Termination of Services for Failure to Upgrade Professional skills amounts to Unfair Labour Practice

Sarah Wanyaga Muchiri V Rt. Rev. Bishop Henry Kathii and Another
Industrial Cause No. 52 of 2013
Industrial Court of Kenya at Nyeri
7th March, 2014
N. J. Abuodha, J
Reported by Andrew Halonyere & Anne Mbuthia

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Brief Facts
The Claimant's services were terminated on the ground that she was unable to upgrade her professional skills as demanded by the Respondents.

Upon termination, the Claimant referred the issue to the Ministry of Labour, who, upon hearing the parties decided that the Claimant’s termination was unfair, and recommended that she be paid an equivalent of one year’s wages as provided under section 49(1)(c) of the Employment Act of 2007. The Respondents were aggrieved with that recommendation and brought the matter before the Industrial court.

It was the Respondents’ case that in order to deal with the new job challenges they required the Claimant to upgrade her qualification in accounts from ACNC to CPA I, and that they undertook to refund 50% of the course fee once the Claimant passed her examination.

The Claimant on her part submitted that she was unable to enroll for the training and take the examination because she had just taken a loan; whose repayment deductions did not leave her with enough income to enroll for the training as well as fend for her family.

Issues:
  1. Whether an employer could limit or attempt to limit the right of an employee to dispose of his /her wages in a manner which the employee deems fit.

  2. Did the dismissal of an employee for failing to upgrade their qualification to a desired level, in the circumstances of the case, amount to unfair termination?
Labour Law – Employment Law- termination of employment – termination for failure to upgrade professional skills to a desired level - whether an employer can limit the right of an employee to utilize wages in a manner which the employee deems fit – whether the Claimant was unfairly dismissed - Employment Act of 2007 Section 45 (2), 17 (11),

Section 45 (2) of the Employment Act of 2007 provides as follows:
The termination of employment by an employer is unfair if the employer fails to prove—
  1. that the reason for the termination is valid
  2. that the reason for the termination is a fair reason—
    1. related to the employees conduct, capacity or compatibility; or
    2. based on the operational requirements of the employer; and
  3. that the employment was terminated in accordance with fair procedure.
Section 17 (11) of the Employment Act, 2007 provides that:
No employer shall limit or attempt to limit the right of an employee to dispose of his wages in a manner which the employee deems fit, nor by a contract of service or otherwise seek to compel an employee to dispose of his wages or a portion thereof in a particular place or for a particular purpose in which the employer has a direct or indirect beneficial interest.

Held:
  1. The Claimant did not refuse to undergo the required training. She had a desire to do so but was incapacitated by compelling financial commitments. The Respondents were only prepared to refund 50% of the cost of training on condition that the claimant passed the examinations. In other words, a failure would have meant no refund.

  2. If the Respondents wanted to retain the Claimant in employment but at the same time wanted her professional skills enhanced, they were very much capable of sponsoring her fully even if it meant recovering the costs gradually from her salary. Improving the Claimant's professional skills would not only have benefited the Respondents but the Claimant as well. Therefore, on account of that, the Claimant's termination was unfair.

  3. The Employment Act of 2007, by Section 17 (11), prohibits any employer from limiting or attempting to limit the right of an employee to dispose of his or her wages in a manner he or she sees fit. As a parent, the Claimant’s priority was to educate her child and to repay her loan. The Respondents’ requirement for the Claimant to enroll herself in an accountancy course not only limited her right to use her wages as she pleased, but also amounted to an unfair labour practice; rendering her dismissal unfair, and one that was outside of the justification set out in section 45 (1) of the Employment Act of 2007.

Claimant awarded 6 months’ salary as compensation, at the amount earned monthly at the time of termination.



Kenya Law
Case Updates Issue 06/2014
Case Summaries

CIVIL PRACTICE AND PROCEDURE A Statutory Notice under the Land Act is limited to demands expressly provided for under the Charge instrument.

Kisimani Holdings Limited & another v Fidelity Bank Limited
Civil Case No 744 of 2012
High Court of Kenya at Nairobi
J B Havelock, J
October 31, 2013
Reported by Nelson K Tunoi & Beatrice Manyal

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Brief Facts
The defendant advanced a term loan facility to the 2nd plaintiff as regards one of its account in the maximum principal amount of Kshs. 22 million. The loan was conditional upon the 1st plaintiff agreeing to execute and register a Legal charge over the suit property in favour of the defendant. The 1st plaintiff at the request of the 2nd plaintiff had agreed to charge the suit property as security for repayment of the facility advanced to the 2nd plaintiff
Two statutory notices were subsequently sent to the 2nd Plaintiff and copied to inter alia, the 1st Plaintiff, upon default which purported to demand the repayment of three separate amounts on 3 account numbers in relation to the 2nd plaintiff’s accounts failure to which it would exercise its statutory power of sale and sell the suit property to recover the said amounts. The plaintiff sought an injunction against the statutory power of sale.

Issues:

  1. Whether the loan agreement enabled a chargee to realize the security offered by the chargor from monies lent to a third-party borrower without the chargor’s express consent.
  2. Whether it was possible under the Land Act 2012 for the chargee to tack on to a Charge instrument further advances that were made to a third party borrower without the chargor’s consent and, as a result, whether it was possible to enforce a charge to cover advances made to any other person.
  3. Whether a Statutory Notice under section 96 (1) of the Land Act could contain demands other than those expressly provided for under the Charge instrument.

Civil Practice and Procedure-injunction- interlocutory injunction -application by plaintiffs to restrain the respondents from selling the suit property -where the suit property was charged to the defendants- where the applicants defaulted on payment - applicable principles- whether the applicant established a prima facie case

Land Law-charges- contract of guarantee- bank loan to 2nd plaintiff- loan given on security of land loan facility guaranteed by 1st plaintiff charged on his property -where the 2nd plaintiff defaulted in the repayment of the facility and the defendant attempted to realize the charged property-property in the name of the guarantor - liability of guarantor- whether the loan agreement enabled a chargee to realize the security offered by the chargor from monies lent to a third-party borrower without the chargor’s express consent.

Land Law-charges- tacking- whether it was possible under the Land Act 2012 for the chargee to tack on to a Charge instrument further advances that were made to a third party borrower without the chargor’s consent and, as a result, whether it was possible to enforce a Charge to cover advances made to any other person.

Land Law- charges - exercise of statutory power of sale- statutory notice of sale - form of such notice - whether a Statutory Notice under the Land Act could contain demands other than those expressly provided for under the Charge instrument- Land Act section 96(1) Read More...

Held:

  1. There was nothing whatsoever in the charge instrument that either expressly or implicitly tied the suit property for the repayment of any principle sums lent by the defendant Bank to the 2nd plaintiff over and above the principal sum of Kshs. 22 million.
  2. The other lending to the 2nd plaintiff, by way of overdraft on its current account and US dollar account, was not covered by the charge instrument.
  3. The statutory notices referred to monies other than those due and owing under the said charge instrument. It detailed sums that had to be paid to rectify the overall default of the 2nd Plaintiff not just the Term Loan default.
  4. The defendant Bank could not separate out the Term Loan default from the default on the other two accounts and persuade the High Court that the Statutory Notice sufficed for the Term Loan default. As a consequence, both Statutory Notices were invalid and of no effect. Section 82 of the Land Act, 2012 specifically provided that there was no right to tack further advances or credit in relation to a charge instrument, otherwise in accordance with that section. The defendant bank had not complied with the provisions of that section.
  5. Section 84 of the Land Act, 2012 as regards the variation of interest rates provided that where it was contractually agreed that the rate of interest was variable, the rate of interest payable under a Charge instrument could be reduced or increased by a written notice giving the chargor at least 30 days’ notice of the reduction or increase in the rate of interest. The 1st Plaintiff’s had never received any such notice from the defendant bank hence the 40% contractual rate as claimed by the defendant Bank in the said Statutory Notices could not suffice.
  6. The Land Act, 2012 allowed the amount secured by a charge to be reduced or increased but by a memorandum which had to be endorsed on or annexed to the Charge instrument which varied the Charge in accordance with the terms of the memorandum. The memorandum had to be signed in the case of a reduction by the chargee or, in the case of an increase, by the chargor. It had to also state that the principal funds intending to be secured by a charge instrument were reduced or increased, as the case could be, to the amount specified in the memorandum. It was clear that by not specifically (by memorandum) increasing the amount covered by the Charge instrument, the defendant was in breach of that sub-clause by including in its statutory demand, the amount of the 2nd plaintiff’s current account overdraft and its US dollar account.
  7. The 1st Plaintiff’s had made out a prima facie case with a probability of success.
  8. As both Statutory Notices were invalid, the defendant bank’s statutory power of sale had not crystallized. Accordingly, it was not necessary to consider whether damages were an adequate remedy as regards the sale of the suit property. Any such sale, at the present time, would be illegal as regards non-compliance by the Defendant Bank with the Land Act, 2012.
  9. The High court had jurisdiction to determine the matter as it related to banking transactions as between the 2nd Plaintiff and the defendant bank with the 1st Plaintiff as guarantor therefore. The suit before Court was not a dispute relating to land as claimed by the defendant and the High Court was therefore properly sized with jurisdiction as opposed to the Environment and Land Court.
  10. No payments had been made towards the 2nd plaintiff’s, Term Loan facility and the US dollar account since 19th January 2012 and its KES Current account since 14th May 2012. Although this was an obligation lying squarely with the 2nd Plaintiff, the plaintiffs shared common directors. And although the Plaintiffs were separate legal entities, the 1st Plaintiff had to be aware of the defaults of the 2nd Plaintiff and had not been open and straightforward with the high Court as regards thereto. Such behavior by the 1st Plaintiff could only go against it at the hearing of the suit in due course.

Application allowed with no order as to costs.

LAND LAW Importance of issuance of notices in claims for Compulsory acquisition

Mathatani Limited v Commissioner of Lands & 5 others
Petition No 262 of 2011
High Court of Kenya at Machakos
B T Jaden, J
September 16, 2013
Reported by Teddy Musiga

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Issues:

  1. Whether issuance and service of Gazette notices is a prerequisite before commencement of compulsory land acquisition.
  2. Whether a Director of a company has the locus standi to institute suits on behalf of the company?
  3. Whether the High Court has jurisdiction to entertain maters that have been determined at the Land Acquisition Compensation Tribunal where there is an allegation of breach of fundamental rights and freedoms.

Land Law -compulsory acquisition – requirement for issuance and service of Gazzete Notices for parcels of land earmarked for compulsory acquisition - claim by the petitioner that he was not served with the mandatory preliminary notices in the Kenya Gazette – petitioner’s claim challenging the award of compensation on grounds of the legality of the process –– Land Acquisition Act (repealed), sections 3, 9, 333(c),

Constitutional Law -– fundamental rights and freedoms – right to property – compulsory acquisition – scope of the government’s power to compulsorily acquire land belonging to a private individual – Constitution of Kenya, 2010, article 40. Read More...

Article 40 (3) of the Constitution of Kenya, 2010 provided that:-

"The State shall not deprive a person of property of any description, or of any interest in, or right over, property of any description, unless the deprivation-

a) Results from an acquisition of land or an interest in land or a conversion of an interest in land, or title to land, in accordance with Chapter Five; or
b) Is for a public purpose or in the public interest and is carried out in accordance with this Constitution and any Act of Parliament that-
i. Requires prompt payment in full, of just compensation to the person; and
ii. Allows any person who has an interest in, or right over, that property a right of access to a court of law.”

Section 3 of the Land Acquisition Act (repealed) provided that:

“Whenever the Minister is satisfied that the need is likely to arise for the acquisition of some particular land under section 6, the Commissioner may cause notice thereof to be published in the Gazette, and shall deliver a copy of the notice to every person who appears to him to be interested in the land.

Section 9 of the Land Acquisition Act (repealed) provided that:

“The Commissioner shall appoint a date not earlier than thirty days and not later than twelve months after the publication of the notice of intention to acquire, for the holding of an inquiry for the hearing of claims to compensation by persons interested in the land, and shall

a) Cause notice of the inquiry to be published in the Gazette at least fifteen days before the inquiry; and
b) Serve a copy of the notice on every person who appears to him to be interested or who claims to be interested in the land.”

Section 333(c) of the Land Acquisition Act (repealed) provided that:

“A Notice which may be given under this Act may be served on a person-
a) By delivering it to the person personally; or
b) By sending it by registered post to the person’s last known address or his last known address in Kenya; or
c) if the whereabouts of the person or his address cannot, after reasonable inquiry, be ascertained, by leaving it with the occupier of the land concerned or, if there is no occupier, by affixing it upon some prominent part of the land; or
d) If the person is a body corporate, society or other association of persons, by serving it personally on a secretary, director or other officer thereof or on a person concerned or acting in the management thereof, or by leaving it or sending it by registered post addressed to the body corporate, society, or, if there is no registered office, at any place where it carries on business, or, if there is none, by leaving it with the occupier of the land concerned, or, if there is no occupier, by affixing it upon some prominent part of the land”.

Held:

  1. The burden of proof fell on the respondents to ensure the petitioner was served with notice of compulsory acquisition. No affidavit had been exhibited in court to demonstrate that any attempt to effect personal service was made and access denied. There was also no evidence of service by any other methods of service provided for under section 33(d) of the Land Acquisition Act (Repealed.) Therefore, the petitioner was not served with the notice of compulsory acquisition.
  2. The Gazette Notice in question failed and/ or omitted to identify the petitioner as the registered proprietor of the suit property and the public body for which the land was being purchased. That gazette notice simply stated the land reference number and the area to be acquired.
  3. That Gazette notice issued in accordance with section 9(1) of the Land Acquisition Act (repealed) calling on all interested parties to attend an inquiry for the hearing of the claims in compensation also failed to identify the petitioner as the registered owner of the suit property. The petitioner was not served of the said Gazette Notice and came to learn of the said inquiry after the same had been concluded. Therefore, notice of the inquiry was not served.
  4. Both Gazette Notices (notice of acquisition/ that earmarking the petitioner’s land for compulsory acquisition and that calling for attendance of inquiry respectively) failed to state the registered proprietors of the suit property. That failure or omission rendered the said Gazette Notices invalid.
  5. The requirements/ test for compulsory acquisition must be satisfied at the outset and not with aid of subsequent evidence. (Re Kisima [1978] KLR 36)
  6. Article 22(1) of the Constitution of Kenya, 2010 provided that every person had the right to institute court proceedings claiming that a right or fundamental freedom in the Bill of Rights had been denied, violated or infringed or was threatened. Therefore the Director of the petitioner’s company had the locus standi to institute the proceedings in court.
  7. Article 23(1) of the Constitution of Kenya, 2010 provided that the High court had jurisdiction in accordance with article 165, to hear, and determine applications for redress of a denial, violation or infringement of, or threat to, a right or fundamental freedom in the Bill of rights. The availability of an alternative remedy was not a bar to a party to invoke fundamental rights and freedoms of the Constitution. (Otieno Clifford Richard v R [2006]Eklr)
  8. The requirements of the Constitution and of the Land Acquisition Act were not complied with by the Commissioner of Lands. Consequently, the rights of the petitioner not to be arbitrary deprived of its property by the state as guaranteed under the Constitution were violated. The petitioner’s right to a lawful and fair administrative action and right to information as guaranteed under the constitution were also violated.
  9. The mandate to carry out compulsory acquisition was bestowed upon the Minister through the Commissioner of Lands. The Commissioner of Lands therefore bore the responsibility of ensuring that all procedures related to compulsory acquisition of the petitioner’s land were complied with.
  10. The 3rd, 4th, 5th and 6th respondents had no such responsibility placed on their shoulders by the Land Acquisition Act (repealed).

Petition allowed. Costs to be met by 1st defendant.

EMPLOYMENT LAW Availability of reinstatement into office as a temporary relief for unlawful dismissal from employment

Gladys Boss Shollei v Judicial Service Commission
Petition No. 39 of 2013
Industrial Court of Kenya at Nairobi
M N Nduma, J
November 22, 2013
Reported by Beryl A Ikamari

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Brief facts:
The petitioner was terminated from employment in the capacity of Chief Registrar of the Judiciary. She filed a petition in which she asserted that her termination was unfair and unlawful.
The Judicial Service Commission explained that the grounds for the termination of the petitioner's contract of employment included incompetence, misbehaviour, violation of the prescribed code of conduct for judicial officers, violation of chapter 6 and article 232 of the Constitution of Kenya, 2010 and insubordination.
The petitioner complained that in the process leading to her termination, she was not given a fair and impartial hearing. Further, she stated that she was not given adequate time to prepare her defence, was also not given adequate information on the nature of allegations brought against her and was not allowed to call witnesses to respond to the allegations she was facing.
Additionally, she contended that there was bias on the part of some of the commissioners of the Judicial Service Commission. According to the petitioner, a planned strategy to remove her from office existed because she was standing in the way of certain objectives which some members within the Judicial Service Commission wanted to achieve. In the strategy, it was decided that she would be accused of being in charge of a criminal enterprise and that it would be inadequate to relieve her from her duties while stating that such removal from office was part of a series of the positive transformations within the judiciary.
As an interim measure she applied for reinstatement into office and to stop the appointment of any other person to the position of Chief Registrar of the Judiciary.

Issue:

  1. Whether interim relief could be granted to reinstate into office the former Chief Registrar of the Judiciary and to stop the appointment of any other person to the office of the Chief Registrar of the Judiciary.

Employment Law-termination of employment contract-reinstatement into office-termination of the employment contract of the Chief Registrar of the Judiciary-availability of the remedy of reinstatement into office for the employment contract of the Chief Registrar of the Judiciary-Industrial Court Act, No. 20 of 2011; section 12(3)(vii) and Employment Act, 2007; section 49(4). Read More...

Held:

  1. The dispute between the parties entailed an employment dispute to which constitutional provisions, and also labour laws such as the Industrial Court Act, No. 20 of 2011 and the Employment Act, No. 11 of 2007, were applicable.
  2. Pursuant to the provisions of section 12(3)(vii) of the Industrial Court Act, No. 20 of 2011, the Industrial Court would be possessed of the jurisdiction to reinstate a former employee into employment within three years of that employee's dismissal from employment. The reinstatement would be subject to the considerations provided for in section 49(4) of the Employment Act, 2007.
  3. The reliefs sought by the petitioner were of an injunctive nature and in seeking them the petitioner was required to show the existence of a prima facie case with a probability of success and that she would suffer irreparable injury for which an award of damages would not be adequate as compensation. Where the court was in doubt, the application for injunctive relief would be decided on a balance of convenience.
  4. The petitioner had made out an arguable case, which was yet to be tested by the respondents, to the effect that there was some pre-existing strategy, bias and personal interest, on the part of some of the commissioners of the Judicial Service Commission, which precipitated her removal from the office of the Chief Registrar of the Judiciary. The petitioner had therefore established the existence of a prima facie case grounded on bias.
  5. In seeking to establish that the petitioner would suffer irreparable harm if she was not reinstated to office, it was shown that there was only one office of the Chief Registrar of the Judiciary in Kenya and a similar job was clearly unavailable.
  6. However, the remedy of reinstatement to office would not ordinarily be available as a temporary or interim relief. (Alfred Nyungu Kimungui v Bomas of Kenya, Cause No. 620 of 2013, Industrial Court of Kenya at Nairobi.)
  7. The balance of convenience would not lie in allowing the office of the Chief Registrar of the Judiciary to remain vacant. The office of the Chief Registrar of the Judiciary had a crucial role in the administration and accounting functions of the judicial arm of government and it was important for the office not to remain vacant.

Application dismissed.

EMPLOYMENT LAW Scope of medical fitness screening in the context of employment relationships

V M K v C U E A
Cause No. 1161 of 2010
Industrial Court of Kenya at Nairobi
M N Nduma, J
November 8, 2013
Reported by Teddy Musiga

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Brief Facts:
The claimant alleged discrimination against the respondent, particulars being; keeping her on casual employment selectively; paying her an inordinately low salary for equal work compared to her counterparts; refusing her recruitment on permanent basis and continuing to employ her on casual basis with very low pay compared to her colleagues in the same position for long period; testing her for HIV status without her consent; disclosing her HIV status to her superiors and colleagues and thereby violating her right to privacy; keeping her on short and progressively shorter contracts, with unequal terms due to her HIV status; refusing her paid maternity leave followed by an immediate termination of employment upon return from unpaid maternity leave.

Issues:

  1. Whether HIV screening in the workplace for purposes of recruiting, retaining or promotion of employees is legal.
  2. Whether employers are entitled to scrutinise the medical fitness of employees to be absorbed in their permanent services.
  3. Whether the termination of employment based on HIV status and pregnancy is lawful.

Employment Law -employer & employee relationship – termination of employment – termination on grounds of HIV status and pregnancy - whether the termination of employment based on HIV status and pregnancy is lawful – Employment Act, section 29

Employment Law-Fair labour practices - fair remuneration – equal work for equal pay – reasonable working conditions – Employment Act, Section 5, Constitution of Kenya, 2010 article 41

Employment Law-employer & employee relationship – medical fitness scrutiny of employees – considerations/ tests for medical fitness scrutiny - Whether HIV screening in the workplace for purposes of recruiting, retaining or promotion of employees is legal - Whether employers are entitled to scrutinise the medical fitness of employees to be absorbed in their permanent services Read More...

Article 27 of the Constitution of Kenya, 2010 provided that;

“Women and men have the right to equal treatment, including the right to equal opportunities in political, economic, cultural and social spheres.”

Article 28 of the Constitution of Kenya, 2010 provided that;

“Every person has the inherent dignity and right to have that dignity respected and protected.”

Article 41(2) of the Constitution of Kenya, 2010 provided that;

“Every person has the right to fair labour practices which includes the right to fair remuneration and reasonable working conditions.”

Section 5 of the Employment Act provided that;

“(2) An employer shall promote equal opportunity in employment and strive to eliminate discrimination in any employment policy or practice.
(3) No employer shall discriminate directly or indirectly against an employee or prospective employee or harass an employee or prospective employee on the grounds of race, color, sex, language, religion, political or other opinion, nationality, ethic or social origin, disability, pregnancy, mental status or HIV status in respect of recruitment training, promotion and terms and conditions of employment or other matters arising out of the employment.
(4)An employer shall pay his employees equal remuneration for work of equal value.”

Held:

  1. Article 1 of the Convention Concerning Discrimination in respect of Employment and Occupation, 1958 proscribed discrimination which had the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation. Therefore, the conduct of the respondent systematically and completely killed any of the claimant’s chance of employment with the respondent mainly because of her sex, pregnancy and HIV status.
  2. No employer in Kenya should require HIV screening for purposes of recruiting, retaining or promotion of employees at the work place. (Conditions of Work Digest, Volume 12.2/1993 at page 53)
  3. Employers were entitled to scrutinise the medical fitness of their prospective employees. However, the actual test or consideration to be applied for judging the medical fitness in the context of employment had to necessarily correlate to the requirements of the job, and interests of the persons and property at the work place. In the employment context, an otherwise qualified person was one who could perform the essential functions of the job in question.
  4. The right to life to a workman included the right to continue in permanent employment which was not a bounty of the employer nor could its survival be at the volition and mercy of the employer. Income was the foundation to enjoy many fundamental rights and when work was the source of income, the right to work then became such a fundamental right. (Air India Statutory Corporation v United Labour Union [1997] AIRSCW 430)
  5. An employee could not be medically unfit merely by virtue of having been infected by HIV. Therefore, the respondent grossly erred in refusing the claimant employment on a permanent basis on the ground of her HIV status. They also breached her right to employment and equal treatment by subjecting her continuously to casual employment and inferior remuneration purely on the basis of her HIV status. Further that the respondent erred by terminating her employment under the pretext that her short term contract had expired when the sole reason for the adverse decision was her HIV status.
  6. Section 29 of the Employment Act, 2007 provided that female employees were entitled to three months maternity leave with full pay. Therefore, the respondents unlawfully withheld the claimant’s salary while she was on maternity leave.
  7. The cumulative effect of the respondent’s actions against the claimant constituted gross affront on her dignity contrary to article 28 of the Constitution of Kenya, 2010, a gross violation of her right to fair labour practices which included a right to fair remuneration and to reasonable working conditions contrary to article 41 of the constitution. Further, that the respondent grossly violated article 27 of the Constitution and in particular her right to equal benefit of the law and equal enjoyment of all rights was grossly violated by the discriminative conduct of the respondent in spite of the specific provisions of labour laws that guaranteed the claimant specific rights and equality at the work place

Industrial cause allowed. Respondents to pay claimant total of Ksh. 6,971,346/= being damages for discrimination of the claimant on the basis of her HIV status and gross violation of her human dignity.

CONSTITUTIONAL LAW Constitutional claims on violation of fundamental rights and freedoms have no limitation period within which to be filed

David Gitau Njau & 9 others v Attorney General
Petition No 340 of 2012
High Court at Nairobi
I Lenaola, J
November 1, 2013
Reported by Phoebe Ida Ayaya and Derrick Nzioka

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Brief facts
The petitioners were ex-service officers of the Kenya Air Force who were serving officers at the time of the attempted coup of 1st August 1982. In their petition, they alleged that they were all arrested by officers of the Kenya Army on diverse dates between 1st and 4th August 1982 on suspicion of participating in the attempted/failed coup on the mere account of their being officers of the Kenya Air Force. They alleged a violation of their fundamental rights and freedoms as enshrined in the Constitution of Kenya (Repealed) and the Constitution of Kenya, 2010 by the officers of the Kenya Army on diverse dates in 1982 and 1983.

Issues:
  1. Whether a constitutional claim on alleged infringement of fundamental rights and freedoms had a limitation period within which the claim ought to have been filed.
  2. Whether the petitioners herein established a violation of their fundamental rights and freedoms.
  3. What amount in damages was to be awarded.
Constitutional Law

fundamental rights and freedoms – violation of fundamental rights and freedoms – claim that the petitioners protection from Torture and other Cruel and Degrading Treatment was violated – claim that the petitioners right to personal liberty was violated – where the petitioners were arrested and held in custody for a period of 8 months without being brought to court – whether the petitioners claim was time barred having been brought to court 30 years later – whether constitutional claims had a limitation period attached – whether the claim for infringement had been established and what amount of damages could be awarded – Armed Forces Act, sections 48, 72(2)&(3) and 176; Constitution of Kenya (Repealed) sections 72, 74(1), 84, 86(2)&(3).Read More...

Held:

  1. A claim made under the Constitution was neither a claim in tort nor contract that would necessitate the application of the Limitation of Actions Act, Cap 22 Laws of Kenya.
  2. There was no law or particular provision of either the Constitution of Kenya (Repealed) that provided that a claim based on fundamental rights and freedoms had a limitation period within which the claims ought to have been filed or the rules contained under the Constitution of Kenya (Protection of Fundamental rights and Freedoms of the individual) Practice and Procedure Rules, 2001 which placed any limitations on the citizens’ rights to institute a suit for the redress of violation of fundamental rights and freedoms under section 84 of the Constitution of Kenya (Repealed).
  3. Whereas the East Africa Community Treaty at article 30(2) had stipulated a time limit within which a claim to the court could be instituted as either within two months of the action complained of or on the day it came to the knowledge of the complainant, the Kenyan Laws had not and so the petition was properly before court. It was however ideally prudent to institute proceedings as early as possible from the time the alleged breaches occurred.
  4. Torture, cruel, inhuman and degrading inhuman treatment were all prohibited under international human rights law instruments including The Convention Against Torture (CAT), The International Covenant on Civil and Political Rights (ICCPR), The European Convention on Human Rights (ECHR), The American Convention on Human Rights (AmCHR), the Inter-American Convention to Prevent and Punish Torture and the African Charter on Human and Peoples Rights (Banjul Charter).
  5. The petitioners’ claim that immediately upon their arrests, they were stripped naked in public, made to walk on their knees on concrete floors, whipped, kicked around, bludgeoned all over their bodies as they were being taunted that they were 'educated rubbish' amounted to torture, cruel and degrading treatment contrary to section 74(1) of the Constitution of Kenya (Repealed) which provided that no person would be subject to torture or to inhuman or degrading punishment or other treatment.
  6. Holding the petitioners for 8 months without charge or being arraigned in court and in case of the 8th petitioner for 4 months, was unlawful and was a violation of section 72(3)(b) of the Constitution of Kenya (Repealed).
  7. Where an accused person was not arraigned in court within 24 hours of his arrest, the burden of proving that the person arrested had been brought before a court as soon as was reasonably practicable rested upon any person alleging that the provisions of the section had been complied with (Albanus Mwasia Mutua v Republic Criminal Appeal No 120 of 2004).
  8. The respondent’s defence for not arraigning the petitioners in court within the stipulated time, claiming that they had confessed their participation in the failed 1982 coup attempt, and as such the measures and force used upon them were reasonably justifiable could not hold water. Furthermore, section 72(2) and (3) of the Armed Forces Act (Repealed) provided that a person arrested for suspicion of having committed an offence under the act was to be investigated without unnecessary delay and so the respondent could not have any valid answer as to why the petitioners were not arraigned in any court within the time stipulated by law.
  9. The object of the Armed Forces Act in section 72 as read with section 48 was to ensure that there were no unnecessary delays in undertaking investigations of arrested persons.
  10. In awarding damages the criteria followed were: the torture inflicted on each petitioner; the length of time the petitioners were held in unlawful custody; the decided cases on the subject matter; and what was fair and reasonable in the circumstances of each case (Jenniffer Muthoni Njoroge & 10 others v Attorney General Petition No 340 to 350 of 2009).
  11. Similarly, the High Court stated its view on the issue of exemplary damages and declined to grant exemplary damages in cases where torture had been alleged to amount to violation of constitutional rights (Benedict Munene Kariuki & 14 others v Attorney General High Court Petition No 722 of 2000)

Petitioners awarded Kshs 5,500,000 each.

CIVIL PRACTICE AND PROCEDURE Applications for Prerogative orders must be made in the name of the Republic

Christopher Musau v Attorney General
Miscellaneous Civil Application No 90 of 2007
High Court at Nairobi
GV Odunga, J
October 22, 2013

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Issues:

  1. Whether applications for prerogative orders must be made in the name of the republic at the instance of the person affected by the action or omission in issue.
  2. What is the proper procedure to commence judicial review proceedings?

Civil Practice and Procedure -judicial review – prerogative orders – application for prerogative orders – failure to apply for prerogative orders in the name of the republic – whether such application could be entertained – whether such omission could be cured under the provisions of article 159(2)(d) of the Constitution – Constitution of Kenya, 2010 article 159 (2) (d) –Civil Procedure Rules order 53.Read More...

Held:

  1. Prerogative orders are issued in the name of the crown and applications for such orders must be correctly intituled and accordingly, the orders of certiorari, mandamus or prohibition are issued in the name of the Republic and applications therefore are made in the name of the Republic at the instance of the person affected by the action or omission in issue.
  2. Judicial review proceedings are commenced by the Notice of Motion and not the Chamber Summons. The Chamber Summons is simply an application for leave or permission to commence judicial review proceedings and whereas on the filing of the Notice of Motion the Chamber Summons is subsumed or submerged in the Motion, it is the Motion that originates the judicial review application.
  3. The proceedings under Order 53 can only start after leave has been obtained and the proceedings are then originated by the notice of motion filed pursuant to the leave granted. It would be somewhat ridiculous to bring the application for leave by way of an originating summons and once the leave is granted, the originating summons is then swallowed up or submerged in the notice of motion.
  4. The application for leave does not commence judicial review until such permission is granted to institute appropriate Judicial Review application and since the defendant/respondent herein is not the entity against whom the orders are properly sought, this is not the kind of mistake that can be cured under the provisions of article 159(2)(d) of the Constitution.

Notice of motion struck out

EMPLOYMENT LAW Extent to which the Retirement Benefits Appeals Tribunal may Determine issues of Employment

Republic v Retirement Benefits Appeals Tribunal ex-parte Mogaha & 12 others
Misc Appl No 415 of 2012
High Court at Nairobi
D S Majanja, J
October 4, 2013

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Brief facts
The 1st interested party lodged a complaint about payment of pension with the Retirement Benefits Authority. The complaint was challenged by her employer on the grounds that she had been dismissed for acts of fraud and gross misconduct, and therefore not eligible for pension. The Authority found that she had been paid her retirement benefits in accordance with the provisions of the employer’s pension scheme and the rules applicable when her services were terminated. She was aggrieved by the Authority’s decision and lodged an appeal to the Retirement Benefits Appeal Tribunal. The Tribunal noted that the main bone of contention was the manner in which the 1st interested party’s services was terminated and it concluded that her appointment was governed by the employer’s terms of service and that her services had been terminated in accordance with the terms of service thus entitling her to be paid her pension dues. The decision of the Tribunal was challenged by the Trustees of the Scheme through an application for Judicial Review lodged in the High Court.

Issue

  1. Whether the Retirement Benefits Appeals Tribunal in exercising its jurisdiction, could make a finding on an issue of employment.

Employment Law – pension – complaint of non-payment of pension –appeal to the Retirement Benefits Appeal Tribunal – jurisdiction of the Retirement Benefits Appeal Tribunal – extent to which the Retirement Benefits Appeals Tribunal may determine issues of employment – Retirement Benefits Act (Cap 197) Read More...

Held:

  1. All inferior courts and tribunals had only limited jurisdiction whose limits they had to observe, otherwise the doctrine of ultra vires would come into play, and any decision by such a court or Tribunal was bound to be declared null and void and would be quashed. Jurisdiction was the root of all causes and where it was lacking, any decision made by the Court or Tribunal would be null and void ab initio.
  2. Where the proceedings were regular upon their face and the inferior tribunal had jurisdiction in the original narrow sense i.e, it had power to adjudicate upon the dispute and did not commit any errors which went to jurisdiction in the wider sense, the quashing order certiorari would not ordinarily be granted on the ground that its decision was considered wrong either because it misconceived a point of law or misconstrued a statute, except a misconstruction of a statute relating to its own jurisdiction.
  3. The dispute before the Retirement Benefits Appeals Tribunal concerned an appeal from a decision of the Retirement Benefits Authority, finding, that the 1st interested party was entitled to certain pension benefits. The issue of her entitlement was intimately connected with the manner in which she was terminated. The Tribunal had jurisdiction to deal with and apply its mind to all the issues necessary for the determination of the core issue before it.
  4. The jurisdiction of the Retirement Benefits Appeals Tribunal was to hear appeals from the Chief Executive of the Retirement Benefits Authority on complaints relating to Retirement Benefits Schemes. Retirement Benefits Schemes are by their very nature related to employment. In fact, from many schemes, the payment of terminal dues is related to the manner in which the employment is terminated. Therefore, a decision as to whether retirements benefits are payable had to ipso facto involve a determination of how the employment was determined should a dispute arise.
  5. The purpose and intent of the Retirement Benefits Act was to provide a dispute resolution mechanism for determination of disputes that was efficient and effective.
  6. The Retirement Benefits Act did not expressly exclude from the jurisdiction of either the Authority or Tribunal to deal with employment issues as long as it was incidental to claims falling within the Act. Further, there was nothing in the Magistrates Court Act or the Industrial Court Act that limited the jurisdiction of the Tribunal and Authority from determining the matters of employment that were incidental to and ancillary to the core determination of retirement benefits disputes. To have acceded to such a position would have rendered the Tribunal a phantom body. Therefore the Tribunal had the jurisdiction to deal with the 1st interested party’s termination of employment in so far as the matter was incidental to the determination of her retirement benefits.
  7. Whether or not the Tribunal could deal with employment issues did not depend on the manner the inquiry would be conducted. The Authority and/or Chief Executive had powers and authority, to investigate the complaint submitted, by examining documents, taking oral evidence, or any other means that was necessary provided the process was fair.

Notice of motion dismissed.

ENVIRONMENTAL LAW Management of Forests to be in accordance with the Constitution

Joseph Leboo & 2 others v Director Kenya Forest Services & another
Environment & Land No. 273 of 2013
Environment & Land Court of Kenya at Eldoret
S Munyao, J
October 1, 2013
Reported by Lynette A. Jakakimba

Download the Decision

Brief facts
The application by the plaintiffs who were Committee Members of the Lembus Council of Elders against the Director of Kenya Forest Service (1st defendant) and the Forest Co-ordinator within Baringo County (2nd defendant), was as a result of the alleged illegal allocation of pre-qualified and unqualified saw millers to harvest timber and fuel materials from the Lembus forest, without involving the community and following the laid down procedure as per the Forest Participation in Sustainable Forest Management Rules and the Forests Act.
The defendants however submitted that the saw millers harvesting trees in Lembus forest were qualified saw millers who were awarded tenders to harvest trees, that the trees allocated to each saw miller were specific and that most plantations marked for felling were over mature. The defendants further stated that the harvesting of plantation trees could not be equated to massive destruction of the forest, as the process was regulated through harvesting plans to ensure sustainability. The defendants also contended that the court had no jurisdiction to grant an injunction against Kenya Forest Service which was a government agency and that the plaintiffs were an amorphous body without capacity to sue.

Issues:
  1. Whether a community that was a beneficiary of a forest had capacity to commence proceedings against the illegal and irregular harvesting of timber and fuel wood materials from the forest.
  2. Whether public participation was mandatory in the management of forests.
  3. Whether the Director of Kenya Forest Service could be sued in their capacity as a director.
  4. Whether the failure to state all statutory provisions relied upon in an application made the application defective and preclude an applicant from relying on provisions that had not been indicated.

Environmental Law-forests-forest conservancy and management- where there was a dispute over the management of a forest by the Kenya Forest Service-where it was alleged that there was no public participation in the management of Lembus Forest -whether a community that was a beneficiary of a forest had capacity to commence proceedings against the illegal and irregular harvesting of timber and fuel wood materials, from the subject forest-Constitution of Kenya, 2010 article 42, 69 and 70- Environmental Management and Coordination Act section 3(4)-Forests Act section 4 and 45- Forest Participation in Sustainable Forest Management Rules rule 5 and 13

Civil Practice and Procedureinstitution of suits-parties to a suit- whether the Director of Kenya Forest Service could be sued in their capacity as a director Read More...

Environmental Management and Coordination Act
Section 3(4)

A person proceeding under subsection (3) of this section shall have the capacity to bring an action notwithstanding that such a person cannot show that the defendant’s act or omission has caused or is likely to cause him any personal loss or injury provided that such action—
(a) is not frivolous or vexatious; or
(b) is not an abuse of the court process.

Forests Act
Section 4

(1) There is hereby established a Service to be known as the Kenya Forest Service.
(2)The Service shall be a body corporate with perpetual succession and a common seal and shall, in its corporate name, be capable of—
(a) suing and being sued;
(a) acquiring, holding, charging and disposing of movable and immovable property; and
(c) doing or performing all such other things or acts for the proper discharge of its functions under this Act.

(3) The headquarters of the Service shall be in Nairobi.

Section 45

(1) Any activities within a forest area which are not included in a management plan shall only be undertaken with the consent of the Board granted in accordance with this section.
(2)A person intending to undertake any activity referred to in subsection (1) within a forest area shall apply in that behalf to the Board, and the application shall be accompanied by the results of an independent Environmental Impact Assessment conducted in respect of the proposed activity.
(3)Where the Board intends to grant its approval under this section, it shall cause a notice of such intention to be published in the Gazette and in at least two newspapers of national circulation, and posting a notice in such manner as to bring to attention of the persons likely to be directly affected by such activity, and giving a period of not less than ninety days within which any person may make objections to the Board.
(4) The Board shall deliberate on any objection received and deliver its decision to the objector within a period of sixty days from the date of receipt thereof.
(5)Any objector aggrieved by a decision of the Board under this section may within sixty days after receipt of such decision appeal to the High Court.

Forest Participation in Sustainable Forest Management Rules
Rule 5

(1) The Service shall prepare or adopt a management plan covering a period of at least five years in respect of every state forest.
(2) A person who wishes to make an application to the Service for an authorisation under these rules shall prepare a site-specific forest management plan in accordance with guidelines prescribed by the Service.
(3) The Service shall evaluate the site-specific forest management plan submitted under paragraph (2) based on social, economic, environmental and sustainability factors and shall, with or without modification, review and approve the application.
(4) A person authorised under these rules to undertake activities for more than one year shall prepare an operations plan for every year, on which all operations shall be based, and activities shall not commence unless such operations plan has been approved by the Service.
(5) The Service shall evaluate the operations plan prepared under paragraph (4) to ensure that it conforms to the site-specific management plan and to sustainable forest use.
(6) The Service shall not issue an authorization without a site-specific plan in place, except for forest management agreements and permits for minor activities not significantly and irreversibly affecting forest resources.

Rule 13

(1) The Service shall, once every year, pre-qualify suitable persons for the harvesting of timber in state forests following the procedure set out in this rule.

(2) The Service shall invite applications for pre-qualification by placing a notice—
(a) at a conspicuous place at the Service Headquarters;
(b) in two newspapers of national circulation; and
(c) on the website of the Service, or equivalent electronic means available to the public,

detailing where a person can obtain an application form for pre-qualification, where the completed application form may be submitted, and when submission is due.

(3) An application under paragraph (2) shall be made to the Service and shall—
(a) specify the name of the applicant, and where the applicant is a business entity, or a forest association, shall be accompanied by the appropriate registration documents;
(b) present a statement of the applicant’s technical and financial capacity to harvest timber; and
(c) specify the area where they would be interested in conducting harvests.

(4) The Service may forward applications to the appropriate forest conservation committee for evaluation and recommendations.

Constitution of Kenya, 2010
Article 42

Every person has the right  to a clean and healthy environment, which includes the right—
(a) to have the environment protected for the benefit of present and future generations through legislative and other measures, particularly those contemplated in Article 69; and
(b) to have obligations relating to the environment fulfilled under Article 70.

Article 69

(1) The State shall—
(a) ensure sustainable exploitation, utilisation, management and conservation of the environment and natural resources, and ensure the equitable sharing of the accruing benefits;
(b) work to achieve and maintain a tree cover of at least ten per cent of the land area of Kenya;
(c) protect and enhance intellectual property in, and indigenous knowledge of, biodiversity and the genetic resources of the communities;
(d) encourage public participation in the management, protection and conservation of the environment;
(e) protect genetic resources and biological diversity;
(f) establish systems of environmental impact assessment, environmental audit and monitoring of the environment;
(g) eliminate processes and activities that are likely to endanger the environment; and
(h) utilise the environment and natural resources for the benefit of the people of Kenya.

(2) Every person has a duty to cooperate with State organs and other persons to protect and conserve the environment and ensure ecologically sustainable development and use of natural resources.

Article 70

(1) If a person alleges that a right to a clean and healthy environment recognised and protected under Article 42 has been, is being or is likely to be, denied, violated, infringed or threatened, the person may apply to a court for redress in addition to any other legal remedies that are available in respect to the same matter.

(2) On application under clause (1), the court may make any order, or give any directions, it considers appropriate—
(a) to prevent, stop or discontinue any act or omission that is harmful to the environment;
(b) to compel any public officer to take measures to prevent or discontinue any act or omission that is harmful to the environment; or
(c) to provide compensation for any victim of a violation of the right to a clean and healthy environment.

(3) For the purposes of this Article, an applicant does not have to demonstrate that any person has incurred loss or suffered injury.

Held:

  1. The suit raised fundamental questions on the management of forests which was a public good. In an environmental matter locus standi as known and applied under the common law was not applicable. A reading of articles 42 and 70 of the Constitution made it clear that one did not have to demonstrate personal loss or injury in order to institute a cause aimed at the protection of the environment. This position was in fact the applicable position and still was the position under section 3(4) of the Environmental Management and Coordination Act (EMCA) which preceded the Constitution of Kenya, 2010.
  2. The plaintiffs had filed this suit as representatives of the local community and also in their own capacity. The community had an interest in the preservation and sustainable use of the forest as their very livelihoods depended on the proper management of the forest. Even if they had not demonstrated such interest, that would not have been important as any person who alleged a violation of any law touching on the environment was free to commence litigation to ensure the protection of such environment.
  3. There was no provision in law which barred any suit against the Director of the Kenya Forest Service (KFS) in that capacity. Neither was there any law which barred any suit against the very person who was in charge of the forests, which in the instant case was the 2nd defendant. Although it would have been best to sue or at least enjoin KFS as defendants in the cause, there was however no law broken in suing the Director of KFS and the Baringo County Forest Co-ordinator. In any event an appropriate amendment could be made to introduce KFS into the suit without changing in any way the character of this litigation.
  4. There was no law that stated that an injunction could not issue against the KFS. KFS was not a government agency but a statutory body created by section 4 of the Forests Act and a suit against KFS or against any of its personnel was not a suit against the Government. The provisions of the Government Proceedings Act did not apply to the KFS or to a suit against its personnel.
  5. It was desirable practice to have all statutory provisions relied upon in an application stated but failure to do so did not make the application defective and neither did it preclude the applicant from relying on statutory provisions that had not been indicated.
  6. Public participation was an important component of environmental management as enshrined in article 69 of the Constitution. No sort of public participation had been demonstrated by the respondents apart from stating that 60 community scouts were hired from Esageri Community Forest Association (CFA). The applicants had averred that they needed to be consulted in any exploitation of the forests and even if the respondents thought that the applicants did not deserve to be involved, then they ought to have involved CFAs which had not been demonstrated.
  7. Section 45 of the Forest Act required a management plan and any activities not included in the management plan, required consent of the Board of Kenya Forest Service, but for which an Environmental Impact Assessment (EIA) had to be conducted. Rule 5 (1) of Forest Participation in Sustainable Management Rules (FPSM) required a 5 year management plan for every forest and Rule 5 (6) of FPSM Rules barred KFS from issuing any authorization without a site-specific plan in place.
  8. Without a management plan it was difficult to be convinced that the trees being harvested were over-mature and that there was a plan to ensure continuity of the forest after harvesting. Without a management plan it was highly doubtful whether the respondents or KFS could issue permits for felling and harvesting of trees. Further without a management plan to show what trees and when planted were to be harvested there could be a probability that the trees being felled were not the proper trees and that they were being felled by persons who had not gone through the pre-qualification process contemplated by the Forests Act.
  9. The issues raised by the applicants in the suit questioned the manner in which the respondents and KFS conducted their affairs and how they managed the forest. They not only raised weighty issues of sustainable management of forests but also questioned the integrity of the whole process leading to the harvesting of trees. The respondents had to clearly demonstrate that they were operating above board and within the confines of the law.
  10. It was argued that the trees marked for felling were over-mature and therefore loss of revenue could be occasioned if they were not harvested. However no material was given to show when the trees were planted, their optimum harvest period and when they were to be harvested. In any event, trees ought not to be considered purely on the basis of their commercial value. That was a narrow way of looking at an important resource such as trees. Trees sustained biodiversity, were important carbon sinks and their value to the environment far surpassed the narrow view of trees as being purely commercial in nature and that applied for plantation forests as well.
  11. Assuming that the case of the applicants was doubtful, the balance of convenience still tilted in favor of the applicants. Where the interests of environmental protection and those of private individuals out to make a profit are weighed, the interest of environmental protection ought to far outweigh those of private individuals.

Orders
Pending the hearing and determination of this suit, the respondents and their agents/assigns and any person authorized by them, or by the Kenya Forest Service, are restrained from harvesting trees or timber or removing any tree materials from Sabatia, Maji Mazuri, Kiptuget, Chemususu, Naivasha, Koibatek, Chemurgok, and Esegeri Blocks of Lembus Forest.
The costs of the application to be in the cause.