Court upholds the law (National Flag, Emblems and Names Act) allowing only the President, Deputy President and the Speakers of the National Assembly and the Senate to fly the national flag on their official motor vehicles

Council of County Governors v Inspector General of National Police Service & 3 others [2015] eKLR

Petition 298 of 2014

High Court of Kenya

I. Lenaola, J

September 11, 2015

Reported by Nelson Tunoi and John Ribia

Download the Decision

Brief facts:

The Council of Governors filed a petition challenging the constitutionality of the National Flag, Emblems and Names (Amendment) Act 2014. In particular, the petitioner challenged section 4A of the Act which prohibited all persons from flying the national flag in their motor vehicles, save for the President, the Deputy President, the Chief Justice, the Speakers of the National Assembly and the Senate. The petitioner claimed that the Act did not accord to the letter and spirit of the Constitution, more particularly the provisions relating to devolution and national values established under article 10 of the Constitution of Kenya 2010. The petitioner also contended that section 4A of the National Flag, Emblems and Names (Amendment) Act 2014 violated the petitioners’ freedom of expression as set out in article 33 of the Constitution of Kenya 2010.

The petitioner thus sought a declaration that the provision of the National Flag, Emblems and Names (Amendment) Act 2014 was unconstitutional, and a permanent injunction that prohibited the 1st and 2nd respondents from initiating investigations and commencing criminal proceedings against County Governors on account of breach of section 4A of the National Flag, Emblems and Names (Amendment) Act 2014.

Issues:

  1. Whether section 4A of the National Flag, Emblems and Names (Amendment) Act, 2014, which restricted the flying of the national flag on motor vehicle to specific state officers, contravened certain constitutional provisions hence unconstitutional.

  2. Whether the National Flag, Emblems and Names (Amendment) Act 2014 was a Bill concerning Counties within the meaning of article 110 of the Constitution and that without the participation of the Senate it was rendered unconstitutional.

  3. Whether the petitioner (Council of Governors) had locus standi to institute the petition before court.

  4. Whether the petition before court met the constitutional threshold established in the case of Anarita Karimi v Republic (1976-1980) 1 KLR 1272 requiring that constitutional petitions be pleaded with reasonable precision.

Constitutional Law fundamental rights and freedoms – freedom of expression – petition challenging the constitutionality of the National Flag, Emblems and Names (Amendment) Act, 2014 - whether section 4A of the National Flag, Emblems and Names (Amendment) Act, 2014 violated the petitioners’ freedom of expression in the context that flying the national flag fostered national unity and patriotism – whether the petition had merit - Constitution of Kenya, 2010, articles 33, 258(2) & 260; National Flag, Emblems and Names (Amendment) Act 2014, section 4A

Constitutional Law - locus standi - whether the Council of County Governors had the locus standi to institute a constitutional petition alleging contravention of a fundamental freedom through a legislative process - whether the petition met the constitutional threshold established in the case of Anarita Karimi v Republic (1976-1980) 1 KLR 1272 requiring that constitutional petitions be pleaded with reasonable precision - Constitution of Kenya, 2010 articles 1(1) & (4), 2(1) & (2), 3(1), 6(2), 9(1), 10, & 189(1)(a); National Flag, Emblems and Names (Amendment) Act 2014, section 4A

National Flag, Emblems and Names (Amendment) Act, 2014

Section 4A:

“(1) A person shall not fly the national flag on any motor vehicle.

(2) Notwithstanding subsection (1), the President, the Deputy-president, the Chief Justice, the Speaker of the National Assembly and the Speaker of the Senate may fly the national flag on a motor vehicle.

(3) A person who contravenes subsection (1) commits an offence and shall be liable, on conviction, to a fine not exceeding one million shillings or to imprisonment for a term not exceeding five years, or both.”

Held:

  1. The Constitution guaranteed all persons the right to institute Court proceedings claiming the Constitution had been or was threatened with contravention. Persons in a juristic sense needed not be incorporated. Under article 260 of the Constitution of Kenya 2010 a person included a ‘body of person whether incorporated or unincorporated’. The Council of Governors was established under section 19(1) of the Intergovernmental Relations Act as a body that consisted of governors of the forty-seven counties; as such the petitioner was a body of persons and therefore had the requisite locus standi to institute a claim for alleged violation of the Constitution.
  2. Though the Constitution of Kenya (Enforcement of Fundamental Rights and Freedoms) Practice and Procedure Rules 2013 did not strictly require formalistic pleadings, the petitioner had met the threshold set out in Anarita Karimi v Republic (1976-1980) 1 KLR 1272 requiring that constitutional petitions be pleaded with reasonable precision. Hence the petition had set out the legal foundation, the facts relied upon, the manner in which the Constitution had been violated and the remedies sought from the Court.
  3. There was a general presumption that every Act of Parliament was constitutional and the burden of proof lay with persons who alleged otherwise. The role of the court was not to interrogate the wisdom of enacted laws. The courts could not act as “regents” over what was done in Parliament because such an authority did not exist. The only power the court had was the power of judgment. The court neither approved nor condemned any legislative policy.
  4. The court in examining whether a particular statutory provision was unconstitutional ought to have regard to its purpose and its effect. Both purpose and effect were relevant in determining constitutionality; either an unconstitutional purpose or an unconstitutional effect could invalidate legislation. All legislation was animated by an object the legislature intended to achieve. That object was realized through impact produced by the operation and application of the legislation. Purpose and effect respectively, in the sense of the legislation’s object and its ultimate impact, were clearly linked, if not indivisible. Intended and achieved effects had been looked to for guidance in assessing the legislation’s object and thus the validity.
  5. The National Government had not unlawfully and exclusively appropriated the use of the National flag to itself. It was within the mandate of Parliament to enact a law that governed the use of the National Flag as an important National symbol. Section 4A of the National Flag, Emblems and Names (Amendment) Act 2014, did not negate the use of the flag as a symbol often waved around as part of celebrations of patriotism and was a representative of all the people of Kenya. There was no need to question the wisdom and reasons why Parliament restricted the State Officers authorized to fly the National Flag in their official cars and mere displeasure by the petitioner was no reason to do so.
  6. The principle of equality did not mean that every law had to have universal application for all persons who were not by nature, attainment or circumstances in the same position and the varied needs of different classes of persons required special treatment. Equality meant parity of treatment under parity of conditions. Equality did not connote absolute equality. A classification in order to be constitutional ought to rest upon distinctions that were substantial and not merely illusory. The test was whether it had a reasonable basis free from artificiality and arbitrariness embracing all and omitting none naturally falling into that category. Thus, the courts could uphold a law intended to benefit a class; so long as the legislative classification had a rational relation to some independent and legitimate legislative end.
  7. The amendment did not limit the use of the national flag to the national government only to the exclusion of the county governments, but merely limited the flying of the flag to certain State Officers and not to the exclusion of the County Governors specifically.
  8. The amendment did not violate the petitioner’s members’ freedom of expression. The Statute did not prohibit County Governments from flying the national flag in their respective Counties nor did it make the use of the national flag within the Counties unlawful. Section 4 of the County Governments Act mandated Counties to develop their own symbols, including a County flag, hence the national assembly promoted the principle of distinctness and independence of a County in forging its own identity. Parliament had also promoted the freedom of expression of Counties as well as their uniqueness, creativity and purpose. The law sought to limit the flying of national flag in the official cars and restricted the same to a few State Officers. The amendment was not unconstitutional to that extent and it did not violate the freedom of expression in that context.
  9. County Governments could not enact legislation that mandated a County Governor to fly the national flag on his car as such an action would in essence defeat the purpose of the National Flag, Emblems and Names (Amendment) Act.
  10. The Constitution did not assign the enactment of legislation on national symbols to any of the two levels of Government. However the article 186 (3) of the Constitution was clear that a function not assigned specifically to a County was a function of the national government. The Constitution had mandated Parliament to legislate for the Republic on any matter and in that regard; it had done so by regulating the use of the national flag on motor vehicles.
  11. Procedurally, Speakers of both chambers had to classify Bills under article 110 of the Constitution for them to have input from County governments. The speakers were to essentially resolve the question as to whether and to what extent provisions of a particular Bill affected the interests of County governments and consequently whether County input ought to be invited. However an issue of any national symbol was not an issue that concerned Counties in any way so that it would be a matter for concurrences of the Speakers. It was not a matter that was within the functions of a County Government as provided for under the Fourth and Sixth Schedule to the Constitution of Kenya 2010. The National Flags, Emblems and Names (Amendment) Act also did not concern money and as such it did not require the participation of the Senate in its enactment.
  12. The national flag was one of the symbols of the Republic of Kenya under article 9(a) of the Constitution. In other jurisdictions like the United States of America, it was openly waved, raised and allowed to fly and flitter in the wind in any place at any time. The National Assembly in its wisdom had limited its use on motor vehicles and thus the court was unable to invalidate that decision.

Petition dismissed, parties were to bear their own costs.



Kenya Law
Case Updates Issue 031/2015
Case Summaries

COUNTY GOVERNMENT Section 77 of the County Government Act, 2012 does not oust or restrict the jurisdiction of the ELRC for want of exhaustion of the procedure and remedies envisaged under the section.

Abdikadir Suleiman v County government of Isiolo & Another
Employment and Labour Relations Court of Kenya Nyeri
Cause No. 76 of 2015
July 31, 2015
Byram Ongaya, J
Reported by Njeri Githang’a & Elizabeth Apondi

Download the Decision

Brief Facts:
The claimant filed the memorandum of claim and prayed for judgment against the respondent for an order of restatement in to the claimants position of employment, a declaration that the act of relieving him from his duties was a breach of his constitutional right under article 27, 28, 41 and 50 of Constitution of Kenya, general damages for wrongful dismissal, Kshs.5, 198,000.00 being dues payable to the claimant and costs and interests.
The 1st and 2nd respondents filed the memorandum of response and prayed that the claim be dismissed with costs and pleaded that any person affected by the decision of the County Public Service Board or a person exercising disciplinary control over a public officer in the county government was required to appeal to the Public Service Commission as provided for in section 77 of the County Governments Act, 2012. Thus, it was urged for the respondents that section 77 of the Act restricted and ousted the jurisdiction of the court.
It was submitted for the respondent that section 77(1) used the word “may” suggesting that the claimant had an option to appeal to the Commission or take such other legitimate action such as filing the present suit and that the claimant was questioning the illegal decision by the governor which could only be handled and resolved by the court and not the Commission.

Issues:

  1. Whether section 77 of the County Governments Act, 2012 which provided that any person affected by the decision of the County Public Service Board or a person exercising disciplinary control over a public officer in the county government was required to appeal to the Public Service Commission ousted the jurisdiction of the court where a party had not appealed to the Public Service Commission.
  2. Whether the Employment and Labour Relations Court had jurisdiction to entertain and determine claims of breach of fundamental rights under articles 22 and 23 or enforcement of the Constitution under article 258 of the Constitution as pertains to employment and labour relations matters.

County Government-employment disputes-disciplinary matters- appeal to the Public Service Commission-procedure to be followed under section 77 of the County Government Act, 2012-where the appeal process dealt with the merits or substance of the case and not procedural or legal propriety of the case -whether section 77 of the County Governments Act, 2012 ousted or restricted the jurisdiction of the court where a party had not appealed to the Public Service Commission- County Government Act, 2012 section 77

Constitutional Law-Bill of rights- jurisdiction to entertain and determine claims of breach of fundamental rights -Jurisdiction of the Employment and Labour Relations Court-whether the Employment and Labour Relations Court had jurisdiction to entertain and determine claims of breach of fundamental rights under articles 22 and 23 or enforcement of the Constitution under article 258 of the Constitution as pertains to employment and labour relations matters-Constitution of Kenya 2010 articles 22,23 & 258 Read More...

Constitution of Kenya, 2010
Article 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.
(2) In addition to a person acting in their own interest, court proceedings under clause (1) may be instituted by—

(a) a person acting on behalf of another person who cannot act in their own name;
(b) a person acting as a member of, or in the interest of, a group or class of persons;
(c) a person acting in the public interest; or
(d) an association acting in the interest of one or more of its members.

(3) The Chief Justice shall make rules providing for the court proceedings referred to in this Article, which shall satisfy the criteria that—

(a) the rights of standing provided for in clause (2) are fully facilitated;
(b) formalities relating to the proceedings, including commencement of the proceedings, are kept to the minimum, and in particular that the court shall, if necessary, entertain proceedings on the basis of informal documentation;
(c) no fee may be charged for commencing the proceedings;
(d) the court, while observing the rules of natural justice, shall not be unreasonably restricted by procedural technicalities; and
(e) an organisation or individual with particular expertise may, with the leave of the court, appear as a friend of the court.

(4) The absence of rules contemplated in clause (3) does not limit the right of any person to commence court proceedings under this Article, and to have the matter heard and determined by a court.
Authority of courts to uphold and enforce the Bill of Rights.

Article 23
(1) The High Court has jurisdiction, in accordance with Article 165, to hear and determine applications for redress of a denial, violation or infringement of, or threat to, a right or fundamental freedom in the Bill of Rights.
(2) Parliament shall enact legislation to give original jurisdiction in appropriate cases to subordinate courts to hear and determine applications for redress of a denial, violation or infringement of, or threat to, a right or fundamental freedom in the Bill of Rights.
(3) In any proceedings brought under Article 22, a court may grant appropriate relief, including—

(a) a declaration of rights;
(b) an injunction;
(c) a conservatory order;
(d) a declaration of invalidity of any law that denies, violates, infringes, or threatens a right or fundamental freedom in the Bill of Rights and is not justified under Article 24;
(e) an order for compensation; and
(f) an order of judicial review.

Article 159(1) &(2) (b)
(1) Judicial authority is derived from the people and vests in, and shall be exercised by, the courts and tribunals established by or under this Constitution.
(2) In exercising judicial authority, the courts and tribunals shall be guided by the following principles-
(b) justice shall not be delayed;

Article 162(2)(a)
(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

Article 165(5) & (6)
(5) The High Court shall not have jurisdiction in respect of matters—

(a) reserved for the exclusive jurisdiction of the Supreme Court under this Constitution; or
(b) falling within the jurisdiction of the courts contemplated in Article 162 (2).

(6) The High Court has supervisory jurisdiction over the subordinate courts and over any person, body or authority exercising a judicial or quasi-judicial function, but not over a superior court.

Article 258
(1) Every person has the right to institute court proceedings, claiming that this Constitution has been contravened, or is threatened with contravention.
(2) In addition to a person acting in their own interest, court proceedings under clause (1) may be instituted by—

(a) a person acting on behalf of another person who cannot act in their own name;
(b) a person acting as a member of, or in the interest of, a group or class of persons;
(c) a person acting in the public interest; or
(d) an association acting in the interest of one or more of its members.

Article 234(2)(a)(i)
(2) The Commission shall—

(a) subject to this Constitution and legislation—
(i) establish and abolish offices in the public service; and

County Government Act, 2012
Section 76
(1) In exercising its disciplinary powers, the County Public Service Board shall observe the principles of natural justice.
(2) No public officer may be punished in a manner contrary to any provision of the Constitution or any Act of Parliament.
(3) Nothing in this section shall limit the powers conferred on the county government or any other lawful authority discharging a disciplinary function from retiring an officer from the county public service on the ground of public interest.
(4) In this section, retirement on the ground of public interest may be imposed instead of any other punishment if the decision maker considers that although the misconduct has been proven—

(a)the officer has nevertheless raised a mitigation factor that renders imposition of a punishment too harsh in view of the circumstances of the case; or
(b)the length of service benefits accrued and previous good record ofthe officer justifies the retirement; or
(c) imposing a punishment against the officer is likely to adversely affect the reputation of the public body concerned or the county public service generally.

(5) If criminal proceedings are instituted against a county public officer, disciplinary proceedings against the officer for dismissal or imposition of any other punishment on any grounds involved in the criminal charge shall not be taken until the conclusion of the criminal proceedings and the determination of any appeal therefrom has been made.
(6) Nothing in subsection (5) shall be interpreted as prohibiting or restricting the power of the county government or the concerned county chief officer or other lawful authority to interdict or suspend or take any interlocutory decision against the public officer.

Section 77
1. Any person dissatisfied or affected by a decision made by the County Public Service Board or a person in exercise or purported exercise of disciplinary control against any county public officer may appeal to the Public Service Commission( in this part referred to as the “Commission”) against the decision.
2. The Commission shall entertain appeals on any decision relating to employment of a person in a county government including a decision in respect of-

a. recruitment, selection, appointment and qualifications attached to any office;
b. remuneration and terms of service;
c. disciplinary control;
d. national values and principles of governance under Article 10, and values and principles of public service under Article 232 of the Constitution;
e. retirement and other removal from office;
f. pension benefits, gratuity and any other terminal benefits; or
g. any other decision the Commission considers to fall within its constitutional competence to hear and determine on appeal in that regard.

3. An appeal under subsection (1) shall be in writing and made within ninety days after the date of the decision, but the Commission may entertain an appeal later if, in the opinion of Commission, the circumstances warrant it.
4. The Commission shall not entertain an appeal more than once in respect of one decision.
5. Any person dissatisfied or affected by a decision made by the Commission on appeal in a decision made in a disciplinary case may apply for review and the Commission may admit the application if-

a. the Commission is satisfied that that there appear in the application new and material facts which might have affected its earlier decision, and if adequate reasons for the non-disclosure of such facts at an earlier date are given; or
b. there is an error apparent on record of either decision.

6. An application for review under subsection (5) shall be in writing and made within the time prescribed by the Commission in regulations governing disciplinary proceedings, but the Commission may entertain an application for review later if, in the Opinion of the Commission, the circumstances warrant it.

Held:

  1. Article 234(2) (i) of the Constitution provided that the Public Service Commission was vested with the function and power to hear and determine appeals in respect of county governments’ public service. Article 262 defined “public service” to mean the collectivity of all individuals, other than state officers, performing a function within a state organ.
  2. The power of the Commission to hear and determine appeals in respect of county governments’ public service constitutionally applied only to public officers, and not state officers, in the service of the county governments or any other state organ.
  3. Section 77 of the County Governments Act, 2012 amplified and brought into operation article 234(2) (i) of the Constitution. In considering the constitutional and statutory provisions that empowered the Commission to hear and determine appeals in respect of county governments’ public service, the subject matter was set out in section 77 of the Act but the decisions the Commission may make were not set out in the Act or the Constitution.
  4. In appeals to the Commission, the Commission could only make decisions that the County Public Service Board or relevant lawful authority could have made or vary such decision by simply setting it aside or making a decision that was in the Board’s or the other relevant lawful authority’s jurisdiction to make.
  5. On appeal, the appellate authority applied the same substantive law and facts as applied by the primary authority that made the decision appealed against and generally considered facts as they were presented before the primary authority so that an appellate authority, in absence of anything else, may only set aside the decision appealed against or substitute the decision with any of the remedies that the primary authority was empowered to make. In other words, the appeal process dealt with the merits or substance of the case and not procedural or legal propriety of the case.
  6. In disciplinary matters, section 76 of the County Governments Act, 2012 was elaborate that punishment contrary to the Constitution could not be imposed against a public officer. The section provided that the rules of natural justice must be observed, and the punishment could not be contrary to provisions of the Constitution and Acts of Parliament.
  7. It was clear that the legitimacy of the procedure or punishment imposed as measured against the section 76 of the Act would be an issue of law and therefore not appealable to the Commission but subject to the jurisdiction of the court.
  8. It was not for the County Public Service Board or the person exercising disciplinary control in the county government, as the case may be, to determine a dispute as to its or person’s compliance with section 76 of the Act, and similarly, the Commission would not have jurisdiction to decide such issue on appeal, which essentially would not be conceivable as a matter of a primary decision and therefore subject to the Commission’s appellate jurisdiction under section 77 of the Act.
  9. While making its primary decisions or decisions on appeals, the Commission like any other state organ or person under article 10 of the Constitution, must care and ask itself whether the decision was lawful or legitimate in view of relevant constitutional and statutory provisions, but the original and unlimited jurisdiction to make a finding on legitimacy or lawfulness of decisions rests with the court as vested with the appropriate jurisdiction under article 162 (2) (a) as read with article 165(5) and (6) of the Constitution; article 22(1), and section 12 of the Employment and Labour Relations Act, 2011.
  10. The jurisdiction to determine a dispute as to a person’s compliance with section 76 of the Act and to make a primary conclusive finding thereon was vested in the court and the Commission did not enjoy constitutional or statutory jurisdiction to determine that issue and to make appropriate remedy as was prayed for by the claimant in the case.
  11. The line was thin but clearly set apart matters that could go to the Commission as of necessity in the first instance and those that could be urged before the court as of first instance without having to go through the Commission by reason of exhausting the prescribed alternative and statutory procedure and remedy.
  12. It was clear that legitimacy or lawfulness of the decisions was not one of the listed appealable subject matter under section 77 of the Act and it had not been shown that such would be a matter in the constitutional or statutory competence of the Commission to decide.
  13. The Constitution or legislation may provide that a person or public body or authority shall not be subject to the direction or control of any other person or authority in the exercise of any functions or powers as vested in the person or authority or public body by the Constitution or legislation. The Constitution or legislation may also vest in a person or authority or public body the power or function to consider or entertain given disputes or matters as of first instance or on appeal and to render decisions in that regard in accordance with the prescribed procedures. Such constitutional and legislative provisions should not be construed as precluding a court from exercising the relevant jurisdiction in relation to any question whether that person or authority or public body had exercised the powers or functions in accordance with the Constitution or any other law.
  14. Such provisions did not oust or extinguish or adjourn the court’s jurisdiction to hear and determine a dispute about the legality or the manner of the exercise of the constitutional or statutory powers and functions by the relevant person, public body or authority as may have been vested in the person, public body or authority under the Constitution or statute.
  15. Under article 159(2)(b) justice shall not be delayed and under article 159 (2) (e) the court was guided that in exercise of judicial authority, the purpose and principles of the Constitution shall be protected and promoted. Judicial authority was vested in the judiciary under article 159 (1) and issues of legality of actions or omissions was the immediate and proper primary or original province and jurisdiction of the court and not the penultimate or initially ceded jurisdiction of persons, public bodies and authorities outside the judiciary.
  16. There were no established time lines for appealing and making of the decision by the Commission and the likely consequence was that the claimant may be subjected to irreparable harm such as rendering the cause of action to challenge the alleged illegality time barred.
  17. Looking at the alleged claims of illegality, unconstitutionality, breach of constitutional rights and the remedies as prayed for, it was difficult to find that the cited alternative procedure and remedy under section 77 of the Act was available to the claimant. Even if it was said that it was a case of mixed jurisdiction of the Commission and the court, the legitimate path was to invoke the court’s jurisdiction to hear and determine the intertwined issues, that being the most efficient and effective manner of disposing the dispute.
  18. Section 77 of the County Government Act, 2012 did not oust or restrict the jurisdiction of the court for want of exhaustion of the procedure and remedies envisaged under the section. The ELRC enjoyed the jurisdiction to hear and determine employment and labour relations matters alongside claims of fundamental rights (and enforcement of constitutional and statutory provisions) ancillary and incidental to those matters.
  19. By being of equal status, the High Court therefore did not have the jurisdiction to superintend, supervise, direct, guide, shepherd, and or review the mistakes, real or perceived, of the ELRC and ELC administratively or judiciously as was the case in the past and vice versa, the ELRC and ELC were not the High Court. However, status was not the same thing as jurisdiction. The Constitution though did not define ‘status’
  20. The ELRC and ELC exercised the same powers as the High Court in performance of its judicial function, in its specialized jurisdiction but they were not the High Court.
  21. The original and unlimited jurisdiction to make a finding on legitimacy or lawfulness of decisions in disputes between employers and employees rested with the ELRC as vested with the appropriate jurisdiction under articles 159(1), 162 (2) (a) as read with article 165(5) and (6) of the Constitution; articles 22(1) and 258(1) of the Constitution, and the provisions of the Employment and Labour Relations Act, 2011.
  22. The jurisdiction spread to all issues in the employment relationship and related matters including the enforcement of the fundamental rights and freedoms under article 22 of the Constitution and enforcement of the Constitution under article 258 as far as the issues in dispute evolved, revolved or related to employment and labour relations.
  23. The compass or golden test for the court’s jurisdiction was the subject matter in the dispute namely disputes relating to employment and labour relations as provided for under article 162 (2)(a) of the Constitution and as amplified in the Employment and Labour Relations Act, 2011 and not the remedies sought or the procedure of moving the court or the situ of the applicable law or any other extraneous considerations as may be advanced by or for a litigant.
Preliminary objection dismissed
CONSTITUTIONAL LAW Subordinate Courts and Tribunals do not have Jurisdiction to interpret and enforce the Bill of Rights in the absence of an enabling legislation.

Royal Media Services Ltd v Attorney General & 6 others
Petition No. 466 of 2014
High Court at Nairobi
Milimani Law Courts, Constitutional and Human Rights Division
Mumbi Ngugi, J
July 30, 2015
Reported by Njeri Githang’a & Elizabeth Apondi.

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Brief facts:
The petitioner moved the Court to challenge the decision of the HIV and AIDS Tribunal in which it had ruled that it had the jurisdiction to entertain applications for redress for violation of fundamental rights and freedoms under the Bill of Rights. The petition was premised on the jurisdiction of the High Court to interpret the Constitution as well as its supervisory jurisdiction over subordinate courts and tribunals. The petitioner sought for a declaration that only the High Court and courts of similar status have jurisdiction to hear and determine matters of violation of fundamental rights and freedoms in the bill of rights and that in the absence of a legislation enacted by parliament to give subordinate courts original jurisdiction to hear and determine matters of denial, violation and infringement of right or fundamental freedom in the bill of rights, subordinate courts and tribunals, including the 2nd respondent, did not have jurisdiction to hear and determine matters arising from the bill of rights. The petitioner further sought for a prohibition order directed against the 2nd respondent prohibiting it from hearing and determining issues of violation of fundamental rights under article 28 and 31 raised in tribunal case No. HAT 004 of 2013 and Costs.

The 3rd and 4th interested parties filed grounds of opposition in which they contended that the petitioner had misconstrued the meaning and purport of article 165 (3) (b) as the article did not expressly confer the High Court exclusive jurisdiction to determine questions of violation of constitutional rights; secondly, that the petition was a result of a misapprehension of the nature of the 3rd and 4th interested parties’ claim before the Tribunal which was predicated on sections 20, 21 and 22 as read with section 26 of the HIV and AIDS Prevention and Control Act (hereafter HIV Act) which were complemented by articles 28 and 31 of the Constitution. They further contended that it was ill advised and was the result of a disjunctive interpretation of the Constitution as article 20 (4) confirmed that Tribunals (including the HIV and AIDS Tribunal) were empowered to interpret the Bill of Rights; fourth, that it was legally untenable and if upheld, would render article 23 (2) of the Constitution of no legal sense as it would lead to a preposterous conclusion that no other court or tribunal can entertain any question on the Bill of Rights; and finally, that it undermined the significant and indispensable complementary role tribunals play in Kenya and flies in the face of article 159 (1) of the Constitution.

Issues:

  1. Whether subordinate courts and tribunals such as the HIV and AIDS Tribunal had jurisdiction with respect to interpretation and enforcement of the Bill of Rights in the absence of an enabling legislation.
  2. Whether article 23(2) or 7 of the Sixth Schedule to the Constitution had the intention to confer on the HIV Tribunal the jurisdiction to hear and determine questions of whether a right or fundamental freedom has been violated, infringed or threatened as provided under article 22 of the Constitution.

Constitutional Law -interpretation and enforcement of the Bill of Rights - jurisdiction whether article 23(2) or 7 of the Sixth Schedule to the Constitution had the intention to confer on the HIV Tribunal the jurisdiction to hear and determine questions of whether a right or fundamental freedom has been violated, infringed or threatened as provided under article 22 of the Constitution-Constitution of Kenya Articles 2,20,22,23,165 & 259

Constitutional Law – jurisdiction-jurisdiction of the HIV and AIDS tribunal-whether the HIV and AIDS Tribunal had jurisdiction with respect to interpretation and enforcement of the Bill of Rights-HIV and AIDS Control and Prevention Act section 3, 25 & 26 Read More...

Constitution of Kenya
Article 2 of the Constitution
(1) This Constitution is the supreme law of the Republic and binds all persons and all State organs at both levels of government.
(2) No person may claim or exercise State authority except as authorised under this Constitution.

Article 20
(1) The Bill of Rights applies to all law and binds all State organs and all persons.
(2) Every person shall enjoy the rights and fundamental freedoms in the Bill of Rights to the greatest extent consistent with the nature of the right or fundamental freedom.
(3) In applying a provision of the Bill of Rights, a court shall—
(a) develop the law to the extent that it does not give effect to a right or fundamental freedom; and
(b) adopt the interpretation that most favours the enforcement of a right or fundamental freedom.
(4) In interpreting the Bill of Rights, a court, tribunal or other authority shall promote––
(a) the values that underlie an open and democratic society based on human dignity, equality, equity and freedom; and
(b) the spirit, purport and objects of the Bill of Rights.

Article 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
(1) The High Court has jurisdiction, in accordance with Article 165, to hear and determine applications for redress of a denial, violation or infringement of, or threat to, a right or fundamental freedom in the Bill of Rights.
(2) Parliament shall enact legislation to give original jurisdiction in appropriate cases to subordinate courts to hear and determine applications for redress of a denial, violation or infringement of, or threat to, a right or fundamental freedom in the Bill of Rights.
(3) In any proceedings brought under Article 22, a court may grant appropriate relief, including––

(a) a declaration of rights;
(b) an injunction;
(c) a conservatory order;
(d) a declaration of invalidity of any law that denies, violates, infringes, or threatens a right or fundamental freedom in the Bill of Rights and is not justified under Article 24;
(e) an order for compensation; and
(f) an order of judicial review.

Article 165(3)
(3) Subject to clause (5), the High Court shall have—

(a) unlimited original jurisdiction in criminal and civil matters;
(b) jurisdiction to determine the question whether a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed or threatened;
(c) jurisdiction to hear an appeal from a decision of a tribunal appointed under this Constitution to consider the removal of a person from office, other than a tribunal appointed under Article 144;
(d) jurisdiction to hear any question respecting the interpretation of this Constitution including the determination of—
(i) the question whether any law is inconsistent with or in contravention of this Constitution;

(ii) the question whether anything said to be done under the authority of this Constitution or of any law is inconsistent with, or in contravention of, this Constitution;
(iii) any matter relating to constitutional powers of State organs in respect of county governments and any matter relating to the constitutional relationship between the levels of government; and
(iv) a question relating to conflict of laws under Article 191; and

(e) any other jurisdiction, original or appellate, conferred on it by legislation.

(5) The High Court shall not have jurisdiction in respect of matters—

(a) reserved for the exclusive jurisdiction of the Supreme Court under this Constitution; or
(b) falling within the jurisdiction of the courts contemplated in Article 162 (2).

(6) The High Court has supervisory jurisdiction over the subordinate courts and over any person, body or authority exercising a judicial or quasi-judicial function, but not over a superior court.
(7) For the purposes of clause (6), the High Court may call for the record of any proceedings before any subordinate court or person, body or authority referred to in clause (6), and may make any order or give any direction it considers appropriate to ensure the fair administration of justice.

Article 259
1. This Constitution shall be interpreted in a manner that-

a. Promotes its purposes, values and principles;
b. Advances the rule of law, and the human rights and fundamental freedoms in the Bill of Rights;
c. Permits the development of the law; and
d. Contributes to good governance.

2. Every provision of this Constitution shall be construed according to the doctrine of interpretation that the law is always speaking.

Section 7 of the 6th schedule
All law in force immediately before the effective date continues in force and shall be construed with the alterations, adaptations, qualifications and exceptions necessary to bring it into conformity with this Constitution. If, with respect to any particular matter—

(a) a law that was in effect immediately before the effective date assigns responsibility for that matter to a particular State organ or public officer; and
(b) a provision of this Constitution that is in effect assigns responsibility for that matter to a different State organ or public officer, the provisions of this Constitution prevail to the extent of the conflict.

HIV and AIDS Control and Prevention Act
Section 3

a. Promote public awareness about the causes, modes of transmission, consequences, means of prevention and control of HIV and AIDS
b. Extend to every person suspected or known to be infected with HIV and AIDS full protection of his human rights and civil liberties by-

i. Prohibiting compulsory HIV testing save as provided in this Act;
ii. Guaranteeing the right to privacy of the individual.
iii. Outlawing discrimination in all its forms and subtleties against persons with or persons perceived or suspected of having HIV and AIDS;
iv. Ensuring the provision of basic healthcare and social services for persons infected with HIV and AIDS;

c. Promote utmost safety and universal precautions in practices and procedures that carry the risk of HIV transmission; and
d. Positively address and seek to eradicate conditions that aggravate the spread of HIV infection.

Section 25
Establishes the HIV and AIDS Tribunal which consists of members appointed by the Attorney General as follows:

a. A chairman who shall be an advocate of the High Court of not less than seven years standing;
b Two advocates of the High Court of not less than five years standing;
c. Two medical practitioners recognized by the Medical Practitioners and Dentists Board as specialists under the Medical Practitioners and Dentists Act (Cap 253); and
d. Two persons having such specialized skill or knowledge necessary for the discharge of the functions of the Tribunal.

Section 26
1. The Tribunal shall have jurisdiction-

a. To hear and determine complaints arising out of any breach of the provisions of this Act;
b. To hear and determine any matter or appeal as may be made to it pursuant to the provision of this Act; and
c. To perform such other functions as may be conferred upon it by this Act or by any other written law being in force.

2. The jurisdiction conferred upon the Tribunal under subsection (1) excludes criminal jurisdiction.

Held:

  1. The Constitution had given guidance on how it was to be interpreted. Article 259 thereof required that the Court, in considering the constitutionality of any issue before it, interpreted the Constitution in a manner that promoted its purposes, values and principles, advanced the rule of law, human rights and fundamental freedoms in the Bill of Rights and that contributed to good governance.
  2. Article 159(2) (e) of the Constitution required the Court, in exercising judicial authority, to do so in a manner that protected and promoted the purpose and principles of the Constitution. In interpreting the Constitution, court was enjoined to give it a liberal purposive interpretation.
  3. The Constitution of a nation was not simply a statute which mechanically defined the structures of government and the relationship between the government and the governed. It was a ‘mirror reflecting the national soul’; the identification of ideals and aspirations of a nation; the articulation of the values bonding its people and disciplining its government. The spirit and the tenor of the Constitution must, therefore, preside and permeate the processes of judicial interpretation and judicial discretion.
  4. Court was required, in interpreting the Constitution, to be guided by the principle that the provisions of the Constitution must be read as an integrated whole, without any one particular provision destroying the other but each sustaining the other.
  5. Article 22 of the Constitution, which was titled “Implementation of Rights and Fundamental Freedoms”, must be read with article 23 titled “Authority of Courts to uphold and enforce the Bill of Rights.” Article 23 made reference to the jurisdiction of the High Court under article 165 in providing that the High Court had jurisdiction to hear and determine applications for redress of a denial, violation or infringement of, or threat to, a right or fundamental freedom.
  6. The use of the phrase in article 23(2) “to give original jurisdiction in appropriate cases…” was instructive. It was recognition that the Constitution as it currently stands, and in the absence of legislation under article 23(2), had vested original jurisdiction in the High Court and courts of equal status to the High Court to determine applications for redress of violation or threatened violation of fundamental rights. Such jurisdiction was not exclusive, and could not be exercised by any subordinate court or tribunal in the absence of enabling legislation.
  7. If HIV and Aids Tribunal had jurisdiction under article 23(1) even in the absence of legislation, then it should follow that it would have jurisdiction to grant the reliefs set out under article 23(3). If the tribunal, or the 3rd and 4th interested parties claimed that the Tribunal had all the jurisdiction and powers set out in Article 23 that would clearly be an unconstitutional arrogation or assumption of jurisdiction that it did not have.
  8. Article 20 related to the application of the Bill of Rights. It bound all state organs and persons. It must be at the forefront of all actions taken by all state organs, including courts, tribunals and “other authorities”. This article did not, however, relate to the upholding and enforcement of the Bill of Rights, which was currently vested by article 22, 23 and 165 in the High Court. In appropriate cases, in accordance with legislation, Parliament may vest jurisdiction to uphold and enforce the Bill of Rights on subordinate courts. That was not the case currently.
  9. The HIV and AIDS Prevention and Control Act, which was enacted in 2006 and revised in 2012, was enacted to provide for the prevention, management and control of HIV and AIDS, to provide for the protection and promotion of public health and for the appropriate treatment, counseling, support and care of persons infected or at risk of HIV and AIDS infection, and for connected purposes.
  10. The Act was enacted in 2006, prior to the promulgation of the Constitution 2010 with its very expansive Bill of Rights. The difficulty with the interpretation of its jurisdiction by the Tribunal with respect to matters pertaining to the Bill of Rights was that it seemed to seek to interpret the Constitution to make it accord with the provisions of the Act, rather than the reverse.
  11. As at 2006, when there were no clear provisions relating to discrimination on the basis of one’s HIV status, the HIV Act was enacted to fill the gap. However, even then, it was not clear that the provisions would have extended its jurisdiction to determining the question of whether a particular act was a violation of the right to non-discrimination and privacy, the latter of which was introduced in the Bill of Rights by the 2010 Constitution.
  12. The Constitution of Kenya 2010 vested such jurisdiction in the High Court, unless Parliament vests such jurisdiction, in appropriate cases, in subordinate courts. The court could not read in the provisions of article 23(2) or 7 of the Sixth Schedule to the Constitution an intention to confer on the HIV Tribunal the jurisdiction to hear and determine questions of whether a right or fundamental freedom has been violated, infringed or threatened as provided under Article 22 of the Constitution.
  13. (Obiter) “There may be a need to re-consider the provisions of the HIV and AIDS Control Act with respect to the rights of persons with HIV and AIDS. The question may arise as to whether it is not a form of discrimination for matters related to their rights to be subjected to the Tribunal, while others are open to litigation before the High Court.”

Petition allowed. The declarations and the prohibition order granted as prayed for with an order that each party should bear its costs.

INTERNATIONAL LAW

International organizations exempted from legal process unless immunity is waived upon application for a waiver to the minister

Josephine Wairimu Wanjohi v International Committee of the Red Cross
Civil Appeal No. 100 of 2010
High Court of Kenya at Nairobi
J K Sergon, J
July 30, 2015
Reported by Beryl A Ikamari and Robai Nasike Sivikhe

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Brief facts:
The appellant was involved in a road traffic accident allegedly occasioned by the respondent’s driver while driving a vehicle belonging to the respondent. The appellant sued the respondent at the lower court, seeking recovery of damages from the respondent.
At the lower court, the respondents filed an application stating that they were exempted from legal processes by virtue of section 9 and the Fourth Schedule of the Privileges and Immunities Act hence the suit should be struck out. According to the respondents, the appellants ought to have applied for a waiver before instituting the suit. The appellant argued that absolute immunity was against public policy since the legal action covered contractual and tortuous acts. Furthermore, the minister had no power under section 9 of the act to waive the jurisdiction of the act.
The trial court allowed the respondent’s application and struck out the suit on grounds that it could not carry on with proceedings unless immunity enjoyed by the respondents was waived. The appellant filed an appeal to the high court against this ruling.

Issue:

  1. Whether the respondent was exempted from legal process by virtue of provisions of the Privileges and Immunities Act unless immunity was waived.

International Law- privileges and immunities- privileges and immunities of international organizations- exemption from legal process due to entitlement to privileges and immunities – application for waiver of immunity before commencing legal processes against international organizations - whether legal process against an international organization can continue without application for waiver-Constitution of Kenya, 2010, article 2 (5) & 2 (6); Treaty Making and Ratifications Act, No. 45 of 2012; Privileges and Immunities Act, (Cap. 179), Section 9 & section 17. Read More...

Constitution of Kenya, 2010, Article 2(5) and (6)
Article 2 (5) and (6)
2 (5) the general rules of international law shall form part of the law of Kenya.
(6)Any treaty or convention ratified by Kenya shall form part of the law of Kenya under this Constitution.

Privileges and Immunities Act, Cap 179, Laws of Kenya
Section 9
9) Privileges, etc., of certain international organizations and persons connected therewith
(1) This section shall apply to an organization which the Minister may, by order, declare to be an organization of which Kenya, or the Government, and one or more foreign sovereign powers, or the government or governments thereof, are members.
(2) The Minister may, by order—
(a) provide that an organization to which this section applies (hereinafter referred to as the organization) shall, to such extent as may be specified in the order, have the immunities and privileges set out in Part I of the Fourth Schedule to this Act, and shall also have the legal capacities of a body corporate;

Section 17
17) Making of orders
Any order made under this Act shall, unless a draft thereof has been laid before Parliament and approved by resolution before the making thereof, be laid before Parliament without unreasonable delay, and, if a resolution is passed by Parliament within twenty days on which Parliament next sits after such order is laid before it that the order be annulled, it shall thenceforth be void, but without prejudice to the validity of anything previously done thereunder, or to the making of a new order.

Held:

  1. Kenya’s jurisprudence embraced absolute foreign sovereign immunity courtesy of the application of Vienna Conventions on Diplomatic Relations, and other privileges and immunities. In effect no suit could be entertained against a foreign sovereign without a waiver by the foreign sovereign. That position was affirmed through enactment of the Privileges and Immunities Act.
  2. Judicial precedent had, however, departed from the absolute Immunity approach. Hence, the test applicable when dealing with diplomatic immunity became whether or not the foreign sovereign was acting in a governmental or private capacity. Consequently, protection could not be afforded in private transactions. The driver was allegedly driving the respondent’s vehicle hence it was presumed that he was acting in the course of his employment. For that reason, the respondent was afforded immunity.
  3. In the interpretation of the Constitution of Kenya, 2010, a treaty or convention once ratified by Kenya was adopted as part of the laws of Kenya without the necessity of a domesticating statute. That position was cured by the Treaty Making and Ratification Act which gave effect to article 2(6) of the Constitution. The Act addressed issues of initiation of treaties and consideration and approval by cabinet and Parliament before domestic application of the treaty. However, the Act only applied to treaties concluded by Kenya after its commencement.
  4. The applicable law with regard to international organizations was the Privileges and Immunities Act. Section 9 of the Privileges and Immunities Act provided that a minister could make an order declaring that an organization was an organization in which Kenya, or the Government or any foreign sovereign power(s) were members. In such an order, the minister could stipulate that the immunities and privileges set out in Part I of the Fourth Schedule applied to the organization. That order would have to be presented before Parliament for approval as per section 17 of the Privileges and Immunities Act.
  5. The ministerial order in relation to the respondent was made by L.N 115 of 1996. That meant that the respondent enjoyed the privileges and immunities set out in Part I of the Fourth Schedule while carrying out its operations in Kenya.
  6. It was undisputed that the respondent was an international organization. Furthermore, its driver was in the course of business when the accident occurred.

Appeal dismissed. Trial court’s ruling and orders upheld.

CIVIL PRACTICE AND PROCEDURE The purpose of cross-examination is to clarify facts.

The Law Society of Kenya v Faith Waigwa and 9 others
Civil case No. 196 of 2015
High court at Nairobi
J K Sergon, J
July 27, 2015
Reported by Teddy Musiga & Daniel Hadoto

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Brief facts:
The plaintiff’s advocate made an application for leave to cross-examine the 1st, 3rd, 6th and 7th defendants respectively over averments they made in affidavits they swore in response to the averments made the plaintiff‘s C.E.O (Apollo Mboya). Naturally the defendants vehemently objected to the application.

Issue:

  1. What is the rationale for cross-examination?

Civil Practice and Procedure – evidence- affidavits- averments in affidavits- cross examination on averments in affidavits- power of court to order for cross examination in averments. Read More...

Held:

  1. Cross-examination of witnesses was a mechanism which used to bring out desirable facts, to modify or clarify or to establish the cross-examiner’s case. In other words, cross-examination was meant to extract the qualifying facts or circumstances left out by a witness in a testimony given in examination in chief.
  2. The exercise of cross-examination was intended to impeach the credit worthiness of a witness. In cross-examination a witness could be asked questions tending for example to expose the errors, contradictions, omissions and improbabilities. In the process, the veracity of a witness’s averments was tested.
  3. The exercise of cross-examination in some cases gave the court an early chance to get the glimpse of what to expect during the substantive hearing. This could assist the court in making the necessary directions at the pre-trial conferences envisaged under order 11 of the Civil Procedure Rules.
  4. The process of cross-examination could not be used to convert the hearing of an interlocutory application into a mini or full trial of the suit. It was a difficult balancing act which the court had to live with for a long time. It was also a process which was sparingly used because it could lead to a considerable delay in concluding an otherwise straightforward dispute.
  5. Under order 19 rule 2(1) of the Civil Procedure Rules the high court was given a wide discretion to order attendance of a deponent for cross-examination on the application of either party. Such an application had to be made in good faith and not on the spar of the moment or just because the other side had successfully done so.
  6. The affidavits subject of the application at times took totally different directions. At some point they appeared to contradict each other. There was need to settle those questions by interrogating by way of cross-examination of the contentious and contradictory positions that have emerged.

Obiter-The issues sought to be interrogated by cross- examination appeared to be substantive and were likely to give the way forward on the hearing and determination of the substantive suit. It was time learned counsels and their clients chose to comply with the provisions of Order 11 of the Civil Procedure Rules and thereafter a pre-trial conference could be undertaken to instead have the substantive suit heard and determined expeditiously.

Defendants summoned to attend court for the purpose of cross examination and re-examination.

CIVIL PROCEDURE AND PRACTICE Limitation of time stops running where parties to a labour dispute are engaged in conciliation or any other non- adjudicatory mechanism.

Kenya Union of Commercial, Food and Allied Workers v Water Resource Management Authority & another
Employment and Labour Relations Court of Kenya at Kericho
Cause No. 1 of 2015
D.K.N Marete J
July 24, 2015
Reported By Njeri Githang’a & Elizabeth Apondi

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Brief facts:
The respondent in the suit filed a preliminary objection claiming that the suit was time barred in that the cause of action, the termination of the employment of the grievant was on 12th February, 2010 and that was vide a letter of termination of the same date and took effect thereon. According to the respondent, the computation of time therefore started on that date and in accordance with section 90, Employment Act, 2007, the grievant had three years from that date to commence proceedings in court which lapsed on February 11, 2013 but the suit was filed on January 6, 2015 two years down the line and without leave of court.
The respondent further claimed that the claimant did not have the locus standi in the matter as she did not have a standing recognition agreement and therefore a Collective Bargaining Agreement with the Respondents and therefore no compliance with section 54 of the Labour Relations Act, 2007
The claimant submitted that as at the time of filing the claim herein, the grievant had not been issued with a letter of termination and the dispute had been referred to a conciliation process and therefore the issue of the time when the cause of action arose was not clear-cut and would require further investigation to ascertain.
The claimant/respondent further rubbished the preliminary objection on grounds that to establish the claimants' labour relationship with the respondent would also require further enquiry and investigations and insisted that the requirement of delving into a further inquiry to ascertain data on the parties labour relationship drowns the respondent's claim in objection. The ground of objection on the basis of lack of jurisdiction therefore also faltered.

Issues:

  1. Whether limitation of time in Employment disputes runs from the date of termination of employment where the parties had been engaged in conciliation.
  2. Whether a trade union had the locus standi to institute a suit during that time when it did not have a standing recognition agreement.
  3. Whether a preliminary objection could succeed where the points of law raised by the objector required further investigation.

Civil Procedure and Practice-preliminary objection-nature of preliminary objection-whether a preliminary objection could succeed where the points of law raised by the objector required further investigation

Employment Law-time-limitation of actions-civil actions under the Employment Act -unlawful termination of employment-when the cause of action arises-whether limitation of time run from the date of termination of employment where the parties had been engaged in conciliation, Employment Act section 90,

Labour Law- collective bargaining- locus standi-whether a trade union could institute a suit on behalf of its members during that period that it had no standing recognition agreement- Labour Relations Act, 2007 section 54 Read More...

Constitution of Kenya, 2010
Article 159
(1) Judicial authority is derived from the people and vests in, and shall be exercised by, the courts and tribunals established by or under this Constitution.
(2) In exercising judicial authority, the courts and tribunals shall be guided by the following principles

(a) justice shall be done to all, irrespective of status;
(b) justice shall not be delayed;
(c) alternative forms of dispute resolution including reconciliation, mediation, arbitration and traditional dispute resolution mechanisms shall be promoted, subject to clause (3);
(d) justice shall be administered without undue regard to procedural technicalities; and
(e) the purpose and principles of this Constitution shall be protected and promoted.

(3) Traditional dispute resolution mechanisms shall not be used in a way that—

(a) contravenes the Bill of Rights;
(b) is repugnant to justice and morality or results in outcomes that are repugnant to justice or morality; or
(c) is inconsistent with this Constitution or any written law.

Labour Relations Act 2007
Section 54
(1) An employer, including an employer in the public sector, shall recognize a trade union for purposes of collective bargaining if that trade union represents the simple majority of unionizable employees.
(2) A group of employers, or an employers’ organization, including an organization of employers in the public sector, shall recognize a trade union for the purposes of collective bargaining if the trade union represents a simple majority of unionisable employees employed by the group of employers or the employers who are members of the employers’ organization within a sector.
(3) An employer, a group of employers or an employer’s organization referred to in subsection (2) and a trade union shall conclude a written recognition agreement recording the terms upon which the employer or employers’ organization recognizes a trade union.
(4) The Minister may, after consultation with the Board, publish a model recognition agreement.
(5) An employer, group of employers or employers’ association may apply to the Board to terminate or revoke a recognition agreement.
(6) If there is a dispute as to the right of a trade union to be recognized for the purposes of collective bargaining in accordance with this section or the cancellation of recognition agreement, the trade union may refer the dispute for conciliation in accordance with the provisions of Part VIII.
(7) If the dispute referred to in subsection (6) is not settled during conciliation, the trade union may refer the matter to the Industrial Court under a certificate of urgency.
(8) When determining a dispute under this section, the Industrial Court shall take into account the sector in which the employer operates and the model recognition agreement published by the Minister.

Held:

  1. Where Parties were engaged in conciliation, negotiation and other non-adjudicatory dispute settlement mechanisms before coming to Court, the ‘limitation of time’ clock stops running. Those non-adjudicatory mechanisms were common place in labour disputes and anchored on article 159 of the Constitution. The clock restarted when such mechanisms broke down.
  2. Non adjudicatory mechanisms were not a judicial craft or innovation, but a conscious and deliberate decision on the part of the Court, to do justice. Labour and employment disputes were resolved through a multiplicity of adjudicatory and non-adjudicatory mechanisms. The Labour Relations Act section 62 (3) for instance limited the formal report of termination disputes to the Labour Minister to 90 days from the date of dismissal, or any longer period the Minister on good cause, permits. It was recognized that labour and employment disputes went through a multiplicity of disputes resolution mechanisms, during which time may be deemed to be frozen.
  3. If Court endorsed looking at the law and the clock impersonally, such an approach would force the employee into accepting the abysmally low amount of money offered as an out-of-court settlement; or rejecting that amount and leave employment after years of service, with nothing.
  4. Court was bound by its own decisions. It could however depart from the same and come up with an improvement or other analysis of the law on the subject. However, when these were disagreeable, the court would be duty bound to distinguish the same for purposes of streamlining the law for the future.
  5. There could arise intervening circumstances which would affect limitation of action in employment situations. Conciliation as provided for under the Labour Relations Act, 2007 was one such case.
  6. The preamble to the Labour Relations Act, 2007 and its sections 54 and 59 on the role of recognition agreements and collective bargaining agreements in the formulation of organized, democratic, responsible and expeditious labour relations inter parties, did not have the finality and totality in ousting a party (read trade union) from litigation on behalf of its member.
  7. A recognition agreement came in on the prompting of a trade union on the attainment of a simple majority of the unionisable member of the employer, (call it 50% plus one.) That opened room and ground for negotiations with a view to a collective bargaining agreement - the ultimate opener to a contract on the terms of operation and co-operation between the employer and trade union. That then meant that the intervening period before the recognition agreement and subsequent collective bargaining agreement was fraught with trade union activity (ies) that would call for recognition by law.
  8. It was not the intention of the legislature to lock out that period of action from recognition as trade union activity in law neither was it the intention of parliament to lock out such recruited membership of trade unions from remedy available in law through the recruiting trade union. Section 52 of the Labour Relations Act, 2007 was a point of reference.
  9. The main stay of trade unionism was basically union membership. It was from that standpoint that one would delve into other competencies necessary for activity or action between a member and the trade union.
  10. A preliminary objection consisted of a point of law which had been pleaded, or which arose by clear implication out of pleadings, and which if argued as a preliminary point could dispose of the suit. Examples were an objection to the jurisdiction of the court, or a plea of limitation, or a submission that the parties were bound by the contract giving rise to the suit to refer the dispute to arbitration.
  11. A preliminary objection was in the nature of what used to be a demurrer. It raised a pure point of law which was argued on the assumption that all the facts pleaded by the other side were correct.it could not be raised if any fact had to be ascertained or if what was sought was the exercise of the judicial discretion. The improper raising of points by way of preliminary objection unnecessarily increased costs and, on occasion, confused the issues.
  12. The issues of law raised by the respondent required further interrogation and enquiry and therefore not feasible to sustain the preliminary objection.
  13. The second ground that the claimant did not have the locus standi to institute the suit was not as such tenable in law.

Preliminary objection dismissed with costs to the Claimant/Respondent.