Weekly Newsletter 042/2019



Kenya Law

Weekly Newsletter


Section 46(1)(ii) of the Prisons Act, to the extent that it denied prisoners serving fixed or determinate sentences remission, is unconstitutional.
Sammy Musembi Mbugua & 4 others v Attorney General & another
Petition 16 of 2019
High Court at Machakos
G V Odunga, J
August 27, 2019
Reported by Beryl Ikamari
Download the Decision
 
Constitutional Law-fundamental rights and freedoms-rights to dignity and equality and freedom from discrimination-differential treatment of prisoners under section 46  of the Prisons Act as related to entitlement to remission-whether differential treatment relating to remission between prisoners serving determinate sentences as compared to prisoners serving indeterminate sentences was justifiable - whether denying prisoners who were serving determinate sentences the benefit of remission was a violations of their rights to dignity and equality and freedom from discrimination-Constitution of Kenya 2010, articles 27 & 28; Prisons Act (Cap 90), section 46(1)(ii).
 
Brief facts:
The petitioners were prisoners that were convicted of the offence of robbery with violence, contrary to section 296(2) of the Penal Code. They were serving imprisonment sentences ranging from 15 years to 40 years. They challenged the constitutionality of section 46(1)(ii) of the Prisons Act, which effectively placed them in the category of prisoners that could not be granted remission as they were serving their sentences after being convicted of an offence under section 296(2) of the Penal Code. They stated that the provision was discriminatory.
 

Issues:
  1. Whether differential treatment, in terms of entitlement to remission, for persons serving determinate sentences as compared to those serving indeterminate sentences was justifiable.
  2. Whether section 46(1)(ii) of the Prisons Act, which denied prisoners serving determinate and definite sentences pursuant to section 296(2) of the Penal Code the benefit of remission, was unconstitutional on grounds that it violated rights to dignity and equality and freedom from discrimination.
Relevant provisions of the law
Prisons Acts (Cap 90)
Section 46(1)(ii);

Provided that in no case shall—
(i) any remission granted result in the release of a prisoner until he has served one calendar month
(ii) any remission be granted to a prisoner sentenced to imprisonment for life or for an offence under section 296(1) or 297(1) of the Penal Code or to be detained during the President’s pleasure.

 
Held:
  1. Under section 46(1)(ii) of the Prisons Act, upon admission all convicted prisoners were entitled to be credited with remission which they would be entitled to at the end of their sentence if they did not lose the remission. The remission would be earned by industry and good conduct and would apply to one third of the prisoner's sentence. The Commissioner-General of Prisons (the Commissioner) had residual power to grant further remission on grounds of exceptional merit, permanent ill-health or other special ground.
  2. A prisoner would have to serve at least one calendar month of their sentence before the grant of remission. Therefore, a prisoner serving less than one month’s sentence would not be granted remission.
  3. The Commissioner had power to deprive a prisoner remission where he considered that it was in the interests of the reformation and rehabilitation of the prisoner for the deprivation to be undertaken. The Cabinet Secretary responsible for internal security also had the same powers in relation to deprivation of remission.
  4. It was understandable for prisoners who were serving indeterminate sentences and those detained at the President's pleasure not to benefit from remission because their sentences were indeterminate and it was difficult to calculate what a third of the sentence would be.
  5. On the face of it, the denial of remission to those convicted of offences under section 296(2) of the Penal Code made sense since the law provided for, a prima facie, mandatory death sentence to which one third remission could not apply.  It was perplexing that section 46(1)(ii) of the Prisons Act did not exclude other prisoners serving sentences for offences for which the death sentence was applicable from the benefit of remission.
  6. The imposition of a mandatory death sentence had been declared unconstitutional. It would be illogical to uphold the provisions of section 46(1)(ii) of the Prisons Act in cases where a person convicted with an offence under section 296(2) of the Penal Code was neither sentenced to death nor serving a life sentence.
  7. Differential treatment of persons sentenced to serve determinate periods from those serving indeterminate sentences was justifiable where it was not possible to calculate the period of remission. However, where the sentence was certain and determinate, differential treatment as related to remission would not be justifiable.
  8. On questions relating to discrimination, it was necessary to ask whether differential treatment bore a rational connection to a legitimate purpose. The purpose of remission was to act as an incentive to the prisoner and encourage good behaviour, rehabilitation and self-improvement. A prisoner would know that his or her conduct directly affected his or her jail term and that would place his or her destiny in his or her own hands.
  9. Disentitling prisoners convicted under section 296(2) of the Penal Code from consideration for remission, presupposed that the offenders were incapable of reform. Failing to consider the diverse characters of convicts, and the circumstances of the crime, but instead subjecting them to the same (mandatory) sentence thereby treating them as an undifferentiated mass, would violate their right to dignity. The dignity of the person would be ignored if he was denied remission that was available to others serving similar sentences simply on the irrational presumption that he was incapable of reforming.
  10. Pursuant to section 7(1) of the Sixth Schedule to the Constitution, the provisions of the Prisons Act had to be construed with the adaptations, qualifications and exceptions necessary to bring them into conformity with the Constitution. It was necessary to ensure that the provisions of the Prisons Act on remission took into account the dignity of the individuals as mandated under article 28 of the Constitution.
Petition allowed.
Orders:-
  1. A declaration that section 46(1)(ii) of the Prisons Act, to the extent that it denied remission to persons imprisoned for an offence contrary to section 296(2) of the Penal Code was inconsistent with the provisions of article 27(1)(4) of the Constitution on the right to equality before the law and the right to equal protection and equal benefit of the law and was therefore unconstitutional, null and void.
  2. A declaration that the limitation on benefiting from remission of part of sentence for convicts serving determinate and definite sentences pursuant to section 296(2) of the Penal Code, under section 46(1)(ii) of the Prisons Act was unconstitutional.
  3. A declaration that the petitioners being prisoners serving a fixed or definite or determinate period of imprisonment were entitled to remission of their sentence in accordance with the provisions of section 46 of the Prisons Act.
  4. Subject to order (iii) above, the Commissioner-General of Prisons was to forthwith proceed to calculate remission of sentence for the petitioners; and,
  5. The Deputy Registrar of Machakos High Court was to transmit forthwith a certified copy of the judgment to the Commissioner-General of Prisons who would be guided accordingly in respect of all the other prisoners in the same situation with the petitioners.
Kenya Law
Case Updates Issue 041/2019
Case Summaries

CONSTITUTIONAL LAW The Detention of criminally insane persons at the President’s pleasure under section 166 of the Criminal Procedure Code was unconstitutional

R v ENW
Criminal Case 78 of 2015
High Court at Nairobi
Lesiit, J,
July 23, 2019
Reported by Kadzo Jally

Download the Decision

Constitutional Law- separation of powers- exercise of judicial power- whether detention of criminally insane persons at the President’s pleasure under section 166 of the Criminal Procedure Code amounted to an exercise of judicial power by the President and was a violation of the principle of separation of powers- Constitution of Kenya 2010, article 133, Criminal Procedure Code (Cap 75), section 166
Statutes-interpretation of statutory provisions-constitutionality of a statutory provision- constitutionality of section 166 of the Criminal Procedure Code which provided that in case of a finding guilty but insane, the sentence would be indeterminate and at the President’s discretion- whether the imposition of an indeterminate sentence was unconstitutional- Constitution of Kenya 2010, article 133, Criminal Procedure Code (Cap 75), section 166

Brief Facts:
The accused was arraigned before the instant court on August 11, 2015 with one count of Murder contrary to section 203 as read with section 204 of the Penal Code. The plea was not taken until November 29, 2016 because the accused was admitted at Mathare Mental Hospital after the Court’s order on August 11, 2015. He was discharged from Mathare Hospital and produced in court on April 12, 2016 and plea was then taken on November 29, 2016. A special finding of guilty but insane was entered under section 166(1) of the Criminal Procedure Code.
Counsel for the accused asked the court to consider that the accused had been in custody since August 1, 2015 and had undergone treatment for psychosis and bipolar disorder and that the accused was 34 years old and was an economics graduate. The prosecution asked the court to treat the accused as a first offender.

Issue:

  1. Whether detention at the President's pleasure under section 166 of the Criminal Procedure Code was unconstitutional as it undermined the principle of separation of powers and allowed the President to exercise judicial power
  2. Whether detention at the President's pleasure under section 166 of the Criminal Procedure Code was unconstitutional on the basis of finding the indeterminate sentence cruel and inhumane Read More..

Relevant Provisions of the Law
Criminal Procedure Code (Cap 75), section 166;
Section 166
1. When a special finding is so made, the court shall report the case for the order of the President, and shall meanwhile Where an act or omission is charged against a person as an offence, and it is given in evidence on the trial of that person for that offence that he was insane so as not to be responsible for his acts or omissions at the time when the act was done or the omission made, then if it appears to the court before which the person is tried that he did the act or made the omission charged but was insane at the time he did or made it, the court shall make a special finding to the effect that the accused was guilty of the act or omission charged but was insane when he did the act or made the omission.
2. order the accused to be kept in custody in such place and in such manner as the court shall direct.
3. The President may order the person to be detained in a mental hospital, prison or other suitable place of safe custody.
4. The officer in charge of a mental hospital, prison or other place in which a person is detained by an order of the President under subsection (3) shall make a report in writing to the Minister for the consideration of the President in respect of the condition, history and circumstances of the person so detained, at the expiration of a period of three years from the date of the President’s order and thereafter at the expiration of each period of two years from the date of the last report.
5. On consideration of the report, the President may order that the person so detained be discharged or otherwise dealt with, subject to such conditions as to his remaining under supervision in any place or by any person, and to such other conditions for ensuring the safety and welfare of the person in respect of whom the order is made and of the public, as the President thinks fit.
6. Notwithstanding the subsections (4) and (5), a person or persons thereunto empowered by the President may, at any time after a person has been detained by order of the President under subsection (3), make a special report to the Minister for transmission to the President, on the condition, history and circumstances of the person so detained, and the President, on consideration of the report, may order that the person be discharged or otherwise dealt with, subject to such conditions as to his remaining under supervision in any place or by any person, and to such other conditions for ensuring the safety and welfare of the person in respect of whom the order is made and of the public, as the President thinks fit.
7. The President may at any time order that a person detained by order of the President under subsection (3) be transferred from a mental hospital to a prison or from a mental hospital, or from any place in which he is detained or remains under supervision to either a prison or a mental hospital.

Power of Mercy Act No. 21 of 2011
Section 3
The provisions of this Act shall govern all matters relating to a petition under the Constitution for the exercise of the power of mercy by the President pursuant to Article 133 of the Constitution.

Held:

  1. Section 166(2) of the Criminal Procedure Code provided that a court had to report any case in which a special finding was made for the order of the president and for the accused to be kept in custody in a place and manner as the court directed.
  2. The President was empowered under sub-section 5 not to pass a sentence over the person against whom the court had entered a special finding under sub-section 1, but a power of mercy. The former was a judicial function and the latter was an executive responsibility.
  3. The judicial function to pass sentence was reserved to the judicial process and could not be taken away from it. However, the law gave the Executive a responsibility to make a determination whether a person needed not suffer the punishment imposed against him by the court, and could remit such punishment for some reason, in certain cases. That executive power had constitutional underpinning under article 133 of the Constitution.
  4. The Advisory Committee was established under Article 133(2) of the Constitution and its membership included the Attorney General as Chair and the Cabinet Secretary responsible for correctional purposes. Parliament was mandated to enact Legislation to provide for, inter alia, the criteria that could be applied by the Advisory Committee in formulating its advice. Parliament enacted the Power of Mercy Act No. 21 of 2011 to govern all matters relating to a petition under the Constitution for the exercise of the power of mercy by the President pursuant to article 33 of the Constitution.
  5. Passing sentence was an integral part of the judicial function. Equally important was the exercise of power of mercy, a responsibility that had been donated under the Constitution to the President acting on recommendations by the Power of Mercy Committee. This was an important role which had both constitutional and statutory underpinning. Once a trial court passed sentence after conviction, it became functus officio, and could no longer handle the matter again, unless for purposes of review where that was applicable. The case file would have come to an end and marked concluded. To keep the matter open for further periodic action after concluding would render the doctrine of functus officio nugatory.
  6. The court understood the frustrations of finding children who were detained at the President’s pleasure still incarcerated several years later without any word from the Ministry concerned. That was a matter that the ministry concerned needed to look into to ensure that the cases of persons sentenced under section 166 of the Criminal Procedure Code, or those of underage children were attended to as provided under section 25(2) and (3) of the Penal Code. That delay could not be cured by having the matter mentioned in court. It was expedient and judicious to give a determinant sentence in cases concluded under section 166(1) of the Criminal Procedure Code. After so doing, the court became functus officio, and had to let the Executive carry out its responsibility under section 166 (2) to (7) of the Criminal Procedure Code.
  7. The doctors found that the accused was suffering from schizophrenia, which was a mental illness dependent on medication. The drug induced psychosis was directly caused by drug and substance abuse. For the former, the accused could be blamed. However, for the drug induced psychosis, it was the accused abuse of drugs which immensely contributed to it.

The accused was sentenced to serve 13 years imprisonment from the date he was arraigned in court, which was September 11th, 2015.

LAND LAW

Validity of title to land where court proceedings awarding the said land is declared invalid

Maurice Antony Wanjala Musee v Anna Wanyama Wanjala and 11 others
Land Case No 17 of 2011
Environment and Land Court at Kitale
M Njoroge, J
July 31, 2019
Reported by Ian Kiptoo

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Land Law – ownership – transfer of ownership – validity of title – where land was sold by the plaintiff’s wife – where a decision of a tribunal awarded part of suit land to plaintiff’s wife - where decision of tribunal was declared null by the High Court – where consent was not given by the plaintiff - whether disposal of land by a party who was not the original proprietor, where the land was awarded by a tribunal decision that was later declared null, could transfer valid title

Brief facts:
The plaintiff prayed for judgment against the defendants for: an order directing the defendants, their agents, employees and/or servants to vacate the suit premises and in default an order directing their eviction from the suit land and general damages for trespass and interest at court rates.
The plaintiff stated that the 1st defendant trespassed onto the suit land and unlawfully took possession contrary to a court order directing that the status quo of the suit land be maintained pending the hearing and determination of a judicial review application; that the 1st defendant without any right proceeded to sell the plaintiff’s land to the 2nd to 12th defendants and other unknown persons who were in possession of the land and had erected illegal structures. Further, that the judicial review application had quashed the decision of the Trans-Nzoia Land Disputes Tribunal which had awarded the 1st defendant a portion of the suit land.
On the other hand, the defendants denied the plaintiff’s claim and alleged that the 1st defendant and the plaintiff equally contributed to the purchase of the suit land in 1974 and it was therefore matrimonial property; that the plaintiff consented to the sale of the land to the 2nd - 12th defendants.

Issue:

  1. Whether disposal of land by a party who was not the original proprietor, where the land was awarded by a tribunal decision that was later declared null, could transfer valid title. Read More...

Relevant Provisions of the Law
Land Registration Act, 2012
Section 25
“25. (1) The rights of a proprietor, whether acquired on first registration or subsequently for valuable consideration or by an order of court, shall not be liable to be defeated except as provided in this Act, and shall be held by the proprietor, together with all privileges and appurtenances belonging thereto, free from all other interests and claims whatsoever, but subject -

(a) to the leases, charges and other encumbrances and to the conditions and restrictions, if any, shown in the register; and
(b) to such liabilities, rights and interests as affect the same and are declared by section 28 not to require noting on the register, unless the contrary is expressed in the register.

(2) Nothing in this section shall be taken to relieve a proprietor from any duty or obligation to which the person is subject to as a trustee.

Held:

  1. The 1st defendant being a wife to the plaintiff would remain a licensee on the suit land at the end of the proceedings no matter the outcome; the twin issues of vacant possession and eviction would therefore not affect her in the suit for that reason. However, the other defendants only claimed portions of the suit land by virtue of agreements for sale they entered into with the 1st defendant. Their title was therefore dependent upon the validity of the 1st defendant’s claim to title to the land.
  2. The suit land was registered in the name of the plaintiff at the time it was sold to the 2nd to 12th defendants by the 1st defendant. The 1st defendant did not have any authority from the plaintiff to sell the suit land to any of the defendants. In lieu of such consent, she relied on an award by the Land Disputes Tribunal which was subsequently set aside. Though the 1st defendant claimed ignorance of those proceedings, the final ruling in the judicial review application showed that brief was held for the interested party, the 1st defendant. It was therefore not correct for her to say that she did not know of the proceedings in that case from the start.
  3. The suit land was also charged to the Agricultural Finance Corporation (AFC) at the time of sale and part of the justification for the sale of the land by the plaintiff, apart from obtainance of funds by which to meet the expenses of bringing up the children the plaintiff had allegedly abandoned, was to repay the balance of the loan owed to avert sale of the suit land by the AFC. However, only a meagre amount of not more than Kshs.100, 000/= appeared to have been applied to the loan repayment while the rest was said to have met the family upkeep expenses.
  4. The Court had to contend with the presence of the decree in Kitale SPMCC Land Case No. 8 of 2006 vide which the defendant claimed right to sell. The Magistrate’s Court confirmed the award of the tribunal which provided that the 1st defendant be given 5 acres and the remaining 6 acres do remain for the other wives. Further, that the plaintiff do reconstruct the home for the 1st defendant and her children. As well intended as the award was, it appeared to have been ultra vires as was found by the High Courtwhere the orders of the tribunal were described as illegal, null and void.
  5. The execution referred to by the court was clearly the subdivision of the land by which the plaintiff lost 5 acres to the 1st defendant in implementation of the Magistrate’s Court decree. It appeared therefore that the propriety of the subdivision exercise that gave the 1st defendant the 5 acres had already been determined to be illegal by a court of competent jurisdiction.
  6. The 1st defendant admitted that she took the case to the tribunal in the year 2004 and the judicial review was filed in 2006. In addition, that she started selling the land in the year 2008 and that as at 2009 she was still receiving parts of the purchase price from some purchasers yet the judicial review proceedings and the stay order forbidding any implementation, which included sale of the land by the 1st defendant, was subsisting.
  7. Agreements between the 1st defendant and the rest of the defendants showed that the plaintiff transacted with the defendants between October 2008 and May 2010, yet on June 11, 2008 the High Court had issued a stay order and remained in force up to December 9, 2009 when the final orders of certiorari were granted to the plaintiff. It could not therefore be gainsaid that all through the time from the date of tribunal award to date the 1st defendant had never had any right to appropriate and/or dispose any portion of the suit land to any party. It appeared that if during the pendency of stay order and after the judicial review was finalised the 1st defendant sold chunks of the suit land, her actions could be termed as misrepresentation or outright fraud.
  8. All the portions of land sold by the 1st defendant to the other defendants were sold without any legal authority on the part of the 1st defendant due to the express order of the court and the ab initio invalidity of the tribunal award which was subsequently declared null. That amounted to arbitrary deprivation of the plaintiff of his land.
  9. The defendants did not have paper titles to the land and It was doubtful that they had any hope of ever possessing any unless the plaintiff authorized it. A person could only pass good title in land if that title in his name was clean. No evidence of consent to the 1st defendant to dispose of the suit land was produced and the sale agreements produced in court by the 1st defendant did not have the plaintiff as a signatory.
  10. The stay orders of the court in the judicial review proceedings were meant to preserve a property from being disposed of pendente lite and any order of a court of law was presumed to be applicable to persons who were not aware of the proceedings. The 1st defendant, having been proved to have had knowledge of the proceedings and the stay order, was bound to comply with the stay order from the High Court judicial review case. The rest of the defendants could not therefore claim innocence because they failed to conduct due diligence exercise to establish who the registered owner of the land was and to obtain the consent of the plaintiff to the disposal of the land.
  11. Had the 2nd to 12th defendants conducted a serious due diligence exercise by way of a search at the Lands office, they would have discovered that the plaintiff was the right person to purchase land from and that the 1st defendant had no title to transfer to them. Thereafter, they should have abstained from entering into the agreements they signed with her. Unfortunately they had not even bothered to call any evidence to the effect that they conducted an official search as part of their due diligence. The defendants had failed to establish that the 1st defendant had good title to pass to them. Therefore, the rightful owner of the suit land was still the plaintiff.
  12. Section 25 of the Land Registration Act, 2012 reflected the proper legal position that obtained and which was applicable while the Registered Land Act (now repealed) was in force. In brief, the rights of the plaintiff were fully protected by those provisions and no party could deal with the land without his consent in a manner adverse to those rights. The plaintiff had established his claim on a balance of probabilities against all the defendants and that the 2nd to 12th defendants were trespassers on the suit land.

Suit allowed with costs to be borne by the 1st defendant.

CIVIL PRACTICE AND PROCEDURE The Employment and Labour Relations Court has exclusive jurisdiction to determine appeals for claims under the Work Injury Benefits Act including subsisting appeals on claims initiated under the repealed Workmen’s Compensation Act

Elizabeth Njeri Nderi & another v Highway Carriers Limited [2019] eKLR
Civil Appeal 340 of 2014
Court of Appeal at Nairobi
E M Githinji, F Sichale & J Otieno-Odek, JJA
August 6, 2019
Reported by Moses Rotich

Download the Decision

Civil Practice and Procedure-claims under the Work Injury Benefits Act-procedure for-what was the procedure for claims and appeals under the Work Injury Benefits Act-Work Injury Benefits Act, section 50 & 58
Jurisdiction-jurisdiction of the Employment and Labour Relations Court- claims and appeals under the Work injury Benefits Act-where an appeal against a subordinate court’s decision in a claim under the repealed Workmen’s Compensation Act was lodged in the High Court-finding that it ought to have been lodged in the Employment and Labour Relations Court-Work Injury Benefits Act, sections 34, 50, 51, 52(2),53 & 58; Employment and Labour Relations Court Act, section 12(1)
Evidence Law-proof of dependency-claims under the repealed Workmen’s Compensation Act and its successor, the Work Injury Benefits Act-proof of dependency or degree of dependency on a deceased employee-whether a court could rely on informal evidence as prima facie proof of dependency or degree of dependency-whether affidavits of the claimants and documents including limited grant of letters of administration were sufficient to prove dependency on a deceased employee-Workmen’s Compensation Act, section 6; Work Injury Benefits Act, sections 34 & 58(2)

Brief Facts:
The two appellants were personal representatives of a deceased truck driver who had been employed by the respondents. The 1st appellant was the widow of the deceased while the 2nd appellant was a sister to the deceased. The deceased died aged fifty-five years old in a road traffic accident on September 22, 2004, while in the course of employment. The appellants’ claim against the respondent for compensation under the repealed Workmen’s Compensation Act (WCA) failed. The appellants appealed to the High Court. The High Court agreed with the trial court that the appellants had failed to prove that they were true dependants of the deceased.
Aggrieved, the appellants filed the instant appeal against that finding of the High Court on the ground that it erred, in law and in fact, in not finding that dependency was proved by affidavits and documents including the limited grant of letters of administration.

Issues:

  1. Whether, under the repealed Workmen’s Compensation Act, the court could rely on informal evidence as prima facie proof of dependency or degree of dependency.
  2. Whether the High Court or the Employment and Labour Relations Court had jurisdiction to determine appeals for claims under both the repealed Workmen’s Compensation Act and its successor, the Work Injury Benefits Act.
  3. What was the procedure for claims and appeals under the Work Injury Benefits Act?
  4. What orders could issue in light of the existence of past decisions declaring certain provisions of the Work Injury Benefits Act unconstitutional? Read More...

Relevant Provisions of the Law
Work Injury Benefits Act
Section 6
Meaning of dependant
(1) In this Act “dependant” means—

(a)the widow or widower of an employee;
(b)a child of the employee who has not attained the age of eighteen years including a posthumous child, a stepchild and an adopted child, adopted prior to the accident, but excluding a child who is married or who is self-supporting;
(c)a parent, step-parent or an adoptive parent who adopted such employee if he adopted prior to the accident or death;
(d)a child of the employee not contemplated by paragraph (b);
(e)a brother, sister, half-brother, half-sister or parent, grandparent, or grandchild of an employee; and,
(f) any other person who at the time of the accident was wholly dependent upon the employee for the necessaries of life.

(2) In the case of an employee who leaves two or more widows, such widows shall be entitled to share such compensation as would be payable to a single widow of the deceased employee.

Section 34(3)
(3) For the purposes of this section, a dependant is deemed to have been wholly financially dependent upon the employee at the time of the accident, unless the contrary is proved

Section 58(2)
(2) Any claim in respect of an accident or disease occurring before the commencement of this Act shall be deemed to have been lodged under this Act.

Held:

  1. Section 3 of the repealed WCA defined dependants to include those members of the family of a workman who were wholly or in part dependent upon his earnings at the time of his death, or would but for the incapacity due to the accident have been so dependent. Section 20 of the WCA provided that, in proceedings for compensation in respect of death of a workman, if the court was satisfied that other evidence or sufficient evidence of dependency could not be procured without undue hardship to the claimant who resided outside the district where proceedings were being held, the court could rely on a statement signed by the District Commissioner and such statement by him or her was prima facie proof of facts in that statement and was to be admitted without proof unless the court had reasons to doubt its genuineness. In the instant case, the trial proceedings took place in Nairobi and the claimants lived in Sagana, Kirinyaga County.
  2. The provisions of section 20(2) of the WCA showed that the court could rely on informal evidence as prima facie proof of dependency or degree of dependency. The WCA was repealed by section 57 of the Work Injury Benefits Act (WIBA), which commenced on June 2, 2007. Section 6 of the WIBA provided that a widow or widower, child below eighteen years old, parent, brother, sister, half-brother, half-sister of the deceased were dependants without requirement that they were wholly or in part dependent on the deceased employee. It was only persons outside the stipulated relation with the deceased employee who were required to show that they were wholly dependent on the deceased employee.
  3. Section 34 of the WIBA detailed the manner of determining the amount of compensation in case of death of an employee. Section 34(3) stipulated that a dependant was deemed to have been wholly financially dependent upon the employee at the time of the accident unless the contrary was proved. The transitional provision in section 58(2) provided that any claim in respect of an accident or disease occurring before the commencement of the WIBA ought to be deemed to have been lodged under the WIBA.
  4. The repealed WCA gave jurisdiction to a subordinate court to determine applications for compensation whatever the amount might be involved. From the provisions of the WIBA, the jurisdiction to determine applications for compensation had been conferred upon the Director of Work Injury Benefits (the Director), as established by section 53 of the Act.
  5. Section 51 of the WIBA provided that a person aggrieved by the decision of the Director had a right to lodge an objection with the Director against such decision. Section 52(2) provided for the right of appeal to the Industrial Court against the decision of the Director on the objection. The Industrial Court was replaced by the Employment and Labour Relations Court (ELRC) which was established by the Employment and Labour Relations Court Act. Section 12(1) of the Employment and Labour Relations Court Act gave ELRC exclusive original jurisdiction to hear and determine disputes relating to employment and labour relations. Section 12(5)(b) specifically gave ELRC power to hear and determine appeals from the decision of any other local tribunal or commission as might be prescribed under any written law.
  6. In the instant matter, the appellants named the dependants of the deceased and their relationship with the deceased. The named dependants were his widow, children and a sister. The parties agreed that the application be determined by way of affidavit evidence. The 1st appellant’s affidavit included a petition for grant of letters of administration to the estate of the deceased, and a limited grant of letters of administration issued to the appellant for purpose of filing the suit. It also included a letter dated March 20, 2006, from the Chief addressed to the Principal Magistrate verifying that the 1st appellant was the only widow of the deceased and the one entitled to inherit his properties. Whereas those documents did not prove dependency, they showed that the claim by the 1st appellant that she was a widow of the deceased and that she and the children of the deceased were dependants was genuine. The respondent did not provide any evidence to the contrary. The High Court failed to appreciate that the WCA imposed strict statutory duty to the employer of an employee who had died at work or had been injured to pay compensation to the dependants of a deceased worker.
  7. The High Court further fell into error in failing to appreciate the transitional provisions in section 58(2) of the WIBA which expressly provided that previous claims under the repealed WCA were deemed to have been lodged under WIBA. By section 23(3) of the Interpretation and General Provisions Act, the repealed law applied where the repealing Act did not show a contrary intention. Section 58(2) of the WIBA showed a contrary intention. Both the decision of the subordinate court and the High Court was made after the WIBA had come into operation and the two courts below erred in law in failing to find that the appellants and the children of the deceased were dependants within the meaning of section 6 of the WIBA.
  8. The constitutionality of various provisions of the WIBA had been challenged in the High Court. The Court of Appeal had reversed the decision of the High Court which had declared several provisions of the WIBA Act to be inconsistent with the repealed Constitution and declared only section 7 and 10(4) of the WIBA to be inconsistent with both the repealed Constitution and the 2010 Constitution. Sections of the WIBA referred to in the instant matter, particularly sections 6, 34(3), 51, 52, 53 and 58(2), were left intact.

Appeal allowed with costs to the appellants; matter was to be remitted to the Employment and Labour Relations Court to deal with the matter in accordance with the Work Injury Benefits Act.

TORT LAW Court awards a total of Kshs 41,634,554 in damages for injuries sustained in a road accident

Hemal-Kiran Pindolia Suing through Guardian and husband Pindolia Hemal Babu v Martin Muturi Karugu and 3 others
Civil Case 590 of 2009
High Court at Nairobi
A M Msagha, J
July 11, 2019
Reported by Ian Kiptoo

Download the Decision

Tort Law – Negligence – liability – where a driver in an accident was acquitted - whether acquittal of a driver of careless driving in a criminal trial exempted the driver from civil liability – Penal Code, section 210
Civil Practice and Procedure – damages – award of damages – where plaintiff sustained injuries - what was the quantum of damages to be awarded where a plaintiff sustained severe injuries that rendered a plaintiff incapacitated

Brief Facts:
The plaintiff was a passenger in the motor vehicle owned by the 2nd defendant and driven by the 1st defendant at the time of the accident. The plaintiff was said to be in the course of her employment with the 3rd defendant who instructed her to travel to Ongata Rongai. The said motor vehicle collided with the motor vehicle owned by the 4th defendant.
The plaintiff sought damages for injuries sustained as a result of a road traffic accident stating that the accident occurred as a result of the negligence and/or omissions of all the defendants and breach of contract by the 3rd defendant.

Issues:

  1. Whether acquittal of a driver of careless driving in a criminal trial exempted the driver from civil liability.
  2. What was the quantum of damages to be awarded where a plaintiff sustained severe injuries that rendered a plaintiff incapacitated? Read More...

Held:

  1. There was no evidence that the 3rd defendant could foresee the negligence and subsequent accident attributed to the driver of motor vehicle which the plaintiff was a passenger. It could not also be said that the 3rd defendant was in control of the said motor vehicle just because the plaintiff was its employee and was therefore negligent in the circumstances. It was not enough to say that the 3rd defendant instructed the plaintiff to travel in the motor vehicle to attach any liability. It had to be proved that the 3rd defendant could foresee that by so doing, the plaintiff would be exposed to danger. The evidence was lacking in the circumstances of the case. Therefore, the 3rd defendant was absolved from any liability.
  2. The collision between the two motor vehicles had not been denied. Even if that were the case, the 1st, 2nd and 4th defendants had not appeared in court to give evidence to the contrary. There was a copy of police accident abstract dated September 16, 2009 showing the 1st defendant was charged with the offence of careless driving but acquitted under section 210 of the Penal Code. Acquittal of a driver involved in an accident did not necessarily absolve him of civil liability in a claim for damages.
  3. The doctrine of res ipsa loquitor applied in the circumstances. The 1st, 2nd and 4th defendants could not escape liability to the plaintiff. The 1st and 2nd defendants on one hand, and the 4th defendant on the other, were liable to the plaintiff jointly and severally, in equal measure, for the injuries suffered as a result of the said accident.
  4. The medical reports presented a profile of severe injuries suffered by the plaintiff, and desperate efforts made by the doctors and her family to save her life. The plaintiff being totally immobilised needed support 24 hours a day. The cost of a professional nurse for every 12 hours was said to be Kshs. 25,000/= which the husband said he could not afford.
  5. The plaintiff was employed by the 3rd defendant as a Business Account Manager. Her salary per annum was Kshs. 600,000/= which translated to Kshs. 50,000/= per month. No negligence could be attributed to the 3rd defendant and therefore the claim for damages for breach of contract failed.
  6. There was no doubt that the plaintiff suffered very serious injuries as enumerated in several medical reports filed. She was unlikely to improve, if anything she would probably deteriorate. She had suffered cardiac arrest and was likely to suffer the same. She would never be able to bear a child. Her condition was irreversible. In considering damages to be awarded each case depended on its own facts because no two cases were alike.The court was also bound to consider that damages should not be excessive, and that comparable injuries should attract comparable awards.
  7. Taking into consideration the medical reports, the current status of the plaintiff, and attendant circumstances, an award of Kshs. 8,000,000 would be adequate compensation in terms of general damages for pain, suffering and loss of amenities. Special damages amounting to Kshs. 5,041,194.60 were proved.
  8. The retirement age of public servants and in many private companies was 60 years. It had been suggested that a multiplier of 24 years be applied which was reasonable. The plaintiff was 100% incapacitated. She was not likely to recover and that was confirmed by the medical reports. Her future earning capacity was zero. Damages under the head would work out to Kshs.50,000 x12 x 24 = Ksh.14,400,000/=.
  9. No evidence had been presented that the plaintiff had been spending 25,000/= for every 12 hours in that regard. In the absence of any evidence, a modest salary of Kshs. 25,000/= per month for a paramedic was sufficient to take care of the plaintiff. Using the same multiplier of 24 years, an award of Kshs. 7,200,000/= for nursing care was awarded. The cost of future medical cost was calculated at Kshs. 25,000/= per month, using the same multiplier of 24 years, an award of Kshs. 7,200,000/= under that head was awarded.

Claim partly allowed with costs awarded to the plaintiff. A total of Kshs. 41,634,554/= in damages was awarded.

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