Kenya Law
Case Updates Issue 30/2014 |
Case Summaries |
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ELECTION LAW |
Evans Odhiambo Kidero & 4 others v Ferdinand Ndungu Waititu & 4 others
Petition No.18 of 2014 (consolidated with Petition No. 20 of 2014)
Supreme Court of Kenya at Nairobi
W M Mutunga, CJ & P, K H Rawal, DCJ & V-P, P K Tunoi, M K Ibrahim, J B Ojwang, S C Wanjala & S N Njoki, SCJJ
August 29, 2014
Reported by Teddy Musiga & Charles Mutua
Brief facts:
The matter had its origins in the High court, where the first respondent (Ferdinand Waititu) challenged the election of the first appellant (Evans Kidero). The petitioner at the High court (Ferdinand Waititu) based his petition on the main claim that the election of the 1st appellant herein (respondent then) had not been conducted in accordance with the principles embodied in article 86 of the Constitution. The High court (by majority (and Warsame, J dissenting) upheld the election of the first appellant thereby dismissed the petition as having been conducted in accordance with the electoral principles. The petitioner having been aggrieved by that decision moved to the Court of Appeal. However, the appeal was filed 72 days after the delivery of the trial court judgment notwithstanding provisions of section 85A of the Elections Act that provided that electoral appeals from the High Court to the Court of Appeal had to be filed within 30 days of the delivery of the High Court judgment.
In admitting & entertaining the appeal, the Court of Appeal opined on two major grounds that; firstly, section 85A (a) of the Elections Act being a statutory timeline, was not as mandatory as the timelines named in the Constitution itself; and so a court of law could extend the period within which an intending petitioner could lodge an appeal beyond the 30 day limit prescribed in the Elections Act. Such an extension was proper in the interest of justice, especially where there had been delay in the preparation of court proceedings. And that Parliament could not have intended to shut out a litigant from filing an appeal as that would have offended other constitutional provisions such as articles 10, 20 and 25(c). secondly, that on the strength of rule 35 of Election (Parliamentary and County Elections) Petition Rules, the Court of Appeal Rules were applicable in their totality to election petition appeals before the court; and so Rule 82 (1) of the Court of Appeal Rules (which provided for the certificate of delay) could apply to extend the time for filing and election petition appeal beyond the 30 day limit prescribed by section 85A of the Elections Act.
The appellants herein (then respondents) were aggrieved by that decision and moved to the Supreme Court for a final determination.
Issues:
- Whether the Court of Appeal acted without jurisdiction by entertaining an appeal filed 72 days after the delivery of the trial court’s decision yet section 85A (a) of the Elections Act provided that appeals to the Court of Appeal had to be filed within 30 days from the date of judgment of the High Court.
- Whether the Court of Appeal could entertain and determine appeals filed out of time where the delay in filing those appeals emanated from judicial processes/ bureaucracies at the registries.
- Whether the Court of Appeal disregarded the doctrine of stare decisis, on the question of timeliness, on the issue of scrutiny, and on the burden & standard of proof by failing to apply binding decisions of the Supreme Court in contravention of article 163(7) of the Constitution.
- Whether an election could be nullified on the basis that a party did not get a fair trial before the trial court.
Election Law – Election petition – timeliness in filing election petitions – mandatory nature of timelines in election petitions – claim where an election appeal was filed 72 days after the date of the judgment of the trial court whereas electoral laws provide for filing of election appeals to the court of appeal within 30 days of that judgment – whether a certificate of delay under the court of appeal rules was entertained in electoral disputes –Constitution of Kenya, 2010, article 87 .Elections Act,section 85A (a). Court of Appeal Rules, Rule 82.
Constitutional Law - Fundamental Rights & Freedoms - right to fair trial – remedies to breach of right to fair trial – whether an election could be annulled on the grounds of alleged breach of right to fair trial – Constitution of Kenya, 2010,article 50..Read More...
- The guiding principles to be taken into account by parties who sought to predicate their appeals upon article 163(4) (a) of the Constitution included;
- A Court’s jurisdiction was regulated by the Constitution, by statute law, and by the principles laid out in judicial precedent;
- The chain of courts in the constitutional set-up had the professional competence to adjudicate upon disputes coming up before them; and only cardinal issues of law or of jurisprudential moment deserved the further input of the Supreme Court;
- Not all categories of appeals lay from the Court of Appeal to the Supreme Court under article 163(4)(a); under that head, only those appeals from cases involving the interpretation or application of the Constitution could be entertained by the Supreme Court;
- and under that same head, the lower Court’s determination of an issue which was the subject of further appeal, had to have taken a trajectory of constitutional application or interpretation, for the cause to merit hearing before the Supreme Court;
- an appeal within the ambit of article 163(4)(a) was one founded on cogent issues of constitutional controversy;
- With regard to election matters, not every petition-decision by the Court of Appeal was appealable to the Supreme Court;only those appeals arising from the decision of the Court of Appeal, in which questions of constitutional interpretation or application were at play, lay to the Supreme Court.
- Article 163(4) (a) provided that appeals could lie from the Court of Appeal to the Supreme court as of right in any case involving the interpretation or application of the Constitution. The operative words (interpretation or application) carried different meanings. Interpretation of the Constitution involved revealing or clarifying the legal content, or meaning of constitutional provisions for purposes of resolving the dispute at hand. The basic reference point in constitutional interpretation was the text. On the other hand, application of the Constitution was a more dynamic notion. It entailed creatively interpreting the constitution to eliminate ambiguities, vagueness and contradictions in furtherance of good governance. Quite often, it involved interpreting the constitution in such a manner as to adapt it to changing circumstances in the community, with care not to usurp the role of the legislature.
- The Constitution at chapter 7 provided for the general principles of the electoral system – principles that stood alongside prescriptive norms. Where disputes arose with regard to the interpretation and application of such principles and norms in election petitions, the Supreme Court as the apex court could not gaze helplessly when moved by litigants.
- The question of timeliness in filing election petitions, and whether the Court of Appeal erred in the interpretation of section 85A of the Elections Act vis a vis article 87(1) of the Constitution and the allegation that the appellate court elevated and applied a civil litigation rule (subsidiary legislation) to an election dispute, beyond and in breach of section 85A(a) and by extension, the Constitution itself were all pertinent constitutional controversies that invited the Supreme Court’s jurisdiction under article 163(4)(a) of the Constitution for a final interpretation or application of the Constitution.
- Under section 85A (a), the 1st respondent ought to have filed an appeal within 30 days from the date of the judgment (September12, 2013) that would have been October 10, 2013. However, the appeal was filed on 22/11/2013) 72 days from the date of the judgment of the High Court.
- The question of timeliness in filing and determining election petitions as set by the Constitution and the Elections Act, section 85A(a) were neither negotiable nor could they be extended by any court for whatever reason. Section 85A of the Elections Act was neither a legislative accident nor a routine legal prescription. It was a product of a constitutional scheme that required electoral disputes to be settled in a timely fashion.
- The court of appeal erred in law by choosing to depart from the legal principles established by the Appellate court itself and affirmed by the Supreme Court on the timeliness in resolving electoral disputes and without specifically distinguishing the earlier cases in accordance with the normal judicial practice.
- The court of Appeal’s majority position even if founded upon notions of “justice and fairness” had overlooked clear imperatives of the law that were over riding. They overlooked the law of precedent, expressly declared in article 163(7) of the Constitution. They failed to recognize that section 85 A of the Elections Act was directly born of article 87 of the Constitution. They had not taken into account that the ideals of justice were by no means the preserve of the intending appellant and that they had to enure to the electorate as a whole. They failed to recognize that the overall integrity of the democratic system of governance was sealed on a platform of orderly process, of which the judiciary was the chief steward and in which the course of justice already charted by the superior courts was to be methodically nurtured.
- The majority on the appellate bench held that rule 82(1) of the Court of Appeal rules was applicable to the matter before them, with the effect of setting in motion the computation of time such as would have excluded the time taken by the High court in the preparation of the proceedings. If that rule were to be applied to election petition appeals, as the majority appellate judges held then it meant that an election petition appeal could be filed within as much as 60 days of the filing of the notice of appeal.
- That rule provided in addition that the time taken to prepare the proceedings be excluded from the computation of the sixty days. That rule therefore, ousted the provisions of section 85A (a) of the Elections Act, regarding the time within which an appeal had to be filed. Such a rule if applicable defeated the object of efficient electoral dispute settlement under the Constitution. Further, an instrument of subsidiary legislation (Rule 82 of the Court of Appeal rules) could not override the provisions of an Act of Parliament (section 85A of Elections Act).
- Accordingly, the instant petition was filed outside the mandatory time prescribed by section 85A of the Elections Act. The proceedings at the High Court were ready for collection on the October 9, 2013 notwithstanding the fact that the certificate of delay was issued on October 30, 2013. The petition of appeal ought to have been filed on or before the close of day on October 10, 2013. Therefore the appellate judges erred in law by admitting and determining an incompetent appeal, the same having been filed out of the time prescribed by the peremptory provisions of section 85A (a) of the Elections Act as read with article 87(1) of the Constitution.
The majority judgment of the Court of Appeal annulling the election of the first appellant was declared a nullity for all purposes.
And since no further issues of significant constitutional character had come up, there was no need to render an opinion in respect of other questions, upon their merits.
CONCURRING OPINION OF S N NDUNGU, SCJ
- The aspect of time, when filing an election petition was couched in mandatory language under articles 87 and 105 of the Constitution of Kenya, 2010. After declaration of the election results, the intended petitioner had the duty to file a petition within 28 days as required by the Constitution. Failure to do so rendered the petition nugatory. The petitioner in such a case required neither judgment nor proceedings from the Independent Electoral and Boundaries Commission. All the petitioner required was the actual declaration of election results by the returning officer (which he received on the polling day.) as such the responsibility of actualizing the right to challenge the election results rested on the petitioner.
- Article 50(1) of the Constitution guaranteed the right to a fair trial. The events that unfolded at the registry & the delay in the release of proceedings should not have compromised the 1st respondent’s inalienable right to a fair trial. Thus the Supreme Court had to respond to the constitutional command that every person was entitled to enjoy the rights and fundamental freedoms in the Bill of rights to the greatest extent consistent with the nature of the right or fundamental freedom.
- Section 59 of the Interpretation & General Provisions Act, Cap 2 provided for the construction of power to extend time to the effect that where a statute prescribed a time for doing an act or taking a proceeding and power was given to a court or other authority to extend that time, then unless a contrary intention appeared, that power could be exercised by the court although the application for extension could not be made until after the expiration of the time prescribed.
- Rule 82 of the Court of Appeal Rules that provided for extension of time was not necessarily in conflict with, or inferior to the Elections Act (section 85A) because section 59 of the Interpretation & General Provisions Act, Cap 2 provided a bridge between the Elections Act and the Court of Appeal Rules. The Election Act prescribed time for doing an act but did not expressly state that the time could not be extended within the confines of section 59 & the Court of Appeal Rules. If Parliament had intended for the Court of Appeal Rules not to apply, it would have stated so. Therefore the Court of Appeal was right in admitting and hearing the 1st respondent’s appeal in the circumstances.
- The prerequisites of article 259 of the Constitution required the constitution to be interpreted in a manner that permitted the development of the law. As such, regard to precedents of the Supreme Court could not bar lower courts from adhering to those progressive requirements. As an interwoven system of justice, the responsibility of every judge was to ensure that the mandated exercise of judicial authority was followed and that ultimately, justice was delivered within the confines of the Constitution.
- Judgments of a court of final appeal stood on a different basis from those of subordinate courts. A departure therefore had to be a rare phenomenon justifiable only on the basis of consideration of the deepest sentiments of justice occasioned by a complete disassociation of the factual situation between the previous case and that being considered. It had to be apparent that the test of experience and passage of time had rendered the rule untenable of application in the circumstances then prevailing. The settlement of electoral law by the Supreme Court eliminated any difficulty in identifying the rationes set forth as binding precedent.
- The court of appeal considered in great depth and in actual circumstance, the bounds of section 85A of the Elections Act vis a vis the Rules governing the court. That examination was well within the bounds of their power and the same could not be faulted for failure to abide by article 163(7) of the Constitution.
- Under section 83 of the Elections Act, an election could only be declared void if that election did not substantially comply with the written law–Constitution, Elections Act and Regulations made thereunder. Where there was substantial compliance with the written law in an election, the irregularities had to indeed have affected the result of the election for that election to be invalidated. The emphasis then was not what happened subsequent to the declaration of the results, but what happened before and in the process of the election up and until the declaration of the result.
- The principles to be considered before an election could be annulled were:
- If it was demonstrated that an election was conducted substantially in accordance with the principles of the Constitution and the Elections Act, then such an election was not to be invalidated only on the ground of irregularities.
- Where, however, it was shown that the irregularities were of such a magnitude that they affected the election result, then such an election stood to be invalidated.
- Mere allegations of procedural or administrative irregularities and other errors occasioned by human imperfection were not enough, by and of themselves, to vitiate an election.
- Under article 25(c) of the Constitution, the right to a fair trial could not be limited. However, it was an individual’s right – a right in personam and the remedy for the violation of such a right could not be nullification of an election since an election reflected the views of the people expressed through the vote, not just rights of individuals and therefore courts had to be careful not to exercise their power in such a manner as to interfere with the peoples expression in instances where the proven election irregularities did not affect the election results. Therefore, the Court of Appeal erred in nullifying the 1st and 2nd appellant’s election as a remedy for the violation of a fair trial.
- Article 23(3) of the Constitution, 2010 lay out the remedies available for the enforcement of the Bill of Rights as declaratory orders, injunction, conservatory orders, declaration of invalidity of any law, order of compensation & judicial review. On the other hand, section 21 of the Supreme Court Act gave the Supreme Court general powers to make any orders or grant appropriate reliefs.
- Whereas an order of retrial is the usual remedy granted for breach of fair trial, in the instant case, an order of retrial would not have been possible since the jurisdiction of an election court to hear and determine an election petition expired after six months of filing the petition.
- The six month period of the High court and the court of appeal’s power as an election court had expired. Under section 21 of the Supreme Court Act, the Supreme Court could remedy the denial of a fair trial by creating a window for the cross examination of the Returning officer by the 1st respondent. In so doing, the court would have fully remedied the first respondent’s denial of the right to fair hearing since he would have been able to challenge the evidence of the returning officer in the same way as he would have done had he been granted an opportunity by the High court as the most appropriate remedy in the circumstances.
- Costs followed the event and the awarding of costs to one successful party should not be seen as a punitive measure.
The decision of the Court of Appeal delivered on May 13, 2014 annulled
The judgment of the High Court dated September 10, 2013 reinstated.
Reaffirmed the status of the 1st appellant as the duly elected Governor of Nairobi County
Parties to bear their own costs at the High Court, Court of Appeal and Supreme Court
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EMPLOYMENT LAW |
Kenya Airways Limited v Aviation & Allied Workers Union Kenya & 3 others
Civil Appeal No 46 of 2013
Court of Appeal at Nairobi
E M Githinji, D K Maraga & A K Murgor, JJ A
July 11, 2014
Reported by Beryl A Ikamari & Karen Mwende
Brief facts:
On August 1, 2012 the Appellant issued a notice to staff and their trade union, indicating that due to a staff rationalization exercise there would be redundancies affecting a maximum of 650 employees. The explanation offered for the restructuring was that the Appellant had experienced a decline in revenue due to the harsh economic climate and had high operating costs.
There were meetings between the Appellant and the employees’ trade union (the 1st Respondent) but there were wrangles in the trade union’s leadership and the trade union stopped engaging in the negotiations and consultations. It sought court orders for an injunction to halt the process.
The injunction was discharged and on September 4, 2012, the Appellant issued termination letters, on account of redundancy, to 447 unionizable employees. A suit was lodged at the Industrial Court to challenge the Appellant’s decision and the Industrial Court found that there was no justification for the declaration of redundancy and that the employees had been terminated from employment unfairly. The Industrial Court issued orders for the reinstatement of the employees.
Against the Industrial Court’s decision, an appeal was lodged at the Court of Appeal.
Issues:
- Whether there was substantive justification for the declaration of redundancy.
- Whether a valid redundancy notice had been issued.
- Whether there was a mandatory legal requirement for consultations before final decisions on redundancy were made.
- Whether a valid selection process had been undertaken for purposes of redundancy.
- Whether reinstatement was an appropriate remedy for the employees who had been terminated on account of redundancy.
Employment Law-termination of employment contracts-redundancy-circumstances in which a declaration of redundancy would be justified-Employment Act, 2007, sections 40, 43, 45 & 47.
Employment Law-termination of employment contracts-redundancy-procedure to be followed- whether consultations were mandatory and the nature of the appropriate selection criteria- Constitution of Kenya 2010, article 2(6), Employment Act, 2007, sections 40(1)(a) & 40(1)(c), & International Labour Organization Termination of Employment Convention 1982, International Labour Organization’s Recommendation No 166.
Employment Law-termination of employment contracts-redundancy-remedies for unlawful termination of employment contracts- reinstatement-practicability of reinstatement as a remedy in situations of redundancy-- Employment Act, 2007, sections 49(1). Read More...
- Redundancy as defined in section 2 of the Labour Relations Act, No 14 of 2007 and section 2 of the Employment Act, 2007 had two broad aspects, namely;
- The loss of employment in redundancy cases was involuntary and at the initiative of the employer.
- The loss of employment in situations of redundancy would arise without the employee being at fault and where the employee's services had become superfluous.
- Article 10 of the Constitution of Kenya 2010, which dealt with the national values and principles of governance, was inapplicable to the dispute between the parties. The dispute was a dispute on the question of redundancy between a private company and its employees and there were specific and elaborate laws governing redundancy in such employment contracts.
- Section 40 of the Employment Act, 2007, entitled the employer to terminate an employee's services on account of redundancy. The decision to declare redundancy was the employer's statutory right and the employer was entitled to terminate an employee's contract of service, as long as the employer genuinely believed that there was a redundancy situation.
- The Appellant had tendered evidence of its financial status and on the need to employ mitigating initiatives. The circumstances of the Appellant were shown to have led to the decision to declare redundancies and the declaration of redundancy under the circumstances was justified. It was not within the court's jurisdiction to make decisions on how the Appellant could secure its financial future in those circumstances and to substitute the Appellant's decision with its decision.
- The legal requirements for a redundancy notice under section 40(1)(a) of the Employment Act, 2007, were such that the notice would have to be one months’ notice, issued to the labour union to which the employees were members and the labour officer in charge of the area that the employees were employed, stating the reasons for and extent of the intended redundancy.
- Where the employee was a member of a trade union, it was not necessary for that notice to be issued to the employee under section 40(1)(a) of the Employment Act, 2007; it would be adequate if it was issued to the trade union and labour officer. However, an employee who was not in a trade union would have to receive the notice.
- The Appellant had issued a notice on the subject of an intended redundancy to both the employees and their trade union. There was no evidence that the relevant labour officer had received the notice. That issue on the notification of the labour officer was not pleaded, canvassed or determined by the Industrial Court.
- The notice issued had satisfied the one month notification period as required in law. The period between the issuance of the notice and the issuance of redundancy letters to individual employees was 34 days.
- Section 40 of the Employment Act did not make express provisions for consultations to be done in situations of redundancy. However, the requirement for consultations was implicit as the International Labour Organization Termination of Employment Convention 1982 required employers to notify trade unions and competent authorities of impending terminations and to provide trade unions with an opportunity for consultations.
- The Convention would be applicable to the dispute by virtue of article 2(6) of the Constitution of Kenya 2010 which provided that treaties ratified by Kenya were part of the laws of Kenya.
- However, the requirement for consultation was not a requirement to the effect that the employer would consult with the employee; it was a requirement to the effect that the employer would consult with the trade union, which would engage in consultations on behalf of the employees.
- There had been attempts at consultations and negotiations between the employer and the trade union. However, those attempts failed as the trade union, which had leadership wrangles, refused to continue with the consultations despite the willingness of the employer to consult. The employer was not responsible for the failure in the consultations.
- In accordance with section 40(1)(c) of the Employment Act, 2007, the criteria to be applied in selecting employees for termination on grounds of redundancy included seniority in time, skill, ability and reliability of the employee.
- The consideration of seniority in time related to the employee's length of service and imported the last in first out (LIFO) principle into redundancy processes. It was however not mandatory for the LIFO principle to be applied in all cases as the realities of business could require other approaches. For instance, modern technological know-how which an organization required could be knowledge possessed by new employees.
- Given that the 447 employees selected for redundancy purposes, out of a pool of 4,834 employees, were assessed in less than a week (4-5 days) and that some had scored highly in the annual performance appraisal, the selection criteria had not met the statutory threshold. The Appellant did not apply a fair selection criterion.
- Reinstatement was provided for in section 49 of the Employment Act, 2007, as a remedy for unfair termination. However, reinstatement was not an automatic right to an employee who was terminated unfairly. It would be a discretionary remedy offered on the basis of the merits of each case.
- Part of the considerations in making determinations on whether or not to order reinstatement included practicability. Practicability included reasonableness, which invoked a broad inquiry into the equities of the parties’ cases. Such considerations would include the prospective effects of the order of reinstatement, not only upon the individual employer and employee, but also other affected employees and third parties.
- Although reinstatement was prayed for, it was not pleaded and no evidence was tendered on the practicability or otherwise of the order of reinstatement.
- The order of reinstatement was inappropriate and impracticable in light of the Appellant’s precarious financial position. The remedy was not efficacious as it defeated the objective of justified redundancy.
- Section 49(1) of the Employment Act, 2007, provided for an award of damages equivalent to a number of months’ wages or salary not exceeding 12 months based on the gross monthly wage or salary of the employee at the time of dismissal. Consequently, given that the selection procedure for termination was unfair, an award of damages equivalent to 6 months gross monthly wages or salary of the employee at the time of dismissal was appropriate.
Dissenting per E M Githinji, JA
- The statutory provisions applicable to claims on unfair termination, in redundancy situations included sections 40, 43, 45 & 47(5) of the Employment Act, 2007. As a valid defence to a claim of unfair termination on account of redundancy, an employer would have to prove: -
- The reason or reasons for termination;
- That the reason for termination was valid;
- That the reason for termination was fair based on the operational requirements of the employer
- That the employee was terminated in accordance with fair procedure.
- The phrase “based on the operational requirements of the employer” had to be construed in the context of the statutory definition of redundancy. It meant that while there may have been underlying causes for redundancy, such as reorganization, the employer had to show that the termination was attributable to redundancy. Redundancy meant that the services of an employee had been rendered superfluous or the abolition of office, job or loss of employment.
- The circumstances leading to a situation of redundancy included evidence tendered to show a decline in passenger volumes, unstable fuel prices, reduced revenue and an increasingly competitive environment. There was also evidence that the redundancy was implemented by various means including abolition of roles and reconfiguration of roles and that 447 unionizable employees had their contracts of employment terminated.
- As long as an employer genuinely believed that there was a redundancy situation, terminations were justified and it was not within the Industrial Court’s jurisdiction to substitute its business decision with what was reasonable.
- The International Labour Organization’s recommendation No 166 providing for consultations in situations of redundancy had not been ratified by Kenya. The applicable Collective Bargaining Agreement (CBA) did not provide for consultations and article 10 of the Constitution of Kenya, 2010, which provided for national values and principles of governance, did not apply to private contracts between employers and employees.
- There was no express or implied legal provision or obligation which required that consultations would have to be done before making redundancy decisions.
- The period between the issuance of the redundancy notice and the issuance of termination letters was 34 days and the intervening injunction which was discharged 4-5 days before the issuance or the termination letters, did not stop the notice period from running, The legally required notice period of 30 days as per section 40 of the Employment Act, 2007, was complied with.
- The criteria for selecting employees for purposes of redundancy terminations, as provided for in section 40(1)(c) of the Employment Act, 2007, included seniority in time, skill, ability and reliability. The redundancy notice had an attached document which explained why the LIFO principle (last in first out) principle would not be applied. While LIFO was an objective criterion, it was not always suitable and its application was not mandatory.
- It was not shown that the criteria used for selecting employees for purposes of redundancy was unfair. The claim that the employees had been terminated on grounds of previous trade union activities was unsubstantiated.
- The remedy of reinstatement was discretionary. In determining its suitability the Industrial Court was required to be guided by considerations on the practicability of the remedy and the common law principle that specific performance in a contract of employment could only be ordered in very exceptional circumstances.
- There was a genuine redundancy resulting in loss of employment and procedural fairness was applied.
Appeal partly allowed by majority holding. (The selection procedure for purposes of redundancy was found to be unfair but the order of reinstatement to duty was substituted with an order that 6 months’ gross salary would be paid as compensation.)
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CUSTOMARY LAW |
Agnes Kwamboka v Birisira Kerubo Ombuna [2014] eKLR
Civil Appeal No. 106 of 2011
Court of Appeal at Kisumu
J W Onyango Otieno, F Azangalala & S Kantai, JJA
September 19, 2014
Reported by Nelson Tunoi & Riziki Emukule
Brief facts
The appellant (Agnes Kwamboka Ombuna) filed a second appeal regarding a dispute over a parcel of land. The appellant claimed that even though the respondent (Birisira Kerubo Ombuna) was the registered owner of the land, she was only holding half of the land in trust for her since they had both been married to the original proprietor of the property, one Birita Asairi Nyanchama, in a woman to woman marriage practiced under Gusii Customary Law.
Issue:
- Whether the appellant and the respondent were co-wives in a polygamous woman to woman marriage arrangement under the Abagusii customary law.
Customary Law-customary marriage-woman to woman marriage-whether the appellant and the respondent were co-wives in a polygamous woman to woman marriage arrangement under the Abagusii customary law-whether the purpose of the woman to woman marriage under the Abagusii customary law was inconsistent with the Constitution-Constitution of Kenya, 2010 articles 27, 60(1)(f). Read More...
Constitution of Kenya 2010, article 60(1)(f):
“60(1) Land in Kenya shall be held, used and managed in a manner that is equitable, efficient, productive and sustainable, and in accordance with the following principles -
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(f) elimination of gender discrimination in law and practices related to land and property in land.”
- Customary Law consisted of rules of law derived from the customs and usages of any particular community. They were customs or usages practiced by a particular community for over a long period of time and had consequently acquired the binding force of law within the particular community as they had been accepted within that community. To demonstrate that such customs or usages had acquired the binding force of law a party relying on the same had to lead evidence in that regard. The issue of whether a particular custom or usage was binding on any particular community was one of fact.
- The court would not interfere with the decision of the trial and first appellate court since they had already re-appraised the evidence on record to prove that the respondent was the only ‘wife’ to one Birita. The two courts had appreciated the existence of woman to woman marriages as practiced among the Abagusii community but the evidence adduced showed there was no such marriage between the appellant and one Birita.
- The purpose of woman to woman marriage was to enable an old, barren or sonless woman to perpetuate her lineage. That practice was discriminatory in that it tended to favor male children who were traditionally the inheritors of property hence the enactment of the Law of Succession (cap 160), which did not make a distinction between male or female children of a deceased intestate.
- The Constitution of Kenya, 2010 promoted the elimination of any form of gender discrimination in law and practices related to land and property in Kenya under article 60(1)(f) while article 27 criminalized any form of discrimination on any ground and enhanced equal inheritance. The practice that compelled the appellant to enter into a woman to woman marriage with one Birita could only diminish in significance since she already had daughters who were equal before the law just like their male counterparts as per the Constitution of Kenya, 2010.
Appeal dismissed with costs to the respondent.
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CONSTITUTIONAL LAW |
The High Court's jurisdiction to determine disputes concerning people's initiatives to amend the Constitution
Kanini Kega v Okoa Kenya Movement & 6 others
Petition 427 of 2014
High Court at Nairobi
G V Odunga, J
September 19, 2014
Reported by Beryl A Ikamari & Karen Mwende
Download the Decision
Brief Facts:
The 1st, 2nd, 3rd and 4th Respondents were involved in a people's initiative to amend the Constitution, which was to culminate in a referendum. The initiative was based on article 257 of the Constitution of Kenya 2010. In the initiative, 1 million signatures had already been collected from registered voters on the basis of a general suggestion.
The 1st, 2nd, 3rd and 4th Respondents had undertaken to formulate a draft Bill and to provide a record of the signatures from registered voters to the Independent Electoral and Boundaries Commission (IEBC) for verification. The IEBC was to determine whether the draft Bill reflected the initiative's objects and purposes and whether at least 1 million signatures had been collected from registered voters in support of the initiative.
The Petitioner, a member of a political party which was opposed to the initiative, was aggrieved by the manner in which the initiative was being conducted. He applied to the High Court for conservatory orders to stop the collection of signatures and to stop the IEBC from receiving and verifying a draft Bill and records of the signatures. The Petitioner had various complaints about the initiative including the fact that the signatures were being collected on the basis of a general suggestion, not a draft Bill, and that Parliament had not been involved in the process.
- Whether the dispute was justiciable and whether it concerned a political question.
- Whether the High Court had the jurisdiction to hear and determine the Petition.
- Whether the Applicant's membership in a political party, which did not support the initiative in question, meant that the Petition had been lodged in Court in bad faith.
- Whether the Applicant had met the legal requirements for the grant of conservatory orders.
Constitutional Law-interpretation of constitutional provisions-justiciability-political question-considerations that govern determinations on whether certain acts of the organs of state were political questions.
Jurisdiction-jurisdiction of the High Court-the High Court's jurisdiction to interpret the Constitution-the High Court’s jurisdiction over disputes concerning people’s initiative to amend the Constitution-Constitution of Kenya 2010, article 165(3)(d)(ii).
Constitution Law-fundamental rights and freedoms-enforcement of fundamental rights and freedoms-remedies-conservatory orders-whether it was necessary to demonstrate the existence or a breach or threatened breach of a fundamental right and freedom recognized in the Bill of rights in order to obtain conservatory orders-Constitution of Kenya 2010, articles 22 & 23(3)(c). Read More...
- The justiciability of a matter would depend on the nature of the dispute and on whether it was amenable to the judicial process or it was purely a political question. Justiciability would also depend on the legal principles, surrounding the particular act in question, as discernible from the applicable legal instruments.
- Where the law imposed on the executive legally prescribed duties and responsibilities, the performance of which depended upon enhancing or handling public interest, the political officers of the executive would be required to act consistently and in accordance with the law. If the public officers failed to observe the requirements of the law, their failure would harm the interest of the public and the rights of individual citizens.
- Pursuant to article 165(3)(d)(ii) of the Constitution of Kenya 2010, the High Court would be possessed of the jurisdiction to hear any questions on the interpretation of the Constitution, including determinations on whether anything said or done, was done under the authority of the Constitution and whether it was inconsistent with or in contravention of the Constitution.
- Considering the constitutional provisions under which the Petition was founded and the material placed before the Court, the holding that the Court lacked the jurisdiction to determine the matter could not be made.
- The Petitioner's membership in a political party, whose position was adverse to the initiative in question, did not mean that the Petition was brought in bad faith. The Petitioner's membership in that party did not affect his rights to bring the Petition as an individual.
- In order to establish a case for the grant of conservatory orders, the applicant had to demonstrate that there was a prima facie case and that unless the conservatory order was granted there was real danger which was prejudicial to the Applicant's case.
- In considering an application for conservatory orders, the Court would not make definite or conclusive findings of either fact or law, it would only seek to determine whether the requirements for the grant of conservatory orders had been met.
- A prima facie case was not a case that would certainly succeed at the hearing of the main case. It was a case which was not frivolous and the Applicant had to show the existence of a case which disclosed arguable issues; and for the dispute in question, those arguable issues would have to be arguable constitutional issues.
- Where it was apparent that there were competing interests and rights, the principle of proportionality would be applied in order to secure the rights and freedoms in question. The determination on the conservatory orders would take into account the need to balance the interests of the parties and the need to preserve the subject matter of the claim.
- The Applicant had raised the following arguable issues for determination, namely;
- Whether article 257 of the Constitution of Kenya 2010, provided that the Constitution could be amended through Parliament, by the people and Parliament, and the issue of a referendum would only arise if Parliament failed to give effect to the draft presented to it via the people's initiative.
- Whether article 257(1), 257(2) & 257(3) of the Constitution of Kenya 2010, required that where an amendment to the Constitution was proposed by popular initiative signed by at least 1 million registered voters, the initiative would have to be in the form of a draft Bill and the signatures of voters could only be collected on the basis of a draft Bill and not a general suggestion.
- The Applicant also raised issues that were not arguable issues, namely;
- Whether the current Parliament, was a transitional Parliament, which was required to implement and not to amend the Constitution. Given that the Constitution had been amended by Parliament and no legal provision prevented its amendment, the issue was not arguable.
- Whether given the requirements of article 251(d) of the Constitution of Kenya 2010, which provided for the prudent use of public funds, it was in public interest that a referendum for the amendment of the Constitution be held at the same time as the general elections. The argument on the management of public funds was attractive but it was not at the level of a prima facie case.
- Whether Part V of the Elections Act, No 24 of 2011, was unconstitutional. That argument on unconstitutionality was not properly developed.
- The issues raised in the Petition included arguable issues and the Applicant had established the existence of a prima facie case.
- The Applicant sought conservatory orders pursuant to the provisions of article 23(3)(c) of the Constitution of Kenya 2010. For such relief to be granted under that provision, the Applicant would be required to demonstrate that the relief was sought on grounds that a right or fundamental freedom recognized in the Bill of Rights had been denied, violated or infringed or was being threatened. However, the Applicant had failed to show the nexus between the remedy sought and a breach of a fundamental right or freedom recognized in the Bill of Rights.
- The Applicant was also required to demonstrate that the conservatory orders were necessary and that the failure to grant conservatory orders would prejudice him. The Applicant had failed to demonstrate that the orders sought would preserve his interests and rights in the popular initiative and that the failure to grant the orders would mean that the subject matter of his Petition would be adversely impacted on.
- An application for conservatory orders would need to be made at the earliest time possible. Where a party waited until the last minute to bring such an application, the court could decline to grant the orders sought.
Application dismissed.
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LABOUR LAW |
David Wanjau Muhoro v Ol Pejeta Ranching limited
In the Industrial Court at Nairobi
Cause number 1813 of 2011
Rika J, J
September 16, 2014
Reported by Teddy Musiga and Getrude Serem
Brief Facts
The respondent terminated the claimant’s contract of employment on grounds that the claimant neglected his duties leading to fraudulent activities in the Finance department where he was the Finance manager. However, the claimant disputed the validity of the termination reason, fairness of the termination procedure and also claimed that he was denied equal pay for equal work, or work of equal value while he was in employment. Specifically, he claimed that he was subjected to unlawful discrimination because he was a black person. He alleged that white managerial staffs, holding similar responsibilities to his and other black managers, were paid disproportionately higher salaries. White managers earned about Ksh. 500,000/= per month while black managers earned approximately Ksh. 200,000/=
Issues:
- Whether the process of termination of the employment of the claimant was irregular, unfair and contrary to the contract of employment and labour laws.
- Whether there existed circumstances in which an employee’s negligence amounted to gross misconduct thus warranting summary dismissal.
- Whether employers could withhold employees’ salary as a form of disciplinary sanction.
- What is the scope of the right to equal pay for equal work or work of equal value?
- Whether the time limitation of three years for instituting claims under the Employment Act could be applied in instances the dispute arose out of accrued benefits over a long time.
Labour Law – employment –termination of employment – summary dismissal of employee on grounds of negligence - whether there existed circumstances in which an employee’s negligence amounted to gross misconduct thus warranting summary dismissal – Employment Act 2007 section 44(4)(c),
Labour Law – fair labour practices – equal work for equal pay – fair remuneration of employees – claim for discrimination alleging disparities in payment for equal work by different employees – Constitution of Kenya, 2010, article 41 Employment Act, section 44
Constitutional Law-fundamental rights & freedoms – right to equal work for equal pay – scope of the right to equal work for equal pay - Constitution of Kenya, 2010, article 41 Read More...
- Courts had been reluctant to find that an employee’s act of negligence amounted to gross misconduct that merited summary dismissal, in the absence of deliberate and intentional wrongdoing. (Dietman v Brent LBC [1987] IRLR 259; London Borough of Hackney v Benn [1996] CA)
- In dealing with employment disputes, courts had to exercise caution in adopting judicial precedents as not all the circumstances in each case were similar to the other. Employment relationships were unique and each case was to be analysed on its own unique facts. Facts, in each case of negligence, with all the extenuating circumstances, were to be considered to ascertain if the conduct or omission by the Employee was sufficiently serious to merit dismissal.
- Section 44(4)(c) provided the elements of the negligence for which an employer could summarily dismiss an employee on account of gross misconduct as:
- Willful neglect by the Employee to perform any work which was his duty to perform.
- Careless and improper performance by the Employee of any work, which from its nature it was his duty, under his contract, to have performed carefully and properly.
- The Claimant could not have been willfully negligent, or performed his duty carelessly and improperly, he had advised the Respondent from as early as 2005, on the weaknesses of its Accounting System. The Auditors’ Reports, the Cumming Report, the evidence of the CEO and that of the Claimant before the Auditors, all pointed at an institutional failure rather than an individual failure. There was no way the claimant could have exercised greater supervisory control to avoid fraud in the absence of the implementation of reforms to the accounting system which the claimant had been advocating for since 2005.
- The termination of the employee’s employment was not based on valid and fair reason since the respondents failed to prove the reasons for termination of the claimant’s employment contract under section 43 of the Employment Act; It did not establish on the part of the claimant willful negligence, or careless and improper performance of duty under section 44(4) (c) of the Act and did not demonstrate valid or fair reason for termination under section 45 of the Act.
- The principle of fair hearing required that the employee had sufficient opportunity to prepare. This entailed:
- The Right to sufficient time to prepare. Time however, was not the totality of sufficiency of opportunity.
- The right to fully understand the charges. General charges such as dishonesty, fraud andfraudulent activities were vague and offered the employee no opportunity to respond intelligibly, or at all.
- The right to documentation. The Employee had a right to be given the documents the Employerintended to rely on at the hearing, as well as other documents the Employee requested for.
- Employers could not withhold Employee’s salaries as a form of a disciplinary sanction. It added on to the gravity of the procedural irregularity, when the Employee’s salary was used as a weapon against him.
- The law did not contemplate the conversion of an Employee’s annual leave entitlement into anything else, other than cash. Compulsory leave was essentially a suspension of the Employee from Employment, pending investigation of the employment offence, and the outcome of the disciplinary process. Annual leave could not be converted into suspension by whatever name that suspension could be characterized. Annual leave was voluntarily taken by the Employee, at such time as was agreed with the Employer. It was not meant to be involuntary.
- The concept of “Equal pay for equal work or work of equal value”could be simplified as the fundamental right of every worker, to receive equal pay, for the sameor similarwork. That could entail equal pay for doing completely different work, but which was, based on objective criteria, of equal value.
- Equal pay for equal work or work of equal value was recognized as a fundamental human right. That right was now recognized under Article 41 of the Constitution of Kenya. The International Labour Organization (ILO) Declaration of Philadelphia of 1944, which was part of the ILO Constitution, affirmed that all human beings, irrespective of race, had the right to pursue both their material well-being and their spiritual development in conditions of freedom and dignity, and of economic security and equal opportunity.
- The Equal Remuneration Convention, 1951 and the Discrimination (Employment and Occupation) Convention, 1958 prohibited distinctions, exclusions or preferences made on various grounds including race. However, disparity in pay was permitted when there were objective differences in the value of work to be performed. The concept required a means of measuring and comparing different jobs, on the basis of objective criteria such as skills, working conditions, responsibilities and effort.
- Qualified employees had to be paid equal equally when they performed the same or virtually the same work, in equivalent conditions. Work of equal value was work which was different in content, involving different responsibilities, requiring different skills or qualifications.
- In determining the value or worth of a job, employers had to undertake objective job evaluation that was free from bias. Two types of job evaluation methods [JEM] existed. The first was the Global or Ranking Methods, the second was the Analytical job evaluation;
- Under the Global or Ranking Methods, the jobs were ranked on the basis of the importance of the job requirements. The whole job rather than the individual component was evaluated. This identified the characteristics of the job-holder with the characteristics of the job itself. The ranking methods ascertained the importance of the jobs within the Organization, but did not determine the difference in value between them.
- Analytical Job Evaluation Methods broke jobs down into components, or factors, and sub-factors, and attributed points to them. The factors included skills and qualifications acquired through education, training or experience; responsibility for equipment, money and people; effort, which could be physical or mental; and work conditions which encompassed physical and psychological aspects. By determining the numerical value of a job, analytical job evaluation methods showed whether two different jobs had the same value or not. Different jobs that had the same numerical value were entitled to equal remuneration.
- Whenever an employee was found to have suffered wage or salary disparity based on reasons which were not objective and permissible such as race, the consequences of unequal pay had to be reversed. The employee had to receive compensation and where possible, courts could impose sanctions such as fines, to deter continuing or future pay discrimination. Other mechanisms included shifting the burden of proof to the employer through legislation since the employee could not have access to employment records to establish a claim for discrimination.
- Section 5 of the Employment Act, 2007 which contained antidiscrimination law, required employers to promote equality of opportunity and to strive to eliminate direct and indirect discrimination. It also specified what could not amount to discrimination. It was not discrimination for instance if the acts or decisions of the Employer were based on the inherent requirements of the job. Section 5(7) of the Employment Act provided that the employer bore the burden of proving that discrimination had not taken place as alleged, and that the discriminatory act or omission was not based on any grounds specified on that section.
- The test of proving discrimination against an employee was comprised of the following steps:
- The Employee by preponderance of evidence had to establish a prima facie case of discrimination.
- The Employer had to rebut the presumption, by introducing evidence of legitimate nondiscriminatory reason for its actions.
- The Court at the end had to examine if the reasons offered by the Employer was pretextual, and if they were pretextual, then discrimination could be the correct diagnosis in the circumstances.
- In the instant matter, the claimant did more than merely show a prima facie case that he was subjected to unequal pay, based on his race. On the other hand, the respondent failed to discharge its obligations in showing nondiscriminatory reasons for the disparity between the claimant’s salary and other employees.
- In remedying employment wrongs, claims for unpaid wages and salaries could not be treated as claims for special damages in civil claims. Focus of the court had to be on what was reasonable in each case particularly as employment records which were necessary in specific proof were legally in the custody of the employer.
- Whereas section 90 of the Employment Act provided for limitation of time at three years for disputes arising out of the Employment Act, the period in employment was a continuous period, with employment benefits vesting in the employee, and obligations on the part of the employer attaching over time. There were accrued benefits which could not be isolated and subjected to a different date of accrual. At the date of termination, the employee had to be accorded all benefits arising under a contract of employment. Therefore the assertion by the respondent that the claimant should have sued when the pay decision was made instead of waiting beyond the 3 years period to raise the issue of pay disparity could not stand.
The termination was unfair and unlawful.
The Claimant was discriminated against by the Respondent, on account of his race, and paid an unequal pay for equal work, or work of equal value.
The Respondent was to within 30 days of the delivery of this Award, pay to the Claimant 12 months’ gross salary in compensation for unfair termination at Ksh. 3,489,084; Ksh. 18,256,947 in cumulative pay disparity, and damages for discrimination; Ksh. 559,148 being the balance of annual leave pay- total Ksh. 22,305,179.
The amount was to be paid less PAYE tax.
No order on the costs and Interest.
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