consultation with the Committee approve”

Public Service Commission’s Human Resource Policies and Procedures manual
Clause A.6
“Cabinet secretaries are accountable individually and collectively, to the President for the exercise of their powers and the performance of their functions concerning a matter for which the cabinet secretary is responsible. These include:

i. Strategic policy formulation and direction of the Ministry to which they are assigned;
ii. Being the link between the Ministry and the President or Parliament as the case may be.

Held:

  1. The Petition concerned appointment and exit from public service. Article 232 of the Constitution of Kenya, 2010 (Constitution) set out the values and principles of public service which included; high standards of professional ethics; involvement of the people in the process of policy making, accountability for administrative acts, and fair competition and merit as the basis of appointments and promotions. Sub article 2 of article 232 provided that principles of public service applied to public service in all state organs in both levels of government and all state corporations.
  2. Public servants were appointed to discharge duties and functions in the interest of the public. Their remuneration was drawn from public resources in form of revenue collected by the government. To that extent it could not be gain said that the Petitioner as a member of the public had the locus standi to bring the instant Petition. He had, as any other citizen, the right to question any matter concerning the operationalization of the values and principles of public service as encapsuled under article 232 of the Constitution.
  3. The main pillars of the Petitioner’s submissions were anchored on Government Circular Ref. No.OP.CBA.2/7A of March 20, 2009 titled Review of the Mandatory Retirement Age for Public Servants which reviewed retirement age from 55 years and the Code of Governance for State Corporations (Mwongozo) published in January 2015. The Petitioner further relied on government Circular No. OP/CAB.9/1A dated November 23, 2010 titled procedure for reappointment of service Chief Executive Officers in state corporations.
  4. The preamble of the KRA Act provided that it was an Act of Parliament to establish the Kenya Revenue Authority as a central body for assessment and collection of revenue, administration and enforcement of the laws relating to revenue, and to provide for connected purposes. Under section 3(2) of the Act, KRA was designated as a body corporate with perpetual succession capable of suing and being sued. Provided that any legal proceedings against the authority arising from the performance of the functions or the exercise of any of the powers of the authority under section 5 would be deemed to be legal proceedings against the Government.
  5. The functions of KRA under section 5 included being an agency under the general supervision of the Minister for Collection and receipt of all revenue. The authority further served as an advisor of the Government on all matters relating to the administration of and the collection of revenue under the written laws.
  6. Section 2 of the State corporations Act defined a state corporation as:
    1. State corporations established by the President;
    2. A body corporate established before or after the commencement of the Act by or under an Act of Parliament or other written law.
    To that extent KRA was a state corporation. However, section 3(2) of the KRA Act provided that any proceedings against KRA arising out from the performance of its functions or exercise of powers under section 5 would be deemed to be legal proceedings against the Government made KRA a state corporation sui generis. That was because whereas state corporations were deemed to be bodies corporate capable of suing or being sued, certain functions and operations of KRA were deemed to be actions of the Central Government for which if legal proceedings were commenced, such proceedings would be deemed to be proceedings against the Government.
  7. The functions as outlined in section 5 of the KRA Act were at the core of any Government, since for the Government to budget and plan for services and programmes it had to know how much revenue was collected or capable of collection. It was therefore quite logical that whereas the Government recognized KRA as a body corporate capable of suing or being sued, those key functions remained under close control of the Central Government.
  8. Under section 5 of the KRA Act, KRA operated under the general supervision of the Minister (read Cabinet Secretary) for the time being in charge of Finance. The role of Cabinet Secretaries was set out under clause A.6 of Public Service Commission’s Human Resource Policies and Procedures manual. It was reasonably deducible that the Cabinet Secretary for Finance had control over performance and strategic direction of KRA including recruitment and retention of staff in certain key positions in order to realize its functions set out under section 5 of the KRA Act.
  9. Mwongozo and the circulars relied on by the Petitioner to question the constitutionality and legal validity of the Interested Party’s contract were policy documents issued by Government from time. Their intention in most cases was to harmonize or in certain cases explain departure or variation of any existing policy. They however could not be used to bar or prevent a strategic decision of the Government.
  10. Whereas the running of Government should have been on a clear and predictable policy, it ought however to be noted that policy influenced but did not bind the Government in executing its duties especially where such exercise of duty was accompanied by reasonable explanation and was carried out in a way that did not on the face of it violate the law or the Constitution. In the contrary case, the Court would have reason to interfere.
  11. Section 5 of the KRA Act placed the Authority under the general supervision of the Minister (read Cabinet Secretary) for Finance. Furthermore, under clause A.6 of Public Service Commission’s Human Resource Policies and Procedure manual, the Cabinet Secretaries roles included steering the strategic human resource management matters in the Ministries under them.
  12. The Interested Party was appointed on a fixed term contract which was permissible under section 80(2) of the Public Service Commission Act which permitted appointment of a public officer who had attained the mandatory retirement age to serve on fixed term contract. Fixed term contract employees were not pensionable hence not subject to the 60 year retirement age rule. Such persons’ contracts were governed by their instruments of appointment. To that extent the Court would not declare the Interested Party’s contract entered into on March 4, 2015 and which expired on March 4, 2018 contrary to the Constitution, Mwongozo and other Government circulars relied on by the Petitioner.

Petition dismissed; no order as to cost

CIVIL PRACTICE AND PROCEDURE Circumstances a court considers in exercising its discretion to order substitution of parties in an election petition

Dickson Daniel Karaba v Kibiru Charles Reubenson and 5 others
Election Petition Appeal 3 & 4 of 2018
Court of Appeal at Nyeri
P O Kiage, F Sichale, S Ole Kantai, JJA
July 11, 2018
Reported by Ian Kiptoo

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Civil Practice and Procedure-suits-withdrawal of suits-effect of withdrawal of suits-where a party sought to rely on Applications in a withdrawn petition-whether the Appellant, who was granted leave to withdraw the Petition, could revisit applications that had been filed in the withdrawn Petition
Civil Practice and Procedure-suits-parties to a suit-substitution of parties-circumstances a court considers in exercising its discretion to order substitution of parties-whether the 6th Respondent, having been a petitioner in two other petitions, could substitute the Appellant in the instant Petition-Election (Parliamentary and County Elections) Petitions Rules, 2017, rule 24 (1) and (2)
Civil Practice and Procedure-costs-award of costs-principles applicable in award of costs-when could a court interfere with the award of costs-Elections Act, section 84

Brief facts:
There were four candidates who stood for the seat of Senator for Kirinyaga County in the National Elections that were held on August 8, 2017. The Appellant garnered 130,925 votes, the 1st Respondent received 147,921 votes whereas the 6th Respondent got 11,987 votes. Following the declaration of the 1st Respondent as the winner of the election, the Appellant filed an election petition in which the 4th, 5th and 6th Respondents entered the Petition that was filed at the High Court of Kenya, Kerugoya, at the tail end of it.
The Petition was heard in full and at the conclusion of the hearing, parties were ordered to file written submissions which were to be subjected to an oral highlight before the Trial Court. On January 10, 2018 the Appellant filed a notice of motion to withdraw the Petition which was granted. On the January 19, 2018 at the hearing of the Application by the Appellant to withdraw the Petition, the 4th 5th and 6th Respondent filed a formal motion praying to be substituted as petitioners in place of the Appellant. The Trial Court considered the Applications and the submissions made and on reviewing the relevant material and the law, the Trial Court dismissed the Applications for substitution on grounds that the Applications was a crafty way of delaying the speedy resolution of the Election Petition (4th and 5th Respondent) and lacked merit (6th Respondent).
Furthermore, it was ordered that the Appellant pas costs of the Application and costs of the Election Petition to the 1st Respondent capped at Kshs 5 million; pays costs to the 2nd and 3rd Respondents jointly capped at Kshs 5 million;
The Appellants, dissatisfied with the ruling of the Trial court filed the instant appeal stating that the Trial Court erred in not appreciating the law and jurisprudence on withdrawal of an election petition; substitution of a petitioner; and that the costs awarded were punitive, exorbitant and excessive.

Issues:

  1. Whether the Appellant, who was granted leave to withdraw the Petition, could revisit Applications that had been filed in the withdrawn Petition.
  2. Whether the 6th Respondent, having been a petitioner in two other petitions, could substitute the Appellant in the instant Petition.
  3. When could a court interfere with the award of costs? Read More..

Held:

  1. The requisite notice to withdraw the Petition published in the Daily Nation newspaper was in compliance with the requisite rules. The Trial Court considered the reasons given by the Appellant for seeking leave to withdraw the Petition, found the reasons to be sound and valid and allowed the Application to withdraw the Petition. Consequently, the Petition was marked as withdrawn. The Appellant could therefore not turn back and raise complaints on the withdrawn Petition when his Application was granted.
  2. The Appellant could not revisit the ruling of December 15, 2017 when an order of recount of votes was refused. From the reading of the notice of motion that sought leave to withdraw the Election Petition, it was obvious as was highlighted that the Appellant applied for leave to withdraw the Petition and further applied that the Petition itself and the subsequent applications filed in the Petition be marked as withdrawn. When the Application to withdraw the Petition was granted all the Applications which had been filed in the Petition were also withdrawn. Withdrawal of the Petition destroyed the substratum of the matter before the Election Court with respect to the Appellant and he could not revisit applications that had been filed or rulings delivered as he had compromised everything when the Application to withdraw the Petition was allowed.
  3. A petitioner in an election petition reserved the right to take up, on appeal, issues regarding rulings made in the Election Petition as appeals were not allowed against rulings in interlocutory applications. In the instant case, the Appellant prayed, in the motion to withdraw the Petition, that he should have been granted leave to withdraw the Petition and all applications filed in the Petition. Once that motion succeeded the Appellant did not retain any other rights at all. He could not go back to rulings made at an interlocutory stage of the hearing of the Petition. In so far as the Appellant was concerned, the Petition and Applications made in the Petition and rulings made thereon were no more. There was nothing left that the Appellant could pursue. The only pending issue was taxation of costs.
  4. Electoral disputes were serious matters and their resolutions should have been determined within a reasonable time and within the timelines set out in law. It was an electoral offence under section 4 (1) (a) (i) and (c) of the Elections Act, 2016 for a voter to be registered twice or in two different places. The 4th Respondent’s affidavit amounted to a confession that the 4th and 5th Respondents had committed an electoral or criminal offence by being registered in three different counties which the law did not allow. The Trial Court was right to find that the 4th and 5th Respondents bona fides were questionable and exercised its discretion properly when it refused them to take over the Petition and was right to find that as an election court, the law allowed it to consider an application for substitution as the one before it and decide whether to allow it or not.
  5. The Election Petition had been heard in full, submissions filed and the parties were required to give an oral highlight of written submissions but instead, applications were filed as was shown. The Election Petition had to be determined within time-lines which were set in law and the Trial Court did not err in finding that it was its responsibility to conclude the Petition within time-lines that were set in law and which time-lines were about to expire. The 4th and 5th Respondents’ bid to take over the Petition at its tail-end would have interfered with the conclusion of the Petition which had to be done within 6 months as required in law.
  6. The Trial Court found that the 6th Respondent was a petitioner in two different election petitions filed at High Court of Kenya at Kerugoya. The Trial Court considered that issue and came to the conclusion that having been the Petitioner in the said two petitions, the 6th Respondent should not have been allowed to take over the Petition that was being withdrawn.
  7. From the record in the motion for leave to be substituted as petitioner, the 6th Respondent did not disclose to the Court that he had filed his own election petitions at all. Those issues were material and should have been brought to the attention of the Court. It was the duty of the 6th Respondent to bring those matters to the attention of the Court. A court was entitled to draw a negative inference of a party in whose possession material evidence reposed but who did not disclose such material to the Court. The record showed that by the time the 6th Respondent was applying to be substituted as petitioner he had not met the costs of the dismissed Election Petition No. 3 of 2017.
  8. The Trial Court was right to reject the Application by the 6th Respondent to be substituted as petitioner when he had within his knowledge material which was relevant to the application but which material the 6th Respondent had withheld and not disclosed to the Court. The 6th Respondent filed election petitions, the latter which was dismissed and had not been appealed. The order for dismissal remained in place and had not been challenged in any way at all. In the circumstances, the Trial Court exercised its discretion correctly when it held that the 6th Respondent had not demonstrated his ability to continue or take over the Petition that was being withdrawn.
  9. Electoral disputes arising after an election were serious matters to be litigated with the seriousness they deserved and determined within timelines set in law which in the case before the Court was 6 months. The 6th Respondent had filed 2 election petitions concerning the same election of Senator of Kirinyaga County. He had not shown any seriousness in prosecuting the second petition after withdrawing the first and was now applying, at the tail end of the hearing, to take over the Petition and reopen it where he was asking to be supplied with pleadings, that he be allowed to file further submissions – in effect, that the Petition be re-opened when, what remained was highlighting of written submissions. Time for hearing the Petition to conclusion was running out and the Trial Court was right to reject the Application by the 6th Respondent which was not filed with any seriousness at all.
  10. Electoral disputes were in the nature of public interest litigation. They did not belong to the Petitioner. The public in the electoral area and the general public in the Republic had an interest on how those matters were handled and determined. A balance had to be drawn on the issue of costs where successful litigants were awarded costs but those who lost in electoral disputes should not have appeared to be punished by award of costs that might have sent the wrong message that a party should not approach the Court if they felt aggrieved in the manner elections were conducted. Those were necessary principles to guide a court in awarding costs in election petition.
  11. Section 84 of the Elections Act required the Election Court to award costs to the winner of an election petition which accorded with the general principle that costs follow the event which was the same as saying that the party who succeeded in court would normally get the costs of the litigation. It was up to the Election Court to determine whether a party would be awarded costs or not and in doing so the Court had to be guided by the principles of fairness, justice and access to justice.
  12. Applying the principles to the instant case, the award of a total of Kshs.10,000,000/= by the Election Court to the Respondents was excessive and the Court was entitled to interfere with the same as such an award did not appear fair, just or aimed at promoting access to justice. Reducing the same by half would be a reasonable approach in the matter.

Appeals dismissed
Orders

  1. Costs awarded to the 1st, 2nd and 3rd Respondents;
  2. Costs awarded in the High Court were varied to the extent that costs in respect of the 1st Respondent were capped at Kshs.2,500,000/= and those to the 2nd and 3rd Respondents were capped at Kshs.2,500,000/= both subject to taxation.
LAW OF TORTS Compensation awarded to Plaintiffs engaged in transnational transport for losses suffered as a result of the 2007/2008 post-election violence.

Intraspeed Logistics Limited & 15 others v Commissioner of Police & another
Civil Case No 398 of 2009
High Court at Nairobi
A Mbogholi Msaga, J
June 28, 2018
Reported by Beryl A Ikamari

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Law of Torts-negligence-breach of duty of care-duty of the State to provide security-extent of the State's duty to provide security-whether the State had a duty to provide security in order to ensure the smooth movement of goods and persons within Kenya-whether losses suffered by persons engaged in transnational transport business due to arson and theft occurring in Kenya during the 2007/2008 post-election violence were a result of the state's breach of duty to provide security and whether the businesses were entitled to compensation.

Brief facts:
The Plaintiffs engaged in transnational transport wherein they used trucks to transport goods to and from Mombasa into DRC Congo, Rwanda and Uganda. They were victims of arson and theft during the post-election violence that followed the general elections of 2007. They blamed the 1st Defendant for failing to provide adequate security and they claimed damages as set out in the amended plaint.
The Defendants denied liability and stated that they reasonably discharged their statutory duty of care in providing security. The Plaintiff's claim for special damages was denied.
Thereafter, the Defendants made a concession of liability to the 16th Plaintiff and that Plaintiff made an application relating to judgment on liability against the Defendants. When the application came up for hearing, counsel for the Defendants did not appear. The Plaintiff urged the Court that the concession ought to extend to all the Plaintiffs as their claims arose from the same circumstances. The Court entered judgment for the Plaintiff against Defendants, jointly and severally, on liability. The issue of quantum of damages was reserved for hearing.

Issues:

  1. Whether during the 2007/2008 post-election violence, the state breached its duty to provide security in order to ensure the smooth movement of goods and persons within Kenya.
  2. What nature of compensation were the Plaintiffs, who suffered losses while being engaged in the transportation business as a result of the 2007/2008 post-election violence, entitled to, if any? Read More..

Held:

  1. Article 89 (f) of the Treaty for the Establishment of the East African Community provided that Partner States would provide security and protection to transport systems to ensure the smooth movement of goods and persons within the Community. The Government of Kenya had an obligation to provide security and the destruction of the Plaintiffs' properties within its territory prima facie showed lack of or inadequate security.
  2. On record there was a letter dated June 21, 2010 addressed to the Permanent Secretary Office of the President, Provincial Administration and Internal Security by the 2nd Defendant. It indicated that two commissions-Waki and Kriegler-produced reports which questioned the actions of the police during the post-election violence. The letter acknowledged that under the circumstances the State could only escape liability if it proved that it employed all resources and efforts to ensure that the police performed their duties. In spite of the contents of the letter, the claim was not settled more than 8 years after it was written.
  3. The suit was not the only claim relating to compensation as a result of the post-election violence of 2007/2008. Courts had decided on cases ranging from personal injury to resettlement of victims affected by the violence.
  4. The Plaintiff offered evidence showing the valuation of the property in question and the Defendants did not challenge the valuations. However, some questions were raised relating to the signatory of the valuation reports. Oral testimony was made by the expert who undertook the valuation and he made assertions which were based on what he did and the reasons for his conclusions upon personal examination of the destroyed vehicles. His evidence was not contradicted by the Defendants. There was no doubt that he told the truth.
  5. Special damages must be pleaded specifically and strictly proved. The combined value of the Plaintiffs’ loss relating to the motor vehicles destroyed was proved by evidence on a balance of probabilities to the tune of USD 47,557,081.
  6. The Plaintiffs claimed loss of revenue or business as a result of the loss of the motor vehicles. That was akin to a claim for damages for pain and suffering in personal injury litigation. For the claim, the Plaintiff had to offer proof in the form of existing contracts to transport goods or some schedules of the trucks. Except for the 16th Plaintiff, the evidence offered by the Plaintiffs in that regard was lacking. Contracts which would show loss of revenue or business were not displayed.
  7. Almost 10 years had passed since the cause of action arose. It was difficult to assess the period for which the vehicles would have been on the road doing business for the benefit of the Plaintiffs. Long distance haulage of goods was not only straining in terms of wear and tear, but also prone to accidents. Considering the nature of the business and the little, if any, evidence tendered to guide the Court, it would be fair and just to assign 15% loss of business per truck per annum for a period of 6 years based on the value of each truck to carter for loss of business.
  8. Evidence was tendered for purposes of compensation for the goods lost. The value of the lost goods was pleaded for and a schedule attached to the plaint indicated the respective figures for the goods. The loss was proved on a balance of probabilities. Therefore, the Plaintiffs were entitled to not only the demurrage charges as a result of destruction of trucks, but also the value of goods destroyed as a result of the Defendants’ negligence.
  9. The 16th Plaintiff gave evidence as to the loss of his residential properties in Kenya and Uganda due to the collapse of his businesses following the burning of his trucks. It was shown that it was a direct consequence of the loss of the transport business. There was no evidence on the loss of the house in Uganda but for the Kenyan house, he was entitled to Kshs. 20,000,000/=.
  10. Justification for payment of interest at commercial rates required production of documents relating to the said loans with particular reference to the motor vehicles and business concerns. Where a motor vehicle was co-owned with a bank, the common practice was that the registration book (log book) would be in the names of the owner and bank. That was not shown. The Plaintiffs were entitled to interest at court rates as they had not shown the proof required for commercial rates.

Judgment entered for the Plaintiffs against the Defendants.

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