Weekly Newsletter 027/2019



Kenya Law

Weekly Newsletter


The Chief Justice Practice Directions cannot take away the High Court’s unlimited original jurisdiction in criminal and civil matters.
Shakeel Ahmed Khan & another v Republic & 4 others [2019] eKLR
Miscellaneous Criminal Application 56 of 2019
High Court at Mombasa
M Thande, J
May 3, 2019
Reported by Beryl Ikamari & Mathenge Mukundi
Constitutional Law­- fundamental rights and freedoms-enforcement of fundamental rights and freedoms-rights to fair trial and access to justice-transfer of a suit from one station to another-claim that transport and accommodation expenses would be unbearable if the suit was to be transferred from Mombasa to Nairobi-whether in the transfer of the suit from Mombasa to Nairobi there would be violations of the applicants’ rights to a fair trial and access to justice-Constitution of Kenya, 2010, articles 25(c) & 48.
Constitutional Law-interpretation of constitutional provisions-interpretation of article 79 of the Constitution-establishment of an independent ethics and anti-corruption commission-whether the word 'independent' had to be part of the name of the commission established under article 79 of the Constitution-Constitution of Kenya 2010, article 79.
Statutes-subsidiary legislation-interpretation of direction 2 of the Chief Justice Practice Directions 2016-where the subsidiary legislation was couched in mandatory terms and required anti-corruption and economic crimes suits to be filed in Nairobi-whether subsidiary legislation could take away the High Court’s unlimited original jurisdiction in criminal and civil matters-Constitution of Kenya, 2010, article 165 (3), Chief Justice Practice Directions, 2016, direction 2.
Jurisdiction­-jurisdiction of the High Court-bail and bond-anticipatory bail/bond-application for anticipatory bail/bond pending arrests-whether the High Court could grant anticipatory bail/bond where the applicants were charged in a different (ACEC) division of the High Court in Nairobi-Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013, rule 8.

Brief facts
The applicants filed the application seeking anticipatory bail/bond pending arrest and/or charges in relation to any allegations concerning the acquisition and/or compensation in respect of a parcel of land. The applicants also sought that the respondents be restrained from arresting, detaining, harassing and intimidating them.
The application for bail/bond was opposed by the respondents. Additionally, the 4th respondent made an application seeking the transfer of the suit to the Anti-Corruption and Economic Crimes Division (ACEC Division) established in the High Court of Kenya at Nairobi. The application was premised on the ground that the Chief Justice made the Practice. According to the Practice Directions, it was in the interest of justice and consistency in the administration of justice and expediency that the application be heard and determined by the Anti-Corruption and Economic Crimes Division (ACEC) in Nairobi. 
In support of their application for bail/bond, the applicants contended that the Ethics and Anti-Corruption Authority was not established as per the requirements of article 79 of the Constitution as the word 'independent was missing in its name. According to the applicants the commission as established could not exercise power or authority. The applicants stated that the transfer of the suit to Nairobi would violate their rights of access to justice and fair trial.

 
Issues
  1. Whether the Chief Justice Practice Directions took away the High Court’s unlimited original jurisdiction in criminal and civil matters by stating in mandatory terms that Anti-Corruption and Economic Crimes suits should be filed in Nairobi.
  2. Whether the Ethics and Anti-Corruption Commission was rendered inoperative by the legislative amendment which removed the word “independent” from its name.
  3. Whether in enacting the Ethics and Anti-Corruption Commission Act, 2011 Parliament failed to comply with article 79 of the Constitution which required Parliament to enact legislation to establish an Independent Ethics and Anti-Corruption Commission.
  4. Whether in the transfer of the suit from Mombasa High Court to the Anti-Corruption and Economic Crimes division in Nairobi the applicant’s rights of access to justice and fair hearing would be violated.
 
Relevant provisions of the law
Constitution of Kenya 2010
Article 79;

79. Parliament shall enact legislation to establish an independent ethics and anti-corruption commission, which shall be and have the status and powers of a commission under Chapter Fifteen, for purposes of ensuring compliance with, and enforcement of, the provisions of this Chapter.
 
Held
  1. The Chief Justice had no authority whatsoever to take away jurisdiction from any court or to confer jurisdiction to any court.   The Chief Justice as head of the Judiciary had the powers under section 16 of the High Court (Organization and Administration) Act to establish sub-registries of the ACEC Division and indeed full ACEC Divisions outside Nairobi. The failure to do so had the net effect of stripping the High Court in stations outside Nairobi of the jurisdiction conferred upon it by the Constitution.
  2. Article 79 of the Constitution required the Parliament to enact legislation to establish an independent ethics and anti-corruption commission. It had to be noted that the indefinite article “an” preceded the commission referred to. It meant that the commission to be established in the legislation to be enacted by Parliament did not necessarily have to be named the Independent Ethics and Anti-Corruption Commission. The Commission did not also have to have the word “independent” as part of its name. Indeed, Parliament could have called the commission “Tume ya Maadili na kupambana na Ufisadi” or any other name it deemed fit and still be in compliance with the requirement in article 79 of the Constitution. If article 79 of the Constitution had the definite article “the” preceding the name, and provided that Parliament should enact legislation to establish the Independent Ethics and Anti-Corruption Commission. Then Parliament would have had no discretion or option but to name it as such.
  3. Parliament clothed the Ethics and Anti-Corruption Commission with independence from any person or authority. Section 28 of the Ethics and Anti-Corruption Commission Act, 2011 provided that the Commission should, in the performance of its functions, not be subject to the direction or control of any person or authority except as provided in the Constitution and the Act.
  4. Direction 6 of the 2016 Practice Directions listed the matters that should be heard by the ACEC Division. It included cases relating to corruption and economic crimes filed under the Anti-Corruption and Economic Crimes Act, 2011. The matter herein related to corruption and economic crimes. Direction 2 of the 2016 Practice Directions required that all cases such as the instant which involved corruption and economic crimes should be filed in Nairobi.
  5. The 2016 Practice Directions were amended vide Kenya Gazette Notice No. 7262 of 2018 being the 2018 Practice Directions. Direction 3 thereof provided that the Chief Justice would establish additional sub-registries outside Nairobi. Regrettably, no sub-registry was established in Mombasa.
  6. Direction 4 of the Practice Directions laid down the overriding objective of the Practice Directions which was the just, expeditious, proportionate and accessible adjudication of disputes related to corruption and economic crimes. To direct that the matter be transferred to the ACEC Division in Nairobi would delay the hearing of the same. The intention of the Practice Directions to facilitate the efficient and timely disposal of the matter would be defeated. As long as sub-registries or divisions were not established outside Nairobi, the Practice Directions would not enhance the overriding objective but would do the exact opposite including increasing the costs of justice. The Practice Directions would also fly in the face of the constitutional imperative that justice should not be delayed.
  7. Allowing the application would militate against the overriding objective of the very Practice Directions of the just, expeditious, proportionate and accessible adjudication of disputes related to corruption and economic crimes. 
Application for the transfer of the suit dismissed. Costs would be in the cause.
 
Kenya Law
Case Updates Issue 026/2019
Case Summaries

CIVIL PRACTICE AND PROCEDURE It’s an Unfair Labour Practice to Pay Different Wages for Work of Equal Value

Ol Pejeta Ranching Limited V David Wanjau Muhoro
Civil Appeal 42 of 2015
Court of Appeal at Nairobi
P N Waki, M Makhandia & K M’inoti, JJA
September 22, 2017.
Reported by Ribia John & Amina Yunus

Download the Decision

Civil Practice and Procedure – limitation of action – calculation of time in limitation of action – continuing injury- whether claims of infringement of human rights could attract limitation of time sanctions – injury that started before the limitation of action and extended to the time a suit was instituted - whether in calculating the limitation of time to bring a labour dispute, courts would consider the concept of continuing injury would limit the injury to the time covered by limitation of actions – Employment Act section 90
Civil Practice and Procedure – pleadings – defences that can be raised in an appellate court – defences raised in the appellate court that were not raised in the trial court -  whether an appellant could raise a new defence at an appellate court having not raised the new defence at the Trial Court.
Constitutional Law – fundamental rights and freedoms – equality and freedom from discrimination – racial discrimination – racial discrimination in the workplace – difference of pay to staff based on race - whether a disparity of pay between a white and black employee that was not explainable on other ground other than race would constitute a violation of the right to equality and the freedom from discrimination - Constitution of Kenya, 2010 article 27; Employment Act, Section 5; Constitution of Kenya (repealed) section 82
Employment Law – equality and discrimination at the work place - equal pay for equal work - what were the elements of the principle of equal pay for equal work- comparator - what were rules that were applicable in settling for a suitable comparator for a claimant in a discrimination suit in a labour dispute.
Employment Law – termination of employment – unfair termination – wrongful dismissal - whether termination of employment that was undertaken without following the procedures in place was unfair – Employment Act section 49
Employment Law – discrimination – reliefs for discrimination – relief for pay disparities arising from discrimination – monetary damages - calculation of damages for a claim for a relief to remedy pay disparities arising from discrimination – composite/global figure vis-à-vis a calculation on the back pay - whether a composite or global figure of damages or a calculation on the back pay was appropriate for an award of damages for discrimination.

Brief facts:
The respondent was employed by the appellant as a finance manager. The respondent was originally employed by a company called Fauna and Flora International which was acquired by the appellant. The appellant adopted all of the processes of Fauna and Flora International. The respondent continued his employment in the same role and under the same terms before he was terminated on December 7, 2009. The termination was occasioned by a loss of funds to the tune of Kshs. 10,000,000 that was lost through fraud attributed to weak internal control systems especially weak supervisory control, inadequate segregation of duties within the accounts office and collusion between conservancy staff and customers. An audit conducted by external parties contracted by the appellant concluded that the respondent was not to blame, but two employees under him who orchestrated the fraud.
Aggrieved by the dismissal, the respondent filed a petition in the High Court (Trial Court) in which he sought reliefs for racial discrimination and for wrongful dismissal. The respondent claimed that when he was originally employed by Fauna and Flora International, he was employed on similar terms as white managers. The white managers earned Kshs. 120,000/- and Kshs. 115,000/- respectively while he earned a monthly salary of Kshs. 115,000/-. There had been assurance from the appellant that the employees already in its employ, including the respondent, would continue serving under the same terms and conditions. However, upon the appellant taking over, the salaries of the respondent and the two white managers were reviewed upwards, but there was a significant difference with the two white managers earning Kshs. 464,000 and Kshs. 370,000: the respondent however earned Kshs. 148,000. Though there was salary increment in favour of the respondent over time, the general position obtaining at all times was that the white managers earned significant higher salaries than black managers after the appellant took over.
The Trial Court awarded the respondent Kshs. 18,265,947 being the difference in salary between the respondent and a white manager, who the Trial Court used as the comparator for the years between when the appellant acquired the business to when the respondent was terminated. The Court also awarded the respondent Kshs. 3,489,084/- as damages for wrongful dismissal.
Aggrieved by the Trial Court’s findings, the appellant filed the instant appeal. The appellant averred that the Trial Court erred as the respondent’s claim for pay disparity and damages on account of racial discrimination was time barred by limitation of time. The appellant claimed that the respondent was not wrongfully dismissed as his termination followed the requisite procedure. The respondent claimed that the defence of limitation of time was not raised in the Trial Court and as such, the Appellate Court should not allow it.

Issues:

  1. Whether claims of infringement of human rights could attract limitation of time sanctions.
  2. Whether in calculating the limitation of time to bring a labour dispute, courts would consider the concept of continuing injury or would limit the period to the three years provided under section 90 of the Employment Act. 
  3. Whether an appellant could raise a new defence at an appellate court having not raised the same defence at the Trial Court.
  4. What were the elements of the principle of equal pay for equal work?
  5. What were rules that were applicable in settling for a suitable comparator for a claimant in a discrimination suit in a labour dispute.
  6. Whether a disparity of pay between a white and black employee that was not explainable on other ground other than race would constitute a violation of the right to equality and the freedom from discrimination.
  7. Whether a composite or global figure of damages or a calculation on the back pay was appropriate for an award of damages for discrimination.
  8. Whether termination of employment that was undertaken without following the procedures in place was unfair.Read More..

Relevant provision of the law
Employment Act
Section 5(2), (3), (4), (5), (6), (7) & (8)
5.       Discrimination in Employment

(2)
An employer shall promote equal opportunity in employment and strive to eliminate discrimination in any employment policy or practice.
(
3) No employer shall discriminate directly or indirectly, against an employee or prospective employee or harass an employee or prospective employee –

(a) on grounds of race, colour, sex, language, religion, political or other opinion, nationality, ethnic or social origin, disability, pregnancy, marital status or HIV status;
(b) In respect of recruitment, training, promotion, terms and conditions of employment, termination of employment and other matters arising out of employment.

(4) It is not discrimination to –

(a) take affirmative action measurers consistent with the promotion of equality or the elimination of discrimination in the workplace;
(b) distinguish, exclude or prefer any person on the basis of an inherent requirement of a job;
(c) employ a citizen in accordance with the national employment policy; or
(d) restrict access to limited categories of employment where it is necessary in the interest of State security.

(5) An employer shall pay his employees equal remuneration for work for equal value.
(6) An employer who contravenes the provision of the section commits an offence.
(
7) In any proceedings where a contravention of this section is alleged, the employer shall bear the burden of proving that the discrimination did not take place as alleged, and that the discriminatory act or omission is not based on any of the grounds specified in this section.
(8) For the purposes of this section –

(a) “employee” includes an applicant for employment;
(b) “employer” includes an employment agency;
(c) an “employment policy or practice” includes any policy or practice relating to recruitment procedures, advertising and selection criteria, appointments and the appointment process, job classification and grading, remuneration, employment benefits and terms and conditions of employment, job assignments, the working environment and facilities, training and development, performance evaluation systems, promotion, transfer, demotion, termination of employment and disciplinary measures.”

Section 43(1)
43.     Proof of reason for termination
In any claim arising out of termination of a contract, the employer shall be required to prove the reason or reasons for the termination, and where the employer fails to do so, the termination shall be deemed to have been unfair within the meaning of section 45.

Section 45(2)
45 Unfair Termination
(2) A termination of employment by an employer is unfair if the employer fails to prove—

 (a)     that the reason for the termination is valid;
 (b)    that the reason for the termination is fair reason -

 (i) related to the employee’s conduct, capacity or compatibility; or
 (ii) based on the operational requirements of the employer; and

 (c) that the employment was terminated in accordance with fair   procedure

Section 90
90 Limitations
Notwithstanding the provisions of section 4(1) of the Limitation of Actions Act (Cap. 22), no civil action or proceedings based or arising out of this Act or a contract of service in general shall lie or be instituted unless it is commenced within three years next after the act, neglect or default complained of or in the case of continuing injury or damage within twelve months next after the cessation thereof.

International Law
Convention Concerning Discrimination in Respect of Employment and Occupation, 1958
Article 1(a)
1 For the purpose of this Convention the term discrimination includes;

(a) Any distinction, exclusion or preference made on the basis of race, colour, sex, religion, political opinion, national extraction or social origin, which has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation.

Held :

  1. An appellate court in a first appeal had the duty to re-evaluate, re-assess and re-analyse the evidence on record and then determine whether the conclusions reached by the Trial Court should hold.
  2. The claim for discrimination was not time barred. The period in employment was a continuous period, with employment benefits vesting in the employee, and obligations on the part of the employer attaching over time. There were accrued benefits which could not be isolated and subjected to a different date of accrual. At the date of termination, the employee should be accorded all benefits arising under the contract of employment.
  3. An independent international evaluator was appointed by Fauna and Flora International, to assess the performance of the respondent. His report confirmed historical disparities in the employees’ salaries which needed to be addressed by the appellant. However, that never came to pass. The treatment of the respondent with regard to his pay cheque ran afoul of the appellant’s advertised and stated objective to maintain a working environment for employees of Ol pejeta that did not discriminate against anyone on any grounds including but not limited to continence, culture, language, black, pregnancy or height or weight. In 2007, Fauna and Flora International’s donor, the Arcus Foundation had asked to peruse the respondent’s contract. At that point it was agreed between the parties what could be reviewed, to bridge the gap between the white and black managers.
  4. The appellant could not be allowed to hang on a defence that it never raised and prosecuted in the Trial Court. Not only did the Court lack the benefit of the reasoning of the High Court but the new defense was to be taken as an afterthought on the appellant’s part and allowing it would be prejudicial to the respondent. The appellant’s defence of limitation of time was only concerned with back salaries and benefits sought by the respondent stretching back to 2004.
  5. Claims arising outside the three-year time limit set by section 90 of the Employment Act could not be rejected outright. The appellant did not raise the concept of continuing injury and hence the one-year limitation period. The claim on discrimination was anchored on the violation of the respondent’s human right not to be discriminated against. Human right violations did not attract sanctions by way of limitation of time. The respondent’s claim could not have been sacrificed at the altar of limitation of time.
  6. Although the allegation of racial discrimination levelled against the appellant happened before the promulgation of the Constitution of Kenya, 2010 (Constitution) arbitrary discrimination was still prohibited during the material times by section 82 of the repealed Constitution. Moreover, Kenya had also ratified a plethora of international instruments that prohibited racial discrimination among them the United Nations Convention on the Elimination of all forms of Racial Discrimination. Section 5 of the Employment Act also barred discrimination.
  7. Fairness required that people doing similar work should receive equal pay. The principle of equal pay for equal work, or work of equal value had however extended to an analogous situation requiring that work of equal value should also receive equal pay as was claimed in the instant appeal.
  8. It was not an unfair labour practice to pay different wages for equal work or for work of equal value. It was however an unfair labour practice to pay different wages for equal work or work of equal value if the reason or motive, being the cause for so doing, was direct or indirect discrimination.
  9. Where the Claimant invoked the principle of equal pay for equal work the claimant had to establish that the unequal pay was caused by the employer discriminating on unlawful grounds. Discrimination on a particular ground meant that the ground was the reason for the unequal treatment complained of by the claimant. The mere existence of disparate treatment of people of, for example, different races, was not discrimination on the ground of race, unless the difference in race was the reason for the disparate treatment. Put differently, it had to be shown that the difference in salaries was because of sex, gender, race, and so on.
  10. The gist of the respondent’s claim that the pay disparity between him and the white managers was due to arbitrary racial discrimination which was still prohibited during the material times by virtue of section 82 of the repealed Constitution. The respondent had to establish that the unequal pay was caused by the employer discriminating on impermissible grounds.
  11. The appellant for some reason took the white managers work as of equal value but took the black managers work as being of lesser value despite them also being in the management cadre. That was especially the case since the respondent and the two white managers were paid more or less the same salary until the appellant took over in 2004.
  12. In equal value claims different skills, or at least a different mix of job attributes, were in issue. The employer could therefore legitimately argue that in equal value claims he should be allowed to explain and justify a wage differential by, for example, showing that persons possessing one set of skills or mix of job attributes were commanding higher wage rates in the local market. The appellant did endeavour to explain the pay disparity between the respondent and the two white managers used as comparators by alleging that the two were engaged as consultants before it took over the business and that upon taking over the business it employed them as such. The Trial Court rightly found that for a particular engagement to be classified as a consultancy, it had to carry an element of limited time or duration and not be open ended; that consultants were normally paid a fee which was subject to withholding tax as opposed to a salary and did not receive company benefits. Further, consultants were not normally given tools of work or trade when contracted. The white managers’ engagement did not meet the qualifications to fit the nature of consultancies as opposed to that of regular employment.
  13. The white managers were paid a salary as opposed to a fee and were entitled to paid annual leave. They also received motor vehicle allowance and were provided with furnished accommodation, motor vehicles, bonuses, loans and mileage allowances. They could not be said to be engaged as a consultant. A report by the appellant’s own tax advisers concluded that those benefits implied an employee-employer relationship as opposed to a contractual relationship. The salary disparity between the white managers and the respondent could not be objectively justified on the ground that the former were consultants.
  14. To prove the averment that the differential in salary was justifiable in view of the white managers’ superior qualifications would seem obvious or normal that the appellant would have tendered evidence to that effect showing that indeed the white managers held superior academic qualifications and experiences in accordance with section 107 of the Evidence Act. However, the respondent actually moved the Court to compel the appellant to avail such evidence. Despite the Trial Court’s order that the appellant be furnished with the evidence, the appellant failed to comply arguing that it was under no obligation to produce such evidence and that in any event such move would prejudice its case.
  15. One of the white managers and the respondent had similar qualifications. It was apparent that the respondent would be considered to have had more practical experience since he had worked for the appellant’s predecessor for 20 plus years from 1984 when he was employed as an accounts clerk and had risen through the ranks to become a finance manager. All terms of service and benefits accrued by the employees prior to the appellant taking over were adopted by it. On the other hand, one of the white managers had worked as a consultant prior to joining the appellant for only a period of 6 years.
  16. The appellant failed to discharge the burden of proof placed on him by the provisions of section 107 and 108 of the Evidence Act. It could not be reasonably said that the appellant proved that comparators or the white managers in general held superior qualifications always since it had been shown especially that at some point, the white manager’s salary became the entry point salary for white managers regardless of qualifications or experiences.
  17. The defence or justification by the appellant on section 5(4)(b) of the Employment Act which provided that it was not discrimination to distinguish, exclude or prefer any person on the basis of an inherent requirement of a job. However, that defence, shield or justification was never satisfactorily pursued both in the Trial Court and even before the instant Court. To say there was no discrimination could also mean only that there was justifiable differential treatment, which in law was not discrimination. When the appellant said there was no discrimination, it could not have meant it in that sense. No such evidence was led or submissions made by the appellant to satisfactorily support the contention that the white managers received higher pays due to the innate requirements of their jobs. In fact, the appellant’s defence was simply, that there was no discrimination at all at their work place.
  18. The job of Finance Manager as of September 2004 had three main components: finance, accounting and human resources. It would not be honest to hold that the docket, overloaded as it was, and being in top management, was any less in weight and importance to the respondent than the white managers’ roles of taking care of livestock and chimpanzees. The respondent’s job as finance manager extended to other dockets such as donor accountant and ICT officer, which jobs the appellant later advertised and filled.
  19. The responsibilities for people, money, and equipment under the finance manager were enormous. The physical, mental and psychological effort made by the claimant to discharge three combined roles, was enormous. The job of looking after the appellant’s Boran Cattle and chimpanzees and ensuring they were kept healthy and reproductive were central to the Respondent’s Business. Adopting the analytical job evaluation principles, any trier of facts would be persuaded the respondent performed work, which based on objective criteria, was of equal value, if not more value than the work performed by the white managers. The respondent seemed aware, at least at the time of the business transfer, that the white managers were officers performing jobs with equal numerical value, and were therefore paid salaries almost at par. There was nothing in terms of skills and qualifications, which would explain the disparity after September 2004. The record showed that the pay disparity between the white managers and black managers, and especially the respondent, was a concern acknowledged by the senior management. In claims of equal pay for equal work or work of substantially equal value, there was always need on the part of the claimant to establish comparators for purposes of showing unequal pay in comparison to the comparators.
  20. The rules or guidelines that would be applicable in settling for a suitable comparator for a claimant were that:
    1. the comparator must actually exist - a comparison with a hypothetical employee was not permissible;
    2.  normally the comparator would be a person doing the same job or a job of equal value at the same time although the European Court of Justice has permitted a comparison with a former employee; and
    3. usually the comparator must be employed by the same employer, although some legal systems took into account a comparator at an associated employer. There was some support for the view that the comparator need only be in the same service. A complainant had also been allowed to use a comparator in another organization that was funded from the same public funds.

    The above guidelines were not conclusive or exhaustive. The comparators chosen were not far-fetched and were sufficient for the purpose. They were all in the managerial cadre as the respondent and in the same organisation. The appellant had not demonstrated that the comparators used were not the proper ones or were remote in the circumstances of the instant case. It’s also not the business of court in any event to fill in the gaps left by the appellant in the prosecution of its defence. The appellant could not fault the Trial Court as having failed to conduct an in-depth analysis of the comparators jobs.

  21. There was discrimination against the respondent based on race. The appellant seemed to have realized there was actual pay disparity based on race, and adjusted the salaries of the black managers, but only after the termination of the respondent’s employment. The black chimpanzee manager enjoyed an increment from Kshs. 375,700/- earned at the time the claimant left employment in 2009 to Kshs. 611,000/- as at October 31, 2012; for the black human resources manager’s salary rose from Kshs. 211,900 to 457,000 over the same period; the salary for the black community manager was adjusted from Kshs. 211,300/-to Kshs. 449,000/-; and the black CFO who earned Kshs. 230,000/- in 2009, received Kshs. 552,000/- in 2012. The CFO confirmed that his salary had risen to about Kshs. 600,000 per month.
  22. Commendably, the appellant undertook some positive measurers in righting historical disparities, and gave what appeared as reasonable salaries to its top black managers in 2012. That was done when the instant case was going on in court. The respondent, who bore the brunt of the historical disparities, and who had worked for 25 years for the respondent, the longest serving manager black or white, did not enjoy the remedial action taken by the appellant in redressing the racial pay gap. He left before reasonable adjustments were made.
  23. The appellant’s reliance of South African jurisprudence on assessment for damages in discrimination claims in labour disputes did not consider the historical context of South Africa. It was understandable why the South African legislature passed the Equal Employment Act (EEA)which provided South African Labour Courts with the powers to issue appropriate orders which included interdicts, an order directing the performance of an act which when done would remedy the wrong and give effect to the primary objects of the EEA, awards of damages and compensation and an order to be in compliant with the EEA. The preamble of the EEA in fact recognized the effect of apartheid and the existence of other discriminatory laws and practices that led to disparities in employment between different categories of people within the national labour market.
  24. In Kenya’s jurisdiction, the question of assessment of damages would be guided by amongst others, common law and decided cases. Assessment of quantum of damages was a matter for the discretion of the trial court, which was exercised judicially and with regard to the general conditions prevailed in Kenya, such as inflation, and also prior relevant decisions. An appellate court should only interfere with such an award where the Trial Court, in assessing the damages, took into account an irrelevant factor, or left out of account a relevant one, or where the amount was so inordinately low or so inordinately high that it was wholly erroneous estimate of the damage.
  25. The Trial Court adopted a wrong approach in the assessment of damages and awarded an inordinately high award as pay disparity or damages for racial discrimination. The Trial Court awarded Kshs. 18,256,947/- which was the difference in salary between the respondent and the white manager for the period under consideration. There was a real danger in awarding overly high damages through such calculation. High earning individuals could unwittingly be awarded more compensation than those that earned less, yet the effect of discrimination was the same. The damages, ought therefore to be at large. A composite or global figure of damages was appropriate to award for discrimination as opposed to calculation on the back pay adopted by the Trial Court. The calculation adopted by the Trial Court easily turned the claim to one of underpayment, which was not the case. The Trial Court also, failed to be guided by the local authorities which favoured global approach.
  26. The reason given by the appellant for the respondent’s termination was that it had lost approximately Kshs. 9,560,000 through employees in the department under his watch as finance manager. An investigation that followed the event found two employees culpable as they admitted to the fraud. A complaint was lodged against the two employees at Nanyuki Police Station and they were eventually fired by the appellant. The respondent was not found culpable at all by two audit firms called in by the appellant to investigate. Once the people who were allegedly involved in the fraudulent activities were dismissed, there was no need to visit the collective guilt to the respondent. Otherwise even the Chief Executive Officer of the appellant ought to have suffered the same consequence as he countersigned and approved all the reconciliation statements.
  27. Reports from the auditing firms found the respondent was not fraudulent or part of any fraud/scheme that led to the loss. The reports however pointed to weak internal supervisory controls within the accounts office. The respondent had over the years complained regarding weak supervisory controls due to understaffing and could not operate optimally followed by inadequate segregation of duties. He had also pleaded for introduction of modern accounting systems to no avail.
  28. The appellant may have been expecting too much of the respondent as he was expected to be in-charge of inter alia it’s financial strategy, budgeting, financial reporting whilst simultaneously fulfilling the role of chief accountant.
  29. The termination of the respondent could be held to be unfair if it was proved that the termination procedure was unfair. Fairness in the circumstances would inform that the respondent be supplied with the allegations against him in sufficient detail to adequately prepare for a defence. The appellant’s CEO testified that he attempted to furnish the respondent with the same on the hearing date but the respondent rejected it. Obviously then, the audit report would have made no impact as there was no time for the respondent to amply prepare. It was merely tendered to the respondent as a technical formality. There was no reason given as to why the respondent could not have been supplied with a copy much earlier and in good time.
  30. No evidence was placed before court to show that the respondent had been issued with a charge(s) of the specific allegations that he was required to answer during the hearing. It was discernible from the record that the respondent only knew in general terms, the allegations he was to face and counter. That coupled with the fact that he had no knowledge of the audit findings, he had no fair chance to advance his defence. In the circumstances, therefore it could not be said that the termination process was fair.
  31. In deciding whether to adopt some of the remedies for wrongful dismissal and unfair termination under section 49 of the Employment Act, the Court had to take into account a raft of considerations such as the wishes of the employee, circumstances in which the termination took place and the extent of the employee’s contribution, practicability of reinstatement, employee’s length of service, opportunity available to the employee, severance payable, right to press other claims or unpaid wages, expenses reasonably incurred by the employees as a consequence of termination, conduct of the employee which to any extent caused or contributed to the termination, failure by the employee to reasonably mitigate the losses and any other compensation in respect of termination of employment paid by the employer and received by the employee.
  32. The compensation awarded to the respondent was the maximum awardable, 12 months’ pay. The Trial Court did not at all attempt to justify or explain why the respondent was entitled to the maximum award. The Trial Court was exercising discretion in making the award. However, such exercise should not be capricious or whimsical. It should be exercised on some sound judicial principles. The instant Court had expected the Trial Court to exercise such discretion based on the aforementioned parameters. The Trial Court in considering the award took into account irrelevant considerations and/or failed to take into account relevant considerations, which act then invited the instant Court’s intervention. Given that the respondent had received compensation for racial discrimination in terms of salary at his work station; an award of 6 months’ gross pay amounting to Kshs. 1,744,542 would be appropriate.
  33. Section 12(4) of the Employment and Labour Relations Court Act gave the Trial Court discretionary powers to award costs as it considered just. Costs in the kind of claims in the instant suit did not automatically follow the event unlike in other civil claims. The Trial Court held that there would be no order as to costs and interest. The Trial Court did not give reasons that would enable the instant Court to pass judgment whether the Trial Court exercised the discretion judicially or not. There was nothing to suggest that in declining to award the respondent costs and interest, the Trial Court exercised its discretion injudiciously.
  34. Damages with regard to pension and accrued services were not available to the respondent. The respondent was in management and a member of the pension’s scheme where the appellant contributed 7.5% of his basic salary.

Appeal partially allowed.
Orders:

  1. Award of Kshs. 18,256,947 set by the Trial Court for cumulative pay disparity damages for discrimination as well as Kshs. 3,489,084/- were set aside and were substituted with an award of Kshs. 7,500,000/- and Kshs. 1,744,542/- respectively.
  2. Cross appeal dismissed with costs.
  3. Each party was to bear its own costs.
CIVIL PRACTICE AND PROCEDURE The doctrine of indefeasibility of title cannot protect titles obtained through fraud, illegality, misrepresentation or those acquired un-procedurally

Sigona Juakali Association v County Government of Kiambu and 8 others
ELC Suit 131 of 2017
(Formerly Nairobi ELC 621 of 2011)
Environment and Land Court at Thika
M Lucy, J
May 2, 2019
Reported by Ian Kiptoo

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Civil Practice and Procedure - res judicata-ingredients of res judicata - where the issue in dispute in the former suit between the parties was directly or substantially in dispute between the parties in the instant suit where the doctrine was pleaded - where the parties were same - where matter was not fully determined on account of want of competency of the Court - what were the requirements that had to be satisfied for a plea of res judicata to succeed - Civil Procedure Act, section 7
Land Law - ownership of land - indefeasibility of title - validity of title - where land was acquired through fraudulent means - where acreage of parcel of land was altered - whether the indefeasibility of title doctrine could protect titles obtained through fraud, illegality, misrepresentation, or those acquired un-procedurally - Constitution of Kenya, 2010, articles 40 (6) and 61 (1); Land Registration Act, sections 26 and 80

Brief facts:
The plaintiff claimed that they had applied for and were allotted the suit land by the defunct Kikuyu town council in year 2001. The parcel of land was to be re-planned and sub divided to accommodate the plaintiff, council utility land and provincial administration offices. However, the public records at Kiambu Land’s registry were altered and the land was transferred to the 5th defendant and was then further subdivided to yield 31 more plots, which plots were in the hands of the 5th - 9th defendants and other parties.
The prayers sought by the plaintiff were; a permanent injunction restraining the defendants from trespassing on, constructing on, transferring, disposing off, alienating, wasting, or in any manner interfering with the suit land pending the hearing and final determination of the suit; a declaration that the plaintiffs were the beneficial owners of the suit land; and cancellation of the title documents purportedly issued on day of April 30, 2002.
The defendants averred that there was no land known as No. Sigona 934 as the same was subdivided in the year 2002 and that the suit was res-judicata as the matter was determined in Kikuyu P.M.C.C No. 53 of 2004.

Issue:

  1. What were the requirements that had to be satisfied for a plea of res judicata to succeed?
  2. Whether the doctrine of indefeasibility of title could protect titles obtained through fraud, illegality, misrepresentation or those acquired un-procedurally.
  3. What were the different ways of acquiring land before the enactment of the Land Act, 2012?Read More..

Relevant Provisions of the Law
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 can 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 doctrine of res judicata was set out in section 7 of the Civil Procedure Act. The ingredients of res judicata were firstly, that the issue in dispute in the former suit between the parties had to be directly or substantially be in dispute between the parties in the suit where the doctrine was pleaded as a bar. Secondly, that the former suit should be the same parties, or parties under whom they or any of them claimed, litigating under the same title and lastly that the court or tribunal before which the former suit was litigated was competent and determined the suit finally.
  2. In Kikuyu R.M.C.C. No. 53 of 2004, the only prayers sought by the plaintiff was a temporary and perpetual injunction restraining the defendants from interfering with the parcel Sigona/934, along with the prayer for damages. It was also evident that the Sigona group had raised the issue of fraud, collusion and misrepresentation in form of a counter-claim. However, the Court stated that the forum to challenge the title was not the Magistrate’s Court. The instant plaintiff was advised to seek redress in the High court and that was exactly what they did. It followed that the issues raised before the Magistrate’s Court, particularly the counter-claim of the instant plaintiff were not fully determined on account of want of competency of the Court. Therefore, the matter was not res judicata.
  3. Article 40 of the Constitution of Kenya, 2010 (Constitution) made provision for the protection of the right to property. However, that protection was not absolute as sub-article (6) provided that the rights under the article did not extend to any property found to have been unlawfully acquired. The title No. 934 or the subsequent subdivisions were liable to be impeached in the event that the Court made a finding that there was fraud, misrepresentation, illegality, and/or that the titles were acquired un-procedurally or through corrupt schemes.
  4. Land ownership in Kenya had always emerged as an issue of interest because of the political context in which land was historically allocated and acquired by individuals through political patronage, as was highlighted by the findings of the Ndungu Commission of Inquiry into the Irregular and Illegal Allocation of Public Land in Kenya (Ndungu Commission, 2003). It was also common ground that land was an extremely precious commodity in Kenya and the insatiable appetite for the same had been there for decades. People went to great lengths often resulting to unorthodox and illegal means to own the precious commodity.
  5. The pre-2012 land ownership legal regime was governed primarily by the Government Lands Act, Trust Land Act, Registered Lands Act and Registration of Titles Act. Under the Government Lands Act, one could apply to the Commissioner of lands for allocation of the land .The physical planning department would come into the picture which would lead to allotment of an un-surveyed parcel. The land would then be surveyed and demarcated leading to registration.
  6. A private individual could also get land through the adjudication process of ancestral Land under the Land Adjudication Act and the Land Consolidation Act which would lead to crystallization of the rights and interests in land via registration under the Registration of Lands Act. There was also the process of getting land through setting apart of Trust land held by the county councils on behalf of the residents ordinarily residing in the area. The process was rigorous and was guided by the Trust lands Act particularly section 13. Once the land was privatized, it could be inherited, gifted away, sold, charged or dealt with in any manner that the owner deemed fit.
  7. The Land Registrar had affirmed that the parcel of land no. 934 belonged to the 5th defendant. However, there were some telltale signs that the creation of parcel no. 934 was shrouded in mystery. There were many unanswered questions regarding how the parcel came to exist. There was no evidence to support the 5th defendant’s claim that she inherited the suit land from her deceased husband. Parcel 934 was ever part of the land of parcel no 41. There ought to have existed a file known as the parcel file at lands office where all documents appertaining to a particular land parcel were kept. The Land registrar was mute on such issues.
  8. It remained a mystery as to how the acreage of parcel No. 832 was cancelled from 0.55 hectares to read 0.155 hectares. It was plainly clear that there was illegality in creation of parcel 934 which was far much bigger than the mother parcel no.832. Further, no one appeared to know what became of parcels no. 930 - 933. That information was crucial in determining the circumstances under which parcel no. 832 came to be cancelled.
  9. It was not enough for the Land Registrar to state that they dealt with the tail end of registration of the land. It was incumbent upon him to shed light on the basis upon which the land 934 came to be and how it was alienated thereafter.
  10. The dispute was in the open and was brought to the attention of the relevant authorities. On March 31, 2009 the commissioner of lands had written to the Kiambu Lands officer. There was not the slightest evidence of how the Land Registrar dealt with those queries. Instead the office of the Land Registrar appeared to have acted like an autonomous entity not answerable to any one including the Commissioner of Lands.
  11. It was also apparent that attempts were made by the plaintiff and other bodies to preserve the land but that turned out to be an exercise in futility. The plaintiffs tried to lodge a caution on the suit land 934 but the Land Registrar was confident to state that no caution was ever lodged at their office yet it was very clear that the plaintiff did apply for the caution to be registered way back in June 12, 2002. In another letter of April 14, 2010, the Land registrar was confirming to the Commissioner of Lands that they had registered restrictions on the land no 934 (935 - 965) and that there was a caution also lodged in favour of the plaintiff. However, when being cross-examined by PW1, the Land registrar denied the existence of the caution and was vague on whether the restrictions were registered. The logical inference to make was that the Land registry ignored and neglected to heed to the queries made by the plaintiffs and the Commissioner of Lands because they were the master minds of the fraud. That fraud was so well orchestrated that only the fraudsters knew what was happening.
  12. The title was issued on April 23, 2002. However, six days thereafter, on April 30, 2002, the land had already been subdivided into 31 parcels numbering 935 - 965 and title deeds had been issued. A few days thereafter, those new portions of land were already registered in the name of third parties between May 21, 2002 and May 22, 2009. The period of the month of April 2002 when the parcel 934 was registered to May 2002 when the land was disposed of was spent in a whirl of feverish activity in a rush to dispose of the land no. 934. It was therefore a fallacy for the Land Registrar to claim that there was no dispute, no fraud and no other claims on the suit land save the claim of the 5th defendant.
  13. In a record 6 days, the fraudsters managed to get the consent from the 2nd defendant (Land Control Board), caused the subdivision of the land to obtain mutation (which was a rather rigorous exercise), had the mutations registered at Lands office and the parcel no. 934 was gone. It was a well-known fact that for years, ownership of some properties acquired under the pre-2012 legal regimes, were questionable as people hid behind the shield of indefeasibility of title. Thus, even titles which were acquired illegally remained protected by the doctrine. The parcel of land 934 was alienated illegally through corrupt schemes and hence the resulting titles ought to be impeached.
  14. The plaintiffs appeared to base their claim on the notion that the land was under the mandate of the town council. It was however not clear under which laws the plaintiffs were basing their claims. Whatever law was being applied, the fact remained that the process of acquisition was at the infancy stage and was never concluded and the applicable law was not clear.
  15. There was no certainty that the suit land was trust land held by the County Council. What was apparent was that the 1st defendant had taken a fence sitting position, falling on either side now and then. The party did not tender any evidence nor did it file any submissions yet the suit land was at the heart of Kikuyu town. Such plots ordinarily were under the custody of the county councils. However, since the 1st defendant had not come out clean on the issue, then it could not be said that the County Council had any land to give out.
  16. Article 61 (1) of the Constitution stipulated that all land in Kenya belonged to the people of Kenya collectively as a nation, as communities and as individuals. Therefore, whereas plaintiffs rights and interests in the suit land did not go anywhere near crystallization into rights of proprietorship, they did have a legitimate expectation that they would get the land as the same was alleged to be public land available for alienation. But at no time did parcel no. 934 belong to the plaintiffs either.
  17. Parcel no. 934 measuring 0.970 hectares did not belong to the 5th defendant. It did not belong to the plaintiffs either. It was hence government land and any alienation of the same ought to have been through the laid down mechanisms available at that time. In particular, the land ought not to have been lumped up with parcel no 832.

Suit allowed with no orders as to costs.
Orders:

  1. A declaration that the registration of parcel No. Sigona/934 in the name of the 5th defendant was illegal, un-procedural and was through corrupt schemes.
  2. A declaration that the alienation of parcel no. 934 leading to subdivisions running from 935-965 was unlawful.
  3. The green card for title number 832 to revert back to its original format bearing the acreage of 0.55 hectares in the name of the 5th defendant.
  4. All the titles forming the series SIGONA no.935-965 and any further titles arising out of subsequent subdivisions were declared to be null and void and were cancelled forthwith to revert back to parcel no. Sigona 934 measuring 0.970 Hectares.
  5. Upon reversion, the land Sigona no. 934 was to be categorized as public land under article 62 (1) (d) of the Constitution.
  6. The Survey records, to be amended accordingly to reflect the change if at all such records had been affected by the alienation of parcel no.934 into parcels 935-965.
  7. The plaintiffs were at liberty to pursue their claim after the reversion in line with provisions of article 62 (4) of the Constitution.
  8. The Deputy Registrar of the Court was authorized to sign all requisite documents to give effect to the Judgment.
CIVIL PRACTICE AND PROCEDURE A party cannot use an affidavit, on its own, to withdraw from proceedings.

Hamdia Yaroi Shek Nuri v Faith Tumaini Kombe & 2 others
Petition (Application) 38 of 2018
Supreme Court of Kenya
D K Maraga, CJ & P, M K Ibrahim, S C Wanjala, Njoki Ndungu & I Lenaola, SCJJ
May 8, 2019
Reported by Beryl A Ikamari

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Civil Practice and Procedure-proceedings before the Supreme Court-applicable law-whether the Civil Procedure Act and the Civil Procedure Rules 2010 were applicable to Supreme Court proceedings.
Statutes-interpretation of statutory provisions-interpretation of rule 8 of the Supreme Court Rules 2012-whether the rule was applicable where a party sought to completely withdraw from proceedings-Supreme Court Rules 2012, rule 8.
Civil Practice and Procedure-affidavit-purposes of an affidavit-whether an affidavit without a substantive application, could be used by a party for purposes of withdrawing from proceedings.

Brief facts
The 2nd respondent made an application for purposes of being granted leave to file an affidavit seeking to be excused from the proceedings and to be granted the costs of the application. The basis of the application was that the 1st respondent colluded with the former officials of the 2nd respondent to secure her nomination as a Member of County Assembly of Tana River County contrary to the party’s Constitution. The appellant successfully sued the 1st respondent at the Magistrate’s Court but the decision was quashed by the High Court on the basis of a legal technicality.
When the political party realized that there had been collusion, it instructed an advocate to go on record at the High Court and subsequently at the Court of Appeal. The political party wanted to bring the true factual position to the Court's attention. The Court of Appeal dismissed the appeal on grounds of lack of jurisdiction. The 2nd respondent wished to withdraw from the proceedings as it considered its continued participation as amounting to perpetuating a fraud and sanitizing an illegality.
The 1st respondent stated the dispute related to election of Member of the County Assembly of Tana River County and was between members of the 2nd respondent and therefore the 2nd respondent could not run away from its responsibilities to its members. The 3rd respondent stated that the 2nd respondent did not address the question on jurisdiction which was before the Court of Appeal and that the application raised issues that should have been raised before the Political Parties Disputes Tribunal. The 3rd respondent added that the 2nd respondent had participated in the proceedings and could not exit the proceedings and that the application was frivolous and lacked merit.

Issues:

  1. Whether the Civil Procedure Act and the Civil Procedure Rules 2010 were applicable to proceedings before the Supreme Court.
  2. Whether rule 8 of the Supreme Court Rules 2012 could be a basis for filing an application seeking leave to file an affidavit to withdraw from proceedings.
  3. Whether a party could use an affidavit for purposes of seeking to withdraw from proceedings. Read More...

Relevant provisions of the law
Supreme Court Rules 2012
Rule 8;
 (1) A party may, with leave of the Court or with the consent of other party, lodge further pleadings or affidavits.
 (2) An application for leave under this Rule may be made orally.
 (3) Any pleadings, affidavits or other documents filed under this rule shall be served on all parties in accordance with rule 10.

Held:

  1. In making its application the 2nd respondent invoked rule 8 of the Supreme Court Rules 2012, section 1A, 1B & 3A of the Civil Procedure Act, order 51 rule 1 of the Civil Procedure Rules 2010 and all other enabling provisions of the law. However, the Civil Procedure Act and the Civil Procedure Rules 2010 were not applicable when moving the Supreme Court. The Civil Procedure Act and the Civil Procedure Rules 2010 were inapplicable and would not help the 2nd respondent's cause.
  2. Rule 8 of the Supreme Court Rules 2012 could not be a basis for filing an application seeking leave to file an affidavit to withdraw from proceedings.  That rule allowed parties to seek leave orally to file a further pleading in addition to what the party had already filed. It could not be invoked where a party sought to completely withdraw from proceedings. The application was fatal for being predicated on a wrong statutory provision.
  3. The application was alien in law and not properly before the Court. A party which sought to withdraw from proceedings was required to file a substantive application seeking to withdraw from the proceedings. An affidavit was a document that presented evidence on oath and could not, on its own, be a tool for withdrawal from proceedings.

Application struck out with no order as to costs.

CONSTITUTIONAL LAW Participation in the collection of personal information and data in National Integrated Information Management System (NIIMS) was not compulsory

Nubian Rights Forum & 2 others v Attorney General & 6 others
Consolidated Petitions 56, 58 & 59 of 2019
High Court at Nairobi
P Nyamweya, M Ngugi, W Korir, JJ
April 1, 2019
Reported by Chelimo Eunice

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Constitutional Law-enforcement of fundamental rights and freedoms-remedies-conservatory orders- guiding principles applicable to the grant of conservatory orders in constitutional petitions-circumstances under which the High Court would grant conservatory orders-balancing between safeguarding fundamental  rights and the use of resources in issuing conservatory orders-whether conservatory orders would be granted against the implementation and for suspension of legislation-Constitution of Kenya, 2010, article 23 (3)(c); Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013, rule 23. 

Brief facts:
On November 20, 2018 the National Assembly voted in favour of the enactment into law of the Statute Law (Miscellaneous Amendment) Act No. 18 of 2018 (the Act). The Act commenced operation on January 18, 2019. The effect of the Act was inter-alia, to amend several provisions of a number of statutes, among them the Registration of Persons Act. The amendments to the Registration of Persons Act established a National Integrated Information Management System (NIIMS) that was intended to be a single repository of personal information of all Kenyans as well as foreigners resident in Kenya, introduced new definitions of biometric and global positioning systems coordinates, among others.
The petitioners, aggrieved with the amendments filed various petitions in the Court. Simultaneously with the petitions, they also filed applications for various conservatory orders. The 1st petitioner’s application was dated February 14, 2019 whereas both the 2nd and 3rd petitioners’ applications were dated February 18, 2019. They sought to suspend the amendments arguing, among others, that the impugned amendments were unconstitutional because the correct procedure for amendment was not followed; that there was no public participation and that the amendments threatened violations of their rights and of the public and especially as regards the right to privacy, in light of the nature of personal information that would be collected in the NIIMS and the lack of any security in the manner of storage of and access to the collected data.
The respondents on the other hand argued that the amendments were minor and as such the proper procedure was used; that there was sufficient public participation; made an undertaking that they would not be collecting personal information on Deoxyribonucleic Acid (DNA) and on the Global Positioning System (GPS) co-ordinates; conceded that a Data Protection Bill was in the process of being finalised,but stated that there were laws in existence to provide security of data.

Issues:

  1. What were the applicable principles for the grant of conservatory orders?
  2. Whether conservatory orders would be granted against the implementation and for suspension of legislations.
  3. Whether the Court would suspend the amendments to the Registration of Persons Act vide Statute Law (Miscellaneous Amendment) Act No. 18 of 2018. Read More...

Held:

  1. The Court was granted powers to issue conservatory orders in constitutional petitions under article 23 (3)(c) of the Constitution and rule 23 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013.
  2. The applicable principles for the grant of conservatory orders were that the applicant ought to demonstrate an arguable prima facie case with a likelihood of success and that in the absence of the conservatory orders, the applicant was likely to suffer prejudice. The Court had to decide whether a grant or a denial of the conservatory relief would enhance the constitutional values and objects of a specific right or freedom in the Bill of Rights, and whether if an interim conservatory order was not granted, the petition or its substratum would be rendered nugatory. Further, public interest and relevant material facts ought to be considered. The Court had to bear in mind that it was not required to enter into a detailed analysis of the facts and the law.
  3. Strong and cogent reasons and a constitutional basis had to be shown before legislation could be suspended at an interlocutory stage.  Once such cogent reasons had been established, the Court had power to suspend impugned provisions of a statute.
  4. The extent and effect of the amendments made to the Act was not an issue that could be decided at the interlocutory stage and would have to await the final determination of the petitions.  That could not, therefore, be a ground for suspending the said amendments.
  5. The respondents placed before the Court evidence of public participation carried out. In the light of that evidence and given that the issue of whether the said public participation was sufficient would have to await the final determination of the petitions, that ground did not warrant the suspension of the amendments at an interlocutory stage.
  6. At least one of the laws cited by the respondents as providing protection for data, the Computer Misuse and Cyber Crimes Act, 2018 had been suspended. As matters stood, there was no or no specific legislation that provided for the collection, storage, protection and use of data collected by or held by government or other entities.
  7. An element of a prima facie case had been made out by the petitioners as regards the likely prejudicial effect that would result from collection of some of the personal data that would be required by the respondents under NIIMS.
  8. As regards where the public interest felt in light of the respective prejudices that would be caused if the implementation of NIIMS was stayed, it was in the public interest to have an efficient and organised system of registration of persons, and the responsible use of resources in the process, in light of the socio-economic gains of the system that had been illustrated by the respondents. There was, however, also a public interest in ensuring that the said system did not infringe on fundamental rights and freedoms. There was, thus, a need for a balancing of the competing public interest rights while the consolidated petitions were heard, so as to safeguard rights and resources, and ensure that the petitions were not rendered nugatory.
  9. While a prima facie case had been made out as regards some elements of the petitioners’ case, the Court was not satisfied that the conservatory orders had to issue in the terms prayed by the petitioners. Hence, the Court had to make various orders in order to avoid any violation of rights to privacy, and to preserve the substratum of the petitions.

Application partly allowed.
Orders:

  1. The inclusion of Deoxyribonucleic Acid (DNA) as one of the unique identifiers or attributes in the definition of biometric in section 3 of the Registration of Persons Act was suspended, pending the hearing and determination of the consolidated petitions. For the avoidance of doubt, the remaining unique identifiers and attributes contained in the definition of biometric in section 3 and section 5 of the Registration of Persons Act would continue to apply and be in operation.
  2. The definition of Global Positioning System Co-ordinate in section 3 of the Registration of Persons Act and the inclusion of Global Positioning System co-ordinates in section 5 (g) of the said Act was suspended, pending the hearing and determination of the consolidated petitions.
  3. Respondents were at liberty to proceed with the collection of personal information and data under the National Integrated Information Management System (NIIMS) pursuant to the operational provisions of the Registration of Persons Act. However, pending the hearing and determination of the consolidated petitions, the respondents were not to:
    1. Compel any member of the public to participate in the collection of personal information and data in NIIMS.
    2. Set any time restrictions or deadlines as regards the collection of the said personal information and data in NIIMS.
    3. Set the collection of personal information and data in NIIMS as a condition precedent for the provision of any government or public services, or access to any government or public facilities.
    4. Share or disseminate any of the personal information or data collected in NIIMS with any other national or international government or non-governmental agencies or any person.
  4. The costs of the 1st, 2nd and 3rd petitioners’ notices of motion dated February 24, 2019 and February 18, 2019 were to be in the cause.

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