Weekly Newsletter 038/2019



Kenya Law

Weekly Newsletter


Supreme Court issues proposals/guidelines to remedy denial of substantive justice due to impeding court process in light of strict timelines for settlement of electoral disputes
Martha Wangari Karua v Independent Electoral and Boundaries Commission and 3 others
Petition 3 of 2019
Supreme Court of Kenya
D K Maraga, CJ & P; M K Ibrahim, S C Wanjala, N Ndungu, I Lenaola, SCJJ
August 6, 2019
Reported by Ian Kiptoo
Download the Decision

 

Electoral Law – elections - electoral dispute settlement – time frame for settling of electoral disputes – where Court of Appeal decision reinstating a petition caused a 9 month delay in filing a petition - whether a court could extend the time provided for settlement of electoral disputes - what were the proposals/guidelines that sought to remedy denial of substantive justice due to impeding court process in light of strict timelines for settlement of electoral disputes – Constitution  of Kenya, 2010 articles 87 (1) and 105 (2)
Jurisdiction - jurisdiction of the Supreme Court – appellate jurisdiction of the Supreme Court – where a party did not specify the constitutional provision through which to move the Supreme Court – where rule 9 and 33 of the Supreme Court Rules did not make specific reference to any particular jurisdiction of the Court - whether a party invoking the jurisdiction of the Supreme Court had to specify the constitutional provision through which it moved the Court – Constitution of Kenya, 2010, articles, 50, 87 and 164 (4) (a); Supreme Court Rules, 2012, rules 9 and 33
 

Brief Facts:
The appeal sought to set aside the judgment and orders of the Court of Appeal which dismissed the appellant’s appeal thus upholding the election of the 3rd and 4th respondents as the Governor and Deputy Governor of Kirinyaga County on the grounds that: the Court of Appeal erred in interpreting article 50 of the Constitution of Kenya, 2010 (Constitution) on the right to fair trial, by upholding the rejection of the electronic evidence contained in a mobile device (a phone) belonging to one of the petitioner’s witnesses; that article 87 was intended to prevent delay but not to abrogate a litigant’s right to access justice.
On the other hand, the respondents contended that: the petitioner’s video evidence was properly excluded as it was not produced as evidence within the correct rules of procedure; that the Court of Appeal was properly guided by holding that settling electoral disputes within the constitutionally provided time frames undertaken after the expiry of the 6 months were a nullity.

 

Issues:

  1. Whether a party invoking the jurisdiction of the Supreme Court had to specify the constitutional provision through which it moved the Court.
  2. Whether a court could extend the time provided for settlement of electoral disputes.
  3. What were the proposals/guidelines that sought to remedy denial of substantive justice due to impeding court process in light of strict timelines for settlement of electoral disputes?

Relevant Provisions of the Law
Constitution of Kenya, 2010
Article 87(1)

 “Parliament shall enact legislation to establish mechanisms for timely settling of electoral disputes.”
 

Elections Act
Section 75

 (1) A question as to validity of an election of a county Governor shall be determined by High Court within the county or nearest to the county.
 (1A) …

 (2) A question under subsection (1) shall be heard and determined within six months of the date of lodging the petition.

Held:

  1. The need to specify the constitutional provision through which one moved the Court flowed from the fact that not every appeal from the Court of Appeal was appealable to the Supreme Court. Appeals were limited by article 163(4) of the Constitution of Kenya, 2010 (Constitution), which categorised them either as of right or upon certification that a matter of general public importance was involved. Therefore, the Court’s jurisdiction had to be invoked within the confines of that constitutional provision.
  2. In approaching the Court as of right, a party had to demonstrate that questions of constitutional application or interpretation were in controversy. With regard to the second limb, one had to have been granted certification to appeal to the Court. Such requirements therefore dispelled any notion of an automatic locus before the Court. Thus, the jurisdiction upon which an appeal rested should not be left for speculation. It had to be out rightly stated.
  3. The petitioner’s appeal was filed pursuant to rules 9 and 33 of the Supreme Court Rules, 2012. Rule 9 specified the contents of a petition while rule 33 provided the timeframe for filing an appeal as well as the documents that formed the record of appeal. Thus, the rules of the Court remained an important tool in aiding the dispensation of justice. In the instant case however, rules 9 and 33 did not make reference to any particular jurisdiction of the Court.
  4. The appeal before the Court, in its body, was crafted in a manner that demonstrated that the petitioner invoked the Court’s jurisdiction under article 163(4) (a) of the Constitution and specific provisions of the Constitution were cited as having been violated. The Suleiman Mwamlole Warrakah & 2 others v Mwamlole Tchappu Mbwana & 4 others SC Petition No. 12 of 2018 eKLR in that context was clearly distinguishable. Inelegance in drafting was not encouraged nonetheless.
  5. Parties had been cautioned, in the Court’s past decisions, against making fleeting statements alleging constitutional controversies where such questions were not pivotal for the determination of the dispute before the Court of Appeal. In the instant case, the grounds raised in the petition fell for the Court to determine the interpretation of inter alia articles 81 and 86 of the Constitution in the context of the electoral process. Further, the petitioner alleged infringement of her right to fair hearing, which proposition called for interpretation of article 50. Above all, the appeal raised an important issue of timelines for settling electoral disputes. Such a question was deeply rooted in the Constitution and the determination of it would require an interpretation of articles 87(1) and 105 of the Constitution. Therefore, the Court had jurisdiction to determine the petitioner’s appeal under article 163(4) (a) of the Constitution.
  6. The span of 6 months from the date of filing of the petition was almost coming to an end at the time Court of Appeal decision reinstating the petition was made. As expected, by the time the High Court eventually determined the petition on June 11, 2018, 9 months had lapsed from the date of filing the petition. There had been conflicting decisions emanating from the superior courts with regard to consequences of determining an election petition after the specified timeframes.
  7. Timelines in resolving electoral disputes were first introduced by the 2010 Constitution. The Constitution of Kenya Review Commission (2005) had proposed in its draft Constitution that election petitions should be heard within one year from the date of elections. That proposal was made against the backdrop of the long judicial processes which undoubtedly led to denial of justice to certain parties while also giving courts the opportunity to conclusively, and on merit, determine all electoral disputes placed before them for adjudication. By 2010, when the new Constitution was being promulgated, that period had been reduced to 6 months as reflected in article 105 (2) of the Constitution.
  8. The period provided for the settlement of electoral disputes could not be extended by any court and there was no reason to depart from that position. It was unfortunate that in remitting the matter back to the High Court after the determination of the prior appeal, the Court of Appeal appeared to have disregarded the Court’s decision in Lemanken Aramat v. Harun Maitamei Lempaka & 2 others. Had the Appellate Court applied the precedent in that case, it would not have made an open ended order of remission as it did. The Court should have made a limited order with the requirement that the High Court determine the petition strictly within the timeline of six months. In the alternative, the Appellate Court should have decided to end the matter at that stage, well aware that any substantive determination of the petition by the High Court would be an exercise in futility, in view of the precedent in Lemanken.
  9. With regard to elections of a Governor, the relevant provision was section 75 of the Elections Act as read with article 87(1) of the Constitution. Section 75 undoubtedly derived its authority from article 87 of the Constitution which required timely resolution of electoral disputes. Once an election petition was filed at the High Court sitting as the Election Court, it had to be determined within a period of 6 months.
  10. In Gerald Thoya, it was also proposed that all applications ought to be heard together with the substantive matter and even if a court were to strike out the petition, it should still determine other issues since the actions were subject to appeal. In such a case, all applications would then be considered as a response to the petition including an application for striking out thus saving time and meeting the 6 months’ deadline.
  11. Election Petition No. 4 of 2017 case recognized that depending on the circumstances of a case, some interlocutory decisions could require immediate intervention by an appellate court. However, sight could not be lost of the danger of unnecessarily opening the appellate door for interlocutory applications. With regard to applications for striking out a petition, the Court of Appeal was categorical that such appeals were inevitably justiciable since striking out amounted to disposing of the petition.
  12. All the suggested propositions had to be considered within the context of the strict timelines provided for the settlement of electoral disputes. The proposals sought to remedy the likelihood of denial of substantive justice due to impeding court processes or where a wrong could not be corrected at the appellate stage due to lapse of time. Hence, a proper consideration of the issue required a balancing of rights such as the right of appeal, access to court, the right to have a matter adjudicated within the specified timeframes and the right to substantive justice.
  13. Learning from the experience of the emerging jurisprudence in Kenyan courts, the following proposals was made:
    1. all applications by a respondent in an election petition, save in exceptional circumstances, should form part of the response to the petition. Similarly, a petitioner should as much as possible file any application arising from his petition e.g. for scrutiny or recount at the same time as the petition;
    2. unless for want of jurisdiction or in any other deserving circumstance, a trial court should exercise restraint in striking out a petition or a response, where such an action was likely to summarily dispose of the matter;
    3. all applications for striking out an election petition for want of jurisdiction, or for any other reason, had to be made and determined within the constitutional and statutory timelines for the resolution of electoral disputes. In that regard, it was for the trial court, to make and enforce such case management orders, so as to meet that objective;
    4. appeals on interlocutory applications, other than for striking out in circumstances explained in (b) and (c) above, should await the final determination of the whole petition before the trial court; and
    5. in exceptional circumstances, an appellate court could dispose of an appeal arising from an interlocutory application filed and determined by the trial court while the substantive matter was still ongoing at the trial court. In doing so, the timeframe question as explained had to always be borne in mind.
  14. The proposals did not in any way provide an exception to the requirement of settling disputes within the specified timeframe. All election petitions had to be resolved within the provided timeframes without qualification. In the instant case, High Court determined the petition before it after the lapse of 6 months from the date of filing. That was an affront to the Constitution and the enabling electoral laws. As such, the High Court proceedings were a nullity.
Petition of appeal dismissed with each party to bear own costs before the High Court, Court of Appeal and Supreme Court
Kenya Law
Case Updates Issue 038/2019
Case Summaries

JUDICIAL REVIEW KNEC has the mandate to effect changes, relating to a transsexual candidate's name and gender, to a KCSE certificate issued by it.

Kenya National Examinations Council v Republic & 2 others
Civil Appeal 355 of 2014
Court of Appeal at Nairobi
P Waki, S Gatembu Kairu & J Otieno Odek, JJA
July 19, 2019
Reported by Beryl Ikamari

Download the Decision

Judicial Review-availability of judicial review remedies-mandamus-existence of a public statutory duty and exercise of discretion in the performance of a statutory duty-whether the Kenya National Examinations Council had the statutory mandate to effect changes on KCSE certificates that it had issued and whether an order of mandamus could be used to compel it to effect changes relating to a candidate's name and gender, in a particular manner-Kenya National Examinations Council (Kenya Certificate of Secondary Education Examinations) Rules, 2009, rule 9(3).
Constitutional Law-separation of powers-mandate of the courts-transsexual/transgender rights-where there was no public policy or legislative framework for transsexual/transgender rights-whether in making determinations on transsexual/transgender rights without a supporting public policy or legislative framework, the High Court usurped the functions of the Executive and the Legislature.

Brief Facts:
The 3rd respondent was previously known as AMI and she sat for her Kenya Certificate of Secondary Education (KCSE) Examinations in 2001 in a boys' secondary school. She obtained the requisite certificate with her name reflected together with her gender indicated as male. Since the year 2008, the 3rd respondent had been receiving treatment for depression and gender identity disorder. In 2010, she effected a change of her name via deed poll and Gazette Notice No 6139 of May 19, 2010 was published to reflect the change in name. Further changes to her name were made via another Gazette Notice in the year 2012.
The 3rd respondent wrote various letters to the appellant asking the appellant to issue a certificate in which changes in her name and sex were indicated. Despite indications from the appellant that it could consider effecting such changes where documentation in the form of a deed poll, a gazette notice or medical reports was given, the 3rd respondent did not succeed in having those changes effected in the certificate. The appellant later stated that the changes could not be made after the issuance of the certificate.
The 3rd respondent went to the High Court and sought orders of mandamus to compel the appellant to change the particulars of her name in her certificate and also to remove the gender mark on her certificate in exercise of its statutory mandate. The High Court found that the application was merited and it granted the orders of mandamus.
The appellant filed an appeal on the basis of various grounds. It stated that the orders of mandamus should not have been granted as mandamus could not be used to compel a public body to perform its duties in a certain way, particularly where statute gave it discretion relating to the performance of that duty. It added that a statutory duty, in relation to the remedy sought by the 3rd respondent, did not exist in the first place. The appellant also said that what the 3rd respondent sought to enforce entailed private law rights for which the public law remedy of judicial review should have been unavailable. The appellant further stated that judicial review proceedings could not be used to enforce fundamental rights and freedoms.
On the question as to whether the gender mark should be removed, the appellant urged that the High Court was ill equipped to make a finding and that the 3rd respondent was still male. The appellant contended that the High Court should not have handled issues of transsexualism which were not suited for determination by a court and required legislation.

Issues:

  1. Whether the remedy of mandamus could be used to compel the performance of a statutory duty whose performance involved the exercise of discretion.
  2. Whether the Kenya National Examinations Council had the statutory mandate to effect changes relating to a candidate's name and gender in a KCSE certificate that it had issued.
  3. Whether issues concerning enforcement of rights of transsexual or transgendered individuals were issues that required the making of public policy and a legislative framework before they could be handled by courts. Read More..

Held:

  1. The appellant had a statutory duty to award certificates and diplomas to successful candidates. However, the power to withdraw a certificate for amendment or for any other reason that the appellant considered necessary was discretionary. That power was provided for under rule 9(3) of the Kenya National Examinations Council (Kenya Certificate of Secondary Education Examinations) Rules, 2009.
  2. The order of mandamus could not be used to compel the performance of a public duty in a specific way where there was discretion as to the mode of performing the duty. However, that did not mean that mandamus was not available where the performance of a public duty involved the exercise of discretion. Discretion had to be exercise reasonably, in accordance with the law and on the basis of relevant considerations. A decision that no reasonable authority could arrive at was amenable to judicial review.
  3. Rule 9(1) of the Kenya National Examinations Council (Kenya Certificate of Secondary Education Examinations) Rules, 2009 spelt out what a certificate should contain. It did not require the inclusion of a gender mark in the certificate. However, the inclusion of a gender mark was not a violation of statute or the Rules. There could be good reasons for the inclusion of the gender mark even though it was not a mandatory requirement.
  4. Under rule 9(3) of the Kenya National Examinations Council (Kenya Certificate of Secondary Education Examinations) Rules, 2009, upon the making of an application or on its own motion, the appellant could withdraw and amend a KCSE certificate where it considered it necessary. The appellant had a duty to consider the 3rd respondent's application for the amendment of the certificate.
  5. The appellant's power to withdraw and amend certificates was discretionary. Mandamus could not be used to compel the exercise of discretion in a certain way. However, discretionary power was not absolute or beyond the purview of judicial scrutiny. All discretion was subject to the doctrine of reasonableness and it had to be shown to have been exercised reasonably. Under section 7(2)(k) of the Fair Administrative Action Act, a court or tribunal had the power to review an administrative action if the exercise of the power or the performance of the function authorized by the empowering provision, in pursuance of which the administrative action was purportedly taken, was so unreasonable that no reasonable person could have so exercised the power or performed the function.
  6. The appellant initially indicated that a name and gender change could be effected on certificates by persons who provided relevant documentation which included a gazette notice, deed poll and medical report. However, when the 3rd respondent relied on that representation, the appellant changed its stance and turned down the 3rd respondent's application. The appellant at that point stated that it could not effect a name change after the award of a certificate to a candidate.
  7. The appellant refused to act on its mandate under rule 9(3) of the Kenya National Examinations Council (Kenya Certificate of Secondary Education Examinations) Rules, 2009. It declined to do so notwithstanding the fact that it had previously acknowledged that it had the power to amend certificates. It was not that the appellant improperly exercise its mandate, it’s that it refused to act. In those circumstances, the court was entitled to grant the orders of mandamus compelling the appellant to perform its duty.
  8. Evidence in the form of correspondence showed that the 3rd respondent had a legitimate expectation that the appellant would make the changes that she sought upon being furnished with the relevant documentation. Failure by the appellant to make the changes warranted the grant of the remedy of mandamus.
  9. The complaint that the 3rd respondent was seeking to enforce her interests while alleging to be acting for an organization in public interest had no basis. The 3rd respondent did not mislead the appellant in any way. The fact that as an individual, she would benefit from a public law remedy, did not bar the court from granting the relief.
  10. It could not be the case that until there was a policy or legislative framework in place, persons like the 3rd respondent, would be left with no recourse for purposes of securing their dignity as guaranteed by the Constitution. Lack of public policy or a legislative framework could not bar the court from enforcing constitutional rights.

Appeal dismissed.

CRIMINAL LAW Court holds that there is a need to clearly set out the connecting threads to the provisions of the Children Act and the Victim Protection Act so as to ensure victims of crime, who are children, are protected

Daniel Onyondi Moi v Republic
Criminal Case No 2 of 2017
High Court at Nyeri
June 28, 2019
 M T Matheka, J
Reported by Ian Kiptoo

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Criminal Law – victims of crime – protection of victims of crimes – where victims of a crime were children of the deceased – where the meeting point of the provisions of the Children Act and Witness protection Act had not been clearly set - whether the criminal trial process provided for the protection of the welfare of victims of crime who were children – Children Act, sections 2, 4, 119, 120 and 125
Criminal Law - sentencing – court’s discretion in sentencing of murder cases – applicable guidelines in regards to mitigating factors - whether courts could depart from the Muratetu case prescribing exercise of discretion in an accused person’s favour in regard to sentencing for the conviction of a murder charge

Brief facts:
The accused person was found guilty of murder contrary to section 203 as read with section 204 of the Penal Code making him liable to the death penalty. The Court ordered a pre-sentence report which was filed by the Probation Office. The deceased was a mother of four children who had to be separated to live with different relatives following her death.

Issues:

  1. Whether the criminal trial process provided for the protection of the welfare of victims of crime who were children.
  2. Whether there was a need to clearly set out the connecting threads to the provisions of the Children Act and the Victim Protection Act so as to ensure victims of crime, who were children, were protected.
  3. Whether courts could depart from the Muratetu case prescribing exercise of discretion in an accused person’s favour in regard to sentencing for the conviction of a murder charge.Read More...

Held:

  1. The pre-sentence report indicated that the accused’s family knew him as a good person – laying blame on alcohol and bad company and would welcome him back. The larger community represented by the elders and local administration stated that the offence was a taboo and that the accused ought to spend some time in custody. The probation officer recommended a lenient sentence as the accused was not depicted as a person with a pro - criminal record.
  2. The protection of the welfare of the victim was not as guaranteed as participation of victims in Kenya’s criminal justice processes which was to some extend guaranteed. The Victims Protection Act made provision for the welfare of Victims. But that was where it stopped. The connecting threads between its provisions, those of the children Act and the Criminal Justice System had not been clearly set out. Hence the glaring that upon the arrest of the perpetrator, the thinking of the criminal justice system was linear- single sight vision dealing with the perpetrator. There was need for a meeting point to ensure that those laws worked hand in hand- a meeting point needed to be found to ensure that even as the court dealt with the criminal matter – the court was also dealing with the welfare of the victims – there should be no disjoint of efforts.
  3. A police officer was an authorized officer as per section 2 of the Act. Authorized officer meant a police officer, an administrative officer, a children’s officer, an approved officer, a chief appointed under the Chiefs’ Act, a labour officer or any other officer authorized by the Director for the purposes of the Act; For example, an Investigating officer who found that there were child victims as in the instant case, who by virtue of the killing of their mother became not only victims but children in need of care and protection under section 119 of the Children Act, ought to be able to refer the case to the Department of Children Services for appropriate action to take place simultaneously with the criminal case.
  4. A police officer could open a protection and care file simultaneously with a criminal file and have them registered in court leaving the children matter to be pursued by the Children Officer under the provisions of sections 119, 120 to 125 of the same Act. He could bring the court’s attention, through the prosecution, the plight of the children during the preliminaries of the criminal case so that the court could give appropriate directions. That was because every day for a growing child was precious.
  5. Despite what the Court did with the accused person, for the deceased’s children, justice would not be seen to have been done until life was breathed into the implementation of the Children Act and the Victims Protection Act to safe guard and protect their welfare.
  6. The appropriate guidelines were set out in the Francis Kariko Muruatetu & another and Republic and others (2017) eKLR by the Supreme Court by amending the provisions of the Judiciary Sentencing Guidelines for Murder. To avoid a lacuna, the following guidelines with regard to mitigating factors were applicable in a re-hearing sentence for the conviction of a murder charge:
    1. age of the offender;
    2. being a first offender;
    3. whether the offender pleaded guilty;
    4. character and record of the offender;
    5. commission of the offence in response to gender-based violence;
    6. remorsefulness of the offender;
    7. the possibility of reform and social re-adaptation of the offender; and
    8. any other factor that the Court considered relevant.

    The guidelines in no way replaced judicial discretion. They were advisory and not mandatory. They were geared to promoting consistency and transparency in sentencing hearings.

  1. In spite of the discretion granted in the Muruatetu case, the accused person was not deserving of the exercise of the Court’s discretion in his favour. What he did and the way he did it flew in the face of the basis upon which justice could be tempered with mercy. A careful consideration of the mitigation, the pre-sentence report, the state of the victims and manner in which the offence was committed set it apart from other murders. It demonstrated the reason why the Muruatetu holding was long overdue. There was need to consider the circumstances of each offence, offender, and victims in arriving at the sentence and the courts needed to have that discretion in the interests of justice.
  2. Courts had to send the strongest message that marital/relationship disputes could not, should not/ should never be resolved through killing or causing any harm to the other party. The sanctity of love and the family had to be protected by people understanding that there were better ways to resolve disputes. If it was not tolerable, that it was better to walk away and forget that relationship. Kenya’s society had to revive its revulsion to any form of violence; have no tolerance to domestic violence and gender based violence. The message had to be heard loud and clear, killing girlfriends; wives, boyfriends and husbands would not be tolerated by the society. If a relationship went sour, if a marriage broke down, then those people in it had to have the human sense to walk away and seek other solutions.

The accused was sentenced to death as prescribed by law. Right of appeal within 14 days.

LAW OF CONTARCT Whether a contract for sale of land is frustrated by death of a registered proprietor

Anne Mumbi Hinga V Gaitho Oil Limited [2019] eKLR
ELC Case 1069 of 1998
Environment and Land Court at Nairobi
Christine Ochieng, J
July 4, 2019
Reported by Chelimo Eunice

Download the Decision

Law of Contract - contract for the sale of land – obligations of the parties to contract for the sale of land - whether contract for sale of land was frustrated by death of a registered proprietor (vendor) - whether an administrator’s actions and conduct before obtaining grant of letters of administration intestate would be considered when determining contractual obligations.
Equity - doctrines of equity - doctrine of equity that he who comes to equity must come with clean hands - whether the said doctrine of equity would be applied to estoppe a party from benefiting where it did not have clean hands – where the plaintiff failed to refund the purchase price when it was demanded – Evidence Act, section 120.
Land Law - contract for the sale of land – time – completion time being of essence – need for parties to specify contractual timeframes - whether time could not be of the essence if a date was not specified or capable of precise determination by the parties.
Law of Contract - contract for the sale of land - rescinding of contracts - whether a contract for the sale of land would be considered rescinded if one party failed to fulfil its obligations.

Brief Facts:
The plaintiff sought for various orders, including mandatory injunction to restrain the defendant from interfering with the suit land, vacant possession, special damages, general damages, costs and interest. The plaintiff argued, among others, that; that an agreement of sale dated December 20, 1996 (the sale agreement), entered into between the plaintiff’s late husband (the vendor) and the defendant for the sell and purchase of the suit land was invalid as the vendor died before completion of the transaction; that the defendant had rescinded the said agreement; that the defendant had no intention to revive the agreement but only demanded for the refund of the purchase price already paid and that the defendant’s possession of the suit land was illegal since it had rescinded the transaction.
The defendant opposed the claim, submitting; that it had always been willing to pay the balance of the purchase price and that the plaintiff had been    indeed been receiving part of the purchase price after the vendor’s demise; that after the vendor’s demise and before the issuance of grant of letters of administration, no person had the legal mandate to finalize the sale transaction; that the sale was not frustrated by death of the vendor but that all contractual obligations lay against his estate and there was a legal obligation upon the administrator of the estate to complete all outstanding contractual obligations. The defendant further filed a counterclaim seeking court’s intervention to make an order for specific performance and for the plaintiff to be compelled to transfer the suit land to it.

Issues:

  1. Whether contract for sale of land was frustrated by death of a registered proprietor (vendor).
  2. Whether an administrator’s actions before obtaining grant of letters of administration intestate would be considered when determining contractual obligations.
  3. Whether time could not be of the essence if a date was not specified or capable of precise determination by the parties. Read More...

Held:

  1. According to clause (c) of the sale agreement, the vendor was responsible for procurement of the Commissioner of Lands Consent to the transfer, the Land Control Board’s (LCB) consent to the transfer and all other necessary documents to facilitate the registration of the legal transfer in favour of the purchaser (the defendant). The defendant was then required to pay the balance of the purchase price to the vendor’s advocates, which balance was not to be released to the vendor by his advocates until the registration of all the legal documents in favour of the defendant.
  2. The vendor procured LCB consent on January 7, 1997 to transfer suit land. From the date on the said consent, it was evident the same was issued before the vendor’s demise. Despite the fact that the plaintiff objected to it, the burden of proof was upon her to avail a representative from the said Kiambu LCB to confirm her allegations that it was not in the register.  In essence and with the procurement of the LCB consent, the plaintiff’s role as an administrator of the vendor’s estate was merely to implement the wishes of the vendor in respect of the sale agreement.
  3. Even though the plaintiff asserted that the transaction was cancelled by the defendant and sought refund of the amount paid, it was clear from the correspondence that the she sought for time to refund the purchase price but failed to do so. From her actions, she could not claim that the contract stood rescinded when she failed to handle her part of the bargain by refunding the purchase price on time, when it was sought for. In the circumstances, the sale agreement did not stand rescinded.
  4. The defendant had been in possession of the suit land from 1997. The plaintiff did not inform the court on whether she reported the issue of the defendant’s forcible entry to the suit land and destruction of the coffee trees to the police or agricultural offices to take action against it.  Since the plaintiff acquiesced on the defendant’s entry and possession of the suit land, she could not claim that it was without her consent.
  5. Relying on the doctrine of equity demanding that he who comes to equity must come with clean hands, from the plaintiff’s actions and averments, her conduct towards the transaction was contradictory as she did not have clean hands to cry foul.
  6. Section 120 of the Evidence Act made it clear that where aperson had, by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, that person could not deny the truth of that thing. Based on the plaintiff’s acceptance to receive part of the purchase price after the demise of the vendor, and being the administrator of the vendor’s estate, she was estopped from claiming that the contract was rescinded. Since she failed to refund the purchase price when it was demanded, the sale agreement stood.
  7. Time could not be of the essence if a date was not specified or capable of precise determination by the parties. Further, in the sale agreement, it was a special condition that the final balance of the purchase price would not be released to the vendor by his advocates until the registration of all the legal documents in favour of the defendant. Except for procuring the consent of the LCB, neither the vendor nor the plaintiff delivered any completion documents as stipulated in the sale agreement and the plaintiff could not then contend that it was the defendant who was in breach for failing to pay the final balance of the purchase price. Further, since the vendor’s demise before the completion of the 90 days and before the plaintiff obtained the letters of administration intestate, the provisions of section 45 of the Law of Succession Act prohibited any dealings with the deceased estate. After the plaintiff procured the said letters of administration intestate, she did not give any indication on whether she issued the completion notice to the defendant or not.
  8. It seemed the plaintiff realized the suit land was highly valued after the vendor had sold the same and hence did not want to effect the transfer despite receiving various payment. In the circumstances, and on a balance of probability, the plaintiff was not entitled to orders sought against the defendant.
  9. Relying on the principles enshrined in articles 2, 4 and 10 of the Constitution in respect of social justice and equity, since the plaintiff continued to receive the purchase price and the defendant having taken possession of the suit land to safeguard its interest and a consent of the LCB having been procured by the vendor, the plaintiff had failed to prove her claim as against the defendant.

Suit dismissed and judgment entered for the defendant in respect of the counterclaim.
Orders:

  1. The defendant directed to pay to the plaintiff the balance of the purchase price within 90 days from the date of the judgment with interest at 20 % from December 20, 1996;
  2. Upon payment, the plaintiff was directed to effect the transfer of the suit land to the defendant within 90 days from the date of the judgment, in default the Deputy Registrar, Environment and Land Court, Milimani could proceed to sign the transfer forms.
  3. Costs of the counterclaim awarded to the defendant.
CONSTITUTIONAL LAW Circumstances under which the termination of a sick employee’s employment contract would amount to discrimination

Package Insurance Brokers Ltd v Simon Gitau Gichuru
Civil Appeal 307 of 2018
Court of Appeal at Nairobi
P N Waki, A Makhandia & F Sichale, JJA
July 19, 2019
Reported by Beryl Ikamari

Download the Decision

Constitutional Law- fundamental rights and freedoms-equality and freedom from discrimination-claim that a sick employee was summarily dismissed from work, without a hearing, on grounds of gross misconduct and negligence-circumstances under which an employee with an illness would be said to have been discriminated-Constitution of Kenya 2010, article 27; Employment Act 2007, section 5(3)(a), 43(1) & 45(2).
Employment Law-unfair termination of an employment contract-remedies-where an employment contract was terminated through summary dismissal without following due process-nature of reliefs that would be availed by the Court.

Brief Facts:
The respondent was employed by the appellant on January 1, 2010. In the course of his employment he took loan facilities from the appellant and purchased a personal vehicle and a commercial vehicle. In November 2013, the respondent was diagnosed with a spinal cord tumour for which he was treated in India. Via a letter dated April 14, 2014, the appellant sent the respondent on sick leave on terms that he would resume duty when he was able to walk unaided and that he would submit a medical appraisal form on his condition to the appellant confidentially. The medical report was submitted by the respondent, after some delay on, on May 27, 2014. The respondent was on full salary for the period of his treatment until June 23, 2014 when he was suspended from employment with no pay. On that date he was paid his salary for June 2014 and informed about his outstanding liabilities relating to the loan given for the purchase of vehicles.
The respondent contended that the suspension of his employment was actually a disguise for what was an unjustified, unfair and discriminatory termination of employment. Thereafter, on August 1, 2014, the appellant summarily terminated the respondent's employment contract for gross incompetence and negligence without according him a hearing to defend himself against the allegations made against him. The respondent filed a claim for unlawful termination of his employment contract. The respondent was successful and was awarded compensation by the Employment and Labour Relations Court. The award included Kshs. 5, 000, 000/= for discrimination and the equivalent of 12 months’ salary. The appellant lodged an appeal at the Court of Appeal against the decision of the Employment and Labour Relations Court.

Issues:

  1. Whether a sick employee, who was summarily dismissed on grounds of gross misconduct and negligence, was discriminated against.
  2. What remedies were appropriate in a claim of unlawful termination of employment where it was alleged that there was discrimination and failure to follow due process? Read More...

Held:

  1. As the first appellate court, the Court of Appeal had to reconsider the evidence, evaluate it and draw conclusions having regard to the fact that it neither saw nor heard the witnesses.
  2. Article 27 of the Constitution provided for the right to equality and freedom from discrimination. Health status was one of the prohibited grounds for discrimination. Section 5(3)(a) of the Employment Act also provided for the right not to be discriminated directly or indirectly by an employer.
  3. The respondent was unwell and in need of medical attention and that hampered his performance at work. He could not perform as well as employees who enjoyed good health. It was not the case that all the employees of the appellant were sick and the respondent was the only employee that was singled out for being sick. The respondent was not given differential treatment as compared to other sick employees and he could not be said to have been discriminated.
  4. The letter through which the respondent's employment contract was terminated by the appellant blamed the respondent for financial misappropriation. It included allegations for which the respondent was not given an opportunity to defend himself against. The respondent was not subjected to a disciplinary process and due process was not followed.
  5. The trial court awarded the respondent twelve (12) months’ salary on grounds that due process was not followed in the termination of the respondent's employment contract. 12 months’ salary was the maximum amount that could be awarded.  The circumstances leading to the summary dismissal were progressive-the employer showed goodwill which waned over time. The good will was lost when the respondent failed to promptly submit the medical report required by the appellant. The respondent should not have been awarded the maximum number of twelve (12) months’ salary and it was proper for that amount to be reduced to 8 months' salary.

Appeal partly allowed.
Orders.

  1. The award of Kshs. 5,000,000/= as damages for discrimination was set aside.
  2. The award of 12 months' salary was substituted with an award of 8 months’ salary for unfair termination.
  3. An award of 1 month’s salary in lieu of notice and salary for the month of July 2014 was made.
  4. Each party was to bear its own costs.

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