Weekly Newsletter 033/2019



Kenya Law

Weekly Newsletter


Government is liable for losses and damages caused to lands adjacent to land compulsorily acquired.
Daniel Mucheru & Others v Nairobi City Council & 2 Others [2019] eKLR
ELC 372 of 2017
(Formerly Nairobi HCCC 816 of 2014)
Environment and Land Court at Thika
L. Gacheru, J
June 14, 2019
Reported by Chelimo Eunice
Download the Decision
 
Tort Law duty of care - dichotomy of agents and independent contractors – what was the difference in liability for the tort of an agent as compared to tort of an independent contractor - where the government failed to produce evidence to clarify whether the other defendants were independent contractors or its agents.
Evidence Law burden of proof – who bore the burden of proof – presumption that if a party failed to produce any evidence that was in its possession, then such evidence would be detrimental to its case - where a party failed to produce evidence to clarify whether the other defendants were independent contractors or agents - Evidence Act, section 107.
Land Law compulsory acquisition of land by government – rights of the initial private owners - whether the initial private owners to land compulsorily acquired by government had rights to the land after acquisition - whether the government was liable for losses and damages caused to lands adjacent to land compulsorily acquired - Land Acquisition Act (Repealed), section 19(4).
Pleadingsdrafting of reliefs and prayers in pleadings – parties bound by their pleadings - where parties sought for special damages in their submissions but did not seek for the same in the plaint- whether parties would be awarded reliefs not sought in the pleadings.

Brief facts:
The plaintiffs, though in separate plaints, brought claims against the defendants and sought similar orders, being general damages, injunction orders and costs of the suits. They averred that on or about 1988, the 1st defendant acquired land in Ndakaini area in Muranga District for construction of the 3rd Nairobi Water Project. That the 2nd and 3rd defendants were given work for construction and vide Kenya Gazette Notice No.970 of March 3, 1989, the 1st defendant acquired part of their parcels for a quarry site and the defendants started their operations at the said site. It was their contention that prior to the commencement of the operations, the 2nd and 3rd defendants had declared an area of about 300 metres surrounding the quarry site as a dangerous or risky zone due to the effects of the operations to be carried out in the quarry without compensating the plaintiffs and other affected people and/or putting alternative measures to prevent the likely disturbance and loss, damage and destruction and therefore they had suffered a lot of loss and damage. They, therefore, claimed jointly and severally against the defendants for the loss and damage.
The 1st and 2nd defendants contested the claims. The 1st defendant averred, among others, that there was no principal and agency relationship between them and the 2nd defendant who was a contractor, therefore, not liable for its actions and that the acts complained of did not amount in law to a nuisance. The 2nd defendant averred that it awarded to Lima Limited, the contract in respect of the project and that they were executing the same not as its agents but as independent contractors and that the plaintiffs’ titles to their land were extinguished in 1989 after they were compulsorily acquired by government and compensation paid.


Issues:
  1. Whether the initial private owners to land compulsorily acquired by government had rights to the land after acquisition.
  2. What was the difference in liability for the tort of an agent as compared to tort of an independent contractor?
  3. Whether the government was liable for losses and damages caused to lands adjacent to land compulsorily acquired.
  4. Whether parties would be awarded reliefs not sought in the pleadings.
Held:
  1. Vide Kenya Gazette Notice dated February 15, 1989, the government compulsorily acquired some land parcels that belonged to the plaintiffs. Though in their evidence in court, some of the plaintiffs complained about the compensation that was given to them terming it as little, while some testified that they were never compensated, from the prayers sought, the plaintiffs had not sought for proper compensation nor had they complained about the process of acquisition leading to compensation. If the plaintiffs thought that the compensation that was afforded to them was not fair nor the process of acquisition, nothing prevented them from seeking orders from the court for the same to be determined.
  2. Further, by the time the suits were being filed, the government had already taken possession of the parcels of land in issue. The plaintiffs could not complain about compensation while they had a chance of doing so but failed to do it. Once the government acquired the land compulsorily, the suit lands, therefore, vested in the government and all rights held by the plaintiffs with regards to the acreage of the suit land that was acquired automatically was extinguished.
  3. Section 19(4) of the Land Acquisition Act (Repealed) made it clear that upon taking possession, the land vested in the government absolutely free from encumbrance. Therefore, having taking possession of the acquired portions of land, ordinarily, all the rights that the plaintiffs had in relation to the acreages that were compulsorily acquired, were supposed to have been extinguished. Having been duly compensated, the plaintiffs had no rights over the same, they ought to have aired their grievances then before the land vested in the government.
  4. At the time the plaintiffs’ parcels of lands were being acquired, the Commissioner of Lands was responsible for such acquisition on behalf of the government. Further the Commissioner of Lands was in charge of keeping the records pertaining to the acquisition of the suit properties.
  5. The plaintiffs’ rights over the acquired portions of land were extinguished immediately the government took possession and the same vested in the acquiring entity. However, the dispute was not whether the government acquired the suit properties but on whether the defendants were liable to pay the plaintiffs for the loss and the damages they allegedly suffered due to the activities that were undertaken by the defendants during the construction of Ndakaini Dam over the remaining portions of land that the plaintiffs occupied and they still occupied.
  6. The government did acquire portions of the plaintiffs’ parcels of land and the plaintiffs’ rights over the acquired portions were extinguished but the plaintiffs remained in occupation and possession of the remaining un-acquired portions of the parcels of land and their rights over the un-acquired portions of land were never extinguished.
  7. The plaintiffs gave evidence in court and elaborated how the activities of the defendants caused various injuries, damages and suffering on their part. They produced various exhibits to support their claim. The exhibits produced in court were in support of special damages. However, parties were bound by their pleadings. Though they attempted to amend their plaints or pleadings to include various claims of special damages, the said applications for amendment were declined by the court and therefore they were bound by their initial plaints that were filed in the year 1990.
  8. The dichotomy of servant (or employee) and independent contractor stemmed from the law of tort. A person was more readily liable for the tort of his servants than for those of his independent contractor, the difference thus on the degree of control exercise. The defendants, however, did not call evidence and specifically the 1st defendant opted not to call any witness. Further, the plaintiffs had issued a notice to produce upon the defendants and in the said notice to produce documents, the plaintiffs had sought for the copies of the contract agreement that would have stipulated the relationship between the defendants and confirm whether the 2nd and 3rd defendants were independent contractors or servants of the 1st defendant. He who alleges had to prove as provided by section 107 of the Evidence Act.
  9. Further, if a party failed to produce any evidence that was in its possession, the presumption was that such evidence would be detrimental to its case. Therefore, there was no evidence that the 2nd and 3rd defendants were independent contractors and that the 1st defendant was not liable for their actions. The 1st defendant was the one which had mandate of constructing the Ndakaini Dam, and therefore, it could not say that the plaintiffs had no cause of action against it.
  10. The plaintiffs stipulated and proved the particulars of loss and damages that they suffered due to the actions of the defendants, thus, they were entitled to general damages.
  11. Even though in their submissions, the plaintiffs sought special damages, they were bound by their pleadings wherein they only sought for general damages and no special damages were claimed, hence they were not entitled to special damages. On any other relief that the court deemed fit to grant, each plaintiff was awarded incidental damages of Kshs. 100,000/= due to expenses incurred in the course of pursuing their claims from 1990.
Claim partly allowed.
Orders:
  1. Each of the plaintiff awarded general damages of Kshs.2, 000,000/=.
  2. Plaintiffs were entitled to costs of the suit and interest at the court rate from the date of filing of the suits to the date of payment in full.
  3. Each of the plaintiffs was awarded incidental damages of Kshs. 100,000/=.
Kenya Law
Case Updates Issue 036/2019
Case Summaries

JUDICIAL REVIEW Government circular prescribing and imposing on civil servants ultra vires and unlawful procedural step when applying for birth certificates nullified

Republic v Judicial Service Commissions & 2 Others Ex-parte Erastus M Githinji [2019] eKLR
Judicial Review Application 8 of 2019
(Formerly HCMA (Judicial Review).82 of 2019 at Nairobi)
Employment and Labour Relations Court at Nairobi
B. Ongaya, J
June 28, 2019
Reported by Chelimo Eunice

Download the Decision

Judicial Review-judicial review proceedings - scope of judicial review proceedings - whether judicial review proceedings were only limited to matters of procedure or aspects of merit would also be reviewed-where the applicant had alleged unreasonableness and illegality of an impugned decision - what issues invited review on merit - what was the scope and mandate of a reviewing court - whether a reviewing court would substitute its own decision for that of the administrator – Constitution of Kenya, 2010, article 47; Fair Administrative Action Act, sections 7 & 11.
Evidence Law - admissible evidence - public document – proof of public documents – presumption as to documents – circumstances which a court would presume a document to be genuine - whether a certificate of birth issued by a public officer would be presumed genuine and thus admissible in evidence – Evidence Act, sections 82 & 83.
Statutes – interpretation of statutes – Births and Deaths Registration Act - interpretation of section 26 of the Births and Deaths Registration Act on the procedure for acquiring a birth certificate – whether one had to apply for a birth certificate through the Permanent Secretary or Head of Department- validity of Government Circular which required application of birth certificate through the Permanent Secretary or Head of Department – whether the said Circular applied to registration of births by persons who were not civil servants- Births and Deaths Registration Act, section 26.
Constitutional Law – constitutional commissions – Judicial Service Commission – functions of the Judicial Service Commission - whether judicial officer’s retirement age was a term and condition of service which fell for review by the Judicial Service Commission – whether the Judicial Service Commission was mandated to hear or consider judicial officer’s case in regard to retirement age and whether it was bound by rules of natural justice – Constitution of Kenya, 2010, articles 47, 171, 172 & 236(2); Fair Administrative Action Act, section 4.

Brief Facts:
The applicant challenged the 1st and 2nd respondents’ decision to retire him from employment as a judge of the Court of Appeal and sought an order prohibiting the respondents from acting on or implementing government policy directions in making their decision to retire him. The applicant stated that when applying for employment as a Second Class Magistrate in the Judicial Service Commission (JSC), he indicated in the application form (PSC form) that his date of birth was 1949. Subsequently, in accordance with provisions of the Births and Deaths Registration Act, he applied and obtained birth certificate on October 29, 1999, showing that he was born on December 30, 1949. Since then, his official date of birth had been honoured as being December 30, 1949 and that the date had never been questioned.
By the notice of retirement dated October 30, 2018, the 2nd respondent conveyed to the applicant that the records held by the judiciary indicated that he would attain the mandatory retirement age of 70 years on June 01, 2019 and therefore he was being notified that he would retire with effect from June 01, 2019. The 2nd respondent argued that government policy stipulated that where an officer indicated only the year of birth on PSC form, he/she was deemed to have been born on July 1, of that year.

Issues:

  1. Whether judicial review proceedings were only limited to matters of procedure or aspects of merit would also be reviewed.
  2. Whether Government Circular Ref. No. DPM 7/7/43A Vol. IV/ (125) (as amended by Circular Ref. No. DPM PA/5/7 VOL. LII/ (170)) which required application of birth certificate through the Permanent Secretary or Head of Departmentwas valid and whether itapplied to registration of births of persons who were not civil servants.
  3. Whether a judicial officer’s retirement age was a term and condition of service which fell for review by the Judicial Service Commission
  4. What was the role of Judicial Service Commission in computing retirement age for judicial officers when age was disputed?Read More..

Held:

  1. On account of consideration of proportionality and unreasonableness of a decision in issue, analysis of article 47 of the Constitution, as read with the provisions of the Fair Administrative Action Act (the Act) revealed the implicit shift of judicial review to include aspects of merit review of administrative action. Whether relevant considerations were taken into account in making the impugned decision invited aspects of merit review.
  2. The grounds for review in section 7(2)(i) of the Act that required consideration if the administrative action was authorized by the empowering provision or not connected with the purpose for which it was taken and the evaluation of the reasons given for the decision, implicitly required assessment of facts and to that extent merits of the decision. Even if the merits of the decision was undertaken pursuant to the grounds in section 7 (2) of the Act, the reviewing court had no mandate to substitute its own decision for that of the administrator. Courts could only remit the matter to the administrator and or make orders stipulated in section 11 of the Act. On case by case basis, future judicial decisions ought to delineate the extent of merit review under the provisions of the Act. Courts would consider all cases where illegality was alleged both in matters of substance and procedure.
  3. Since the applicant had alleged unreasonableness and illegality, an analysis of the decision was necessary to make a finding on the allegations one way or the other. In such circumstances, a review on merits was necessary. Review on merits was increasingly permissible towards determining the reasonableness or legality of an impugned decision so that an application seeking a review on merits would not fail on that account alone.
  4. Whereas the applicant signed the PSC form when applying to join the judiciary as a Second Class Magistrate, over time, Kenya became more and more sophisticated and the applicant was serving in the judiciary, an arm of government as opposed to an agency, ministry or department of the executive arm that the circulars applied to. The circular of November 15, 1982 was clear that it applied to registration of births by civil servants. The applicant served in the judiciary and he was not serving in the civil service, he was not a civil servant. Thus, the circular of November 15, 1982 as amended did not apply to the claimant as a magistrate and then later as a judge. He was not a civil servant throughout his service in the judiciary.
  5. In any event, the circulars were merely administrative policies and they could not override the clear provisions of the relevant and applicable statute. Section 26(3) of the Births and Deaths Registration Act mandated the Principal Registrar, on payment of the prescribed fee, to furnish a certificate in the prescribed form, of the birth of any person compiled in the prescribed manner from the records and registers in his custody. Section 26 (4) of the Births and Deaths Registration Act provided that a certified copy of any entry in any register or return purporting to be sealed or stamped with the seal of the Principal Registrar should be received as evidence of the dates and facts therein contained without any other proof of such entry.
  6. Further, section 83 (1) of the Evidence Act made it clear that courts would presume to be genuine every document declared by law to be admissible as evidence of any particular fact, substantially in the form, and purporting to be excluded in the manner, directed by law in that behalf and purporting to be duly certified by a public officer. As stipulated in section 83(2) of the Evidence Act, courts would presume that any officer by whom any such document purported to be signed or certified, held when he signed it, the official character which he claimed in such document.
  7. The applicant’s birth certificate was presumed to be the true evidence of the dates and other facts it declared and the officer who issued the certificate had the authority to issue it and he issued the certificate relying on the entries in the register and such useful and relevant information. The circular was ultra vires in prescribing a step in acquiring the birth certificate, namely applying through the Permanent Secretary or Head of Department but which was never provided for or contemplated under the Births and Deaths Registration Act. It was equally ultra vires and offensive of the principle of legality for the respondents to require the petitioner to have complied with such ultra vires procedural step when he applied for his certificate of birth. Besides not being notified about that procedure in the circular for applying for the birth certificate, it was unnecessary and unlawful to bind the applicant to suchultra vires policy that was inconsistent with the statutory provisions on the procedure for applying for the birth certificate.
  8. The circulars did not bind and apply to the applicant’s service and further, they prescribed and imposed on civil servants an ultra vires and therefore unlawful procedural step in applying for a birth certificate.
  9. The declared date was not inconsistent with the year of birth as initially declared. Further, the applicant was appointed Ag. Puisne Judge in May 1987 and Judge of Appeal in June 2003. The on-line personal details maintained by the 1st and 2nd respondents showed the applicant’s date of birth as December 30, 1949. The data was one instance the applicant notified the 1st and 2nd respondents about the date of birth. Further, on December 22, 2011, the applicant notified the same date of birth by completing the vetting questionnaire issued by the Judges and Magistrates Vetting Board. The applicant had consistently completed the declarations of incomes, assets and liabilities as required under the Public Officer Ethics Act. The 1st and 2nd respondents did not deny receiving such applicant’s declarations. As required by section 28(1) of theBirths and Deaths Registration Act, the 1st and 2nd respondents had not shown that they ever asked the applicant to make a clarification about his date of birth. It would be unjustified and unfair for the respondents to shift their statutory obligation and make it the applicant’s burden.
  10. In the instances narrated, the applicant clearly notified about his date of birth but the 1st and 2nd respondents made no dispute or demanded a clarification in that regard.
  11. The policies as relied upon by the 1st and 2nd respondents applied to civil service and not the judicial service and, in any event, the policies as relied on were ultra vires the clear provisions of the Births and Deaths Registration Act and the Evidence Act and therefore null and void ab initio.
  12. In view of the returned ultra vires policy, it was appropriate to enhance the safeguards for implementation or administration of the Births and Deaths Registration Act and if any deficiencies had been observed in the implementation or administration of the said Act, but which were not highlighted to the court at all in the instant case, then the appropriate legislative interventions would be available to the respondents towards achieving the desired outcomes.
  13. It was unreasonable and illegitimate for the 1st and 2nd respondents to fail to reckon the applicant’s date of birth as December 30, 1949 in view of the cited provisions of the Evidence Act, the Births and Deaths Registration Act, the Public Officer Ethics Act and as read with article 47 of the Constitution and the Fair Administrative Action Act. In particular, the 1st and 2nd respondents did not give him lawful reasons for the imposition of the retirement date as July 1, 2019 and as envisaged in article 47 (1) and (2) of the Constitution.
  14. Article 167 (1) of the Constitution provided that a judge would retire from office on attaining the age of 70 years but would elect to retire at any time after attaining the age of 65 years. Further, article 259 (5) (c) of the Constitution provided that in computing time, if time was expressed as years, the period of time ended at the beginning of the date of the relevant year that corresponded to the date on which the period began. Thus, the applicant’s date of birth was on December 30, 1949 and he would attain 70 years of age on December 30,2019 and not on July 1, 2019. The date of retirement as imposed to be July 1, 2019 was unreasonable and illegitimate.
  15. The procedure for terminating the applicant’s service was unfair and the applicant was entitled to submit that the rules of natural justice had been breached. Article 236 (b) of the Constitution provided that a public officer ought not be dismissed, removed from office, demoted in rank or otherwise subjected to disciplinary action without due process of law. The decision to retire the applicant prematurely amounted to an adverse action or punishment without according the applicant due process of justice as was known in rules of natural justice.
  16. The 1st respondent was established under article 171 of the Constitution and in article 172 (b) of the Constitution, one of its functions was to review and make recommendations on the conditions of service of judges and judicial officers other than their remuneration. The retirement age was a term and condition of service and once the applicant disputed his effective date of retirement his case properly fell due for review by the 1st respondent and for making of an appropriate recommendation as per article 172(b) of the Constitution, and if the decision, the review and recommendation, would be adverse, then the applicant was entitled to due process in arriving at the decision. There was no evidence that the applicant’s case had been reviewed by the 1st respondent and recommendations made in that regard. Thus, the applicant was entitled to urge that despite the dispute he had raised, an adverse decision had been made against him without his being accorded due process as was well known as rules of natural justice. Section 4 of the Fair Administrative Action Act as read with articles 47 and 236(2) of the Constitution, required the 1st respondent to hear or consider the applicant’s case in that regard.
  17. The applicant had established his case against the respondents and the remedies as prayed for were justified. There was no material before the court to suggest that there was an established bar to granting of any of the prayers as made for the applicant, thus, the prayers were granted accordingly.

Application allowed.
Orders:

  1. Judicial review order of certiorari issued quashing the decision of the 1st and 2nd respondents to retire the applicant from employment as communicated in the retirement notice through a letter dated the October 30, 2018 and another one dated January 28, 2019 (both Ref. CRJ 3/1) from the 2nd respondent to the applicant.
  2. Judicial review order of mandamus issued compelling the 1st respondent, the Chief Registrar of the Judiciary and other relevant authorities including the 2nd and 3rd respondents to give effect to the applicant’s certificate of birth No. 648XXX dated October 29, 1999 certifying that the applicant was born on the December 30, 1949.
  3. Judicial review order of prohibition issued barring the respondents from acting on or implementing the government policy directions dated November 15, 1982; November 28, 1990; September 25, 2008 and October 14, 2013 in making their decision to retire the applicant.
  4. The 1st and 2nd respondents ordered to jointly or severally pay the applicant’s costs of the leave stage and substantive proceedings.
CONSTITUTIONAL LAW The issuance of 30 days’ statutory notice is not a requirement for the institution of petitions to enforce the bill of rights against the Kenya National Highways Authority.

Space Geo Enterprises Limited v Kenya National Highways Authority
Petition 3 of 2019
High Court at Embu
F Muchemi, J
June 24, 2019
Reported by Beryl Ikamari

Download the Decision

Constitutional Law-petition for the enforcement of fundamental rights and freedoms-institution of the petition-requirements relating to issuance of notice before filing the petition-where section 67 of the Kenya Roads Act required the issuance of 30 days’ notice before institution of suits against the Kenya National Highways Authority-whether the provisions of section 67 of the Kenya Roads Act were applicable to petitions instituted under article 22 of the Constitution-Constitution of Kenya 2010, article 22; the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013, rules 4 (1) & 10(1); Kenya Roads Act, No 2 of 2007, section 67.
Civil Practice and Procedure-institution of suits-institution of suits by companies-authorization required for the institution of the suits-resolution/authority to institute a constitutional petition from a company's board of directors-where such authorization did not form part of the documents accompanying the petition but was annexed to a further affidavit-effect of failure to show the existence of the authorization at the time of filing the petition-Civil Procedure Rules 2010, order 4 rule 1(4).

Brief facts:
The respondent decided to ground the petitioner's truck by removing the registration plates and insurance sticker. In response, the petitioner filed a petition in which it sought to enforce its economic and property rights as well as the right to fair administrative action. The respondent filed a preliminary objection stating that the petition did not comply with section 67 of the Kenya Roads Act and that the petition was filed without authority from the petitioner's decision making organs which included its board of directors. Section 67 (a) of the Kenya Roads Act required 30 days’ notice to be served on the Director-General of the respondent prior to the institution of a suit.

Issues:

  1. Whether the statutory requirements for the issuance of 30 days’ notice before filing a suit against the Kenya National Highways Authority, under section 67 of the Kenya Roads Act, was applicable to petitions filed under article 22 of the Constitution for the enforcement of fundamental rights and freedoms.
  2. What was the effect of annexing the resolution/authority to institute a constitutional petition, from a company's board of directors, to a further affidavit but not having it as part of the documents accompanying the petition? Read More...

Relevant provisions of the law
Kenya Roads Act, No 2 of 2007
Section 67;
Where any action or other legal proceeding lies against an Authority for any act done in pursuance or execution, or intended execution of an order made pursuant to this Act or of any public duty, or in respect of any alleged neglect or default in the execution of this Act or of any such duty, the following provisions shall have effect—

(a) the action or legal proceeding shall not be commenced against the Authority until at least one month after written notice containing the particulars of the claim and of intention to commence the action or legal proceedings, has been served upon the Director-General by the plaintiff or his agent;

Held:

  1. A preliminary objection consisted of a point of law which had been pleaded, or which arose by clear implication out of pleadings, and which if argued as a preliminary point could dispose off the suit. A preliminary objection could not be raised where facts needed to be ascertained or where what was sought was the exercise of judicial discretion.
  2. Under section 67 (a) of the Kenya Roads Act it was a mandatory requirement for any party wishing to institute proceedings against the Kenya National Highways Authority to give at least thirty (30) days’ notice which would be served upon the Director-General of the Authority.
  3. The petition entailed allegations that fundamental rights and freedoms had been violated and it was brought under article 22 of the Constitution. Rules 4(1) & 10(1) of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 provided for the institution of such a petition at the High Court. The Rules did not require the giving of a statutory notice to the respondent before filing the petition. The notice requirements provided for under section 67 of the Kenya Roads Act did not apply to petitions or applications that sought to enforce the bill of rights.
  4. A company could only sue in its own name with the sanction of its board of directors or by a resolution in a general or special meeting. Order 4 rule 1(4) of the Civil Procedure Rules provided that where the plaintiff was a company, the verifying affidavit had to be sworn by an officer of the company, that was duly authorized under the seal of the company. The petitioner filed a further affidavit explaining how its advocates were instructed and how the resolution or authority to sue was obtained. The relevant authority/resolution was annexed to the affidavit.
  5. The mere failure to file the resolution/authority with the plaint would not invalidate a suit. A decision to file a suit was capable of being ratified in a meeting of shareholders or by authority of the board of directors. The resolution/authority of the board of directors could be filed any time before the suit was fixed for hearing.

Preliminary objection dismissed.

CONSTITUTIONAL LAW Standing Order 64(3) of the County Assembly of Nakuru, which required the issuance of two hours' notice to a deputy speaker of the County Assembly who faced removal from office, is unconstitutional.

Samuel Tunoi v Speaker Nakuru County Assembly & 2 others
Petition 44 of 2015
High Court at Nakuru
R Lagat Korir, J
February 12, 2019
Reported by Beryl Ikamari

Download the Decision

Constitutional Law-doctrine of separation of powers-the Legislature and the Judiciary-where it was alleged that impeachment proceedings before a county assembly entailed violations of fundamental rights and freedoms-whether the doctrine of separation of powers would allow the Court to intervene where the actions of a county assembly allegedly violated fundamental rights and freedoms-Constitution of Kenya 2010, article 117; County Governments Act, No 17 of 2012, section 17;  National Assembly (Powers and Privileges) Act, No 29 of 2017, sections 12, 29 & 4.
Constitutional Law-petition-drafting petitions for the enforcement of fundamental rights and freedoms-precision in drafting petitions-considerations of the Court in determining whether a petition met the legal threshold in terms of setting out allegations of violations of specific fundamental rights and freedoms-Constitution of Kenya 2010, articles 23 & 165(3).
Constitutional Law-fundamental rights and freedoms-rights to fair hearing and fair administrative action-issuance of notice to a person against whom administrative action would be undertaken-constitutionality of Standing Order 64(3) of the County Assembly of Nakuru which required the issuance of two hours' notice to a deputy speaker of the County Assembly who faced removal from office-where a deputy speaker of a county assembly who was facing impeachment was given one and a half hours' notice relating to the impeachment proceedings-whether the conduct of the impeachment proceedings entailed violations of the right to a fair hearing and the right to fair administrative action and whether the two hours' notice requirement in the Standing Orders was constitutional-Constitution of Kenya 2010, articles 50 & 47.
Constitutional Law-fundamental rights and freedoms-enforcement of fundamental rights and freedoms-remedies for breaches of fundamental rights and freedoms-damages and declarations-considerations of the Court in determining what would be appropriate relief for a breach of the right to a fair hearing and the right to fair administrative action-Constitution of Kenya 2010, article 23(3).

Brief Facts:
The petitioner was elected as the Deputy Speaker of the County Assembly of Nakuru. On March 10, 2015, a notice of motion for the Deputy Speaker's removal from office was issued. In the afternoon of the same day, a motion to amend the Standing Orders was made. Specifically, Standing Order 64 and 237(6) to was to be amended to allow for the removal of the Deputy Speaker via a simple majority vote as opposed to the stipulated 75%. On March 11, 2015, the motion to amend the Standing Orders was approved by a majority of the members of the Assembly and it came into force immediately.
The petitioner alleged that he was given one and a half hours’ notice of the motion to impeach him. The motion was debated in the afternoon on March 11, 2015 and it culminated in the impeachment of the petitioner. On March 12, 2015, another motion for the election of the 3rd respondent as Deputy Speaker was passed. The petitioner contended that his impeachment and election of the 3rd respondent were unprocedural and that his constitutional rights were violated.

Issues:

  1. Whether a petition that was instituted to enforce fundamental rights and freedoms against a county assembly offended the doctrine of separation of powers.
  2. When would a constitutional petition for enforcement of fundamental rights and freedom be said to have met the legal threshold with respect to precision in drafting?
  3. Whether rights to fair hearing and fair administrative action were breached when a deputy speaker of a county assembly was given one and a half hours’ notice of impeachment proceedings.
  4. What reliefs, if any, would be appropriate for the Court to grant for a violation of the rights to a fair hearing and fair administrative action? Read More...

Held:

  1. The petition had been overtaken by events. General elections were held on August 8, 2017 and new leaders were elected to the County Assembly. Additionally, the petitioner was re-elected as Deputy Speaker of the County Assembly. However, the Court could not overlook the allegations concerning violations of constitutional rights. If the Court failed to consider the question relating to those violations, it would be choosing to ignore its duty under article 23 and 165(3)(b) of the Constitution and failing to uphold constitutional principles as provided for in article 159 of the Constitution.
  2. A reading of article 117 of the Constitution together with section 17 of the County Governments Act and sections 12, 29 and 4 of the National Assembly (Powers and Privileges) Act showed that the Court should not interfere with the legislative authority of Parliament and County Assemblies. Further, the Court should be reluctant to question procedures, debates and workings as long as they complied with the Constitution. However, parliamentary privilege was not absolute as the courts were entitled to intervene where the actions of a county assembly breached the Constitution.
  3. The petitioner alleged violations of articles 47 and 50 of the Constitution in the process leading to his impeachment and the Court had jurisdiction to consider such issues under article 23 and 165(3) of the Constitution.
  4. Competency of a petition for the enforcement of fundamental rights and freedoms was based on the principle that a person who alleged a violation of his constitutional rights and freedoms had to plead the allegation with a sufficient degree of precision. However, the principle did not mean that the Court should be quick to dismiss a petition on the ground that it had not been drafted with elegance. Where the Court was able to painlessly identify the complainants’ case the petition ought to be determined substantively and on its merits.
  5. The petition did not disclose how the amendments made to the Standing Orders were made in violation of the Constitution. Additionally, the petition failed to identify laws or procedures prescribed in the Standing Orders which were wrongfully undertaken, overlooked, misapplied or ignored by the County Assembly in the process of making the amendments. Issues relating to the constitutionality of the amendments were not set out in a way that enabled the respondents to answer to them and their articulation fell short of the required threshold.
  6. The allegation, that the impeachment process violated articles 47 and 50 of the Constitution, was set out with sufficient particularity to enable the Court to understand the issues in controversy.
  7. Standing Order 68 of the County Assembly of Nakuru required the issuance of notice to a person who was facing removal from office of at least three days before the debate on the motion for removal. Specifically, with respect to the Deputy Speaker when he faced removal from office, the notice required was two hours as provided for in Standing Order 64(3) of the County Assembly of Nakuru.
  8. Notification requirements were in line with the spirit of fair administrative action provided for in article 47 of the Constitution. Additionally, section 4(3) of the Fair Administration Action Act required the issuance of prior and adequate notice of the nature and reasons for the proposed administrative action.
  9. The two hours envisaged under Standing Order 64(3) did not constitute adequate notice and the actual notice of one and a half hours given to the petitioner, was not adequate to enable the petitioner to defend himself. Standing order 64(3) of the County Assembly of Nakuru contravened section 4(3)(a) of the Fair Administration Action Act and article 47 of the Constitution.
  10. Article 23(3) of the Constitution empowered the Court to grant appropriate relief, including an order for compensation. The award of general damages would be made at the discretion of the Court and it was dependent on the circumstances of each case and what was appropriate and just. The petitioner's rights to a fair hearing were violated by the 1st and 2nd respondents. Considering comparable cases on violation of constitutional rights and the award of damages, an award of Kshs. 200, 000/= was sufficient.

Petition allowed.
Orders:-

  1. A declaration that the amended Standing Order number 64(3) was unconstitutional for breach of article 47 of the Constitution and it was null and void. 
  2. A declaration that the petitioner’s right to fair administrative action had been breached by the 1st respondent.
  3. The petitioner was awarded general damages of Kenya shillings two hundred thousand only (Kshs.200,000/-) against the 1st respondent.
  4. The petitioner was awarded costs of the petition.
CONSTITUTIONAL LAW Court of Appeal affirms High Court decision on invalidity of search warrants obtained by the EACC from court without adherence to statutory procedural requirements.

Director of Public Prosecutions v Tom Ojienda t/a Prof Tom Ojienda & Associates Advocates & 3 others
Civil Appeal 109 of 2016
Court of Appeal at Nairobi
R N Nambuye, P O Kiage & S ole Kantai, JJA
June 28, 2019
Reported by Beryl Ikamari

Download the Decision

Constitutional Law-fundamental rights and freedoms-rights to privacy, property, fair administrative action and fair hearing-claim that a decision by the EACC to apply for a search warrant to investigate an advocate-client bank account was made without the issuance of the requisite notice-whether the decision violated rights to privacy, property, fair administrative action and fair hearing-Constitution of Kenya 2010, articles 27, 31, 40, 47 & 50;  Anti-Corruption and Economic Crimes Act, No 3 of 2003, sections 26, 27 & 28.
Advocates-advocate-client privilege-extent of the privilege-information relating to an advocate-client bank account- where investigations were undertaken with respect to irregular payments made by a client to an advocate-whether information relating to an advocate-client bank account was privileged-Evidence Act (Cap 80) section 134.
Constitutional Law-interpretation of the Constitution-right to fair administrative action-nature of actions that constituted administrative actions-investigations-whether investigations by the EACC, including decisions to apply for a search warrant under the Anti-Corruption and Economic Crimes Act, were subject to constitutional requirements on fair administrative action-Constitution of Kenya 2010, articles 47 & 79; Anti-Corruption and Economic Crimes Act, No 3 of 2003, sections 26, 27 & 28.
Statutes-interpretation of statutory provisions-provisions of general statutes as compared to provisions of specific statutes-interpretation of section 23 of the Anti-Corruption and Economic Crimes Act as read together with section 118A of the Criminal Procedure Code and section 180 of the Evidence Act-whether the statutory requirement for the issuance of notice by the EACC under sections 26, 27 & 28 of the Anti-Corruption and Economic Crimes Act could be dispensed with-Criminal Procedure Code (Cap 75), section 118A; Evidence Act (Cap 80), section 180; Anti-Corruption and Economic Crimes Act, No 3 of 2003, sections 23, 26, 27 & 28.

Brief Facts:
The Ethics and Anti-Corruption Commission (the 2nd respondent) suspected that irregular payments amounting to Kshs. 280, 000, 000/- had been paid by Mumias Sugar Company to the 1st respondent for legal services that had not been rendered. The EACC successfully made an application, in CMC Misc Application No. 168 of 2015, for a search warrant to investigate the 1st respondent's advocate-client bank account. As a consequence, the 1st respondent’s use of the bank account was limited.
The 1st respondent filed a petition in which he alleged that the investigation into the alleged irregular payment was being done in breach of his rights to privacy, property, fair administrative action and fair hearing. He said that he was entitled to fees for services rendered and that information relating to the payment was privileged under the advocates-client privilege. He added that in violation of sections 28(1), 28(2), 28(3) and 28(7) of the Anti-Corruption and Economic Crimes Act (ACECA), the EACC did not give him written notice of its intention to apply to court for a warrant and it thereby denied him a chance to be heard. The 1st respondent added that the matter ought to have been filed at the Advocates Disciplinary Tribunal which had the mandate to handle it under section 60A of the Advocates Act. The petition at the High Court was partially successful. The names of the 2nd to 4th respondents as they appeared in the petition were struck out and inter alia, orders of certiorari were issued to quash the warrants.
Against the High Court decision, two separate appeals were filed-one by the DPP and another by the EACC. The two appeals were consolidated.  The 1st respondent also filed a cross-appeal.

Issues:

  1. Whether the issuance of a search warrant for purposes of investigations relating to payments made to an advocate-client bank account, on application by the EACC without issuance of the requisite notice to the account-holder, entailed a violation of rights to privacy, property, fair administrative action and fair hearing.
  2. Whether information relating to an advocate-client bank account was covered under the advocate-client privilege.
  3. Whether investigations, including judicial applications for search warrants, by the EACC were of an administrative nature and were subject to the provisions on fair administrative action under article 47 of the Constitution.
  4. Whether it was a mandatory statutory requirement for the EACC to issue written notice to affected persons before applying for a search warrant under sections 26, 27 & 28 of the Anti-Corruption and Economic Crimes Act. Read More...

Held:

  1. The Court of Appeal would be reluctant to interfere with the exercise of judicial discretion by the High Court. It would only interfere with the exercise of discretion where it was satisfied that the Court had misdirected itself in some matter and that it arrived at a wrong decision or was manifestly wrong in the exercise of discretion and occasioned injustice.
  2. The allegation on discrimination, that the 1st respondent was singled out for investigation for fictitious payments out of a panel of 20 law firms, was not substantiated. The 1st respondent did not show that he was treated differently, without any objective or reasonable justification, among the rest who were in a similar situation. The High Court correctly made the finding that the claim on discrimination should fail as it was not supported by evidence.
  3. The allegation on violation of the right to privacy was contradicted by the 1st respondent's assertion that the bank account under investigation was not his property. That raised questions concerning whose privacy had been violated and it seemed that the answer was that his client's privacy had been violated. It was therefore necessary for the clients to complaint and without evidence of such complaints, the claim on breach of privacy rights would fail.
  4. Under section 134 of the Evidence Act, the advocate-client privilege was provided for. The provision prohibited disclosure of communication between advocates and clients and the divulging of information about documents that came to the advocate in the course of his employment as the client's advocate. The protection was for the client and what the advocate got was the privilege of non-disclosure. However, that protection was not absolute and the advocate could disclose information where there were compelling reasons to do so.
  5. There were instances where privilege could be lost-where information involved something of a criminal nature and where there was a waiver by the client. The 1st respondent could not claim protection under the rule as it was his clients that were protected. Exceptions to the privilege were in existence as the client company had volunteered information and waived the privilege and there were allegations of criminal acts of corruption.
  6. The right to property was provided for in article 40 of the Constitution. The High Court correctly made the finding that the 1st respondent did not demonstrate how his right to property was violated as he had control and ownership of the bank account in question during the investigations.
  7. The investigative process in question was an administrative function undertaken by the EACC. That was the case notwithstanding the fact that search warrants were obtained via a judicial process. Issuance of a written notice was a statutory duty under section 27(3) of the Anti-Corruption and Economic Crimes Act. Failure to issue the notice was a violation of the right to fair administrative action. Due to the far-reaching and life changing consequences that would come into play when the Anti-Corruption and Economic Crimes Act was activated, courts had to be vigilant to ensure that citizen's rights were scrupulously protected.
  8. Sections 27 and 28 of the Anti-Corruption and Economic Crimes Act enabled the EACC to obtain information and documents but there were safeguards which required the issuance of notice. Those were the specific provisions of the Anti-Corruption and Economic Crimes Act and the general provisions of other statutes could not be relied upon in investigations where notice had not been issued. The provisions of a specific statute, like the Anti-Corruption and Economic Crimes Act, would take precedence over general provisions of other statutes sought to be relied on by an investigator. Therefore section 23 of the Anti-Corruption and Economic Crimes Act read together with section 118A of the Criminal Procedure Code and section 180 of the Evidence Act would not help to dispense with the requirements for written notice.
  9. The intention expressed in sections 26, 27 and 28 of the Anti-Corruption and Economic Crimes Act was for the affected person or suspect to be aware of the intended action against them by the EACC. It was also an intention for the person of interest to be given a chance to voluntarily comply with the EACC. In failing to issue the notice the EACC violated the 1st respondent's fundamental rights and freedoms.
  10. In fulfilling its mandate the EACC had to adhere to the procedural guidelines set out in the Anti-Corruption and Economic Crimes Act as the guidelines helped the EACC to discharge its mandate better. The EACC had a chance to summon suspects and be furnished with the necessary information before preferring charges against individuals. Those actions would aid in the fair administration of investigations done under the statute.

Civil Appeals No. 103 & 109 of 2016, and the cross-appeals therein, were dismissed.

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