Kenya Law
Case Updates Issue 026/2015 |
Case Summaries |
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LABOUR LAW |
Circumstances in which the High Court may have jurisdiction over matters incidental to employment and labour relations
Republic v Principal Secretary Agriculture, Livestock and 3 others ex – parte Douglas M Barasa & 2 others.
Civil Miscellaneous Application No. 168 of 2015 (JR)
High Court of Kenya at Nairobi
June 26, 2015
G V Odunga, J
Reported by Teddy Musiga & Daniel Hadoto
Download the Decision
Brief facts:
The applicants were farmers who were aggrieved with the decision of the public authority (The Principal Secretary of Agriculture & Livestock). In their view, it was not the mandate of the Board to extend the mandate of the Managing Director. They argued that the appointing authority was the Cabinet Secretary in charge of Agriculture & Livestock and not the Permanent Secretary. To them, their complaint was that it was the wrong person who extended the MD’s term. They contended that the appointment of the Managing Director was only complete on gazettement of the appointment.
The applicants sought orders of certiorari to quash the 1st Respondent’s decision that extended the Interested Party’s term as the Managing Director (MD) of Nzoia Sugar Company alleging that it was irregular and ultra-vires. They also sought an order of prohibition against the said Respondent from renewing the said Interested Party’s term as well as an order of mandamus compelling the said Respondent to withdraw and cancel the said extension.
The Respondents and Interested Party raised a preliminary objection on the ground that these proceedings ought to have been instituted before the Employment and Labour Relations Court and not at the High Court.
- Whether the High court has jurisdiction over employment and labour matters.
- Whether the Employment and Labour Relations Court being a court of equal status with the High Court could issue orders of Judicial Review.
- Whether there were circumstances under which the jurisdiction of the employment and Labour Relations Court can be restricted?
Labour Law – Employment – jurisdiction of the Employment and Labour Relations Court – jurisdiction of the High Court in entertaining disputes incidental to those of employment and labour relations – circumstances in which the jurisdiction of the Employment and Labour Relations Court can be limited – claim where the High Court had jurisdiction because the issue of employment relationship between the parties was a secondary issue to the main issue In dispute – article 162(2) (a), 165(5) (b), Constitution of Kenya, 2010; section 12, Industrial Court Act; section 87, Employment Act.
Jurisdiction - Jurisdiction of the High Court- circumstances in which the High Court has jurisdiction to entertain disputes incidental to those of employment and labour relations - Article 162(2) (a), 165(5) (b), Constitution of Kenya, 2010; section 12, Industrial Court Act; section 87, Employment Act. Read More...
- Article 165(5) (b) of the Constitution of Kenya, 2010 provided inter alia that the High Court had no jurisdiction to deal with matters falling within the jurisdiction of the courts contemplated under article 162(2). Article 162(2) (a) on the other hand empowered parliament to establish courts with the status of the High Court to hear and determine disputes relating to employment and labour relations and to determine their jurisdiction and functions. Whereas the High court was a creature of the Constitution itself, the Employment and Labour Relations court was a creature of Parliament (established under the Industrial Court Act, 2011); though the court was of equal status as the High Court.
- Since the Employment and Labour Relations Court was a court of equal status as the High Court, it had the powers to issue orders of judicial review. However, such relief could only be granted “in exercise of its jurisdiction under the Industrial Court Act” as provided by section 12(3) thereof. In other words, that jurisdiction could only be exercised in the context of its jurisdiction as conferred upon it by the Constitution and the Legislation hence the court could only exercise its judicial review jurisdiction where the substance of the matter before it fell within its jurisdiction.
- From section 12 of the Industrial Court Act, it was clear that the instant dispute did not fall within any of the subsection of the said section since the dispute did not relate to or arise out of employment, that is to say an employer and an employee. Further, a reading of article 162(2) (a) of the Constitution as read with the said section 12 of the Industrial Court Act was that any other jurisdiction not expressly provided for under the aforesaid section could only derive its validity from “any other written law”. In other words, the jurisdiction had to be conferred by Parliament and not by implication.
- For a matter to fall exclusively within the relevant provisions of the Industrial Court Act and the Employment Act, the parties to the dispute had to necessarily be employee, employer, trade union, employers’ organisation or federation unless the same related to registration and enforcement of collective agreements. In the instant case, the Applicants did not in relation to the Respondents fall within the description of either of the aforesaid status. Whereas the relationship between the respondents and that of the interested party could well be that of employer and employee, that did not apply to the applicants.
- Section 78(3) of the Employment Act clearly stipulated that the section did not apply to a suit where the dispute over a contract of service or any other matter referred to therein was similar or secondary to the main issue in dispute. In other words where the relationship or the issue which would otherwise have brought the dispute under the Employment Act was secondary to the main issue, the exclusive jurisdiction of the Employment and Labour Relations Court was expressly restricted.
- In matters of jurisdiction of superior courts, It was, a well-established principle that no statute could be so construed as to oust or restrict the jurisdiction of the Superior Courts, in the absence of clear and unambiguous language to that effect.
- For the High Court to be stripped of jurisdiction, a dispute had to fall exclusively within the jurisdiction of the Courts established under Article 162(2) of the Constitution. Where for example the issues in dispute fell within the jurisdiction of the High Court and Courts of the same status, it would be unjust to compel a party to sever its case and file the same in different Courts. It would be ridiculous and fundamentally wrong, for any court to adopt a separationalistic view or approach and insist on splitting issues between the Courts where a court is properly seized with a matter but a constitutional issue not within its obvious exclusive jurisdiction is raised.
- Even if the court was to find that the issues the subject of these proceedings could be resolved by the Employment and Labour Relations Court, the court was not satisfied that the same fell within the exclusive jurisdiction of that Court in order to deprive the instant Court (the High Court) of its jurisdiction under the Constitution.
- The tendency to interpret the law in a manner that would divest courts of law of jurisdiction too readily unless the legal provision in question was straightforward and clear had to be discouraged since it would be better to err in favour of upholding jurisdiction than to turn a litigant away from the seat of justice without being heard; the jurisdiction of courts of law had to be guarded jealously and could not be dispensed with too lightly and the interests of justice and the rule of law demanded that.
The Respondent’s motion of preliminary objection on jurisdictional mandate of the High Court disallowed.
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CONSTITUTIONAL LAW |
Muslims for Human Rights (Muhuri) and another v Inspector-General of Police and 4 others
Petition No. 19 of 2015
High court at Mombasa
J M J Anyara Emukule, J
June 11, 2015
Reported by Teddy Musiga & Daniel Hadoto
Brief facts:
On 7th April 2015, the Inspector-General of Police issued a Notice in the Kenya Gazette listing Al Shabaab as a terrorist organization under the Prevention of Terrorism Act. The same Notice contained a list of 85 entities and individuals suspected to be associated with Al Shabaab. Listed as number 45 and 46 respectively was Haki Africa (the second Applicant) and Muslims for Human Rights (MUHURI) (the First Applicant). On 8th April 2015, the National Treasury Principal Secretary Dr. Kamau Thugge announced at a press conference that the Government had frozen the bank accounts of people and institutions suspected to be funding terrorists pending investigations before action can be taken against them. The Petitioners soon found out on 8th April 2015 that they could not access their funds lying at Gulf African Bank Limited and NIC Bank Limited as their accounts had been frozen. The 5th Respondent in separate but similar letters dated the same day (“HKK2” and “HAA2”) informed the Petitioners that their respective accounts had been suspended indefinitely and referred them to the Bank Supervision Department of the Central Bank of Kenya for further information. This prompted the Petitioners to file this Petition.
The application before court sought orders to unfreeze the Petitioners' bank accounts with the Fourth and Fifth Respondents, as well as an injunction to restrain both Inspector-General of Police from recommending to the Cabinet Secretary in the Ministry of Interior and Coordination of National Government, and the Cabinet Secretary from declaring the Petitioners as specified entities. They claimed that as a result of the government’s actions, they had suffered public anger, ridicule and stigma; the lives of their officials and staff had been endangered; and they had been unable to continue with economic and social operations. The Petition thus sought inter alia declaratory reliefs that the actions of the Respondents were unconstitutional, an order unfreezing their accounts and an injunction restraining the first and second respondents from proceeding any further or declaring them as specified entities.
Issues:
- Whether the actions of police under section 3 of the prevention of terrorism Act violated the right to fair administrative action as provided for under article 47 of the Constitution of Kenya, 2010.
- Whether the applicants had exhausted all the other remedies before approaching the courts for determination of the matter in issue.
Constitutional Law – fundamental rights and freedoms - Enforcement of fundamental Rights and freedoms- constitutionality of the conduct of the National Police Force- enforcement of the right to fair administrative action-limitation to enjoyment of the right to fair administrative action- The constitution of Kenya 2010, Article 29, Article 24, Article 244(4).
Jurisdiction- jurisdiction of the high court in the enforcement of fundamental rights and freedoms. Read More...
Section 3 of the Prevention Of terrorism Act No 30 of 2012
(1) Where the Inspector-General has reasonable grounds to believe that—
(a) an entity has—
(i) committed or prepared to commit;
(ii) attempted to commit; or
(ii) participated in or facilitated the commission of, a terrorist act; or
(b) an entity is acting—
(i) on behalf of;
(ii) at the direction of; or
(iii) in association with,
an entity referred to in paragraph (a),
he may recommend to the Cabinet Secretary that an order be made under subsection (3) in respect of that entity.
(2) Before making a recommendation under subsection (1), the Inspector-General shall afford the affected entity an opportunity to demonstrate why it should not be declared as a specified entity.
(2) Upon receipt of the recommendation under subsection (1), the Cabinet Secretary may, where he is satisfied that there are reasonable grounds to support a recommendation made under subsection (1), declare, by order published in the Gazette, the entity in respect of which the recommendation has been made to be a specified entity.
(4) The Cabinet Secretary shall, subject to subsection (5), inform the entity in respect of which the order is made, in writing, of his decision under subsection (3) together with reasons for arriving at that decision, within a period seven days from the date of declaring the entity a specified entity.
- Section 3(2) of the Prevention of Terrorism Act was clear, straightforward and unambiguous and required no more than the literal interpretation as to the procedure to be invoked before the Inspector-General of Police exercised his discretion to make recommendations to the Cabinet Secretary to declare an organization a “specified entity”.
- The Inspector-General of Police could have conveyed summons to the Petitioners/Applicants and other persons listed in any number of ways to present themselves to him or his representatives on the ground in order to defend themselves. That he chose to summon the Petitioners in a Special Gazette Notice had not been shown to cause any particular prejudice to the Petitioners/Applicants or infringed their constitutional rights.
- Where, as in this case the choice of procedure, made by the Inspector-General of Police, had clearly traumatized the Applicants. It would have been difficult to conclude that the evidence obtained under circumstances which had to meet the test of having been given freely or voluntarily, and could constitutionally be excluded as having been obtained contrary to Article 50(2) (l) (4) of the Constitution.
- Whereas it was correct that Section 3(2) of the Prevention of Terrorism Act did not lay down the manner in which an entity could be informed of the suspicion of acting in terms of Section 3(1) (b) of the Act. Article 27 (1) of the Constitution guaranteed every person protection and equality before the law, and Article 29 the right not to be subjected to torture in any manner, whether physical or psychological. Article 244(c) of the Constitution required the National Police Service of which the Inspector-General of Police was its Chief Executive Officer, to comply with constitutional standards of human rights and fundamental freedoms.
- In summoning the Applicants’ representatives by way of Gazette Notice without a prior notice to appear before him within twenty-four hours, the Inspector-General of Police subjected representative of the Applicants to psychological torture which was prohibited by Article 29(d) and deprived those representatives of their dignity and equality before the law as guaranteed by Article 27 of the Constitution.
- The court took judicial notice of the notoriety callousness and viciousness of the actions of the designated entities, Al Qaida, Al Shabaab, ISIS, Boko Haram, as terrorist organizations. However, that was very far from saying that the Applicants had been or had acted on behalf of, at the direction of, or in association with any of the designated entities. For such a conclusion to be reached the Inspector-General of Police needed to comply with the requirements of Section 3(2) of the Prevention of Terrorism Act and show reasonable grounds that the Applicants had been acting in breach of the Prevention of Terrorism Act, and in respect of the frozen accounts that the proceeds thereof were proceeds from the commission of terrorist acts, or are moneys intended to be used to commit terrorist acts, or to be used by a terrorist group or was property of a terrorist group. This was part of what is called fair administrative action.
- The First Respondent being an independent constitutional body charged with the maintenance of security and protection of the citizens of Kenya, was bound to comply with basic requirements of natural justice that concerned themselves with procedural fairness and ensuring that a fair decision was reached by an objective decision-maker. Maintaining procedural fairness protects the rights of individuals and enhances public confidence in the process.
- The ingredients of fairness or natural justice that must guide all administrative decisions are – firstly, that a person must be allowed an adequate opportunity to present their case where certain interests and rights may be adversely affected by a decision maker, secondly, that no one ought to be a judge in his/her own cause, and this is the requirement that the deciding authority must be unbiased when recording or making the decision, and thirdly, that an administrative decision must be based upon logical proof or evidentiary material
- Procedural fairness is flexible, and entirely dependent on the context. In order to determine the degree of fairness owed in a given case, the court set out five factors to be considered:-
- the nature of the decision made and the process followed in making it;
- the nature of the statutory scheme and the terms of the statute pursuant to which the body operates;
- the importance of the decision to the affected person;
- the presence of any legitimate expectation, and
- the choice of procedure made by the decision maker.
- Where the statute provides an adequate remedy, the remedies under the common law have no application, except as aids in the interpretation of such statute.
- Article 22 and 258 of the Constitution gave unqualified right to every person 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 and Article 258, that the Constitution had been contravened or threatened with contravention. In addition to a person acting in their own interest, court proceedings could be instituted by inter alia, an association acting in the interest of, a group or class of persons.
- The rights and freedoms subsisted and were inherent at all times, both before, during investigations and at trial and are not divided in time and scope
- Express jurisdiction was granted to the High court, in accordance with Article 165, to hear and determine applications for redress of a denial, violation, or infringement (contravention) of, or threat to, a right or fundamental freedom in the Bill of Rights.
- On the question of jurisdiction therefore, there were not one, nor two but many unanswered questions firstly, from the point of view of Section 3(1) (2) of the Prevention of Terrorism Act itself, and secondly, the Bill of Rights provisions. From the point of view of the Prevention of Terrorism Act itself, there were unanswered procedural questions as to reasonable grounds for associating the Petitioners/Applicants with the designated entities when the grounds for such designation are unknown. In particular, it was unknown, (the Gazette Notice does not say so), whether the Inspector-General of Police made any recommendations to the Cabinet Secretary whether or not declare the five organizations named in the Gazette as specified entities. In the absence of any such recommendations being made, the grounds upon which the Petitioners/Applicants could be named as associates of the specified entities or terrorist groups remain nebulous.
- Jurisdiction of the instant court could not be taken away by the procedural aspects of the Prevention of Terrorism Act. A contrary reading would have put the provisions of the Prevention of Terrorism Act in conflict with supremacy provisions of the Constitution, and the High court could not advert to that route as it was unnecessary. The objection on grounds of jurisdiction equally thus failed.
Preliminary objection dismissed
A conservatory order by way of an injunction restraining the First Respondent from recommending to the Cabinet Secretary Interior and Coordination of National Government to declare the First and Second Petitioners as specified entity until the hearing and determination of the Petition herein.
A conservatory order restraining the Second Respondent from declaring the First and Second Petitioners as specified entities.
That the costs of the Application and the Petition shall be in the cause
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CIVIL PRACTICE & PROCEDURE |
The Scope of assessment of Bills of Costs at the Magistrates’s courts.
Bernard Gichobi Njira v Kanini Njira Kathendu and Another
Miscellaneous (reference) Application no. 4 of 2015
High Court at Kerugoya
H J R Limo, J
June 9, 2015
Reported by Teddy Musiga & Daniel Hadoto
Brief facts:
This application was made in regard to the decision of court to overrule the Applicant’s Preliminary Objection. The Applicant had raised a preliminary objection in the subordinate court in Wanguru on the basis that a resident magistrate lacked jurisdiction to tax the Respondents Bill of Costs presented before that court by the Respondents who had been awarded costs by the same court. Premise of the argument was that the Respondents ought to have applied to have their costs assessed rather than filing a formal Bill of Costs in a magistrate’s court.
The Applicant asked this Court to set aside the learned trial magistrate’s decision dismissing the Applicant’s Preliminary Objection and further proceed to strike out the Respondents’ Bill of Costs arguing that formal bill of costs are only filed in matters that are before this Court and are taxed by Deputy Registrars or taxing officer as provided under paragraph 10 of the Advocates Remuneration Order.
The applicant contended that the only way he could challenge the trial court’s decision was through this reference.
- Whether magistrates or subordinate courts have jurisdiction to determine costs payable in cases before the said courts and if so whether determination of those costs can be properly referred to as “assessment of costs” or “taxation of bill of costs.”
- What is the distinction between “assessment of costs” or “taxation of bill of costs?”
- Whether the Applicant is correct to file for a reference rather than an appeal against the decision of the learned trial magistrate on a preliminary objection filed.
Civil Practice & Procedure – taxation of bill of costs – jurisdiction of magistrate/ subordinate courts in taxation of bill of costs – distinction between taxation and assessment of costs – Civil Procedure Act, section 27); Advocates Remuneration Order, schedule VI &VII; Paragraph 11 & 49
Words & Phrases
The Black’s Law Dictionary defined “taxation of Costs” as “the process of fixing the amount of litigation-related expenses that a prevailing party is entitled to be awarded.” On the other hand the same dictionary defined “assessment of costs” as the determination of the rate or amount of something (costs in this instance) – imposition of something (costs) e.g. fines…….” Read More...
The Oxford English Dictionary defined “taxation of costs” as examining and assessing the costs of a case. It also defined “assessment” as evaluating or estimating the nature, value or quality…….to set the value of a tax, fine etc for a person at a specified level.”
- Subordinate courts in Kenya had the jurisdiction to determine costs payable in cases filed before those courts. Taxation of costs and assessment of costs meant one and the same thing. In the High Courts, determination of costs payable had always been commonly referred to as “taxation” while at the lower courts the determination of costs payable had been commonly referred to as “assessment”. Any of the terminologies could be used both by the High Court and the courts below without any problem.
- Section 27 of the Civil Procedure Act gave both the subordinate court and the High Court discretion and the jurisdiction to not only award costs but determine the extent at which those costs were to be paid and by which party.
- Paragraph 49 of the Advocates Remuneration Order clearly defined a “court” to mean both the High Court or any judge thereof or a Resident Magistrate’s Court or a magistrate sitting in a magistrate’s court. A court in Part III of the Advocates Remuneration Order was given the mandate to determine costs in contentious matters as between advocate and client and between party and party. It was therefore clear and indisputable that a magistrate’s court had jurisdiction to assess costs and as a matter of law, paragraph 51 of the Advocates Remuneration Order clearly gave the applicable scale to be used in the subordinate courts as Schedule VII.
- The Applicant’s contention that an executive officer could assess or tax costs in his administrative capacity was not hinged on law and in that regard was a misconception. An executive officer certainly could not be a taxing officer for purposes of Advocates Remuneration Order.
- The question of whether a bill of costs could be presented before a magistrate’s court sitting as such was moot but a look at Schedule VII as compared to Schedule VI suggested that it was desirable and practical to file a bill of costs in the High Court cases in view of the extensive and laborious nature of the bill to enable a successful litigant and the taxing officer to comprehensively deal with ease all the taxable items on costs awarded.
- In the subordinate court, the only discretion given was in relation to Schedule VII subsection 2 thereof and it related to instructions fees on suits by the nature of which no specific sum was sued for. Otherwise the amounts in other taxable items were specified and for that reason it was desirable and practical for parties in whose favour costs were awarded to write to the subordinate court by way of letter asking the court to assess the costs as proposed or drawn.
- The subordinate court has discretion either to assess costs ex- parte and notify the parties or invite the parties and tax the same inter- partes that is if the parties were not in agreement on a specific item which usually relate to instructions fees.
- There was nothing wrong for magistrates to proceed in either way and they were perfectly in order to proceed either way to tax or assess costs payable in a case before them. The practice of inviting parties for assessment of costs; though not mandatory was desirable to give the other parties a chance to be heard in order to avoid unnecessary complaints or references for one reason or the other.
- A magistrate was allowed and/or mandated by law to assess or tax costs payable in a given case. The words or terminology used whether “assess” or “tax” was immaterial. The bottom line was to determine the total amount of costs payable. The fact that a magistrate had taxed or used the terminology “taxation” to assess or determine costs payable was not fatal if the bill presented before the court was in compliance with the requirements of Schedule VII of the Advocates Remuneration Order. To make a different would have been unconstitutional in view of Article 159 (2) (d)of the Constitution.
- The objection that the Applicant raised at the subordinate court was based on form rather than substance and the learned trial magistrate’s decision on the preliminary objection could not be faulted because it was hinged on the Constitution in so far as substantial justice is concerned. The learned magistrate had not taxed the Bill of Costs and the Applicant herein did not demonstrate what prejudice if any he was likely to suffer if the subordinate court had proceeded to tax/assess the costs payable.
- The Applicant chose to proceed under paragraph 11 of the Advocates Remuneration Order which presupposed that taxation had taken place and the party against whom the costs were taxed had become dissatisfied with certain items taxed or all the items. That paragraph only granted an aggrieved party in a case chance to ventilate his grievance(s) only on the itemized bill but the question of jurisdiction to entertain the taxation or assessment of costs was a different matter altogether.
- The decision by the learned trial magistrate that he had jurisdiction to determine the issue of costs dissatisfied the Applicant and being aggrieved, the court agreed with the Respondents that the available remedy was to appeal against the ruling. The court was not persuaded by the decision of Ringera, J (as he then was) quoted by the Applicant. The decision was quoted out of context and was not relevant in the instant case. The quoted decision related to an actual taxation that had been done by a taxing officer despite the opposition that the bill had been filed prematurely. The distinction here was that the subordinate court in that reference had not taxed the costs courtesy of this reference.
- The Applicant should have appealed against the decision of the learned trial magistrate because the operation of paragraph 11 of the Advocates Remuneration Order can be invoked after taxation or assessment of costs.
Application dismissed with costs.
Leave to appeal granted.
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CIVIL PRACTICE AND PROCEDURE |
Conduct intended to impede or prejudice the administration of justice, would not restrict liability for contempt of court
Caroline Wairumu Wanjihia & another v I & M & another
High Court of Kenya at Nairobi
Civil Case No 160 of 2013
F. Gikonyo, J
June 8, 2015
Reported by Andrew Halonyere & John Ribia
Download the Decision
Brief facts
The plaintiffs brought an application seeking inter-alia an order that the necessary party in the instant application be held for contempt of court for undermining the authority of the High Court, by threatening to proceed with the transfer of the suit premises when there was an application pending in court for hearing, to maintain the status quo that the transfer be put on hold and that the incumbent tenant to remain in possession until the final determination for an earlier application in which the court had given directions on the filing and service of written submissions.
- Whether for an offence of direct contempt of court there is a necessity to have had a formal order in existence and a violation thereof.
- Whether a conduct intended to impede or prejudice the administration of justice would create liability for contempt of court.
- Whether the practice of contempt of court limits committal for interference with the due administration of justice to criminal proceedings.
- Whether interfering with the administration of justice is within the practice of contempt of court and whether the acts must be specified and specifically proved to constitute interfering with the administration of justice
Civil Practice and Procedure – contempt of court – difference between civil, criminal and direct contempt of court – standard of proof required in contempt of court
Civil Practice and Procedure – contempt of court – interference with due administration of justice – whether interfering with the administration of justice is within the practice of contempt of court and whether the acts must be specified and specifically proved to constitute interfering with the administration of justice
Civil Practice and Procedure- contempt of court - direct contempt of court – whether there it is necessary to have had a formal order in existence and a violation thereof
Words and phrases – definitions – criminal contempt of court – civil contempt of court – contempt in the face of court - Ochino & Others V Okombo & Others (1989) Klr 165. Read More...
The Judicature Act, (Cap 21)
Section 5 (1).
The High Court and the Court of Appeal shall have the same power to punish for contempt of court as is for the time being possessed by the High Court of Justice in England, and such power shall extend to upholding the authority and dignity of subordinate courts.
Civil Procedure Act, (Cap 21)
Section 38 (d)
Subject to such conditions and limitations as may be prescribed, the court may, on the application of the decree-holder, order execution of the decree;
(d) by arrest and detention in prison of any person;
Civil Procedure Act, (Cap 21)
Sections 63 (c) (e)
In order to prevent the ends of justice from being defeated, the court may, if it is so prescribed:
(c) Grant a temporary injunction and in case of disobedience commit the person guilty thereof to prison and order that this property be attached and sold;
(e) Make such other interlocutory orders as may appear to the court to be just
- Contempt of court is serious matter which will need real prove to the standard of proof higher than proof on a balance of probabilities, almost but not exactly beyond reasonable doubt.
- There is a difference between civil and criminal contempt. There are other forms of contempt like ‘’direct contempt of court’’ which is committed in the immediate vicinity of the court, especially in the presence of the judge and is ordinarily referred to as contempt in the face of the court. Such contempt should be immediately punishable once the transgression occurs. And for the kind of contempt in the face of the court, there is no necessity to have had a formal order in existence and a violation thereof.
- An outright abuse of court process, in extreme cases, may be a subject of contempt of court. But what should be carefully understood in this case is that the Applicant claims that the contemnors were aware of a pending suit or application but engaged in acts which were calculated at subverting the administration of justice in the suit.
- Interference with due administration of justice is too wide a concept and should be strictly applied and construed in civil proceedings to only specific instances which had been proved to be outright interference with the due administration of justice. And it should be noted that acts which constitute contempt of court were acts of interference with the administration of justice. Invariably, for purposes of committal to jail for interference with due administration of justice, the applicant had to establish and prove existence of acts which were punishable in law, either under the law on contempt of court or the general criminal law. Therefore in a civil proceeding, it would be safe that the applicant should be specific on the particular acts committed which constitute contempt of court, and applied as such for committal of the contemnor to jail, instead of coming under the general cover of interference with administration of justice.
- The practice of contempt of court limits Committal for “interference with the due administration of justice” to criminal proceedings. And even though unwanted interference with administration of justice was to be prevented and nobody was to be permitted to pollute the stream of justice, the law on contempt based on interference with due administration of justice should accord to the constitutional objectives in fair adjudication of cases especially civil cases where no specific order had been issued and violated.
- In none of the two pending applications, including the present one were orders issued to either maintain the status quo or preserve the suit premises. The Court only gave directions on how the applications were to be dispensed with. Any intimation of status quo was vague and might not have had reference to any particular act especially given that the Necessary Party had already purchased the property in a public auction.
- Since the offence of interfering with the administration of justice is also referred to as ‘’perverting the course of justice’’ and as "obstructing the administration of justice", within the practice of contempt of court and its wider connotation in law, there was nothing which would restrict liability for contempt of court in respect of conduct intended to impede or prejudice the administration of justice, whether in criminal or civil proceedings. But the acts had to be specified and specifically proved to constitute "interfering with the administration of justice" within the sense of the law as opposed to general assertion that one was aware of proceedings to have been intended to restrain the act complained of.
- The power of the court to punish for contempt of court was conferred under section 5(1) of the Judicature Act as read together with sections 38 (d) and 63 (c) & (e) of the Civil Procedure Act. Therefore, the Court had the authority and jurisdiction to condemn a perpetrator who disobeyed and abused the processes of the Court or its authority as a contemnor. The penalty or punishment for contempt once proved might be civil jail or payment of a fine. However, before the Court could condemn one as a contemnor, it had to be established that there was disobedience of a Court order or that there was an abuse of its processes.
Application dismissed; plaintiff to bear the costs of the application.
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JURISDICTION |
International Organisations Vested With Diplomatic Immunity Against Employer/Employee Disputes
African Development Bank v Beatrice Agnes Acholla & Another (representatives of the estate of the late Bonaventure Eric Acholla
Court of Appeal at Nairobi
Civil Appeal No. 135 of 2002
E M Githinji, J W Mwera & F Sichale JJA
July 3, 2015
Reported by Emma Kinya Mwobobia
Download the Decision
Brief facts:
Bonaventure Eric P. Acholla (now deceased), had a plethora of complaints against the African Development Bank (the appellant herein). In the amended plaint, the deceased claimed, inter alia, that the appellant failed to give him a promotion yet he deserved; that instead he suffered a demotion in rank; that he was retired prematurely and that certain sums of money were illegally recovered from him. For all these infractions and others, the deceased claimed money owed to him, general damages, and special damages. The suit was opposed by way of a defence where the defendant denied the claim and maintained that no action could lie in the High Court or any other court in Kenya against the appellant by dint of article 52 (1) of the Schedule to the African Development Bank Act (ADB Act) which ousted the jurisdiction of the court in Kenya to hear the suit.
- Whether an Act of Parliament could oust the jurisdiction of the Court in Kenya to determine a suit
- What was the status and extent of immunity granted to an international organisation?
Jurisdiction – jurisdiction of the High Court - immunity – international immunity – jurisdiction of the High Court in Kenya to determine a suit involving an international organisation that had been granted immunity – status and extent of immunity granted to an international organisation – whether the High Court had jurisdiction to determine the suit – African Development Bank Act article 52 Read More...
African Development Bank (ADB) Act, article 52 provided that:-
The Bank shall enjoy immunity from every form of legal process except in cases arising out of the exercise of its borrowing powers
- Under Articles 22, 48 and 50 of the Constitution, citizens had a right to access courts and the State had a corresponding obligation to ensure that courts were accessible for the enforcement of rights and resolution of any grievance.
- According to article 52 of the ADB Act, the appellant enjoyed immunity from every form of legal process except in cases arising out of the exercise of its borrowing powers. The plain, natural and ordinary interpretation of the provision was that the appellant bank could not be sued in a domestic court, unless the dispute arose out of an exercise of its borrowing powers, which was not the case.
- Immunity from a suit and legal process could be justified on the ground that it was necessary for the fulfilment of the purposes of the Bank, for the preservation of its independence and neutrality from control by or interference from the host state and for the effective and uninterrupted exercise of its multi-national functions through its representatives. If that would not to be the case, one may well imagine the various laws of the host courts that the employees of the bank would be subjected to. More so, if it was considered that the international employees were not confined to one host country but like all other employees and for good measure were subject to transfers.
- An international organisation, whether incorporated or not was merely the means by which a collective enterprise of the member states was carried on and through which the relations with each other in a particular sphere of common interest were regulated. Any attempt by one of the member states to assume responsibility for the administration of the organisation would be inconsistent with the arrangements made by them as to the manner in which the enterprise was to be carried on and the relations with each other in the sphere was regulated.
- Sovereign states were free, if they wished, to carry on a collective enterprise through the medium of an ordinary commercial company incorporated in the territory of one of their members. However, if they chose instead to carry it on through the medium of an international organisation, no one member state, be it executive, legislative or judicial action could assume the management of the enterprise and subject it to its own domestic law. For if one could, then all could and the independence and international character of the organisation would be fragmented and destroyed.
- One of the most important protections granted to international organisations was immunity from suits by employees of the organisation in actions arising out of the employment relationship. Courts of several nationalities had traditionally recognised the immunity and it was a doctrine of customary international law.
- Like the other immunities accorded to international organisations, the purpose of immunity from employee actions was rooted in the need to protect international organisations from unilateral control by member nations over the activities of the international organisation in its territory. The sheer difficulty of administering multiple employment practices in each area in which an organisation operates suggested that the purposes of an organisation would be greatly hampered if it could be subjected to suits by its employees worldwide.
- An attempt by the courts of one nation to adjudicate the personnel claims of international civil service would entangle the courts in the internal administration of those organisations. Denial of immunity opened the door to divided decisions of the courts of different member states passing judgment on the rules, regulations and decisions of the international bodies. Undercutting uniformity in the application of the staff rules or regulations would undermine the ability of the organisation to function effectively.
- The immunity was granted to the International Organisation and not to the individual. There was no conflict between articles 51 & 52 of the Schedule to the African Development Bank Act.
- In Tononoka Steels Ltd v The Eastern and South African Trade and Development Bank [2000] 2 EA 536, the court held that the decision by the Minister to grant the PTA bank absolute immunity from suits and legal process even in purely commercial transactions was contrary to international law. It was through a ministerial fiat contained in a gazette notice. However, in the instant case, the immunity was provided in an Act of Parliament. The other dissimilarity was that the case of the respondent was an employer/employee dispute, whilst in the Tononoka case the dispute was of a commercial nature. To stretch the argument that the respondents claim against the appellant being an employment transaction was also of a commercial nature was to over-stretch the meaning and purport of a commercial transaction.
- The Constitution of Kenya, 2010 contained a wide range of rights, including labour rights and the right to access justice. However, under article 2 (6) of the Constitution, international treaties and legal instruments upon which Kenya had ratified formed part of the law of Kenya. The Articles of Agreement were such legal instruments and had been ratified through the enactment of the ADB Act. They were therefore a part of Kenyan law.
- Section 7 of the Sixth Schedule on the Transitional and Consequential Provisions required that all existing laws enacted before the promulgation of the Constitution of Kenya, 2010 be construed in conformity with the provisions of the Constitution. Labour rights and fair hearing were enshrined in the Constitution. However, those rights could be limited. The right to a fair hearing, under article 50 (1) and the rights to fair labour practices could be limited. In particular, article 24 provided for the limitation of these rights.
- The reason for limiting access to domestic courts was that it would be undesirable to have a situation where every employee in an international organisation who perceived that they had been wronged approach different courts in different jurisdictions. It would not only lead to challenges in execution, where an order against such an organisation was given, but would also create sheer difficulty of administering multiple employment practices in each area where an organisation operated and it was suggested that the purposes of an organisation would be greatly hampered if it could be subjected to suits by its employees worldwide. The situation was remedied by the fact that there were internal dispute resolution mechanisms through which an employee could agitate claims against the appellant. Therefore, in the circumstances, the appellant is vested with diplomatic immunity.
Order:
Appeal allowed. High Court orders set aside.
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