Weekly Newsletter 051/2019



Kenya Law

Weekly Newsletter


Paragraph 23 of the Third Schedule to the Judicial Service Act that took away judicial officers’ entitlement to reports or recorded reasons for decisions rendered against them declared unconstitutional
Simon Rotich Ruto v Judicial Service Commission & another [2019] eKLR
Petition 48 of 2019
Employment and Labour Relations Court at Nairobi
B Ongaya, J.
November 1, 2019
Reported by Moses Rotich
Download the Decision

Constitutional Law- constitutionality of statutory provisions - constitutionality of paragraph 23 of the Third Schedule to the Judicial Service Act - whether paragraph 23 of the Third Schedule to the Judicial Service Act denying judicial officers facing disciplinary proceedings copies of office orders, minutes, reports or recorded reasons for decisions against them, infringed on their constitutional rights - Constitution of Kenya, 2010, articles 10, 35 and 47
Constitutional Law - fundamental rights and freedoms - enforcement of fundamental rights and freedoms - doctrine of waiver - whether the doctrine of waiver could apply to an employee who participated in his own disciplinary hearing, admitted some or all of the charges leveled against him and raised no issue of procedural impairment
Statute - interpretation of statutory provisions - hierarchy of laws - subsidiary legislation - nature of legislation that would constitute subsidiary legislation-whether the Third Schedule to the Judicial Service Act was a form of subsidiary legislation.
Labour Law employment - employment contract - disciplinary action - interdiction of judicial officers - where a senior principal magistrate was interdicted by the Chief Registrar to the judiciary - whether the Chief Registrar to the Judiciary had the mandate to draw a charge and interdict a senior principal magistrate - Judicial Service Act, Third Schedule, paragraph 16(1), 17(2) and 25(1

Brief facts:
The petitioner was serving as a Senior Principal Magistrate in the Judiciary. He was interdicted from duty on January 17, 2015 for being habitually drunk during working hours. His interdiction was, however, lifted on July 8, 2015, and the petitioner was sternly warned against involving himself in acts of gross misconduct or conducting himself in a manner that did not portray proper decorum of an officer of the court.
On September 2, 2016, the Chief Registrar of the Judiciary accused the petitioner of reporting for duty while under influence of alcohol forcing his removal from the cause list. The petitioner, in a written reply, denied the charge. On January 19, 2016, the Chief Registrar informed the petitioner that the Judicial Service Commission Human Resource Management Committee (the Committee) had deliberated his response to the show cause notice and directed the petitioner to attend a disciplinary hearing before the Committee on January 25, 2016. At the hearing, the petitioner admitted to have been drunk during office hours and while attending to court users in his chambers. The petitioner further admitted that he had a drinking problem but was undergoing treatment. On February 9, 2017, the Judicial Service Commission dismissed the petitioner in a letter signed by the Chief Justice.
Aggrieved, the petitioner filed the instant petition and sought various declarations, inter alia, that the Chief Registrar of the Judiciary (2nd respondent) had no jurisdiction under the law to draw and commence a charge and interdiction of a judicial officer. He also asked the court to find that the proceedings leading to his dismissal were unprocedural, illegal and unconstitutional for contravening articles 171(2)(c) and 236(b) of the Constitution and section 32 (3) of the Judicial Service Act.


Issues:
  1. Whether the Chief Registrar of the Judiciary had powers to draw a charge and interdict a judicial officer in the rank of a senior principal magistrate.
  2. Whether paragraph 23 of the Third Schedule to the Judicial Service Act that took away judicial officers’ entitlement to reports or recorded reasons for decisions rendered against them was inconsistent with;
    1. article 47 of the Constitution entitling every person to a written reason to every administrative action that adversely affected them;
    2. article 35 of the Constitution providing for the right to access of information; and,
    3. principles of rule of law, transparency and accountability provided under article 10(2)(a)(c) of the Constitution;
  3. Whether the doctrine of waiver could apply to an employee who participated in his own disciplinary hearing, admitted some or all of the charges leveled against him and raised no issue of procedural impairment.
Relevant provision of the law
Judicial Service Act
Third Schedule
23. Copies of proceedings

(1)An officer in respect of whom disciplinary proceedings are to be held under this Part shall be entitled to receive a free copy of any documentary evidence relied on for the purpose of the proceedings, or to be allowed access to it.
(2)The officer may also be given a copy of the evidence (including documents tendered in evidence) after the proceedings are closed, on payment of five shillings per page of each document tendered in evidence:
Provided that they shall not be entitled to copies of office orders, minutes, reports or recorded reasons for decisions.

 
Held:
  1. The power to interdict a judicial officer such as the petitioner who held the position of Senior Principal Magistrate was vested in the Chief Justice under paragraph 16(1) of the Third Schedule to the Judicial Service Act and within the circumstances or safeguards mentioned in that section. The power to suspend a magistrate was vested in the Chief Justice under paragraph 17(2) of the Third Schedule and within the prescribed safeguards. The power to draw charges against a magistrate or judicial officer was vested in the Chief Justice under paragraph 25(1) of the Third Schedule to the Judicial Service Act. Accordingly, the Chief Registrar (2nd respondent) acted ultra vires those provisions by issuing the charge and interdiction against the petitioner. The charge and interdiction were invalid.
  2. To the extent that the interdiction was empty of the requisite authority and was ultra vires, and invalid, the petitioner was entitled to the withheld pay during the interdiction. The invalid interdiction could not operate to validly withhold the petitioner’s half salary during the interdiction period. The legal basis of withholding the pay was not established.
  3. Paragraph 23 of the Third Schedule to Judicial Service Act purporting to take away judicial officers’ entitlement to reports or recorded reasons for decisions rendered against them was unconstitutional and inconsistent with article 47(2) entitling every person to a written reason to every administrative action that adversely affected them; article 35 providing for the right of access to information; and article 10(2)(a)(c) of the Constitution on principles of rule of law, transparency and accountability. Paragraph 23 of the Third Schedule to Judicial Service Act further contravened principles of public service under article 232(1)(e) and (f) of the Constitution on accountability for administrative acts, transparency and provision to the public of timely, accurate information.
  4. The provisions of the Third Schedule to the Judicial Service Act were enactments by Parliament and were not subsidiary legislation. They could not be found ultra vires section 6 of the Fair Administration Action Act and section 4 of Access to Information Act, 2016 as urged for the petitioner because they ranked at parity in the hierarchy of legislation and law.
  5. The petitioner had a helpless problem of drunkenness which seriously affected his performance. The 1st respondent had given him a chance to improve and allowed him to attend a rehabilitation centre on full monthly pay when a previous interdiction was lifted in that regard. Consequential to the lifting of the interdiction, the petitioner promised to improve and he did so in his personal written undertaking to the Chief Justice. The petitioner appeared not to have been able to uphold his personal and written undertaking and hence the disciplinary and the subsequent dismissal. The 1st respondent had taken all necessary steps to assist and reasonably support the petitioner but he failed to improve. In that sense, the respondents had a valid reason to dismiss the petitioner as at the time of the dismissal and as envisaged in sections 43, 45 and 47(5) of the Employment Act, 2007.
  6. Despite delegation of certain aspects of disciplinary control to the Chief Justice under the Third Schedule to the Judicial Service Act, nothing precluded the 1st respondent by itself taking appropriate steps and by itself undertaking the disciplinary proceedings. Thus, paragraph 20 of the Third Schedule provided that, subject to the Constitution and the Schedule, the Commission could regulate its own procedure and the procedure of any of its Committees. Nothing in the Schedule limited or otherwise affected the inherent power of the Commission to make such decisions as was necessary for the ends of justice or to prevent abuse of the process of the Commission. Thus, even if the charge and the interdiction were ultra vires, and invalid, the 1st respondent exercised the inherent power as was conferred.
  7. The petitioner admitted the gross misconduct before the Committee of the 1st respondent and the 1st respondent, at a full house meeting, deliberated the Committee’s findings and made the decision to dismiss the petitioner. Throughout the hearing, the petitioner did not advance the issue of procedural impairment in the manner the charge and interdiction had been imposed. The doctrine of waiver applied. It could not be said that the petitioner had not been accorded fairness or due process in terms of article 236 of the Constitution because he attended the hearing; he was informed and he knew the case that confronted him; he answered the case by admitting the leveled gross misconduct; and, he requested to be given another chance to improve so that all his testimony was taken while having subjected himself to an oath before the Committee.
  8. Despite the ultra vires, and invalid charge and interdiction as imposed by the 2nd respondent, the 1st respondent by itself, in its Committee proceedings read the allegations to the petitioner; the petitioner understood the allegations; made a reply; and, was heard extensively. There was no omission or action to impair the petitioner’s capacity to present his case towards exculpation, the Committee was well constituted and suffered no deficiency, and the petitioner admitted the charge (which was straightforward and not requiring documents and detailed background material to reply) and he requested another chance to improve despite having previously squandered such a chance. In such circumstances, the petitioner failed to establish a case for breach of rules of natural justice or denial of due process. Moreover, nullifying the dismissal of the petitioner would serve no purpose as the petitioner admitted the gross misconduct and offered no plausible line of action to improve his future behaviour in view of the identified alcoholic addiction.
  9. The decision in Kenya Aviation Workers Union –Versus- Kenya Airways Limited [2019] eKLR, was distinguishable in that the employer had failed to afford the employee the prevailing employee assistance programme leading that court to find that that failure amounted to unfair labour practice and thus unfair termination of employment. In the instant case, the respondents embraced the best human resource practice towards work-life balance when they gave the petitioner a chance for rehabilitation and to resume work after the initial interdiction. After lifting of that interdiction, the petitioner did not deny that he continued to have impaired performance resulting from continued alcoholic addiction.
  10. Once an employer has afforded a needy employee a reasonable chance to benefit out of the prevailing employee assistance programme but the employee fails to improve, the employer’s obligation for fair labour practice in that respect should thereby get discharged. The tenets of justice and proportionality demanded that such an employer was, thereby, freed accordingly from the burden of continued retention of an employee who had shown that he could not benefit and help himself to improve from such employer’s assistance and support. Accordingly, the petitioner’s constitutional rights were not breached as alleged and the petitioner was undeserving of compensation and reinstatement.
Petition partly allowed.
Orders:-
  1. A declaration that the 2nd respondent acted ultra vires the provisions of paragraph 16 and 25 of the Third Schedule to the Judicial Service Act, 2011 by issuing the charge and the interdiction both dated on September 9, 2016 against the petitioner; and the charge and interdiction declared null and void ab initio.
  2. A declaration that paragraph 23 of the Third Schedule to Judicial Service Act, 2011 was unconstitutional for being inconsistent with articles 47(2), 35, 10(2)(a)(c) and 232 (1) (e) (f) and (e) of the Constitution of Kenya, 2010.
  3. Petitioner directed to serve the Judgment upon the Attorney General within seven (7) days of the date of delivery of Judgment.
  4. The respondents ordered to pay the petitioner a sum of Kshs.1,275,501.00 (less PAYE) by December 12, 2019, failure to which interest would be payable thereon at court rates from the date of judgment until payment in full.
  5. Half of the petitioner’s costs were to be borne by the respondents.
Kenya Law
Case Updates Issue 051/2019
Case Summaries

JUDICIAL OFFICER The Chief Registrar of the Judiciary has no jurisdiction under the Constitution and/or Judicial Service Act to interdict and/or frame a charge against a judicial officer

NML v Judicial Service Commission and another
Employment and Labour Relations Court at Nairobi
Petition 152 of 2018
S Radido, J
October 11, 2019
Reported by Ian Kiptoo

Download the Decision

Judicial Officer – disciplinary actions against judicial officers – interdiction –– where the Chief Registrar of the Judiciary interdicted a Senior Principal Magistrate– claim that the Chief Registrar had no jurisdiction to interdict or frame charges against the Senior Principal Magistrate – whether the Chief Registrar of the Judiciary had jurisdiction under the Constitution and/or Judicial Service Act to interdict and/or frame a charge against a judicial officer
Judicial Officer – Chief Registrar – powers of the Chief Registrar - powers of the Chief Registrar when the office of the Chief Justice is vacant – whether the Chief Registrar of the Judiciary could perform functions delegated to the Chief Justice during a vacancy in the office of the Chief Justice

Brief Facts:
On or around May 22, 2014, the Registrar of the Magistrates Court wrote to the petitioner who was serving as a Senior Principal Magistrate to inform her of complaints raised by the Law Society of Kenya, Western region on pending judgments and rulings; pronounced summary judgments and rulings not reduced into writing (reasoned), and directing that she submits a report on all pending judgments and rulings from all the stations she had served in and proceed on 30 days leave to complete the preparation of the judgments and rulings. On August 22, 2016, the Chief Registrar of the Judiciary (2nd respondent) wrote to petitioner to inform her of her interdiction.
The petitioner challenged the jurisdiction of the 2nd respondent stating that: the Chief Justice, in the exercise of his statutorily delegated authority was expected to make inquiries before framing a charge and before escalating the case to the Judicial Service Commission in order for the Commission to decide whether to initiate disciplinary proceedings; that in terms of section 16 of the Third Schedule, it was the mandate of the Chief Justice to interdict a judicial officer after satisfying him/herself that public interest required such a decision, and that the Chief Registrar could not purport to usurp or perform the function; and that the interdiction and framing of the charge by the 2nd respondent was null and void.
On the other hand, the respondents were of the contrary view contending that: disciplinary control over judicial officers was a function of the 1st respondent which Parliament had seen fit to delegate to the Chief Justice for purposes of initiation of a disciplinary process, and that because there was a power vacuum at the material time, the powers reverted to the 1st respondent; and that the 2nd respondent being third in administrative hierarchy (after the Chief Justice and Deputy Chief Justice) could exercise the delegated powers in the interest of efficiency and fair administration.

Issue:

  1. Whether the Chief Registrar of the Judiciary (Chief Registrar) had jurisdiction under the Constitution and/or Judicial Service Act to interdict and/or frame a charge against a judicial officer.
  2. Whether the Chief Registrar could perform functions delegated to the Chief Justice during a vacancy in the office of the Chief Justice. Read More..

Held:

  1. When the petitioner was interdicted and was issued with a charge on August 22, 2016, the office of the Chief Justice/Chairperson of the Judicial Service Commission was vacant. The Chief Justice in office then had left office on June 16, 2016. However, save for the indication in the letter from the Registrar of the Magistrates Court dated May 22, 2014; the respondents did not produce any material to suggest that inquiries, as contemplated by section 25 of the Third Schedule of the Judicial Service Act, were made. Equally, no material was placed before the court that the Chief Justice had framed the charges put to the petitioner under the hand of the 2nd respondent.
  2. The respondents did not explain why the 2nd respondent saw it fit in the name of efficient administration and management to interdict the petitioner some 2 years after the letter from the Registrar of the Magistrates Courts.
  3. In disciplinary control over judicial officers, the Chief Justice exercised powers directly delegated by statute. The statute had not provided that the Chief Registrar could exercise some of the functions delegated to the Chief Justice in the absence of the office holder. Even assuming that disciplinary control was ultimately a function of the Judicial Service Commission and taken as a given that a principal could delegate, there was no evidence placed before the court that the Commission, being aware of the vacuum in office had delegated or required the Chief Registrar to exercise the functions.
  4. The office of the Chief Registrar had been given general statutory responsibility for the overall administration and management of the Judiciary; to give effect to the directions of the Chief Justice and to be responsible for efficient management of day to day operations and administration of human resource in the judicial service.
  5. Disciplinary control was broadly an administrative and management function. However, in respect of judicial officers, the same statute in vesting disciplinary control in the Judicial Service Commission and the Chief Justice had withdrawn or restricted that function from the office of the Chief Registrar. The general legal provision had to yield to the special legal provision (lex specialis derogate generali).
  6. The suggestion that the Chief Registrar, being number 3 in the judicial administrative chain and also serving as Secretary to the Judicial Service Commission could perform functions delegated to the Chief Justice during a vacancy in the office was unattractive and repulsive. In interdicting the petitioner and framing the charges, the Chief Registrar was acting ultra vires her constitutional and statutory mandate.

Petition allowed with costs.
Orders:

  1. Declaration that the Chief Registrar had no jurisdiction under the Constitution and/or Judicial Service Act to interdict and/or frame a charge against a judicial officer
  2. Declaration that the Chief Registrar’s action to interdict and frame charges against the petitioner was ultra vires her constitutional and statutory jurisdiction, and functions and amounted to a usurpation of the jurisdiction and functions of the Judicial Service Commission and the Chief Justice.
  3. Declaration that the process leading to and the dismissal of the petitioner from the office of Senior Principal Magistrate was void ab initio.
  4. An order that the Judicial Service Commission and the Chief Justice do commence and conclude afresh the disciplinary process against the petitioner within 60 days.
  5. The petitioner be deemed as having been on interdiction on half salary from August 22, 2016 up to date of conclusion of the fresh disciplinary process.
TORT LAW

The multiple publication rule in defamation is not applicable in Kenya as a bar to the limitation period set in section 4(2) of the Limitation of Actions Act

Royal Media Services Ltd v Valentine Mugure Maina and another
Civil Appeal 19 of 2018
High Court at Nyeri
October 18, 2019
Ngaah J, J
Reported by Ian Kiptoo

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Tort Law – defamation – libel – elements of libel – publication – multiple publication rule – applicability of – claim that each access to a defamatory statement online was a new publication – claim that it was not barred by the Limitations of Actions Act - whether the multiple publication rule in defamation was applicable in Kenya as a bar to the limitation period set in section 4(2) of the Limitation of Actions Act - Limitation of Actions Act, section 4(2)
Civil Practice and Procedure – suits - institution of suits – defamation suits – extension of time - court’s discretion - under what circumstances could a court extend time within which to file a suit for damages in a defamation claim

Brief Facts:
The instant matter was an appeal from the ruling and order in Nyeri Chief Magistrates Court that held that every visit to the site where defamatory words was published constituted a fresh cause of action notwithstanding the date the words were first published. That as long as the offensive words remained on the appellant ’s website and were accessible to all and sundry, there was a continued publication constituting a cause of action.
The appellant’s grounds for appeal were that: the trial court erred in not holding that the suit before it concerned an action for libel which could not be brought after the end of 12 months from such date which the cause of action accrued as provided for by section 4(2) of the Limitation of Actions Act; that each individual publication gave rise to a separate cause of action subject to its own limitation period.

Issues:

  1. Whether the multiple publication rule in defamation was applicable in Kenya as a bar to the limitation period set in section 4(2) of the Limitation of Actions Act.
  2. Under what circumstances could a court extend time within which to file a suit for damages in a defamation claim? Read More...

Relevant Provisions of the Law
Limitation of Actions Act
Section 4(2)
(2) An action founded on tort may not be brought after the end of three years from the date on which the cause of action accrued:
Provided that an action for libel or slander may not be brought after the end of twelve months from such date.

Held:

  1. A cause of action in defamation suits arose as soon as the defamatory words were published. Indeed, strictly speaking, what was alleged to be libelous or slanderous only assumed that description, upon the defendant relaying the words complained of to a party other than the party to whom they referred; only then could it be said that there was publication. It followed that publication, of itself, was an essential and a necessary element in proof of defamation.
  2. The multiple-publication rule which, as its name suggested, allowed for a new and separate cause of action each time a defamatory statement was published. In the off-line world, that meant that each copy of a book or a newspaper was a separate, actionable case of defamation with its own limitation period. It did not necessarily follow that the same litigant could take multiple actions arising from the same defamatory statement; it only meant that in the case where the rule applied, any limitation period would run from the date of the last publication as opposed to the first.
  3. Until the Defamation Act, 2013 of United Kingdom, the multiple publication rule applied to England, amongst a few other commonwealth jurisdictions; it was succinctly explained in the United Kingdom Government Consultation Paper on Multiple Publications. Some jurisdictions had found the rule as being unsuited to modern era, in particular, where statements could be uploaded to the internet in an instant, viewed in multiple jurisdictions, endlessly republished and existed indefinitely if not removed. The effect of the rule on internet free speech, so it had been argued, was disproportionate to the interests being protected.
  4. In the United States, it was rejected as early as 1948 while in Ireland it was abolished by the Defamation Act 2009 which had adopted a single publication rule which, contrary to the multiple publication rule, set the clock ticking on eligible claims being brought from the date the material was being published publicly. The English legislature had also followed suit and had, in its Defamation Act 2013, deviated from the decisions of the English courts which had hitherto embraced the multiple publication rule and instead introduced the single publication rule in section 8 of that Act.
  5. The 1st respondent had not demonstrated that the multiple publication rule was applicable to Kenya. The English court decisions cited by the 1st respondent were of persuasive authority and not binding on Kenyan courts; but more importantly, the English themselves had abandoned the multiple publication rule upon which those decisions were based. It would be foolhardy for Kenya to follow those decisions when their very basis had been found wanting to such an extent that a legislative intervention in the form of section 8 of the English Defamation Act 2013 had been found necessary.
  6. There were technological achievements in media communication the prominent of which was, invariably, the internet, and which by their very nature had some bearing on such torts as slander and libel in a way that could not have been foreseen. No doubt it was necessary that the law should be equally dynamic and keep pace with those advancements as need arose. it was the policy makers that needed to take the initiative and act accordingly; the most courts could do was to point out the deficiencies in the law hoping that the legislative arm of the Government would rise to occasion and take appropriate steps to mitigate those deficiencies. In the absence of legislative acts, courts could do nothing more than apply the law as it was.
  7. The Limitation of Actions Act, in particular section 4(2), had never been amended as to vary the point in time when a cause of action from libel or slander accrued. As far as libel was concerned, the cause of action accrued when the defamatory material was published and in the present case the alleged defamatory material was published more than a year before she filed her suit. In short, her suit was filed out of time and the trial court ought to have held so and struck it out.
  8. Section 4(2) was couched in such terms that the trial court was left with discretion to extend the time within which a claimant could file suit for damages in defamation claims. It could be that the claimant was under disability of some sort and therefore he could not, for that reason, file the claim within the statutory period. It could also be equitable that the action should be allowed to proceed if the statutory time limit prejudiced the plaintiff. Either way, the court had also to be cautious that the defendant was not prejudiced by its order.
  9. Where the court was inclined to extend time, it had to have regard to all the circumstances of the case and in particular to such circumstances as the length of, and the reasons for, the delay on the part of the plaintiff; where the reason or one of the reasons for the delay was that all or any of the facts relevant to the cause of action did not become known to the plaintiff until after the expiry of the statutory limitation period. In the latter instance the court, in making its decision, would consider the date on which any such facts did become known to him; and the extent to which he acted promptly and reasonably once he knew whether or not the facts in question might be capable of giving rise to an action.
  10. The court would also consider the extent to which, having regard to the delay, relevant evidence was likely to be unavailable, or to be less cogent than if the action had been brought within the statutory limitation period. Whatever the case, the court had to be moved by way of an application for leave for extension of time. That, however, was not the case. The 1st respondent was of the firm position that she could file her suit outside the limitation period from the date the offensive post was first published on the appellant’s website. The position adopted was legally untenable.

Appeal allowed with costs awarded to the appellant.
Orders:

  1. The appellant’s notice of preliminary objection dated December 15, 2017 was sustained.
  2. The 1st respondent’s suit was struck out with costs.
LAND LAW

Death of a registered owner of land does not stop time from running for the purposes of adverse possession

Joseph Kamau Gichuki (Suing as the administrator of the Estate of Gichuki Chege(Deceased)) v James Gatheru Mukora & another [2019] eKLR
ELC Suit 929 of 2000 (O.S)
Environment and Land Court at Nairobi
October 24, 2019
Reported by Moses Rotich

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Land Law - adverse possession - ingredients necessary to prove a claim of adverse possession - claim that the period between the death of a registered owner of land and the appointment of legal representative to his estate should not be included within the twelve years period required for adverse possession - whether, for the purposes of adverse possession, time could run against a deceased registered owner of land before the appointment of legal representatives of his estate - Limitation of Actions Act, sections 16 & 17

Brief facts:
The plaintiff was the legal representative of the estate of Gichuki Chege (Chege/the deceased) while the defendants were the legal representatives of Mukora Mukaria (Mukaria/the deceased registered owner). Both the plaintiff and the defendants claimed that their respective estates had an interest over the suit property.
The estate on whose behalf the plaintiff brought the suit, claimed ownership of the suit property by adverse possession. On the other hand, the defendants maintained that Mukaria was the absolute proprietor of the suit property having been registered as such on April 25, 1959. They contended that since the registered owner died on July 14, 1960 and no administrator was appointed in respect of his estate until 1992, the limitation period could not run against him.

Issue:

Whether, for the purposes of adverse possession, time could run against a deceased registered owner of land before the appointment of legal representatives of his estate.Read More...

Relevant provision of the law
Limitation of Actions Act
Section 16
Administration dates back to death
For the purposes of the provisions of this Act relating to actions for the recovery of land, an administrator of the estate of a deceased person is taken to claim as if there had been no interval of time between the death of the deceased person and the grant of the letters of administration.

Held:

  1. The deceased entered the suit property in 1974. At the time of entry, the suit property was registered in the name of Mukaria. The entry was without permission of either the registered owner or his legal representatives. The deceased occupied the suit property openly and without interruption from the year 1974 until he died in 1994. From the developments which the deceased carried on the suit property, he asserted ownership rights over it. His occupation was therefore adverse to the interest of the defendants. By the time the deceased died on April 15, 1994, he had been in occupation of the suit property for over nineteen (19) years.
  2. The defendants argued that since the registered owner died on July 14, 1960 and no administrator was appointed in respect of his estate until 1992, the limitation period could not run against him. However, section 16 of the Limitations of Actions Act provided that the death of a registered owner could not stop time from running for the purposes of adverse possession.
  3. The defendants were the legal representatives of the registered owner. Their right to claim the suit property dated back to the date of the death of the deceased registered owner. When the deceased entered the suit property in 1974, the defendants were deemed to have been entitled to possession of the property as at that date and in that regard, for the purposes of limitation of actions, time started running against them from that date although they had not obtained grant of letters of administration. By the time the defendants were issued with a grant of letters of administration in respect of the estate of the registered owner in 1992, their claim over the suit property was already time barred, the deceased having occupied the suit property continuously for over 18 years.
  4. As at the time the defendants obtained grant of letters of administration in respect of the estate and purported to transfer the suit property to themselves by transmission, the suit property was not available for distribution amongst the beneficiaries of the estate since the registered owner’s title over the property had been extinguished under section 17 of the Limitation of Actions Act. The deceased had acquired the suit property by adverse possession. The registration of the defendants as the owners of the suit property was therefore unlawful.

Claim allowed with costs to the plaintiff.

JURISDICTION

Threshold to be met for an appeal to the Supreme Court to lie as of right under article 163(4)(a) of the Constitution.

John Florence Maritime Services Limited & another v Cabinet Secretary for Transport and Infrastructure & 3 others
Petition 17 of 2015
Supreme Court of Kenya at Nairobi
M K Ibrahim, J B Ojwang, S C Wanjala, Njoki Ndungu & I Lenaola, SCJJ
October 25, 2019
Reported by Beryl Ikamari

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Jurisdiction - jurisdiction of the Supreme Court - appellate jurisdiction - appeals that would lie as of right - threshold to be met in establishing that a Supreme Court appeal raised questions of constitutional interpretation and application - whether a claim that the right to a fair hearing was violated when a suit was dismissed on grounds of res judicata met the required jurisdictional threshold - Constitution of Kenya 2010, article 163(4)(a).

Brief facts:
Kenya and the Democratic Republic of Congo (DRC) entered into a bilateral agreement on Maritime Freight Management on May 30, 2000. The agreement was to remain in force for three years subject to a one-off renewal for a further three years. It provided that Kenya, through the 1st to 3rd respondents would assess, levy and collect commission to the tune of 1.8% of the gross freight charges on all imports destined for the DRC.
The appellants were Kenyan companies in the business of clearing and forwarding, who received circulars addressed to shippers, forwarders and agents, in which the 4th respondent demanded certain payments. The circulars were to take effect on October 29, 2012. The 4th respondent was an agent of DRC for all imported cargo destined for the DRC. It demanded payment for Fiche Electronique de Renseigment Certificate (FERI) as well as Certificate of Destination (COD) to be made to its account in US Dollars. The appellant alleged that the payment requirements were in breach of the bilateral agreement. They added that the bilateral agreement was not enforceable as it was not subjected to parliamentary approval. Further, the appellants alleged that those circumstances entailed violations of articles 2, 40 and 95 of the Constitution.
At the High Court, the suit was dismissed on grounds that it was res judicata in light of the determination in Mombasa HC Misc. Application No. 130 of 2011. On appeal, the Court of Appeal upheld the High Court's decision on res judicata. The appellants lodged a further appeal at the Supreme Court and the respondents applied for the striking out of the appeal on grounds that certification that the appeal raised matters of general public importance was not obtained and the Supreme Court lacked jurisdiction to hear the appeal.

Issue:

Whether the appeal raised questions of constitutional interpretation and application and met the jurisdictional threshold required under 163(4)(a) of the Constitution. Read More...

Held:

  1. An appeal to the Supreme Court under article 163(4)(a) of the Constitution would lie as of right if it involved the interpretation and application of the Constitution. On the other hand a Supreme Court appeal under article 163(4)(b) could only be entertained if it was certified as involving a matter of general public importance. The two types of appeal were different.
  2. The appeal was brought under article 163(4)(a) which was about appeals raising questions on constitutional interpretation and application. Therefore, the court would not consider the question as to whether certification was sought.
  3. The High Court decision to dismiss the suit on grounds of res judicata was upheld by the Court of Appeal. The appellant's claim was that the dismissal of the suit on such grounds was a denial of the right to a fair hearing and therefore the appeal raised a constitutional matter under article 163(4)(a) of the Constitution. The court would not consider the merits of the appeal but would consider whether the appeal raised a constitutional issue under article 163(4)(a) of the Constitution.
  4. The question to be answered was not related to what would constitute res judicata but it was about whether the High Court did not grant the petitioners a fair hearing and whether that was a matter of constitutional interpretation and application.
  5. For a matter to involve the interpretation or application of the Constitution, a particular provision of the Constitution had to have been in issue for interpretation and/or application at the High Court and the Court of Appeal. A question regarding the interpretation or application of the Constitution could arise from a multiplicity of factors and interrelationships in the various facets of the law. It was therefore necessary for the court to not only consider whether a specific constitutional provision was in question but to also conduct a holistic inquiry of all the various facets of the law as pleaded by the parties and determine whether they raised a constitutional issue.
  6. The principles related to a determination as to whether the jurisdictional threshold embodied in article 163(4)(a) of the Constitution had been met were not cast in stone. That determination involved a discretionary mandate and power that the Supreme Court would exercise judiciously on a case to case basis.
  7. The appeal raised a novel and prima facie issue that rightly invoked the Court's jurisdiction under article 163(4)(a) of the Constitution. There was an allegation that the manner in which the High Court determined the question of res judicata was somehow summary and unprocedural and that the preliminary objection raised was not based on a pure point of law as required in relation to preliminary objections. Further, it was alleged that in their attempt to establish the plea of res judicata, the respondents did not tender evidence to show that the appellants were parties to a prior concluded matter involving the same subject matter.

Application dismissed.

Long'et Terer - CEO and Editor

e: editor@kenyalaw.org

t: @LongetTerer

The Kenya Law Team

Where Legal Information is Public Knowledge.

The National Council for Law Reporting | P.O Box 10443 - 00100, Nairobi Kenya. | www.kenyalaw.org