Weekly Newsletter 033/2018

Weekly Newsletter 033/2018



Kenya Law

Weekly Newsletter


A person asserting well-knowness of a trademark bears the responsibility of submitting information (evidence) in respect to factors from which the competent authority may infer that the mark was indeed well known.
Sony Corporation V. Sony Holding Limited
Civil Appeal No.376 Of 2015
High Court at Nairobi
May 29, 2018
F. Tuiyott, J
Reported by Robai Nasike & Safiya Awil
Download the Decision
 
Intellectual Property Law-trademarks-registration and protection of trademarks- similarities in the registration of marks -whether the Appellants’ trademark was a well-known mark in Kenya and therefore deserving protection under trademarks Act-Trademark Act, section 15.
Intellectual property-trademark-infringement- passing off-circumstances where an action amounts to passing off- whether registration of two Trademarks that were similar was likely to deceive or cause confusion- Trademark Act, section 14.
Evidence Law- judicial notice -facts requiring no proof- circumstances when the Court will consider matters which evidence had not been submitted-matters of general or local notoriety- Whether the Court could draw an inference from its perception or personal inclination where the Appellant had failed to submit evidence-Evidence Act, section 60
 
Brief Facts:
The Respondent sought to register its name Sony Holdings Limited as a trademark. It filed two Applications for trademarks registration. TMA No.0065981 Sony holdings (words and device) and TMA No.0065902 Sony Holdings (word mark).  As required by the Trademark Act, the marks were advertised in the industrial property journal and the Appellant filed a notice of opposition against the registration of the marks on the basis that, inter alia, it was the registered proprietor of existing Trademarks in clauses 9,35,36,37,39,40,41, and 42.
After hearing the parties, the Assistant Registrar dismissed the opposition proceedings with costs and allowed the Respondent marks to proceed for registration. Being dissatisfied with that decision, the Appellant filed appeal to the instant Court against the decision of the Registrar of Trademarks.
 
Issues:
  1. Whether the Appellants’ trademark was a well Known mark in Kenya and therefore deserving protection under the provisions of section 15A of the trademark Act?
  2. Whether the value associated with a trademark was a factor that needed to be taken into account in reaching a decision that the existing trademark was well-known?
  3. Whether the Respondents’ marks “Sony holdings” (words &device) and “Sony holdings” (word) being so similar to the Appellant’s’ trademark “Sony” (word &device) was in contravention of the provisions of sections 14 of the trademark Act?
  4. Whether the Respondent had a valid and legal claim to the trade mark case “Sony holdings” (word & device) and “Sony holdings” (words) before applying to register the marks as provided for under section 20(1) of the Trademarks Act?
  5. Whether the goods or description of goods or services for the Respondent’s Mark was in respect to the same goods or description of goods or services for the Appellant’s mark and were likely to deceive or cause confusion?
  6. What factors ought to be taken into account in determining the Honest Concurrent use of two Trade Marks?
  7. Whether registration of two trademarks that were similar in appearance and suggestion offended section 15(1) of the Trade Mark Act?
  8. Whether the inaction of the Appellant over the years to enforce their trademark in Kenya extinguished their claim of infringement.
  9. Whether the Court could draw an inference from its perception or personal inclination where the Appellant had failed to submit evidence to the well-knowness of the trademark Sony?
 
Relevant Provisions of the law:
The Trade Marks Act
Section 21 (6), (7), (8), (9), (10)
(6) The decision of the Registrar shall be subject to appeal to the court.
(7) An appeal under this section shall be made in the prescribed manner, and on the appeal the court shall, if required, hear the parties and the Registrar, and shall make an order determining whether, and subject to what conditions or limitations, if any, registration is to be permitted.
(8) On the hearing of an appeal under this section any party may, either in the manner prescribed or by special leave of the court, bring forward further material for the consideration of the court.
(9) On an appeal under this section no further grounds of objection to the registration of a trade mark shall be allowed to be taken by the opponent or the Registrar, other than those so stated by the opponent, except by leave of the court; and, where any further grounds of objection are taken, the applicant shall be entitled to withdraw his application without payment of the costs of the opponent on giving notice as prescribed.
(10) On an appeal under this section the court may, after hearing the Registrar, permit the trade mark proposed to be registered to be modified in any manner not substantially affecting the identity thereof, but in any such case the trade mark as so modified shall be advertised in the prescribed manner before being registered”.

 
Section 20(1) of the Trademark Act

1.  “(1) A person claiming to be the proprietor of a trade mark used or proposed to be used by him who is desirous of registering it shall apply in writing to the Registrar in the prescribed manner for registration either in Part A or in Part B of the register”.

The Evidence Act
Section 60 of Facts of which court shall take judicial notice

(1)  The courts shall take judicial notice of the following facts—

(o)   All matters of general or local notoriety;

Held:
  1. Section 21 of the trademarks Act conferred the High Court the jurisdiction to entertain and determine an appeal from the decision of the Registrar in respect to an opposition to registration of a trademark whilst section 52 of the Act conferred the High Court discretionary powers as that of the Registrar.
  2. The Registrar of trademarks was a specialized quasi-Judicial Tribunal and so the Courts discretionary jurisdiction might be circumscribed so that some deference was given to the decision of the Tribunal. One object of setting up specialized tribunals was that they will be constituted by persons who have technical competence in their areas and a good appreciation of matters that came before them. Ordinarily therefore, short of a compelling cause, their appreciation of a dispute ought to be respected.
  3. The appellate Court could only fault the Registrars’ decision if it was demonstrated that the decision was wrong in a material way or that the exercise of discretion was so unreasonable that no reasonable Tribunal could have arrived at that decision.The Appeal was not in the nature of a rehearing where the facts had to be re-evaluated in the detail and manner of a Trial Jurisdiction.
  4. Kenya was a signatory to the Paris Convention (1967) which offered certain protection to trademarks and in the absence of section 15A (1), a Foreign owner of a well-known “trade mark” would have to rely on the common law of passing off for protection. The protection offered by the law of passing off was limited because of the requirement that the owner of the mark had to establish goodwill in the Country.
  5. As a general proposition one characteristic of goodwill was the attribute of locality, for that reason the owner of a well-known trade mark who did not carry out business nor had no goodwill in Kenya was unlikely to succeed in an action for protection. The object of section 15(A) was to provide an effective protection of the owner of well-known trademarks who was yet to have a business or goodwill in Kenya.
  6. The Appellant submitted that In a bid to prove the Duration, extent and geographical area of the use of the Mark Sony the Appellant submitted evidence to the effect that it had concluded a contract for Partnership with Fifa, and had also sponsored other global event. Therefore, there was an assumption that those events were accessed by millions of Kenyans through free to Air TV.  That could have been so but in order for the Registrar to apply her quasi-judicial mind, some evidence needed to have been placed before her to show that indeed some Kenyans had accessed those events. In the alternative, the Appellant needed to invite the Assistant Registrar and the High Court to find that the fact of access was of such general or local notoriety that it was to be accepted as a fact by dint of the provisions on judicial notice set out in section 60 of the Evidence Act.
  7. As there was no such invitation, and therefore an opportunity for a reaction from the Respondents, the contention required proof. It was not enough for the Appellant to ride on the evidence that theas proof that global use of the mark ‘Sony’ inevitably extended to Kenya. Some evidence in respect to Kenya needed to be adduced.
  8. The Assistant Registrar committed an error when addressing the assertion that, in addition to registrations in Kenya, the Appellant’s Trade Marks had, for over half a century, been registered and remained in force in about 200 Countries and Territories throughout the world. That information could easily have been verified by the Assistant Registrar given her capacity to do so as the competent authority. It was improper for the Assistant Registrar to find that the Appellant ought to have produced the foreign Registration Certificates when the Respondent had not objected to the existence of any of the Appellant’s Global Registration from the list provided by the Appellant.
  9. Because of the strictures of the Law of Evidence, a Court of law would require a party who asserted to prove any matter that was not admitted.If the issue of the foreign registration certificates was a matter before an ordinary Court then, the Appellant ought to provide proof of those certificates because the Respondent had not expressly admitted to their existence. That was because the Appellant who had asserted the existence of those Registrations had the duty of proving it.
  10. The Assistant Registrar constituted a specialized tribunal and exercised a quasi-judicial mandate.Where a matter was not contested and it was convenient and inexpensive, for the Assistant Registrar to verify it, then he/she should do so. In the opposition proceedings it was granted that while the Respondent had not expressly admitted the existence of the Certificates it did not object.It would seem that the issue of global certificates was therefore not controversial and it could not have been disagreeable for the Assistant Registrar to verify their existence.
  11. The Appellant had not demonstrated to the Court that the verification was within the easy and inexpensive reach of the Assistant Registrar. Had that been done then the Court would have found that the Assistant Registrar was under a duty to carry out some self-verification. The Appellant could not pass its failure to provide succinct proof of the existence of the certificates to the Assistant Registrar.Yet still even if the Court were to find that Sony indeed enjoyed global registrations of trademarks, that was not sufficient to establish well knowness in Kenya.
  12. Sponsorship of global events where a trademark was prominently displayed was an actual promotion of a trademark at the global theatre.However, the Appellant had not proved that Kenyans had accessed the Global events. Some pointed evidence like disposition of some of the people who had accessed the global events was desirable. The Appellants could not therefore place reliance on global sponsorship to support its case that there was promotion of the Trade Mark in Kenya.
  13. The Assistant Registrar’s finding that the evidence adduced by the Appellant was not sufficient to indicate that the Trade Mark had been promoted and advertised in such proportions that would render the Trade mark ‘Sony’ to be deemed to be a well-known Mark in Kenya could not be faulted.
  14. The Appellant’s statutory declaration set out the various products available for sale in Kenya.But, there was no specific evidence to back that Statement and it remained an assertion. On the volume of sales, the Appellant produced an Annual Report 2012 which had a table of the Total Sales (in revenue) and distribution by geographic region for the year 2009. The geographic regions specifically mentioned were Japan, United States and Europe.No specific information in respect to the Sales in Kenya was given. The Assistant Registrar could not be faulted for stating that the Appellant had not submitted any evidence on degree of knowledge or recognition of the Mark by the relevant sector in Kenya.
  15. The opposition proceedings that ended in the Instant Appeal were the first attempt by the Appellant to enforce the Trade mark ‘Sony’. In the impugned decision, the Assistant Registrar set out the Trade Marks already entered in the Register which the Respondent argued comprised of the Element ‘Sony’ or Trademarks that were similar to the Trademark “Sony”. Yet the Respondent had not established that those Trade Marks could be said to have infringed on the Appellant’s mark ‘Sony’.
  16. For instance, the trade mark No.799973 owned by South Nyanza Sugar Company was “Sony Sugar simply the Best” (words and device) and was in respect to Sugar and Sugar cane.There was no allegation that the Appellant dealt with sugar and sugar cane and it was not argued with any conviction that the trade mark infringed the Appellant’s mark “Sony”. The history of successful enforcement of the rights in the Mark in Kenya was not a relevant factor in the circumstances of the instant case as it was not successfully demonstrated that the other existing marks had infringed on the Appellant’s marks and that the Appellant had been complacent.
  17. The Appellant had submitted during the hearing of the opposition proceedings that the value associated with its trademark was a factor that needed to be taken into account in reaching a decision that its existing trademark was well-known. The Assistant Registrar however did not consider that specifically in making her determination. That appeared to be a failure because the Registrar had made a finding on the basis of a ranking carried out by Interbrand and Harris Interactive, the trademark was internationally recognized as a top ranking brand in terms of sales revenue and a leader in the manufacture of electronic goods.That value of trademark was a significant feature of the trademark and was a factor that should have been taken into account in considering whether the trademark was indeed well known.
  18. The value associated with the mark could not on its own be a decisive factor that was a factor to be taken into account with the other relevant factors identified in the preceding parts of the decision. Having failed to establish that the other factors were on its side, the value of the Trademark alone could not have tilted the decision of the Assistant Registrar in favor of the Appellant.
  19. The conclusion by the Assistant Registrar and the instant Court that the Appellant had failed to prove that “Sony” was a well-known trademark in Kenya could be a shock to many. However, in the absence of proof presented by the parties or matters which the Court could take judicial notice, the Assistant Registrar and the instant Court could not draw a conclusion from its own personal perception.
  20. The factors for consideration in determining whether a mark was a well-known mark were clearly spelt out and known.A person asserting well-knowness of a mark bore the responsibility of submitting information (evidence) in respect to factors from which the competent authority might infer that the Mark was indeed well known. That was not left to the perception or personal inclination of the competent authority.
  21. The Assistant Registrar made a finding that in appearance and suggestion, the marks of the parties were similar having held that the word “Holding” in the mark of the Respondent did not aid in distinguishing the Respondent’s Trademark and that in both Trademarks the element “Sony” was the dominant one. Due to that finding the Appellants opposition might as well have been an open and shut case if it had proved that the Trademark was well-known.Even the argument by the Respondent that there was a substantial difference between the products and services of the two disputants would have in all probability crumbled.
  22. It would have been inimical to the spirit of trademark laws to protect a person who deliberately set out to benefit from the reputation of a well-known Trademark with reference to goods, even those not associated with the owner of the well-known Trademark.
  23. Generally, nothing prevented the use of similar or identical Trade Marks by different proprietors provided that the respective goods or services were of a different description.The only property in a Trade mark was the business or Trade in connection with which the Trademark was used. It was a common fact that the Appellant was the owner of the Trade Mark ‘Sony for classes 9, 35,36,37,38,39,40,41 and 42 while Respondent had filed Marks in classes 12,16,25,35,36,37,39 and 45.Therefore, there was an overlap in classes 35, 36, 37 and 39. What was critical was that because of that state of affairs there was actual confusion or likelihood of confusion.
  24. Having come to the Decision that the two Trade Marks were similar in appearance and suggestion, Registration of the Marks in classes 35, 36, 37 and 39 in favor of the Respondent would have offended the provisions of section 15(1) of the Act because they covered services identical to the services covered by the Appellant’s Trade Mark registrations in the same classes unless there was honest concurrent use or some special circumstances that would permit their registration (section 15(2)).Necessarily the Court had to examine whether those four classes deserved the exemption of section 15(2).
  25. In respect to the other classes, the Assistant Registrar found that the goods and services of the two protagonists were not of similar description. One was for services related to Electronic goods and the other to Real Estate Development and management.The Assistant Registrar concluded that the goods and services of the parties could not be offered for sale in the same channels of Trade. It was not demonstrated that the conclusion reached was erroneous.
  26. A notional consumer could differ from one market or channel of trade with another and more so when the dissimilarity in the services and goods were profound.The Registrar found that the Applicants dealt with Real Estate Development and Management Services which were almost a once in a life time expenditure that could not be incurred by unusually stupid people, fools or idiots, or morons in a hurry. In respect to the Applicant the Registrar found the Goods were bought with deliberation and care.Those findings were neither criticized nor faulted.Hence, the notional consumer for both parties was sufficiently discerning and was unlikely to be confused by the similarity of Marks.
  27. It was plain that, in addition to testing the impugned Marks against the prohibition of section 15(1), the Assistant Registrar discussed whether the marks were likely to deceive or cause confusion. When she did so she was considering the Appellant’s objection from the lens of section 14. In the end, however the instant Court was unable to agree with the decision in respect to Marks in classes 35, 36, 37 and 39.
  28. The Court could not agree with the sentiment that, for purposes of section 20(1), the Applicant had to prove reputation and goodwill so as to establish proprietorship. Section 20(1) itself envisaged that the Applicant was a proprietor of a Mark which was either used or which was proposed to be used. It was not easy to see how an unused Mark would have reputation or goodwill. But in contrast, if an opponent showed that it enjoyed existing reputation in the Mark applied for in relation to the relevant goods and services, the Applicant could not successfully assert proprietorship of the Mark for the relevant goods and services for purposes of section 20(1) of the Act.
  29. The Appellant was the Proprietor of some registered Trade Marks and by virtue thereof would enjoy proprietorship rights in the Trade Mark ‘Sony’ in Kenya. The Appellant found support in section 7(i) of the Act. However, from the vantage of the opposing party what was critical was that the proprietorship was in respect to the goods and services for which those Trade Marks were registered and in which it enjoyed a reputation. The Appellant had not claimed to have Trade Marks or reputation in respect to services related to Real Estate Development and Management which was the mainstay of the Respondent.
  30. For purposes of section 20(1) a proprietorship Right in a Mark sought to be registered could be obtained in many different ways. It was common ground that the Respondent’s Mark ‘Sony Holding’ was comprised in the name of the Respondent since its incorporation in 2003. It seemed a fair and reasonable deduction that the Respondent had had ownership in that Mark in relation to the services it offered over the years and certainly at the point of application. That could however not cover the Marks in classes 35, 36, 37 and 39 in which the Appellant was already registered.
  31. The concept of honest concurrent use was legislated in section 15(2) of the Act. There were factors that had to be taken into account in determining Honest Concurrent use of two Trade Marks. They include:
    1. The extent of use in time and quantity and area of trade;
    2. The degree of confusion likely to ensue from the resemblance of the marks, which is, to a large extent, indicative of the measure of public inconvenience;
    3. The honesty of the concurrent use;
    4. Whether any instances of confusion have been proved;
    5. The relative inconvenience which would be caused if the mark in suit was registered, subject in necessary to any conditions and limitations.
  32. The Assistant Registrar made a finding that the Respondents had enjoyed an honest concurrent use in respect to Trade Marks of the Appellant and the Appellant had not raised an issue with the use and that amounted to acquiescence on its part. The evidence produced was far too tenuous to show concurrent use and the correctness of the Assistant Registrar’s Decision that User, let alone, Honest user had been established was doubtful. If there was no User, then acquiescence could not arise.
Appeal partly allowed
Orders
  1. The Decision of the Assistant Registrar of Trade Marks dated June 5, 2015 under classes 35, 36, 37 and 39 set aside.
  2. The Marks under classes 35, 36, 37 and 39 were not to proceed to Registration.
  3. Each party to bears its own costs in the Appeal.
Kenya Law
Case Updates Issue 033/2018
Case Summaries

APPEALS Seeking of extension of time to file a notice of appeal after one year and three months amounts to inordinate delay

Chairman, Kenya National Union of Teachers & another v Henry Inyangala & 2 others [2018] eKLR
Civil Application No. 7 of 2017
Supreme Court of Kenya
P M Mwilu, DCJ; J B Ojwang, S C Wanjala, N S Njoki & I Lenaola, SCJJ
April 13, 2018
Reported by Kakai Toili

Download the Decision

Appeals – institution of appeals - Notice of Appeals – filing of a Notice of Appeal – time within which to file a Notice of Appeal – extension of time to file a Notice of Appeal – where an applicant sought extension after one year and three months – whether seeking extension of time to file a Notice of Appeal after one year and three months amounted to inordinate delay

Brief facts:
The Applicant filed the instant Application seeking extension of time to file a notice of appeal. The Applicant contended that the delay in filing the Notice of Appeal was inadvertent and was occasioned by the fact that the Deponent to the Affidavit in support of the Application and the management of the Kakamega KNUT Executive Committee were unaware of the delivery of the judgment in Civil Appeal No.54 of 2014 by the Court of Appeal and that when they became aware of it, they erroneously filed an application for extension of time to appeal before the Court of Appeal instead of the Court.

Issue:

  1. Whether seeking extension of time to file a notice of appeal after one year and three months amounted to inordinate delay.Read More..

Held:

  1. The explanation given by the Applicant was unsatisfactory and unreasonable. The delay of 1 year and 3 months was inordinate and the Applicants are guilty of laches. The Application did not meet the expectations and principles laid down by the Court on extension of time.

Application dismissed, Applicants to pay the costs of the Application.

JURISDICTION Magistrates Courts have jurisdiction to hear and determine applications for revocation or annulment of grants in succession matters, subject to their pecuniary jurisdiction.

Turfena Anyango Owuor & another v Mary Akinyi Dengo
Misc Succession Appln 18 of 2018
High Court at Migori
A C Mrima, J
July 12, 2018
Reported by Beryl A Ikamari

Download the Decision

Jurisdiction-jurisdiction of Magistrates Courts-applications for annulment or revocation of grants in succession matters-extent of the jurisdiction of Magistrates' Courts in succession matters-whether Magistrates Court could hear and determine applications for annulment or revocation of grants-Law of Succession Act (Cap 160), section 48(1); Magistrates' Courts Act (Cap 10), section 23; Probate and Administrations Rules, 1980, rule 44.

Brief Facts:
A grant of letters of administration was issued in Migori Senior Resident Magistrate’s Court Succession Cause No. 20 of 2002 and it was thereafter confirmed in the year 2004. In 2016, in Migori High Court Misc. Succession Cause No. 36 of 2016, two Interested Parties filed for a revocation of the grant. The High Court transferred the application for revocation to the Chief Magistrates’ Court at Migori for hearing and determination.
At the Chief Magistrates’ Court the Applicant's counsel stated that the Court lacked jurisdiction over revocation applications as they were the exclusive preserve of the High Court. The Court made an order for a new cause to be placed before the High Court in order to determine the issue on revocation. At the High Court the issue on the jurisdiction of the Magistrates' Courts to hear and determine applications on revocation of grants arose.

Issue:

  1. Whether Magistrates' Courts had jurisdiction to hear and determine applications for revocation or annulment of grant in succession matters. Read More...

Held:

  1. Initially section 48 of the Law of Succession Act provided for the jurisdiction of Magistrates' Courts in succession matters. The said section 48 provided that a Resident Magistrate had jurisdiction to entertain any application other than an application under section 76 of the Law of Succession Act. Section 76 of the Law of Succession Act dealt with revocation or annulment of grant.
  2. In 2015 section 48(1) of the Law of Succession Act was amended by the enactment of the Magistrates’ Court Act. It expressly repealed section 48(1) of the Law of Succession Act and substituted it with a new provision. Section 23 of the Magistrates' Courts Act provided for the jurisdiction of Magistrates' Courts and its import was that Magistrates' Courts had jurisdiction to deal with an application for revocation or annulment of grant subject to the pecuniary jurisdiction of the Court.
  3. The value of the estate as stated in Form P & A 5 was disclosed as Kshs. 200,000/=. Therefore, the application had to be determined at the Magistrates' Court.
  4. Rule 44 of the Probate and Administration Rules, 1980 required applications seeking the revocation or annulment of grants to be exclusively filed in the High Court. The Probate and Administration Rules, 1980 entailed subsidiary legislation and they were incapable of overriding any provisions of statute. Hence, the position was that Magistrates' Courts had jurisdiction to deal with applications for revocation or annulment of grants subject to their pecuniary jurisdiction.

Orders:-

  1. The application was to be heard and determined at the Migori Chief Magistrates’ Courts.
  2. The High Court file was marked as closed.
CONSTITUTIONAL LAW The right to a fair hearing may be violated where an opportunity is availed to offer a response to allegations in writing but not through an oral hearing.

Simon N Mwaniki & 25 others v Permanent Secretary Ministry of Defence & 3 others
Cause No 97 of 2015
Employment and Labour Relations Court at Nairobi
Hellen S Wasilwa, J
June 18, 2018
Reported by Beryl A Ikamari

Download the Decision

Constitutional Law-fundamental rights and freedoms-right to equality and freedom from discrimination-where a disciplinary process led to the dismissal or demotion of employees, who allegedly used fake academic certificates to get employed or promoted-whether the right to equality and freedom from discrimination was violated under the circumstances-Constitution of Kenya 2010, article 27.
Constitutional Law-fundamental rights and freedoms-right to fair labour practices, right to fair administrative action and right to a fair hearing-disciplinary process leading to dismissal from work or demotion-where interdicted employees were only given a chance to respond to allegations on fake academic certificates in writing but were not afforded an oral hearing-whether there was a breach of the employees' right to fair hearing under the circumstances-Constitution of Kenya 2010, article 41, 47 & 50.

Brief facts:
The Petitioners were employed in various capacities by the Ministry of Defence after undergoing training with the National Industrial Training Institute (NITA.) After responding to a request for submission of their certificates for verification, in November 2013, they were informed that their certificates were fake. They were served with a notice to show cause why disciplinary proceedings should not be instituted against them. In February 2014, they were informed that they had been interdicted and were placed on half pay pending the finalization of their cases.
Later, a ministerial human resource committee recommended that the Petitioners who had been employed using legitimate certificates but presented forged certificates for purposes of getting promotions over the years have their interdiction lifted from the date their promotion and be demoted to the appropriate grade. Those Petitioners were to be reprimanded and any overpayment was to be recovered. The effect was that some Petitioners were demoted while others were dismissed from employment. Others who were retired pensioners had their pension reduced.
The Petitioners sought redress from Court while stating that the Respondents actions amounted to a violation of various constitutional rights including the right to fair administrative action and social and economic rights. They claimed that rights enshrined in articles 27, 28, 41, 47 and 50 of the Constitution were violated.
The Respondents stated that the Petitioners were subjected to fair administrative action in the process leading to their interdiction and dismissal or demotion. They also said that the Petitioners did not exhaust the remedies available to them before approaching the Court; they did not appeal to the Public Service Commission (K) (PSC).

Issues:

  1. Whether the requirements of the right to a fair hearing, in a disciplinary process, were met where employees were only given a chance to respond to allegations on fake academic certificates in writing but were not afforded an oral hearing.
  2. Whether it was discriminatory to subject employees, who were alleged to have used fake academic certificates to either get employed or get promoted, to a disciplinary process that led to demotion or dismissal from work.
  3. What remedies were Petitioners, whose rights to a fair hearing were allegedly violated, entitled to? Read More..

Held:

  1. There were well-founded principles applicable to the drafting of a petition for the enforcement of fundamental rights and freedoms. A person alleging contravention of his constitutional rights had to set out the right infringed upon and the manner in which the said right had been infringed upon.
  2. Article 27 of the Constitution provided for the right to equality and freedom from discrimination. Discrimination was defined in Blacks Law 9th Edition at page 534 as the effect of a law or established practice that conferred privileges on a certain class or that denied privileges to a certain class because of race, age, sex, nationality, religion, or disability. Differential treatment especially failure to treat all persons equally when no reasonable distinction existed between those favoured and those not favoured.
  3. Discrimination entailed treating one group differently or preferentially as compared to another group under similar circumstances. The Petitioners did not show that they were subjected to discriminatory treatment as compared to a different group under similar circumstances. Therefore, the Petitioners' contention on discrimination had no basis.
  4. When the Petitioners complied with the request to submit their academic certificates for verification, the certificates were suspected to be forged. They were asked to explain themselves and they did so in writing. The relevant Human Resource Committee considered their responses and found that the certificates were forgeries and made a decision against the Petitioners.
  5. The Petitioners were not given an oral hearing. An oral hearing would have made a difference. The Petitioners may have explained what dates the academic tests were held and where and other questions put to them to explain the manner or mode in which they received the said certificates and also why they believed they were authentic. An oral hearing was necessary. The rights to a fair hearing as envisaged in articles 41, 47 and 50 of the Constitution were mandatory. It was clear that the Petitioners were subjected to a flawed process.
  6. The Petitioner had an opportunity to appeal to the Public Service Commission within 6 weeks of being informed of the decision by the committee. They stated that they had appealed and were awaiting a decision from the Public Service Commission but they did not tender any evidence to that effect.
  7. The Public Service Commission Manual allowed for interdiction as a disciplinary process. The punishment of interdiction during investigation was proper. After the lifting of the interdiction, the Petitioners were entitled to all of their withheld salaries.
  8. Whether the demoted Petitioners ought to be promoted to certain job groups was an issue to be established through evidence. The right to hold those positions was not capable of being ascertained without evidence.
  9. The 16th and 21st Petitioners would be paid their pension as earned during their employment period. The issue of backdating it could not arise as the amount was not held by the Respondents but the Pension Department, which was not part of the proceedings.

Petition partly allowed.
Orders:-

  1. The Petitioners rights under articles 41, 47 and 50 of the Constitution were infringed upon.
  2. The Petitioners shall be paid all their dues withheld during the interdiction period except for Petitioners No. 10th, 20th, 22nd, 24th and 25th Petitioners who were dismissed from employment.
  3. Each Petitioner be paid 500,000/= as damages for breach of their constitutional rights.
  4. Costs of the Petition to be borne by the Respondents.
ELECTORAL LAW Effect of filing a notice of appeal at the wrong registry and failure to comply with legal stipulations on the form and content of the notice of appeal

Apungu Arthur Kibira v Independent Electoral and Boundaries Commission & 2 others
Election Petition Appeal No 11 of 2018
Court of Appeal at Kisumu
P N Waki, F Sichale & J Otieno-Odek, JJ A
July 19, 2018
Reported by Beryl A Ikamari

Download the Decision

Electoral Law-election petition appeal-notice of appeal-time allowed for filing a notice of appeal-extension of time allowed for the filing of a notice of appeal-whether the Court of Appeal could enlarge time allowed for the filing of a notice of appeal-Court of Appeal (Election Petition) Rules, 2017, rules 17(1), 3, 4(3) & 5.
Electoral Law-election petition appeal-notice of appeal-form and content of a notice of appeal-effect of failure to comply with legal requirements as to the form and content of a notice of appeal in an election petition- Constitution of Kenya 2010, article 159(2)(d); Court of Appeal (Election Petition) Rules, 2017, rules 6 & 8.
Electoral Law-election petition appeal-notice of appeal-registry in which a notice of appeal ought to be filed-effect of filing a notice of appeal at the wrong registry-Constitution of Kenya 2010, article 159(2)(d); Court of Appeal (Election Petition) Rules, 2017, rules 6(3)(c) & 6(5).

Brief facts:
In the general elections held on August 8, 2017, the 3rd Respondent was declared as validly elected as Member of the National Assembly for Luanda constituency in Vihiga County. He garnered 15,117 votes while the Appellant who was his closest rival garnered 11,304 votes. There were a total of 6 candidates in the election. The Appellant challenged the election of the 3rd Respondent at the High Court but the High Court dismissed his petition and affirmed the election.
Against the High Court's judgment, the Appellant lodged an appeal by filing a notice of appeal. Contrary to the requirements of rule 6(1) of the Court of Appeal (Election Petition) Rules, 2017, the notice of appeal was filed at the High Court registry at Kakamega instead of the Court of Appeal registry at Kisumu. It took one month for the mistake to be noticed. The form and content of the notice of appeal was also not as required by the rules. In relation to the notice of appeal, there were various applications. The Appellant wanted it to be deemed as properly filed or for time to be enlarged for it to be filed and served afresh while the Respondents wanted it to be struck out.

Issues:

  1. Whether the Court of Appeal could enlarge time allowed for the filing of a notice of appeal.
  2. What was the effect of failure to comply with legal requirements as to the form and content of a notice of appeal as stipulated in rule 6 of the Court of Appeal (Election Petition) Rules, 2017?
  3. Whether the filing of a notice of appeal in election matters at a registry which was not the legally prescribed registry was a defect which was a jurisdictional issue that was incapable of being corrected. Read More..

Held:

  1. Election petitions and election petition appeals were sui generis and they were not on the same plane as ordinary civil suits. Electoral laws were to be interpreted strictly within the corners and confines of those laws as they entailed a special jurisdiction created by the Constitution and statutes and civil process was not applicable to electoral laws.
  2. The jurisdiction of the Court in electoral issues was based on article 164(3) and 87(1) of the Constitution. Article 87(1) of the Constitution required Parliament to enact legislation to establish mechanisms for the timely settling of electoral disputes. Therefore, statutory provisions, regulations and rules relating to electoral disputes could be said to be normative derivatives of the Constitution.
  3. Section 85A of the Elections Act restricted and confined the appellate jurisdiction of the Court of Appeal in electoral matters to matters of law only. A notice of appeal was declared by the Supreme Court to be a jurisdictional issue and not a technical matter of procedure. Article 159 (2) (d) of the Constitution was not a panacea for all procedural infractions and it simply meant that a court of law should not pay attention to procedural requirements at the expense of substantive justice.
  4. The issue relating to the filing of the notice of appeal was not a procedural technicality capable of being cured under article 159 of the Constitution. Under rule 17(1) of the Court of Appeal (Election Petition) Rules, 2017, the Court of Appeal had jurisdiction to extend or reduce time prescribed by the rules, except for timelines set by the Constitution and the Elections Act, 2011. The power to extend time under rule 17(1) of the Court of Appeal (Election Petition) Rules, 2017 when read together with rules 3, 4(3) and 5 of the same rules, meant that time could only be extended or reduced in relation to documents which the Court of Appeal had competence or jurisdiction to consider.
  5. The notice of the appeal filed at the registry of the High Court at Kakamega, did not embody the prerequisites set out in rule 6 of the Court of Appeal (Election Petition) Rules, 2017 and it could not be said to be a notice of appeal. The document filed was a nullity as it purported to be a notice of appeal filed under the rules.
  6. Under rule 8 of the Court of Appeal (Election Petition) Rules, 2017, there was a mandatory requirement that the record of appeal would contain, inter alia, the notice of appeal. The one on record was a nullity. Therefore, the record of appeal ought to be struck out.
  7. Given the nature of findings in relation to the notice of appeal, there was no need to consider the merits of the main appeal. The appeal ought to be struck out as the notice of appeal was a nullity.

Per J Otieno Odek, JA [dissenting]

  1. A notice of appeal occupied a central pace and without it, there was no appeal. The notice of appeal was what would give the Court jurisdiction to hear an appeal.
  2. The filing of a notice of appeal at the wrong registry did not per se go to the root and merits of an intended appeal. The filing of a notice of appeal at the wrong registry was an error that was curable at the discretion of the Court pursuant to rule 6(5) of the Court of Appeal (Election Petition) Rules 2017; the Court was enjoined under article 159(2)(d) of the Constitution to administer substantive and not procedural and technical justice.
  3. The filing of a notice of appeal at a wrong registry and within the time stipulated for taking any action should not per se have rendered the notice and record of appeal null and void. There were considerations that the Court ought to take into account in deciding whether to strike out such a notice of appeal or not;
    1. Whether the notice of appeal was filed and served within time.
    2. Whether a reasonable person served with the notice of appeal understood what it meant. It must mean that the Appellant intended to appeal and had filed a notice of appeal.
    3. Whether the Respondent or person served suffered any prejudice by having the notice of appeal filled at the wrong registry. If no prejudice was suffered, the notice of appeal filed at the wrong registry should not be null and void.
    4. If the notice of appeal filed at an inappropriate registry was transmitted and received at the correct/appropriate registry, then the notice should not be incompetent, null and void.
  4. The rule requiring a party to file a notice of appeal at a particular registry or court was merely directory. An error in designating or filing the notice at an inappropriate registry should not be fatal to the appeal. In filing the notice of appeal a clear intention to appeal the Trial Court's decision was expressed and there was no expressed intention to abandon the appeal. The rule directing a party on where to file a notice of appeal was aimed at creating finality of the judgment at the Trial Court.
  5. Striking out a notice of appeal on the basis that it had been filed at a wrong or inappropriate registry would annul, reverse and countermand the right to appeal. The net effect was denial of the right to appeal.
  6. The fact that a court had power to extend time to file a notice of appeal ipso jure meant that unless extension of time was expressly prohibited by the Constitution or any other written law, the Court had discretion to extend time and excuse any non-compliance affecting the notice of appeal.
  7. The Court of Appeal (Election Petition) Rules 2017 was operational and administrative in nature. The rules addressed the manner in which the Court of Appeal exercised its jurisdiction in election petition appeals. The Rules did not confer jurisdiction on the Court to hear election petition appeals. That was clear from regulation 3 of the Rules which stipulated that the object and purpose of the Rules was to facilitate the just, expeditious and impartial determination of election petition appeals in exercise of the Court’s appellate jurisdiction under article 164(3) of the Constitution.
  8. Rule 6 (3) (c) of the Court of Appeal (Election Petition) Rules simply stated that the notice of appeal shall contain a request that the appeal be set down for hearing in the appropriate registry. Appropriate registry was defined to be the Court of Appeal Registry. The place to file the notice of appeal was a directional issue not jurisdictional and it was in that context that rule 6 (5) vested discretion on the Court to determine the effect of non-compliance with any of the Rules.
  9. For the following reasons the filing of the notice of appeal at an inappropriate registry would not make the notice incompetent:-
    1. In election disputes, not every infraction or non-compliance with a constitutional principle would lead to the invalidation of declared results.
    2. Section 83 of the Elections Act clearly provided that not every infraction or non-compliance with the Elections Act and Regulations would lead to the nullification of results.
    3. Rule 6(5) of the Court of Appeal (Election Petition) Rules, 2017 was to the effect that it was not automatic that non-compliance with rules would be fatal, the Court had jurisdiction to determine the effect of non-compliance.
  10. The Court should strive to preserve the right of a party to a hearing based on merit. Any irregularity in the notice of appeal should be liberally construed to preserve the sufficiency of the notice.
  11. There was a distinction between there being no notice of appeal or the notice being filed out of time which was a jurisdictional matter and a defective notice of appeal filed within time which was an irregularity issue. The legal effect of any irregularity or defect in or on the notice of appeal must be determined on a case by case basis taking into account the nature of the defect or irregularity, the delay in making an application to regularize the same, the prejudice if any to the opposing party, the sufficiency of any explanation given and any other relevant consideration. The issue with respect to the impugned notice of appeal was an irregularity and not a jurisdictional issue.

Appeal dismissed
Orders:-

  1. The notice of motion (for the extension of time for filing the notice of appeal or for the notice to be deemed to have been duly and properly filed) by the Appellant dated and filed on March 16, 2018 was dismissed.
  2. The notice of motion (for the striking out of the notice of appeal) by the 1st Respondent and the Returning Officer, Luanda Constituency, dated March 26, 2018 and filed on March 27, 2018 was allowed.
  3. The notice of preliminary objection filed by the Appellant against the notice of motion dated March 26, 2018 was rejected.
  4. The record of appeal dated and filed in the Court of Appeal at Kisumu on March 16, 2018 was struck out.
  5. The costs of the applications and the struck out appeal shall be borne by the Appellant.

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