Weekly Newsletter 032/2018

Weekly Newsletter 032/2018



Kenya Law

Weekly Newsletter


Decision by the Executive to recruit Cuban doctors to work in public medical facilities upheld by the Employment and Labour Relations Court.
Samuel Nduati & 3 others v Cabinet Secretary Ministry of Health & 9 others
Petition 42 of 2018 (Consolidated with Petition No 46 of 2018)
Employment and Labour Relations Court at Nairobi
O N Makau, J
June 19, 2018
Reported by Beryl A Ikamari
Download the Decision
Jurisdiction-jurisdiction of the Employment and Labour Relations Court-jurisdiction to interpret the Constitution in employment and labour relations matters-nature of issues which were issues relating to employment and labour relations matters-Constitution of Kenya 2010, articles 162 (2), 165 (3) & 165(5).
Constitutional Law-constitutional petition-drafting the constitutional petition-precision in drafting pleadings-particulars relating to what the Petitioner complained of, the provision said to be infringed, and the manner in which it was alleged to be infringed-effect of having imprecise pleadings and failure to plead such particulars-the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013, rule 10.
Constitutional Law-constitutional petition-supporting affidavit and annexed documents-where a constitutional petition was filed without a supporting affidavit and annexed documents-whether such a petition was competent.
Constitutional Law-national values and principles of governance-public participation, fairness and transparency-allegations that a decision was made to recruit foreign doctors without consulting stakeholders and without considering the availability of local doctors with comparable skills-whether the decision was made in breach of the national values and principles of governance-Constitution of Kenya 2010, article 10.
Constitutional Law-fundamental rights and freedoms-right to equality and freedom from discrimination and right to fair labour practices-where immigrant doctors were recruited on better pay terms as compared to local doctors-whether there was discrimination and unfair labour practices under the circumstances-Constitution of Kenya 2010, articles 27 & 41. 
Constitutional Law-fundamental rights and freedoms-right to equality and freedom from discrimination, right to fair labour practices and right to the highest attainable standard of health-balancing between private rights and public interest-where there were inadequate medical practitioners in certain regions of the country-public interest in ensuring the highest attainable standard of health as balanced with the private rights of local doctors to be considered and consulted before immigrant doctors were recruited-Constitution of Kenya 2010, articles 27, 41 & 43.
 
Brief facts:
The Petitioners, medical practitioners residing in Kenya, challenged the decision of the Respondents to hire foreign doctors from Cuba to work in Kenyan public medical facilities. The doctors had been recruited and were expected to arrive in Kenya on May 31, 2018. They wanted declaratory orders to declare the decision unconstitutional, orders of certiorari to quash the decision and orders of prohibition to restrain the Respondents from recruiting the doctors.
The Petitioners said that they were qualified and unemployed and were aggrieved by the Government's decision to deny them priority in employment to public medical facilities in favour of Cuban doctors. They said that the decision violated article 10 of the Constitution, sections 34, 36 (2) and 40 (2) of the Kenya Citizenship and Immigration Act, and section 17 of the Public Service (Values and Principles) Act.
The Petitioners stated that the recruitment was undertaken without public participation or consultations with the stakeholders and was a violation of articles 10 and 232(1) (d) of the Constitution and section 11(1) & (2) of the Public Service (Values and Principles) Act. They also complained that the Cuban doctors were hired on better pay than local practitioners and that was a violation of the right to fair remuneration, right to equality and freedom from discrimination.

 
Issues:
  1. Whether the Employment and Labour Relations Court had jurisdiction to hear and determine a matter concerning recruitment of foreign doctors without considering the availability of local doctors with comparable skills.
  2. Whether the petitions filed in the consolidated petition met the legal threshold on precision in the drafting of pleadings in constitutional litigation.
  3. What was the effect of filing a constitutional petition without a supporting affidavit and documents annexed to it?
  4. Whether public participation was facilitated in the making of the decision to recruit Cuban doctors to work in public medical facilities in Kenya.
  5. Whether national values and principles of governance, including fairness and transparency and the right to fair labour practices were violated when a decision was made to recruit foreign doctors without considering the availability of local doctors who were citizens possessing comparable skills.
  6. Whether a decision which gave immigrant doctors better pay terms as compared to local doctors was a violation of the right to equality and freedom from discrimination and the right to fair labour practices.
  7. Whether public interest in the ensuring the highest attainable standard of health would override the private rights of local doctors to be considered and consulted before immigrant doctors were recruited, in a situation where there were inadequate medical practitioners in certain regions of the country.
 
Held:
  1. The Employment and Labour Relations Court had the same jurisdiction as the High Court to interpret the Constitution in petitions involving employment and labour relations. The dispute at hand involved the employment and deployment of Cuban doctors in Kenyan public medical facilities and the grant of work permits and practicing certificates to facilitate their employment. The dispute was therefore an employment dispute.
  2. A person seeking redress from court, where the claim was based on the Constitution, was required to set out with a reasonable degree of precision that of which he complained, the provision said to be infringed, and the manner in which it was alleged to be infringed. Those requirements were the competency threshold with regard to precision in drafting pleadings in constitutional litigation.
  3. Petition 42 of 2018 set out the provisions of the Constitution which were violated as articles 10, 232, 27 and 41(2). It also entailed explanations on how those rights were violated. The petition met the basic minimum requirements of a constitutional petition under rule 10 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013. The petition set out the issues for litigation and the defence was able to understand them and respond through pleadings and submissions. Therefore, the petition met the competency threshold.
  4. In Petition 46 of 2018, the Petitioner made general and broad allegations of violation without specifying the precise provision of the Constitution which was violated and failed to enumerate the particulars of the manner of the alleged infringement. The pleadings fell below the required threshold in a constitutional petition and were prejudicial to the defence as they did not set out the issues for litigation and adjudication to enable the opposing party to respond adequately.
  5. The framing of prayer 2 in Petition 46 of 2018 was so wide that if allowed it would affect all foreign medical practitioners working in Kenya whether in the private sector or public service. The drafting of the petition was not the epitome of precise pleading.
  6. Petition 42 of 2018 was not supported by an affidavit and no document was annexed to it as an exhibit. The Court would limit the Petitioner's submissions to the legal arguments urged by their counsel, the undisputed facts pleaded and facts advanced by the Interested Parties in their affidavits.
  7. The Petitioners bore the burden of proof to prove the alleged violation of national values and principles of governance set out in article 10 of the Constitution in relation to failure to give priority to the Petitioners in Government jobs, failure to carry out public participation and failure to conduct recruitment of foreign doctors in accordance with the principles of transparency and fairness. The Respondents' affidavit evidence, to the effect that the recruitment of doctors in Cuba was competitive and was verified by the 4th Respondent, was not rebutted by the Petitioners.  However, the Interested Parties' replying affidavits showed that in Kenya, the exercise was shrouded with mystery. The Interested Parties showed that they were not invited to give views on the importation of medical specialists.
  8. The Interested Parties evidence indicated that the vacancies for the medical specialists were never advertised by the respective County Public Service Boards as required under section 66 of the County Government Act before the impugned decision was made. The Respondents tendered evidence showing that in the year 2014 advertisements were done by several County Public Service Boards but they did not attract specialist doctors. However, the Respondents did not produce evidence to prove that they engaged the Interested Parties to get views on the need to import medical specialists from Cuba.
  9. The 1st Interested Party, the Kenya Medical Practitioners, Pharmacists and Dentists Union (KMPDU), produced a schedule of unemployed doctors totalling to 1683 out of which 171 were specialist doctors. The schedule could have informed discussions in the stakeholders meeting on the recruitment of Cuban doctors. However, the schedule was not conclusive proof that there were unemployed Kenyan medical specialists as the schedule did not give their names and qualifications. Therefore, the Petitioners, to that extent, failed to discharge the burden of proving that their rights or the rights of other specialist doctors were infringed by the impugned decision.
  10. The World Health Organization Code of Practice had provisions meant to protect migrant workers from unfair labour practices which included being given inferior terms of service by the host country. The Code was wrongly cited. Unless the immigrant doctors were complaining of unfair labour practices, the Interested Parties had no business waving the Code to the Respondents.
  11. The failure to seek the views of the Petitioners through the Interested Parties, who were direct stakeholders, and the failure to locally advertisement for the medical specialists before making the impugned decision, was an aspect of failure to undertake public participation which was part of the national values and principle of governance under article 10 of the Constitution. The violation had the effect of denying deserving Kenyans employment in their country in favour of foreigners. However, the schedule provided was not conclusive evidence to prove that the impugned decision violated the law and Government policy.
  12. The Petitioners' private rights to employment had to be balanced with the public interest of Kenyans, based on the obligation of the State to give effect to the right to the highest attainable standard of health as enshrined under article 43 (1)(a) of the Constitution. The Respondents' statics proved that specialist medical practitioners were urgently needed upcountry, where even junior medics were not attracted despite public advertisements. Public interest favoured the impugned decision and the Petitioners did not prove that there were enough medical practitioners with comparable skills as those possessed by the Cuban doctors.
  13. The Petitioners bore the burden of proof to prove the alleged discrimination in pay discrepancies between the Cuban doctors and local doctors. On the basis of lack of evidence, the alleged violation of article 27 of the Constitution, the right to equality and freedom from discrimination, would fail.
  14. The Respondents could not hide in the veil of diplomacy or the doctrine of separation of powers and violate the Constitution. The Court had the final say in interpreting the Constitution vis a vis other laws and the exercise of any authority under the Constitution.
Petitions dismissed.
Kenya Law
Case Updates Issue 032/2018
Case Summaries

ELECTORAL LAW Court of Appeal upholds the results of the elections held on August 8, 2017 for member of the National Assembly for Nandi Hills.

Alfred Kiptoo Keter v Bernard Kibor Kitur & another
Election Petition Appeal No 21 of 2018
Court of Appeal at Eldoret
E M Githinji, H M Okwengu & J Mohammed, JJ A
July 11, 2018
Reported by Beryl A Ikamari

Download the Decision

Electoral Law-election petition appeals-appeals to the Court of Appeal-appeals based on matters of law only-nature of issues that would constitute matters of law-issues concerning the nature of conduct that would amount to a campaign, whether in relation to some facts the burden of proof had been discharged and ought to have shifted, when the burden of proof would be said to have been discharged, whether reliance was placed on hearsay evidence and alleged failure to apply the law to the facts-whether such issues constituted matters of law-Elections Act, No 24 of 2011, section 85A(1).
Evidence Law-admissibility of evidence-hearsay evidence-affidavit evidence- where an affidavit in support of the petition was sworn by a Petitioner who was no longer a party to the petition and did not give oral testimony in court-where such evidence was relied on by a different Petitioner who did not personally witness or have personal knowledge of the contents of the affidavit-whether such evidence was hearsay evidence and whether the supporting affidavit had probative value-Elections (Parliamentary and County Elections) Petition Rules, 2017, rules 4(b) & 12; Civil Procedure Rules, 2010, order 19. 
Electoral Law-campaigns-conduct which would amount to a campaign in an election-unlawful campaigns- where an incumbent member of the National Assembly addressed groups of less than 25 people in three different locations outside of the period allowed for campaigning-whether such conduct amounted to a campaign-Elections (General) Regulations , 2012, regulation 2.
Electoral Law-conduct of an election-electoral irregularities and malpractices-effect of electoral irregularities and malpractices on an election-effect of an alleged unlawful campaign involving less than 25 people in three different locations where the registered number of voters was more than 51, 000 voters and the winning margin was more than 10, 000 votes-Elections Act, No 24 of 2011, section 83.

Brief facts:
There were three candidates in the elections for member of the National Assembly for Nandi Hills held on August 8, 2017. After the polls, the Appellant was declared as having been validly elected as member of the National Assembly for Nandi Hills Constituency having garnered 23,923 votes. The other two contestants Bernard Kibor Kitur, the 1st Respondent, and Isaac Kirwa Leting were declared to have garnered 13,872 and 863 votes respectively.
At the High Court the original Petitioner filed a petition to challenge the result of the election but he sought to withdraw the petition. That Petitioner was substituted with the 1st Respondent after the making of an application by the 1st Respondent. In the petition, various allegations were made against the Appellant. The allegations included campaigning outside the allowed campaign period and voter bribery. It was also alleged that the IEBC announced the wrong results in Form 35B which were not based on an aggregate on Form 35As for Nandi Hills Constituency.
Among the findings of the High Court was the finding that the Appellant campaigned out of the time allowed for campaigning and the impact of the unlawful campaign on the number of votes was academic. The High Court concluded that the IEBC did not conduct the elections in accordance with the Constitution and electoral laws and that there were electoral offences committed and there were unlawful campaigns which tainted the fairness and integrity of the poll. The High Court nullified the result of the election.
At the Court of Appeal, the Appellant lodged an appeal setting out 20 grounds of appeal. They included admission of inadmissible evidence, relying on hearsay evidence on unlawful campaigns and generally failing to weigh and consider evidence properly. The 1st Respondent also lodged a cross-appeal, stating that the High Court erred in law in denying him an opportunity to adduce additional evidence and in finding that bribery was not proved.

Issues:

  1. What would amount to a matter of law for purposes of an appeal to the Court of Appeal in election matters?
  2. What was the evidentiary value of an affidavit sworn to support an election petition by a Petitioner, who was substituted by another Petitioner, was no longer a party to the petition and was not at the trial to give an oral testimony?
  3. What nature of conduct would amount to a campaign within the definition provided for the term "campaign" under regulation 2 of the Elections (General) Regulations, 2012?
  4. Whether in the conduct of the elections, there were electoral irregularities and malpractices which affected the outcome of the elections. Read More..

Held:

  1. Under section 85A(1) of Elections Act, an appeal from the High Court concerning membership of the National Assembly would lie to the Court of Appeal on matters of law only. Matters of law included inter alia conclusions of law which were not based on evidence or supported by the facts or that were so perverse or illegal that no reasonable court would have arrived at them. It was not enough to say that on the basis of the evidence, a different conclusion was probable.
  2. The appeal was about allegations of reliance on hearsay evidence from the 1st Respondent, failure by the 1st Respondent to discharge his burden of proof, the manner in which the burden of proof shifted, whether the Appellant's conduct amounted to a campaign and the High Court’s alleged failure to apply section 83 of the Elections Act in making determinations. The Appellant invited the Court of Appeal to find that the High Court did not correctly apply the law in arriving at its decision. The appeal did not require the Court to review the evidence or make independent findings of fact and arrive at different conclusions based on the evidence. Therefore, the appeal was based on matters of law and was competent.
  3. Rule 4(b) of the Elections (Parliamentary and County Elections) Petition Rules, 2017 required that a petition be supported by an affidavit sworn by the Petitioner containing particulars set out under rule 12. The said rule 12(1)(b) stipulated that the affidavit to support the petition shall be sworn personally by the Petitioner or at least one of the Petitioners if there were more than one Petitioner. A reading of rule 4(b) and 12 of the Elections (Parliamentary and County Elections) Petition Rules, 2017, the Oaths and Statutory Declarations Act and order 19 of Civil Procedure Rules indicated the following:-
    1. Since a petition must be supported by an affidavit sworn personally by the Petitioner, a supporting affidavit of a Petitioner was an integral part of the petition.
    2. An affidavit from an intended Petitioner's witness must be filed at the same time as the petition but it was merely evidence and not part of the petition.
    3. An affidavit including a supplementary affidavit must state the substance of the evidence and must be confined to facts that the deponent was able of his own knowledge to prove provided that in an interlocutory application or with the leave of the Court, an affidavit may contain statements of information and belief showing the source and grounds thereof.
    4. An affidavit formed part of the hearing of the petition and subject to the Court's discretion or consent of the parties every deponent should attend the hearing of the petition to be examined in-chief and cross-examined.
  4. Given that the Petitioner's supporting affidavit was an integral part of the petition, upon the withdrawal of the original Petitioner from the proceedings, the petition and the supporting affidavit remained intact. However, the probative value of the supporting affidavit would be lost if the original Petitioner failed to appear for examination in-chief and cross-examination, without being excused by the Court or by the consent of the parties.
  5. The 1st Respondent's supplementary affidavit which was filed more than three months after the filing of the petition was a witness affidavit and could not be elevated to the pedestal of a Petitioner's affidavit in support of the petition. The High Court misdirected itself in requiring the 1st Respondent to adopt word for word the original Petitioner's supporting affidavit. The result was that the 1st Respondent was allowed to adopt facts which he was not able of his own knowledge to prove, contrary to the law on affidavits. The evidence was hearsay and it was of no probative value.
  6. The original Petitioner at the High Court referred to facts which he relied on to prove the alleged unlawful campaigns but he withdrew from the petition and no party applied for him to be summoned to give that evidence. While the 1st Respondent gave evidence on the unlawful campaigns, he only relied on what the original Petitioner at the High Court gave as information. The 1st Respondent admitted that he was not present at the campaigns and he did not take the photograph relied on by the original Petitioner. Illegal or unlawful campaigns were a breach of the Electoral Code of Conduct and a criminal offence under section 20(2) of the Election Offences Act and the burden of proof needed to be discharged before the evidential burden shifted to the Appellant. The evidence offered on illegal or unlawful campaigns was hearsay evidence and it could not amount to proof from which the evidential burden could shift to the Appellant.
  7. The High Court gave a very broad meaning to the word campaign which would impinge on a candidate’s freedom of movement and association during the 48 hours before an election and unnecessarily expose candidates to criminal sanctions. The Appellant’s conduct was construed as a campaign because he addressed the members of the public and thereby created a spectacle which kept his brand alive.
  8. Section 2 of the Elections (General) Regulations 2012 defined the word "campaign" as the promotion of a candidate or political party for purposes of an election during the campaign period.  The High Court judgment included findings that the Appellant addressed a very small number of people in three places- less than 25 people at each of those places. Given that the constituency had more than 51,000 registered voters, the conduct of the Appellant did not amount to a campaign in law.
  9. Under section 83 of the Elections Act, no election shall be declared to be void by reason of non-compliance with any written law relating to that election if it was apparent that the election was conducted in accordance with the principles laid down in the Constitution and in that written law or that the non-compliance did not affect the result of the election. It was apparent that even if the Appellants votes were reduce by 2,251 votes which was the number of registered voters in the four areas affected by the alleged unlawful campaigns, the Appellant would still have a wide winning margin as the winning margin was 10,051 votes. Therefore, the unlawful campaigns, if proved, could not have affected the result of the election.
  10. The cross-appeal as far as it concerned the application by the 1st Respondent to adduce additional evidence and its dismissal, was not merited. The determination of the application entailed an exercise of judicial discretion and the 1st Respondent did not show that the High Court failed to exercise its discretion judiciously.

Appeal allowed.
Orders:-

  1. The appeal was allowed.
  2. The judgment of the Election Court dated March 1, 2018 including the final orders was set aside in its entirety.
  3. The Election Petition No. 1 of 2017 was dismissed with costs to the Appellant to be paid by the 1st Respondent.
  4. The 2nd Respondent’s cross-appeal was allowed with costs to be paid by the 1st Respondent. 
  5. The 1st Respondent’s cross-appeal and notice of affirming the decision were dismissed with costs to the Appellant to be paid by the 1st Respondent.
  6. A declaration was issued to the effect that the Appellant was validly elected as member of National Assembly for Nandi Hills Constituency in the election held on August 8, 2017.
  7. The declaration by the 2nd Respondent that the Appellant was validly elected was upheld.
JURISDICTION High Court declines to grant orders to suspend the implementation of some provisions of the Machakos Finance Act 2017.

Simeon Kioko Kitheka & 18 others v County Government of Machakos & 2 others
Petition No 9 of 2018
High Court at Machakos
G V Odunga, J
July 9, 2018
Reported by Beryl A Ikamari

Download the Decision

Jurisdiction-jurisdiction of the High Court-jurisdiction to interpret the Constitution-whether the High Court had jurisdiction to determine whether the Machakos Finance Act 2017 was unconstitutional on grounds that there was no public participation in the process leading to its enactment-Constitution of Kenya 2010, articles 1, 2 & 165(3)(d).
Constitutional Law-constitutional petition-remedies-conservatory orders-circumstances under which the High Court would grant conservatory orders-whether such orders would be granted where applicants failed to plead that they faced imminent danger or would suffer prejudice if the orders were not granted-Constitution of Kenya 2010, articles 22, 23(2)(c)  & 19(3)(b).

Brief Facts:
The Petitioners included officials of the Kenya National Chamber of Commerce and Industry (Machakos Branch) and SACCOs involved in the harvesting and transportation of sand within Machakos County respectively. The County Assembly of Machakos, the 2nd Respondent, enacted the Machakos Finance Act 2017 which provided for a Sand Harvesting/Transportation Cess. The Petitioners' grievance was that there was no public participation or stakeholder consultation before the statute which levied exorbitant fees was enacted. The Petitioners said that public participation as a constitutional requirement in the legislative process was also based on the doctrines of reasonableness and legitimate expectation.
The Petitioners sought conservatory orders to suspend the imposition of increased levies, taxes and other licensing fees levied by the County Government of Machakos on sand harvesting and transport under the Machakos Finance Act 2017.
The 1st Respondent contested the allegation on want of public participation in the enactment of the impugned Machakos Finance Act. The County Government also stated that the affidavit filed in support of both the petition and the application in which conservatory orders were sought was defective as it was sworn by a person who was not party to the proceedings. Further, the 1st Respondent stated that the conservatory orders sought could not be granted as the Petitioners did not specify which provisions were to be suspended out of the various provisions in the statute.  The 1st Respondent also complained that the Petitioners did not clearly draft their pleadings and the nature of prayers sought was not clear.

Issues:

  1. Whether the High Court had jurisdiction over a claim in which the constitutionality of a statute was questioned on grounds of failure to facilitate public participation in the process leading to its enactment.
  2. When would the Court grant conservatory orders in a constitutional petition? Read More...

Held:

  1. Jurisdiction is everything and without it a court has no power to make one more step. Without jurisdiction, the Court had no power but to lay down its tools.
  2. The people’s sovereign power, as provided for in article 1 of the Constitution, is vested in the Executive, Legislature and Judiciary. The broad principle of separation of powers, certainly, incorporates a scheme of checks and balances; but the principle is not to be applied in theoretical purity for its ultimate object is good governance, which involves phases of co-operation and collaboration, in a proper case. The spirit and vision behind separation of powers is to have checks and balances so that no single person or institution has a monopoly of all powers.
  3. The system of checks and balances served the cause of accountability and it was a two-way motion between different State organs and among bodies which exercise public power. The commissions and independent offices restrained the arms of Government and other State organs, and vice versa.
  4. Under article 165(3)(d)(i) and (ii) the High Court had the jurisdiction to hear any question with respect to the interpretation of the Constitution. Whereas Parliament and County Assemblies had legislative authority to make enactments, where an enactment was said to be inconsistent with or in contravention of the Constitution, the High Court was constitutionally empowered to make a determination on that issue. That was in recognition of the fact that the Legislature could not take action which did not conform to the Constitution. Under article 2 of the Constitution, it was provided that the Constitution was the supreme law and it bound all persons and State organs and no person could claim to exercise State authority except as authorised under the Constitution.
  5. Under article 165(3) of the Constitution, the High Court had the duty and obligation to intervene in actions of arms of Government and State organs where it was alleged or demonstrated that the Constitution had either been violated or threatened with violation. In the petition, the High Court was invited to make such a determination and it had the jurisdiction to do so.
  6. In dealing with an issue concerning the constitutionality of a statute, the presumption of constitutionality of statutes was applicable. Until the contrary is proved, a statute is presumed to be constitutional.
  7. The power to suspend legislation during peacetime ought to be exercised with care, prudence and judicious wisdom, where it was shown that the operation of the legislative provisions were a danger to life and limb or where there was imminent danger to the Bill of rights and where national interest demanded it and the situation was certain. Where there were strong and cogent reasons to do so, conservatory orders would be granted to suspend the operation of certain provisions of a statute.
  8. Article 2 of the Constitution allowed for the recall of any law, including customary law that was inconsistent with the Constitution, or any act or omission in contravention of the Constitution for the purposes of being voided and or invalidated.  The Court had power to declare an enactment void and invalid and it had jurisdiction, in deserving cases, to suspend provisions of an enactment if it would otherwise render the decision that the Court would ultimately arrive at a mirage.
  9. For the Court to grant conservatory orders certain factors have to be in existence. First, the Applicant had to establish a prima facie case with a likelihood of success. The prima facie case made out was that the impugned legislation was enacted without public participation and the precedent from the courts showed that statutes enacted in such a manner had been nullified. With respect to precision in drafting pleadings, as long as the Court was able to glean from the pleadings the substance of what was being complained of, the Court would not dismiss the petition for lack of precision.
  10. A prima facie case was not one that must succeed at the hearing of the main case but it would have to be one that was not frivolous. The Applicant had to show arguable issues and in the instant case, arguable constitutional issues. Considering the issues it raised, the petition disclosed prima facie arguable issues for trial and it could not be said to the wholly frivolous or unarguable.
  11. The second requirement for the grant of conservatory orders was for the Petitioner to satisfy the provisions of article 23(3)(c) of the Constitution. Article 23(3)(c) of the Constitution provided that in any proceedings brought under article 22, a court may grant appropriate relief, including a conservatory order. Proceedings under article 22 of the Constitution dealt with the enforcement of the Bill of Rights. Therefore, a strict interpretation of article 23(3)(c) showed that the reliefs specified thereunder were only available where a party was alleging that a right or fundamental freedom in the Bill of Rights has been denied, violated or infringed, or was threatened.
  12. In order to seek conservatory orders under article 23(2)(c) of the Constitution, a party had to place himself or herself within the terms of article 22 of the Constitution by pleading that his or her right or fundamental freedom in the Bill of Rights had been denied, violated or infringed or was threatened.
  13. Under article 19(3)(b) of the Constitution, rights and fundamental freedoms were not restricted to those expressly set out in the Bill of Rights. There was a right for the public to participate either individually or collectively on the process of legislative enactment and the denial of that opportunity may result in the violation of rights.
  14. Whereas under article 258(1) of the Constitution, every person had a right to institute court proceedings, claiming that the Constitution had been contravened or was threatened with contravention, the institution of such proceedings would not automatically entitle that person to the grant of conservatory orders. Such a person was required to show how the refusal to grant the orders was likely to be prejudicial to him or her.
  15. In determining whether or not to grant conservatory orders, the Court would consider the principle of proportionality. The Court would consider the nature of competing claims and how to balance them.
  16. The Party seeking conservatory orders had to demonstrate that unless the orders were granted, there was real danger that he would suffer prejudice as a result of the violation or threatened violation of the Constitution. The person seeking to suspend the operationalisation of a statute or part of it had to show that there was danger which was imminent and evident, true, actual and not fictitious and the danger deserved immediate remedial attention or redress by the Court. A remote danger would not do. The Applicant had to show that there was probability as opposed to mere possibility of the danger occurring and it was real and imminent.
  17. The affidavit which accompanied the application did not make assertions as to the existence of imminent danger. The Petitioners showed that they had a case which merited further investigation but there was no evidence tendered to show the prejudice or danger that the Applicants would face in the event that the impugned legislation was implemented. They did not show that the implementation of the new charges and fees would have the effect of driving them out of business and infringe on their rights as provided for in article 43 of the Constitution. Such an assertion could not be made through submissions, it had to be pleaded.
  18. Given that the Applicants failed to plead that they faced imminent, evident, true and actual danger as a result of the violation or threatened violation of the Constitution, the Applicants did not meet the test for the grant of conservatory orders. Granting conservatory orders under the circumstances would be disproportionate to the mischief sought to be cured by such orders. It was not necessarily the case that where the existence of a prima facie case was established, conservatory orders would issue as a matter of course.

Application dismissed.

LAND LAW A suit instituted by a person claiming land under a contractual claim does not stop the running of time in an adverse possession claim over the same land

James Maina Kinya v Gerald Kwendaka [2018] eKLR
E.L.C No. 323 of 2017(OS)
Environment and Land Court at Murang’a
J G Kemei, J
May 31, 2018.
Reported by Kakai Toili

Download the Decision

Land Law- adverse possession - adverse possession claims – calculation of time in adverse possession claims – where a claimant of adverse possession filed a suit seeking right of ownership pursuant to a contractual claim – whether a suit instituted by a person claiming land under a contractual claim stopped the running of time in an adverse possession claim - Limitation of Actions Act
Land Law- adverse possession - adverse possession claims – calculation of time in adverse possession claims – where a claimant of adverse possession filed a suit seeking right of ownership pursuant to a contractual claim and obtained a judgment in his favour - whether existence of a judgment in favour of a person claiming land under a contractual claim stopped the running of time in an adverse possession claim
Land Law- adverse possession - doctrine of adverse possession - acquisition of land through adverse possession – proof of adverse possession - what were the factors required to prove acquisition of land through adverse possession

Brief facts:
The Defendant sold the suit property to the Plaintiff in and on taking possession, he developed the land extensively however the Defendant refused to transfer the suit property to him whereupon he filed a suit in 1988(1988 suit). The matter was determined in favour of the Plaintiff through an Arbitral Committee and the award/decision adopted by the Court by way of its Judgment (the Judgment). An Order authorizing the Deputy Registrar to execute the documents in favour of the Plaintiff was not executed and the same became statute barred 12 years after the date of the Judgment hence the instant Application by the Plaintiff  seeking title by adverse possession.

Issues:

  1. What were the factors required to prove acquisition of land through adverse possession?
  2. Whether a suit instituted by a person claiming land under a contractual claim stopped the running of time in an adverse possession claim.
  3. Whether existence of a judgment in favour of a person claiming land under a contractual claim stopped the running of time in an adverse possession claim. Read More..

Relevant Provisions of the Law:
Limitation of Actions Act
Section 4 (4)
An action may not be brought upon a judgment after the end of twelve years from the date on which the judgment was delivered, or (where the judgment or a subsequent Order directs any payment of money or the delivery of any property to be made at a certain date or at recurring periods) the date of the default in making the payment or delivery in question, and no arrears of interest in respect of a judgment debt may be recovered after the expiration of six years from the date on which the interest became due.

Civil Procedure Act
Section 7
No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court.

Held:

  1. The instant suit though seeking ownership was based on limitation (adverse possession). The Plaintiff in both suits was pursuing a right of ownership with the divergence being the issues of specific performance pursuant to a contractual claim in the 1988 suit and while the instant suit was based on a legal claim. The causes of action in both cases were different and there was no bar to the jurisdiction of the Court in determining the matter before it.
  2. The 1988 judgment remained unexecuted for over 12 years and by 2008 it expired by dint of section 4(4) of Limitation of Actions Act. Section 4(4) of the Limitation of Actions Act covered both execution of judgment and during all those periods the Plaintiff continued in uninterrupted occupation.
  3. It was on record that the Arbitral Committee determined that the Plaintiff developed the suit property. The Defendant’s averments were directly inconsistent with the findings of the Arbitral Committee. It was however clear that possession was given to the Plaintiff. That was the basis of the Plaintiffs claim in the suit. It was also manifestly clear that the Defendant had knowledge of the Judgment which he claimed to have been fraudulently obtained. However, no evidence was tendered by the Defendant to support that averment. There was no evidence that the Judgment was appealed against or set aside or stayed whilst it was in force. The proceedings of the Arbitral Committee were however on record, the Defendant chose not to controvert the evidence presented by the Plaintiff at the hearing or respond to the claim of the Plaintiff in any substance.
  4. The Plaintiff’s claim was based on adverse possession. The Limitations of Action Act did not define adverse possession. It commenced in wrong and was aimed against a right of the true owner. The person alleging a right of title on adverse possession had to show by clear and unequivocal evidence that his possession was not permissible, open, with the knowledge of the true owner and excluded the true owner from the enjoyment of his property.
  5. To prove title by adverse possession, it was not sufficient to show that some acts of adverse possession had been committed. It was also to prove that possession claimed was adequate, in continuity, in publicity and in extent and that it was adverse to the registered owner. In law, possession was a matter of fact depending on all circumstances. In the instant case the Plaintiff was put in possession in 1983 when he completed payment of purchase price. It therefore followed that time started running for purpose of limitation from 1983 when he was granted possession on payment of the purchase price.
  6. Once time began to run for purposes of adverse possession it would continue to do so unless the true owner brought an action to recover the disputed land. The action had to be brought to recover the disputed land. The true owner had to seek to retake possession or specifically raise the claimant’s right to possession. In the instant case, the suit filed by the Plaintiff in 1988 was for specific performance asserting title pursuant to a contract of sale. It was met by the Defendant denying the sale of the property to the Plaintiff. Time stopped running the moment a suit was filed by the title owner. In the instant case time would have stopped running had the Defendant filed an independent suit or a counterclaim in the suit of the Plaintiff. He did not so. In the circumstances therefore, time ran continuously notwithstanding the suit of the Plaintiff.
  7. In the instant case the Defendant did not attend court and tender any evidence to show when the Plaintiff was expected to have fully recovered Kshs. 70,000/- upon which the Defendant’s permission for the Plaintiff’s occupation of the suit premises would have ceased. The evidence of the Plaintiff was consistent in that he asserted that he purchased the land took possession and his occupation had not been disturbed by the Defendant by laying a claim in respect thereof.
  8. The nature of rights conferred by the Judgment was in respect to a contractual agreement conferred by contract. In effect the Plaintiff enjoyed both court sanctioned determination as to substantive rights in addition to the possessory rights under the realm of adverse possession during the subsistence of the judgment. Adverse possession that commenced in 1983 lay inert and was not displaced during the subsistence of the judgment.
  9. The open continuous and hostile occupation had not been broken from 1983, a period in excess of 12 years. It had been admitted by the Defendant that the Plaintiff collected rent from the property and had excluded him from possession. That demonstrated exclusive control of the suit property by the Plaintiff which was an essential ingredient in establishing adverse possession.
  10. In the instant case, the 1988 suit did not stop time from running for purposes of adverse possession in favour of the Plaintiff, even the impugned judgment which was delivered on May 7, 1996 and expired on May 7, 2008 did not stop time from running for purposes of adverse possession. Both the suit and the impugned judgment were not consequent or pursuant to any action by the Defendant asserting owners interest in the suit land. In any event that judgment lapsed by operation of law.

Application allowed, each party to bear own costs.

CIVIL PRACTICE AND PROCEDURE Court grants stay of execution of the judgment nullifying the Machakos gubernatorial elections pending hearing and determination of an appeal challenging the said judgment

Alfred Nganga Mutua v Independent Electoral and Boundaries Commission & 3 others [2018] eKLR
Civil Application No. 13 of 2018
Supreme Court of Kenya
D K Maraga, CJ; P M Mwilu, DCJ; M K Ibrahim, J B Ojwang, & N Njoki, SCJJ
June 26, 2018
Reported by Kakai Toili

Download the Decision

Civil Practice and Procedure – orders – stay of orders – where an applicant sought stay of a judgment nullifying his election - whether the Applicant was entitled to a stay of execution of the judgment nullifying the Machakos gubernatorial elections pending hearing and determination of an appeal challenging the said judgment

Brief facts:
The Applicant filed the instant Application seeking orders that a stay of execution against the Judgment and Decree delivered on June 8, 2018, that the 1st Respondent be restrained from certifying the gubernatorial seat of Machakos County vacant pending the hearing and determination of the Appeal, that the Speaker of the County Assembly of Machakos be restrained from assuming office as the Governor of Machakos County pending the hearing and determination of the appeal and that the 1st Respondent be restrained from announcing or conducting gubernatorial elections in Machakos County pending the hearing and determination of the appeal among other orders.

Issue:

  1. Whether the Applicant was entitled to a stay of execution of the judgment nullifying the Machakos gubernatorial elections pending hearing and determination of an appeal challenging the said judgment.Read More..

Held:

  1. The subsequent determination of the case by the Court, had to not be prejudiced to uphold the authority of the Court and to secure ends of justice.

Application allowed

  1. A stay of execution issued against the Judgment and Decree of June 8, 2018 pending the hearing and determination of the case.
  2. A conservatory order issued restraining the 1st Respondent from certifying the gubernatorial seat of Machakos County vacant pending the hearing and determination of the appeal.
  3. A conservatory order issued against the Speaker of the County Assembly of Machakos County, from assuming the office of Governor of that County, pending the hearing and determination of the appeal.
  4. A conservatory order issued restraining the 1st Respondent from announcing or conducting gubernatorial elections in Machakos County pending the hearing and determination of the appeal.
  5. Costs of the Application to abide the disposal of the main cause.

Long'et Terer - CEO and Editor

e: editor@kenyalaw.org

t: @LongetTerer

The Kenya Law Team

Where Legal Information is Public Knowledge.

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