Pre-bar examinations at the Kenya School of Law suspended by the High Court
Kevin K Mwiti & others v Kenya School of Law & 2 others
Constitutional Petition Number 377 of 2015
(Consolidated with Petition No 395 of 2015 & JR No 295 of 2015)
High Court at Nairobi
G V Odunga, J
September 29, 2015
Reported by Beryl A Ikamari & Robai Nasike Sivikhe
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Brief Facts
In 2014, Parliament made an amendment to the second schedule of the Kenya School of Law Act 2012 (Statute Law (Miscellaneous) Amendment Act, 2014). The amendment made it compulsory for all persons seeking admission to the Advocates Training Programme at the Kenya School of Law to sit for and pass pre-bar examinations.
The respondents issued a notice in relation to the amendment, requiring the petitioners to submit their applications so as to undertake the examinations on November 2, 2015. The notice provided that those who were qualified to sit for the pre-bar exams were candidates with a Bachelor of Laws degree, who had attained a minimum mean grade of C+ and grade B in English or Kiswahili at KCSE and had also passed all the 16 core subjects at the university level as provided under the Legal Education Act 2012.
In response, the petitioners instituted Petition No. 377 of 2015, Petition No. 395 of 2015 and Judicial Review Miscellaneous Application No. 295 of 2015. The Petitioners sought to question the constitutionality of the amendment. They also sought leave to institute judicial review proceedings and for that leave to operate as a stay of the ongoing registration for the pre-bar slated for November, 2015. Effectively they sought orders to suspend the implementation of the pre-bar examinations on terms stipulated by the notice.
The Kenya School of Law Act, 2012, came into force in 2013. The Act provided for the admission criteria for purposes of entry into the Advocates Training Programme and it had transitional provisions but those transitional provisions did not relate to the entry and admission requirements.
At the time the Act was enacted there were students already enrolled at universities and the Act had the potential of affecting their expectations under the law in which they had joined their respective universities. The Council of Legal Education and the Kenya School of Law created guidelines which provided for a three year transition period to cater for students who had been admitted to universities prior to the enactment of the Act.
The guidelines had been applied to two admission lots but the third lot for the academic year 2016/2017 was required to comply with the 2014 amendment. That amendment required them to sit for a pre-bar examination before admission.
The applicants contended that the amendment was enacted without public participation and effectively violated their constitutional rights and legitimate expectation to complete their education under the transitional guidelines for admission to the Advocates Training Programme.

Issues:
  1. Whether the petitioners demonstrated that they had a prima facie case based on legitimate expectation and discrimination against the respondents.
  2. Whether the failure to grant conservatory orders meant that there was a danger that the petitioners would suffer prejudice.

Constitutional Law- fundamental rights and freedoms- fair administrative action and non-discrimination-conservatory orders- factors governing the grant of conservatory orders-prima facie case, likelihood that prejudice would be suffered if the orders were not granted and the principle of proportionality- whether conservatory orders would be granted against the administration of pre-bar examinations at the Kenya School of Law- Constitution of Kenya 2010, article 22 (1) & article 23(3)(c); Fair Administrative Action Act, 2015, section 4.

Constitution of Kenya 2010, Article 22 and Article 23
Article 22 (1)
22 (1) Every person has the right to institute court proceedings claiming that a right or fundamental freedom in the Bill of Rights has been denied, violated or infringed, or is threatened.

Article 23 (3) (c)
23 (3) in any proceedings brought under Article 22, a court may grant appropriate relief, including—
(c) A conservatory order;

Held

  1. A prima facie case was neither a case which had to succeed at the hearing of the main case, nor one which was frivolous. Accordingly, the petitioners had to demonstrate that their case disclosed arguable constitutional issues.
  2. In considering an application for conservatory orders, the court was not called upon to make any definite findings, either of fact or law, because that was the province of the court which would ultimately hear the petition. The applicant was only required to establish a prima facie case with a likelihood of success. The court was forbidden from making any definite and conclusive findings on either fact or law.
  3. Article 23(3) (c) of the Constitution provides that, in any proceedings brought under article 22 a court could grant appropriate relief including a conservatory order. Therefore, to properly bring themselves within article 23(c), a litigant was required to claim that a right or fundamental freedom in the Bill of Rights was denied, violated or infringed.
  4. The applicants contended that the actions of the respondents were discriminatory because they were subjected to differential treatment from their predecessors yet they were in the same position as their predecessors. According to the petitioner, that position was well appreciated by the respondents when they promulgated Regulations whose effect was to avoid such discrimination.
  5. Under article 10 of the Constitution, some of the national values and principles of governance which bind State organs, State officers, public officers and all persons when enacting, applying or interpreting any law or making or implementing public policy decisions included equality and non-discrimination. Hence, if the said guidelines were promulgated with a view to avoid an interpretation of the Act whose effect would have led to a violation of the said values and principles, then, the decision to do so was clearly in consonance with the Constitution and the School’s position that the guidelines went contrary to the Act would not necessarily be correct.
  6. The applicant’s position was that by withdrawing the guidelines, the respondents were in fact discriminating against them. If that was the position, then the respondents would not be interpreting the Act in a manner that was compatible with the provisions of the Constitution and were violating their constitutional obligations. It ought to be remembered that in making a decision, the first point of reference was the Constitution.
  7. The applicants had made allegations touching on discrimination and violations of legitimate expectations. They had proven that they had a prima facie case warranting further investigation by the Court.
  8. Apart from establishing a prima facie case, the applicants had to demonstrate that unless the conservatory order was granted there was real danger which would be prejudicial to them. Additionally, the principle of proportionality required the Court to opt for the lower rather than higher risk of injustice in considering whether or not to grant conservatory orders.
  9. There were certain requirements to be met by a candidate in order for that candidate to be eligible to sit for the pre-bar examination itself. In effect, some candidates had been locked out even before they could sit for the examination. There was a danger that if the conservatory orders were not granted and the court later decided in their favor, they would be eligible to join the school but they would fail to apply for admission within time.
  10. If the orders sought were granted, it would mean that the respondents’ schedule would be interrupted. They would have to suspend the notice inviting applications. However, it was clear that the pre-bar examination was not due until November 2015 and actual admission was not due until January 2016. It had not been alleged that the hearing of the petition could not be fast tracked so as to minimize the span of delay. In fact, the respondents could still be within time to admit the students in January notwithstanding the hearing and determination of the matter.
  11. It was not in doubt that the intended pre-bar examinations would utilize funds from the public coffers. Therefore, the matter was not just a question of inconvenience to the parties but also a matter likely to impact on the public. The lesser injustice would be to suspend the Respondents’ action pending the hearing of the petitions and application.
Application allowed. Conservatory orders suspending the notification of pre- bar exams and staying all proceedings relating to pre-bar examinations pending hearing and determination of Petition No. 377 of 2015, Petition No. 395 of 2015 and Judicial Review Miscellaneous Application No. 295 of 2015 were granted.


Kenya Law
Case Updates Issue 033/2015
Case Summaries
COUNTY GOVERNMENT A motion to remove from office a speaker cannot be moved before the lapse of 6 months if a similar motion had been debated and resolved during the preceding 6 months

Republic v Clerk County Assembly of Baringo ex parte William Kassait Kamket
Judicial Review Application No. 1 of 2015
Employment and Labour Relations Court at Nakuru
Stephen Radido J.
July 31, 2015.
Reported by Njeri Githang’a & Elizabeth Apondi.

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Brief Facts:
On 20 March 2015, the Court granted William Kassait Kamket (ex parte applicant) leave to apply for judicial review orders of prohibition and certiorari against the Clerk, County Assembly of Baringo (Respondent). The leave granted was to operate as a limited stay to enable the payment of such salaries/benefits payable to a speaker on suspension and also stopped the advertising and processing of applications to fill the position of the Speaker of the County Assembly of Baringo.
The ruling/orders sought to be reviewed or interpreted related to a cause of action accruing on 18 March 2015 (removal from office of ex parte applicant) while the judgment by the High Court in Eldoret was in respect of a cause of action accruing on 4 November 2014 (suspension from office of ex parte applicant).
The ex parte applicant was elected as the first Speaker of the County Assembly of Baringo after the 2013 General Elections. On 4 November 2014, the County Assembly resolved to suspend him from office on the basis of a pending criminal case against the ex parte applicant in Eldoret Criminal Case No. 7031 of 2014. The reasons as outlined in the motion for suspension were that the ex parte applicant had violated the Constitution, made inflammatory utterances on 28 April 2014 and 30 April 2014, displayed lack of professionalism, failed to spearhead peace building, failed to observe impartiality and objectivity in discharging his duties abused office by sacking and disciplining employees without due process, violated procurement laws, misused public resources and failed to accord members of the County Assembly respect and dignity. The ex parte applicant however moved the High Court in Eldoret to challenge the suspension and the High Court subsequently found in his favour on 26 May 2015. On 10 February 2015, the County Assembly commenced a fresh initiative to remove the ex parte applicant from office of Speaker.
According to the ex parte applicant, the process followed by the Assembly in purporting to remove him commenced through a public petition was illegal in that it was contrary to section 11 of the County Governments Act. He also impugned the resolution to remove him from office on the ground that he was not given an opportunity to be heard by the Assembly and that the whole process was a charade organised by his political opponents.
The ex parte applicant further argued that County Assemblies were covered by the definition of employer in section 2 of the Employment Act, 2007 and that the County Assembly had acknowledged previously during the suspension motion and before the High Court in Eldoret that the he was an employee of the Assembly and that pursuant to Article 162(2) of the Constitution, Court had the power to deal with all employment and labour related matters.
According to the Respondent, the ex parte applicant was elected by the County Assembly making him an employee of the County Assembly (Article 178 of the Constitution) and therefore as between him and the ex parte applicant, there was no employer/employee relationship to warrant his being sued and further argued that because the ex parte applicant was removed by the County Assembly, that was the proper party to sue. The Respondent further asserted that because the ex parte applicant had an alternative remedy of damages were the Court to find his removal was unfair, damages would be the appropriate remedy and not orders of judicial review and that he was not likely to suffer irreparable damage. The respondent further stated that the position of Speaker of County Assembly of Baringo had already been declared vacant after the adoption of the recommendation of the Ad Hoc committee.

Issues:

  1. Whether a Speaker of Parliament or County Assembly was an employee for the purposes of the Employment Act, 2007
  2. Whether Clerk of the County Assembly can be sued as a representative of the county Government in a suit where the speaker is the plaintiff
  3. Whether the removal of a Speaker is a political process in which the Courts cannot intervene
  4. Whether the Court had jurisdiction where persons holding offices created by the Constitution and various statutes had complaints relating to the manner of suspension or removal from office unless otherwise provided for in law, such as in the case of persons directly elected under universal suffrage
  5. Whether removal of speaker through a public petition was illegal and not recognized in law
  6. Whether a motion to remove from office a speaker could be moved before the lapse of 6 months if a similar motion had been debated and resolved during the preceding 6 months

County Government-County Assembly-removal of a speaker-process of removal-removal by public petition- whether removal of speaker through a public petition was illegal and not recognized in law- whether a motion to remove from office a speaker could be moved before the lapse of 6 months if a similar motion had been debated and resolved during the preceding 6 months- Civil Procedure Rules 2010, Order 53 rule 3, County Governments Act 2012 sections 11(4) & 15, County Assembly of Baringo Standing Orders 47, 61 & 191

Civil procedure and Practice-parties to a suit-dispute on the removal of a County Assembly speaker-whether clerk of the assembly can be sued as a representative of the county Government in a suit where the speaker is the plaintiff-County Government Act 2012, section 13, County Assembly of Baringo Standing Orders 45, 61 & 197

Jurisdiction-Employment and Labour Relations Court-extent of the jurisdiction-jurisdiction under the Employment Act vis-a-vis the ELRC Act -whether the ELRC could entertain a labour dispute where there was no contract of service between the employer and the employee- whether a Speaker of Parliament or County Assembly was an employee for the purposes of the Employment Act, 2007-Constitution of Kenya 2010, articles 128 &162, Employment and labour Relations Court Act section 12

Constitutional Law-separation of powers-jurisdiction of the Court-removal of Speaker of a County Assembly-whether the removal of a speaker is a political process in which the Courts cannot intervene-Constitution of Kenya 2010, articles 162, County Assembly of Baringo Standing Orders 61 Read More...

Constitution of kenya 2010.
Article 128
(1) There shall be a Clerk for each House of Parliament, appointed by the Parliamentary Service Commission with the approval of the relevant House.
(2) The offices of the Clerks and offices of members of the staff of the Clerks shall be offices in the Parliamentary Service.

Article 162
(1) The superior courts are the Supreme Court, the Court of Appeal, the High Court and the courts referred to in clause (2).
(2) Parliament shall establish courts with the status of the High Court to hear and determine disputes relating to—

(a) employment and labour relations; and
(b) the environment and the use and occupation of, and title to, land.

(3) Parliament shall determine the jurisdiction and functions of the courts contemplated in clause (2).
(4)The subordinate courts are the courts established under Article 169, or by Parliament in accordance with that Article.

County Assembly of Baringo Standing Orders
Standing Order 45
(1)Except as otherwise provided by these Standing Orders, notice shall be given by a Member of any Motion which the Member or Committee proposes to move.
(2)Before giving notice of Motion, the Member shall deliver to the Clerk a copy of the proposed Motion in writing and signed by the Member; and the Clerk shall submit the proposed Motion to the Speaker.
(3)If the Speaker is of the opinion that any proposed Motion–

(a) is one which infringes, or the debate on which is likely to infringe, any of these Standing Orders;
(b) is contrary to the Constitution or an Act of Parliament or of the County Assembly, without expressly proposing appropriate amendment to the Constitution or the Act of Parliament or County Assembly;
(c) is too long;
(d) is framed in terms which are inconsistent with the dignity of the House;
(e) contains or implies allegations which the Speaker is not satisfied that the Mover can substantiate; or
(f) calls for the commitment of public funds for which no provision is made in the current Annual Estimates as adopted by the County Assembly, the Speaker may direct either that, the Motion is inadmissible, or that notice of it cannot be given without such alteration as the Speaker may approve or that the Motion be referred to the relevant Committee of the House, pursuant to Article 114(2) of the Constitution.

(4)A Member giving notice of a Motion approved by the Speaker shall state its terms to the House and whether the original copy received by the Clerk has been certified by a Party Leader or Party Whip for sponsorship by the Member’s party.
(5)Unless the House resolves otherwise –

(a) a Motion sponsored by a party shall have precedence over all other Motions on such day as the House Business Committee, in consultation with the Speaker, may determine, but where a party has sponsored two or more Motions, the Motion shall be considered in such order as sponsoring party may determine; and
(b) notice of an approved Motion other than those under paragraph (a) may be given to Members by means of a list to be published in such manner as the Speaker may from time to time direct and the Member giving such notice shall state its terms to the House when the Motion has acquired precedence in accordance with Standing Order 48 (Time for moving Motions), but at least one day before the Motion appears on the Order Paper.

Standing Order 47.
(1)No Motion may be moved which is the same in substance as any question which has been resolved (either in the affirmative or in the negative) during the preceding six months in the same Session.
(2)Despite paragraph (1) –

(a) a Motion to rescind the decision on such a question may be moved with the permission of the Speaker; but
(b) a Motion to rescind the decision on a question on a Special Motion shall not be allowed.

Standing Order 61
(1)The Speaker may be removed from office by the House through a resolution supported by not less than seventy five percent of all the Members of the County Assembly.
(2)A notice of the intention to move a Motion for a resolution to remove the Speaker shall be given in writing to the Clerk of the County Assembly signed by at least one third of all the Members of the County Assembly stating the grounds for removal.
(3)A Motion for a resolution to remove the Speaker shall be presided over by a Member of the County Assembly elected to act as Speaker as contemplated under Article 178 (2) (b) of the Constitution.
(4)Before the debate and voting on a Motion under paragraph (3), the Speaker shall be accorded an opportunity to respond to the allegations on the Floor of the House.

Standing Order 191
(1)There shall be a select Committee to be known as the Committee on Implementation comprising a Chairperson and not less than four and not more than six other Members.
(2)The Committee shall scrutinize the resolutions of the House (including adopted Committee reports), Petitions and the undertakings given by the County Executive Committee and examine-

(a) whether or not such decisions and undertakings have been implemented and where implemented, the extent to which they have been implemented, and whether such implementation has taken place within the minimum time necessary; and
(b) whether or not legislation passed by the County Assembly has been operationalized and where operationalized, the extent to which such operationalization has taken place within the minimum time necessary.

(3)The Committee may propose to the House sanctions against any member of the County Executive Committee who fails to report to the relevant select Committee on implementation status without justifiable reasons.

Standing Order 197
(1)A Petition to the County Assembly shall be-

(a) submitted to the Clerk by the petitioner and reported to the County Assembly by the Speaker; or
(b) presented by a Member on behalf of a petitioner, with the consent of the Speaker.

(2)Notwithstanding paragraph (1) (b), a Member shall not be eligible to present a Petition on his or her own behalf.
(3)The Clerk shall, within seven days of the date of receipt of a Petition, review the Petition to ascertain whether the Petition meets the requirements of these Standing Orders and of the law.
(4)Where the Clerk considers that a Petition does not comply with paragraph (3), the Clerk may give such directions as are necessary to ensure that the Petition is amended to comply with that paragraph.
(5)The Clerk shall, if satisfied that the Petition meets the requirements under paragraph (3), forward the Petition to the Speaker for laying in the House.

Employment and Labour Relations Court Act
Section 12
(1) The Court shall have exclusive original and appellate jurisdiction to hear and determine all disputes referred to it in accordance with Article 162(2) of the Constitution and the provisions of this Act or any other written law which extends jurisdiction to the Court relating to employment and labour relations including —

(a) disputes relating to or arising out of employment between an employer and an employee; (emphasis mine)
(b) disputes between an employer and a trade union;
(c) disputes between an employers’ organisation and a trade unions organisation;
(d) disputes between trade unions;
(e) disputes between employer organizations;
(f) disputes between an employers’ organisation and a trade union;
(g) disputes between a trade union and a member thereof;
(h) disputes between an employer’s organisation or a federation and a member thereof;
(i) disputes concerning the registration and election of trade union officials; and
(j) disputes relating to the registration and enforcement of collective agreements.

County Governments Act 2012
Section 11(4)
4) Before the debate and voting on a motion under subsection (3), the
speaker shall be accorded an opportunity to respond to the allegations on the floor of the county assembly.

Section 13
(1) There shall be a clerk of the county assembly, appointed by the county assembly service board with the approval of the county assembly.
(2) A person shall not be qualified for appointment as a clerk of the county assembly unless such person—

(a) is a citizen of Kenya;
(b) holds a degree from a university recognised in Kenya or its equivalent;
(c) has had at least five years relevant professional experience;
(d) meets the requirements of leadership and integrity set out in Chapter Six of the Constitution.

(3) The functions and powers of a Clerk of Parliament shall with necessary modifications be the functions and powers of the clerk of a county assembly.
(4) For the purposes of this Act, the clerk of a county assembly is an authorized officer.
(5) The office of the clerk of the county assembly and the offices of members of the staff of the clerk of the county assembly shall be offices in the county assembly service board.
(6) The remuneration of the clerk and staff of the county assembly shall be determined by the county assembly service board upon the advice of the Salaries and Remuneration Commission.

Section 15
(1) A person has a right to petition a county assembly to consider any matter within its authority, including enacting, amending or repealing any of its legislation.
(2) Each county assembly shall prescribe a procedure for exercising the right under subsection (1).

Civil Procedure Rules 2010
Order 53
(3) An affidavit giving the names and addresses of, and the place and date of service on, all persons who have been served with the notice of motion shall be filed before the notice is set down for hearing, and, if any person who ought to be served under the provisions of this rule has not been served, the affidavit shall state that fact and the reason why service has not been effected, and the affidavit shall be before the High Court on the hearing of the motion.

Held:

  1. Under the Civil Procedure Act/rules framework and more specifically under order 1 rule 9, a suit would not be defeated merely on the ground of non-joinder or misjoinder of a party. In fact, if a party was not sure of the correct and proper person to sue, he may join one or more persons as defendants. The rules gave the Court wide latitude as to addition and substitution of parties. The Industrial Court Procedure Rules 2010 also had near similar provisions.
  2. The instant proceeding was not a proceeding under the civil procedure or Industrial Court rules framework. The Court was dealing with a judicial review application which was proceedings sui generis. The proceedings were commenced in the name of the Republic.
  3. Judicial review proceedings had traditionally been anchored primarily on the Law Reform Act and Order 53 of the Civil Procedure Rules and under Order 53 rule 3, the Court had the power to direct that the notice of motion be served upon all persons directly affected. No such direction was sought nor did the Court at its own instance give such directions and the question whether the application should fail in that respect was material.
  4. The Clerk was an appointee of the County Assembly Service Board (section 13 of the County Governments Act, 2012) but approved by the County Assembly. The Clerk was given the same functions and powers as the Clerk of Parliament and he was also an authorized officer for the purposes of the County Governments Act.
  5. The offices of Clerk of Parliament were given constitutional underpinning in article 128 of the Constitution but the functions and powers were not expressly outlined in the Constitution. Among the functions of the Clerk who was the respondent as gleaned from the Standing Orders of the County Assembly of Baringo was the receipt of motions (standing orders 45 and 61) and public petitions and reviewing of the petitions to ascertain such petitions meet the requirements of the Standing Orders (standing order 197).
  6. The motions and petitions in the instant case may have included questions of removal of a Speaker and therefore, the Clerk would be an appropriate and proper party to any judicial review application challenging the removal of a speaker; the reason being that under Standing Order 197(3), the Respondent had a duty to review the Petition to ensure that it met the specified requirements. The requirements or considerations would have included Standing Order 47.
  7. The Clerk and the Speaker represented the collective of the County Assembly. Where the Speaker himself was the complainant, the Clerk could be cited to defend and represent the collective known as the County Assembly. The Respondent ably dealt with the issues raised despite the fact that the County Assembly was not cited.
  8. A defect in form in the title or heading of an appeal, or a misjoinder or non-joinder of parties were irregularities that did not go to the substance of the appeal and were curable by amendment. The legal principle running through failure to join a party under both the civil procedure regime and judicial review framework was that the failure was an irregularity which was not fatal and could be cured.
  9. A correct and proper party was cited and the failure to cite the County Assembly was an irregularity which was not fatal considering the role given to the Respondent by the Standing Orders.
  10. The question of employment relationship in the case of Speakers of County Assemblies were intractably linked with the question of the extent of the jurisdiction of the Employment and Labour Relations Court. It was both a Constitutional issue as well as one of statutory application. Article 162 of the Constitution envisaged Parliament establishing a Court to hear and determine disputes relating to employment and labour relations. Parliament performed the task it was ordained to do by enacting the Employment and Labour Relations Court Act (initially the Industrial Court Act) and the jurisdiction of the Court was set out in section 12.
  11. Article 162 of the Constitution and section 12(1)(a) of the Employment and Labour Relations Court Act stated that the jurisdiction of the Court encompassed and included all disputes relating or arising out of employment. The doubt and debate arose because of the definition of employer in section 2 of the Employment Act, 2007 and more so the use of the term contract of service. Employer was defined as any person, public body, firm, corporation or company who or which had entered into a contract of service to employ any individual and included the agent, foreman, manager or factor of such person, public body, firm, corporation or company. Contract of service was also defined in the Act.
  12. There were many categories of employees who did not have what was classically called a contract of service (contract of service was a term which had gone out of fashion in modern employment law and the term contract of employment was used more). The abundance of such persons could be found in offices created by the Constitution and various statutes and included holders of independent offices, members of constitutional commissions, judges, judicial officers, Speakers of Parliament and the County Assemblies. These officers did not have contract of services as ordinarily known or as envisaged under the Employment Act, 2007.
  13. A Speaker of Parliament or County Assembly was not an employee for the purposes of the Employment Act, 2007 and the Courts jurisdiction could only be determined by looking outside the said Act.
  14. Article 162 of the Constitution did not envisage a Court limited or restricted to dealing with disputes arising out of a contract of service as defined in the Employment Act, 2007 which in any case predated the Constitution.
  15. The primary statute granting the Court universal jurisdiction was the Employment and Labour Relations Court Act (previously the Industrial Court Act). Under section 12 of the Act in granting the Court its jurisdiction, Parliament faithfully observed the command of the Constitution by using the phrase disputes relating to employment and labour relations. The jurisdiction granted included disputes relating to or arising out of employment between an employer and an employee and not only in respect of contract of service as a reading of the Employment Act, 2007 may suggest.
  16. The use of the term ‘including’ in section 12 was significant as it helped to construe the jurisdiction of the Court in a way which promoted the purposes, values and principles of the Constitution in establishing a specialist Court to deal with employment and labour relations disputes.
  17. The jurisdiction of the Court over the proceedings before the court flow from application of article 162 of the Constitution and section 12(1) (a) of the Employment and Labour Relations Court Act rather than from an interpretation of the provisions of the Employment Act, 2007.
  18. The definition of employer, employee and contract of service in the Employment Act, 2007 was not meant to limit or restrict the jurisdiction granted to the Court by section 12 of the Employment and Labour Relations Court Act. Such approach involving limitation or restriction was the source of the uncertainty currently being experienced.
  19. For purposes of the Constitution and the Employment and Labour Relations Court Act, office holders were employees who had access to the Employment and Labour Relations Court and where a Speaker alleged improprieties in the removal process, that was a dispute relating to and arising out employment. It mattered not that they were employees or servants of the people or the respective Commissions or County Assemblies. The Court therefore had jurisdiction to deal with disputes relating to removal of a Speaker of a County Assembly.
  20. The Constitution and many other statutes had created certain offices. Appointment and removal from such offices had been provided for. Where the appointing authority/body did not comply with the applicable procedures as far as removal or discipline was concerned, the disadvantaged party had recourse to the Courts not only under private law (contract) but under public law and judicial review may in certain instances be appropriate and effective.
  21. A county assembly was an organ of state and a public body and where allegations of procedural impropriety were made, the judicial arm had the requisite mandate to intervene.
  22. The County Governments Act and various Standing Orders of County Assemblies had explicit procedures to be followed in the event the Assembly intended to remove the Speaker. The Assembly could not argue that removal of a Speaker was a political process in which the Courts could not intervene when they did not follow the requisite constitutional or statutory processes. There was no political thicket which the Constitution may not reach in such a case.
  23. The County Governments Act (section 15) and the Standing Orders of the County Assembly of Baringo envisaged and allowed receipt of public petitions. That was in tandem with the constitutional injunction that public participation in governance was now firmly part of national values and principles of governance.
  24. In so far as the citizens of Arabal filed a Petition seeking the removal of the ex parte applicant, they were perfectly within the constitutional and legal framework. The County Assembly was also within its lawful mandate to entertain the petition.
  25. The public petition was merely one way for the citizens of Arabal to initiate a process in governance within their community, but once the Petition was received, the County Assembly had to scrupulously comply with the statutory requirements.
  26. As part of its inquiries into the Petition the Ad Hoc Committee was acting with prudence to invite the ex parte applicant to appear before it. In so far as the Petition sought the removal of the ex parte applicant, it was, to use common parlance, an added advantage to him to be invited and present himself before the Ad Hoc Committee. That was what natural justice required. Once the Ad Hoc Committee had made recommendations to the Plenary, appropriate and applicable protections afforded the ex parte applicant kicked in.
  27. The removal processes to be followed after the recommendation of the Ad Hoc committee had to scrupulously comply with the law, because what the Committee was involved in, was strictly preliminary to the statutory process of removal of the ex parte applicant.
  28. Pursuant to section 11(4) of the County Governments Act and Standing Order 61(4), the ex parte applicant was entitled to be granted an opportunity to respond to allegations against him on the floor of the Assembly. There was nothing placed before Court to suggest even remotely that the ex parte applicant was invited to appear before the plenary of the Assembly to defend himself or make representations.
  29. The invitation to appear before the Ad Hoc committee could not substitute the legal requirement for the ex parte applicant to be given an opportunity to make representations before the Plenary of the Assembly.
  30. The process taken by the Assembly was therefore tainted with procedural impropriety in that the ex parte applicant was not accorded an opportunity to make representations before the Plenary.
  31. Natural justice or procedural fairness had become such a cardinal principle in governance that however grievous the allegations one was facing, he was entitled to an opportunity to be heard and the body taking the decision must ensure that it observed the processes necessary to safeguard and protect the rights of the party likely to suffer the detriment. The requirement was so cardinal that if the nine horned monster were to be subjected to such action, he would be entitled to have his day and say. That was a requirement of constitutional democracy.
  32. The motion for removal of the speaker was debated on 11 February 2015 and was defeated by a single vote. A fresh attempt was made just a month later. The grounds and reasons as outlined in the motion which failed by 1 vote on 11 February 2015 and the Petition which came on 3 March 2015 (and subsequent motion) indicated grounds/reasons that were essentially the same.
  33. The County Assembly was barred from debating the question of the removal of the ex parte applicant on basically the same substantial grounds which had been rejected the previous month. The County Assembly could not commence the process before expiry of 6 months and in so acting it was acting in violation of its internal procedures.

Orders for certiorari and prohibition granted. Each party to bear it's costs.
CIVIL PRACTICE AND PROCEDURE Court cannot recognize an agreement between parties in an application for recognition of a foreign judgment where the same has not been adopted by a foreign court in its judgment

N. M v A.M
Misc. Application No. 128 of 2013
High Court of Kenya at Nairobi.
L.A. Achode, J
July 23, 2015.
Reported by Njeri Githang’a & Elizabeth Apondi.

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Brief facts:
The application was brought by way of Originating Summons under sections 2, 5 & 6 of the Foreign Judgment and Reciprocal Enforcement Act (hereinafter referred to as the Act) and section 1A & 1B of the Civil Procedure Act and section 43 of the Laws of Kenya. It sought for orders that the court registers the agreement dated 17th September 2013 and enforces it as an Order of the High Court of Kenya at Nairobi in its entirety. The application was based on grounds that the parties had been married and were now divorced in Divorce proceedings filed in New York State. In the course of the divorce proceedings the parties entered into a comprehensive settlement in which they agreed to cooperate but the Respondent defaulted on the agreement and had made every effort to frustrate the agreement to the Applicant’s detriment and that of the child of the marriage. The Respondent’s actions were prejudicial to the minor who stood to suffer irreparable loss since she was about to be locked out of her school for failure by the Respondent to pay school fees. The Applicant was in the process of purchasing a home to live in with her daughter but that could not be achieved unless the orders sought were granted. The Applicant averred that the Respondent had refused/neglected to comply with the orders and unless the application was heard and orders granted, she stood to suffer irreparable loss.
The Respondent in his grounds of opposition stated that the Applicant had not complied with Section 5(4) and 16 of the Act; that the court could only register/enforce a judgment and not an agreement and that there was no proof of a judgment of the original court that could be registered or enforced. The respondent further contended that the alleged agreement or judgment sought to be enforced or registered arose from matrimonial proceedings and therefore, by virtue of section 3(3) (d) of the Act, the application was misconceived. The Respondent confirmed that he was a resident of South Africa and not Nairobi as alleged by the Applicant.

Issues:

  1. Whether an application for recognition of a foreign judgment or order without an annexed copy of the judgment of the divorce cause or the proceedings thereof could be entertained by court.
  2. Whether court can recognize an agreement between parties where there was no proof that the same was adopted in the judgment of a foreign court.
  3. Whether an agreement arising from matrimonial proceedings could be recognized as a foreign judgment by virtue of section 3(3) (d) of the Foreign Judgment and Reciprocal Enforcement Act

Civil Practice and Procedure-foreign judgment-application for recognition of a foreign judgment-whether an application for recognition of a foreign judgment or order without an annexed copy of the judgment of the divorce cause or the proceedings thereof could be entertained by court-whether court can recognize an agreement between parties where there was no proof that the same was adopted in the judgment of a foreign court- Foreign Judgement (Reciprocal Enforcement) Act, Cap 43, sections 3(3)(c)(d) , 5(4) Read More...

Foreign Judgment (Reciprocal Enforcement) Act, Cap 43
Section 3(3)(c)(d)
This Act does not apply to a judgment or order—
(c) for the periodical payment of money as financial provision for, or maintenance of, a spouse or a former or reputed spouse or a child or other person who is or was a dependant of the person against whom the order was made;
(d) In a matrimonial cause or matter, or determining rights in property arising out of a matrimonial relationship, not being a judgment referred to in paragraph (a) or (b) of subsection (1), whereby a sum of money is payable or item of movable property deliverable;


Section 5(4)
(4) An application for registration of a judgment under subsection (1) shall—
(a) be accompanied by a certificate in the form set out in the Schedule or to the same effect issued from the original court under its seal and signed by a judge or registrar thereof or by an affidavit to the same effect;
(b) have attached thereto the judgment or the exemplification or a certified or duly authenticated copy thereof and, where the judgment is not in the English language, certified by a notary public on the Registrar of the original court or authenticated by affidavit;
(c) be accompanied by an affidavit stating—
(i) that, at the date of application, the judgment has not been satisfied or, as the case may be, the sums or items of movable property in respect of which the judgment remains unsatisfied;
(ii) that, at the date of application, the judgment can be enforced by execution in the country of the original court;
(iii) where, by virtue of section 6(5), the judgment may be registered only in respect of certain of its provisions, the provisions in respect of which it is sought to register the judgment;
(d) unless otherwise ordered by the High Court, be accompanied, in the case of a judgment given by a superior court of a Commonwealth country, by a certificate under the seal and signed by a judge or registrar thereof certifying that the court is a superior court in that country;
(e)be accompanied by such other evidence as may be prescribed.

Held:

  1. The applicant by not attaching a copy of the judgment or divorce proceedings had not satisfied the requirements of section 5(4) of the Act which required among other things that the application annexed a copy of the judgment
  2. Section 3(1) of the Act referred to a judgment or order of a designated court or an award in arbitration proceedings and did not include agreements entered into between parties, unless such agreements have been adopted by the court and have become orders of the court.
  3. It had not been demonstrated that the agreement set out in the application was adopted as an order of the court, in the Divorce proceedings in the New York Court due to the fact that the judgment which was the subject matter of the application, had not been annexed.
  4. Even if the Applicant had met the requirements of Section 5(4), of Cap 43 Laws of Kenya, the judgment adverted to was not among the judgments envisioned, by which the applicant could obtain relief under the Act.

Application dismissed with costs to the respondents.

CONSTITUTIONAL LAW

Whether conservatory orders could be granted to stop a County official from chairing procurement meetings due to a procurement dispute

Zecharia Keango Mecha (Suing on his behalf and on behalf of other voters and residents of Bogichora Ward of Nyamira County) v Beauttah Omanga
Petition No 8 of 2015
High Court at Kisii
C B Nagillah, J
July 17, 2015
Reported by Beryl A Ikamari & Robai Nasike Sivikhe

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Brief facts:
The Petitioner indicated that he had filed the Application with the authority of voters from Bogichoria Ward whose names he had listed. He stated that the Respondent was elected by the Bogichoria electorate and was the vice-chair of the County Tender Committee Board. The Respondent was involved in the award of a tender for insurance cover for members of the County Assembly of Nyamira County and their families.
The tender was alleged to have been irregularly awarded and certain officials from the County Assembly had been subjected to interrogation by the Public Investment and Accounts Committee of Nyamira County. The interrogations culminated in recommendations for the removal of certain officials of Nyamira County including the Speaker and the Respondent. They led to the removal of the Speaker of Nyamira County from office.
Part of the Petitioner's contention was that the removal of the Speaker was selective. The Petitioner sought interim orders to prevent the Respondent from chairing any procurement meeting for the Nyamira County Assembly until his Application was heard and determined.

Issues:

  1. Whether the Petitioner had locus standi to institute the Petition.
  2. Whether conservatory orders could be granted to restrain a county official from chairing procurement meetings, as part of his official functions, while a procurement dispute was pending in court.

Constitutional Law-locus standi-public interest-locus standi to sue on behalf of voters-whether a Petition could be brought by an individual on behalf of himself and an electorate in a County against an official of a County Assembly-Constitution of Kenya 2010, articles 22(1), 22(2), 258(1) & 258(2).

Constitutional Law-conservatory orders-circumstances in which conservatory orders would be granted-prima facie case-whether conservatory orders would be granted on the basis of recommendations arising from an investigation. Read More...

Held:

  1. The Constitution of Kenya 2010 granted an individual wider scope in terms of locus standi (the right to sue) as compared to section 84(1) of the repealed Constitution. Under section 84(1) locus standi existed only where a contravention related to the Petitioner's rights personally and to the rights of a detained person. Articles 22(1) & (2) and 258(1) & (2) of the Constitution of Kenya 2010 conferred upon a person the right to bring an action in public interest and also in relation to a right or fundamental freedom.
  2. The Petition was filed by the Petitioner on his own behalf, on behalf of the residents of Nyamira County and also in public interest. Those persons had a genuine interest in the functioning of the Nyamira County Assembly and the way the health cover for the members of the County Assembly was procured. The functions of the County impacted on the Petitioner and the ordinary residents of Nyamira County.
  3. A party seeking conservatory orders was required to demonstrate that he had a prima facie case with a likelihood of success. Additionally, such a party had to show that if the orders were not granted, there was real danger that he would suffer prejudice as a result of a violation or threatened violation of the Constitution.
  4. The Petitioner had failed to demonstrate the existence of a prima facie case as the recommendations did not mean that the Respondent had to be removed from office. Furthermore, the Petitioner had not tendered evidence that the recommendations had been adopted or endorsed by the County Assembly of Nyamira. Similarly documentary evidence, detailing the circumstances in which the Speaker of Nyamira County had been impeached, was not tendered.

Application dismissed.
CONSTITUTIONAL LAW The Commission on Administrative Justice cannot investigate a matter already under investigation by another commission.

Republic v Commission on Administrative Justice Ex-Parte National Social Security Fund Board of Trustees
High Court of Kenya at Nairobi, Judicial Review Division
J.R Case No. 304 of 2014
W. Korir J.
July 10, 2015.
Reported by Njeri Githang’a & Elizabeth Apondi

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Brief facts:
Through a Notice of motion application the ex-parte Applicant, the National Social Security Fund (NSSF) Board of Trustees prayed for an order of Certiorari to remove into the High Court and quash the whole Investigations Report by the Ombudsman-Kenya on Abuse of Power and Disregard of Procurement Procedures by the Ag, CEO and the Management of NSSF in the awarding of Tassia II Infrastructure Development Project (April, 2014) and the costs for the application.
The Applicant’s case was that by a letter dated 17th January, 2014, the Chairperson of the Respondent (the commission) requested the Managing Trustee of the Applicant to respond to allegations enumerated in the letter of Francis Atwoli in regard to Tassia II Regularization Scheme Infrastructure Development (the Project). The applicant responded to the letter and informed the respondent that its management had been invited to appear before the Public Investments Committee (PIC) of the National Assembly and the Ethics and Anti-Corruption Commission (EACC) to answer allegations regarding the Project. The respondent however proceeded to investigate two issues namely the approval of the contract by the Board of the Applicant and the administrative management of the process leading to the award of the contract. It was the Applicant‘s case that the Respondent’s decision to proceed with the investigation and draft Investigations Report (the Report) on the Project and its findings and recommendations was in breach of Section 30(h) of the CAJA and the court should order the removal of the report from court.
The Respondent’s case was that it was a constitutional commission established following the restructuring of the Kenya National Human Rights and Equality Commission pursuant to article 59(4) of the Constitution. Pursuant to article 59(5) of the Constitution as read together with section 4 of the CAJA, it had the status and powers of a commission within the meaning of Chapter 15 of the Constitution of Kenya and had been given a wide mandate under articles 59(2) (h)–(k), 249 and 252 of the Constitution as read with sections 8, 26, 27, 28 and 29 of the CAJA. Such mandate amongst other things included; to investigate any conduct in state affairs or any act or omission in public administration in any sphere of government, and complaints of abuse of power, unfair treatment, manifest injustice or unlawful, oppressive, unfair or unresponsive official conduct and further to deal with maladministration through conciliation, mediation and negotiation where appropriate. The Respondent postulated that any legislation or policy that sought to constrict or hinder exercise of its jurisdiction was in breach of the express provisions of the Constitution. It was further argued, that section 31 of the CAJA expressly provided that the powers of the Respondent whilst investigating an administrative action shall not be limited by any provision in any written law.

Issues:

  1. Whether article 59(2) of the Constitution of Kenya, 2010 only envisaged two commissions which were the Kenya National Commission on Human Rights established by the Kenya National Commission on Human Rights Act, under Article 59(2) of the Constitution and the National Gender and Equality Commission created by the National Gender and Equality Commission Act, 2011
  2. Whether the Commission on Administrative Justice acted in breach of section 30(h) of the CAJA by delving into a matter already under the investigation by the EACC and two committees of the National Assembly.
  3. Whether the Commission on Administrative Justice fell within the ambit of public service as contemplated by article 260 of the Constitution and section 29(1) of the CAJA.
  4. Whether the Commission on Administrative Justice had jurisdiction over NSSF.

Constitutional Law-state corporations-constitutional commissions-Commission on Administrative Justice-whether article 59(2) of the Constitution 2010 did not envisage the CAJ-whether the Commission fell within the ambit of public service as contemplated by article 260 of the Constitution-whether the Commission could investigate a matter already under investigation by other commissions- Constitution of Kenya 2010, articles 59(2)(h)-(k) & (4) Read More...

Constitution of Kenya
Articles 59(2)(h)-(k) & (4)
2. The functions of the Commission are—

(h) To investigate any conduct in state affairs, or any act or omission in public administration in any sphere of government, that is alleged or suspected to be prejudicial or improper or to result in any impropriety or prejudice;
(i) To investigate complaints of abuse of power, unfair treatment, manifest injustice or unlawful, oppressive, unfair or unresponsive official conduct;
(j) To report on complaints investigated under paragraphs (h) and (i) and take remedial action; and
(k) To perform any other functions prescribed by legislation.”

(4) Parliament shall enact legislation to give full effect to this Part, and any such legislation may restructure the Commission into two or more separate commissions.

Article 260
“public office” means an office in the national government, a county government or the public service, if the remuneration and benefits of the office are payable directly from the Consolidated Fund or directly out of money provided by Parliament;
Commision on Administrative Justice Act.

Section 2
“Administrative action” means any action relating to matters of administration and includes—

(a) A decision made or an act carried out in the public service;
(b) A failure to act in discharge of a public duty required of an officer in public service;
(c) The making of a recommendation to a Cabinet Secretary; or
(d) An action taken pursuant to a recommendation made to a Cabinet Secretary;

Section 30
The Commission shall not investigate—

(a) Proceedings or a decision of the Cabinet or a committee of the Cabinet;
(b) A criminal offence;
(c)A matter pending before any court or judicial tribunal;
(d) The commencement or conduct of criminal or civil proceedings before a court or other body carrying out judicial functions;
(e) The grant of Honours or Awards by the President;
(f) A matter relating to the relations between the State and any foreign State or international organization recognized as such under international law;
(g) Anything in respect of which there is a right of appeal or other legal remedy unless, in the opinion of the Commission, it is not reasonable to expect that right of appeal or other legal remedy to be resorted to; or
(h) Any matter for the time being under investigation by any other person or Commission established under the Constitution or any other written law.

Held:

  1. Submissions were generally parties’ marketing language, each side endeavoring to convince the court that its case was the better one and did not constitute evidence. There were many cases decided without hearing submissions but based only on evidence presented.
  2. Article 59(4) gave room to Parliament to split the Kenya National Human Rights and Equality Commission into two or more separate commissions. The claim that article 59 only envisaged two entities was therefore not correct.
  3. Although state corporations did not receive monies from the Consolidated Fund, they were empowered by Parliament through legislation to raise income through levies and other commercial ventures. Further, state corporations received funds from Parliament through their respective Ministries and fit the description in article 260 regarding funds from Parliament.
  4. Public fund had the meaning assigned to it by the Exchequer and Audit Act. Public money was said therefore to include; revenue, any trust or other moneys held, whether temporarily or otherwise by an officer in his official capacity, either alone or jointly with any other person, whether an officer or not.
  5. NSSF fell under the jurisdiction of the Commission on Administrative Justice it being a public corporation.
  6. The real purpose of the independence clause, with regard to Commissions and independent offices established under the Constitution, was to provide a safeguard against undue interference with such Commissions or offices, by other persons, or other institutions of government. Such a provision was incorporated in the Constitution as an antidote, in the light of regrettable memories of an all-powerful Presidency that, since Independence in 1963, had emasculated other arms of government, even as it irreparably trespassed upon the fundamental rights and freedoms of the individual.
  7. The Constitution established the several independent Commissions, alongside the Judicial Branch, entrusting to them special governance-mandates of critical importance in the new dispensation; they were the custodians of the fundamental ingredients of democracy, such as rule of law, integrity, transparency, human rights, and public participation.
  8. The several independent Commissions and offices were intended to serve as ‘people’s watchdogs’ and, to perform that role effectively, they had to operate without improper influences, fear or favour: which was the purpose of the “independence clause”.
  9. While the various Commissions and independent offices were required to function free of subjection to “direction or control by any person or authority”, that expression was to be accorded its ordinary and natural meaning; and it meant that the Commissions and independent offices, in carrying out their functions, were not to take orders or instructions from organs or persons outside their ambit.
  10. The Commissions or independent offices had to operate within the terms of the Constitution and the law: the “independence clause” did not accord them carte blanche to act or conduct themselves on whim; their independence was, by design, configured to the execution of their mandate, and performance of their functions as prescribed in the Constitution and the law.
  11. Independence did not mean detachment, isolation or disengagement from other players in public governance. An independent Commission would often find it necessary to co-ordinate and harmonize its activities with those of other institutions of government, or other Commissions, so as to maximize results, in the public interest. Constant consultation and co-ordination with other organs of government, and with civil society as may be necessary, would ensure a seamless, an efficient and effective rendering of service to the people in whose name the Constitution had instituted the safeguards in question.
  12. Commissions and independent offices were not to plead independence as an end in itself; for public-governance tasks were apt to be severely strained by possible clashes of independences.
  13. A commission like the Commission on Administrative Justice was expected to operate within its constitutional and statutory mandate and cooperate with other state organs, public agencies and commissions. The aim was to ensure smooth operations that would deliver maximum benefits for the people of Kenya in whose interest the Constitution was promulgated. An expansionist commission would end up causing disharmony and thereby stalling delivery of services.
  14. The roles of the Commission on Administrative Justice and EACC ran into each other and it was not easy to separate complaints of maladministration from those of corruption for the two evils were more often intertwined. For instance an officer of a public body who demanded a bribe before giving service was likely to delay delivery of service to a member of the public. In such a situation one would find both a case of lack of integrity which fell under the jurisdiction of EACC and a case of maladministration which was in the province of the Respondent. The commissions should therefore be able to coordinate their operations in a manner that maximized returns on the public funds allocated to them.
  15. Where the commissions were not willing to harmoniously give way to each other, section 30 of the CAJA became useful.
  16. The need to respect human rights was very important in the governance of the country and where there was an allegation of maladministration the Commission on Administrative Justice was under a duty to enquire into the complaint and act in accordance with the powers bestowed on it by the Constitution and legislation. The commission in the instance had jurisdiction to investigate the matter although the nature of the complaints could have been better dealt with by EACC.
  17. It was apparent that under section 30(h) CAJA Parliament intentionally limited the jurisdiction of the Commission on Administrative Justice in the identified circumstances. The reason for that limitation was that there was need to avoid conflicts between the Commission and other state agencies. The limitation was therefore reasonable considering that the Commission was not a super commission capable of investigating all the things done by state organs. Where another commission or any other person established by the Constitution or any other written law was dealing with a particular issue, the commission had no jurisdiction to venture into that matter.
  18. A Court’s jurisdiction flow from either the Constitution or legislation or both. Thus, a Court of law could only exercise jurisdiction as conferred by the constitution or other written law. It could not arrogate to itself jurisdiction exceeding that which was conferred upon it by law.
  19. Where the Constitution exhaustively provided for the jurisdiction of a Court of law, the Court had to operate within the constitutional limits. It could not expand its jurisdiction through judicial craft or innovation. Nor could Parliament confer jurisdiction upon a Court of law beyond the scope defined by the Constitution. Where the Constitution conferred power upon Parliament to set the jurisdiction of a Court of law or tribunal, the legislature would be within its authority to prescribe the jurisdiction of such a court or tribunal by statute law.
  20. The principles were applicable to the jurisdiction of all state corporations, government agencies and commissions. None of them had unlimited mandates and they could only do that which they were established to do. The commission’s jurisdiction was not limitless. It could only do that which the Constitution and the law allowed it to do and nothing more.
  21. The EACC acted in the manner expected of any good public organization by advising the applicant to cooperate with the CAJ as it could have had a lawful reason for carrying out the investigation and writing to the respondents asking them to have the areas that they were investigating to avoid duplicity.
  22. The key reason why no more than one public agency should be engaged in investigation of the same matter was that it was a waste of public resources.
  23. The jurisdiction of the Respondent was only taken away by section 30(h) of the CAJA where the matter was “for the time being under the investigation of any other person or Commission...” The matter under investigation by another body should be the same with the matter under investigation by the Respondent.
  24. The Applicant had not demonstrated that the issues under investigation by EACC were the same with those under the investigation by the commission. It was also not clear whether by the time the Respondent commenced its investigations, EACC had already started its investigations. The same position applied to the investigations by the two parliamentary committees.

Application dismissed with an order that each party to bear its costs as the applicants’ case was not frivolous.