Prospective candidates to the Kenya School of Law who commenced their undergraduate studies before the enactment of the Kenya School of Law Act, 2012 had legitimate expectation to join the school without being subjected to pre-bar examinations as contemplated by the Act
Kevin Mwiti & Others v Kenya School of Law
Constitutional Petitions 377, 395 & JR 295 of 2015 (Consolidated)
High Court at Nairobi
G V Odunga J
November 19, 2015
Reported by Kipkemoi Sang
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Brief Facts:
The Petitioners were law students from various universities in Kenya at diverse stages of their Bachelor of Laws (LLB) Degree courses. The Respondents were Kenya School of Law (School), Council of Legal Education (Council) and the Attorney General (AG). In September 2012, Parliament enacted the Kenya School of Law Act, 2012 which provided for the establishment, powers and functions of the School. The Act commenced on 15th January 2013, but did not provide for a changeover period though there were students already enrolled under the previous law, for degree courses at various universities in Kenya.
Accordingly, the School and Council (1st and 2nd Respondents) published guidelines providing for a three year transition period beginning 15th January 2013 to enable applicants who had joined the university system before the coming to force of the Act to complete their study programmes.
Those guidelines were used in the admission to the School's Advocates Training Programme (ATP) for the academic years 2014/2015 and 2015/2016 and would have been used for the third and last lot of admissions for the academic year 2016/2017. However, in 2014, Parliament passed the Statute Law (Miscellaneous) Amendment Act, 2014 which changed the eligibility for admission to the ATP by making it mandatory for applicants to sit and pass pre-bar examinations.
As a result, on 2nd September 2015 the School invited the applicants to apply for a ‘Pre-bar’ examination prior to admission to the School. Applicants had to have obtained a mean grade of C(plus) with a minimum grade of B in English or Swahili at KCSE, obtained or become eligible to obtain an LLB degree from a university recognized in Kenya and passed all 16 core subjects at the university level as provided under the Legal Education Act, 2012. It was this advert that provoked the Petition.

Issues:
  1. Which institution between the Legal Education Appeals Tribunal and the High Court had the jurisdiction to entertain the controversy between the Petitioners and the Respondents?
  2. Whether the Respondents discriminated the Petitioners thus violating their rights under the Constitution of Kenya.
  3. Whether the Respondents countermanded a legitimate expectation in favour of the petitioners
  4. Whether the Kenya School of Law in charging fees for the supposed pre-bar exams acted unreasonably
  5. Whether the Respondents violated article 47 of the constitution on obligations relating to fair administrative action.
  6. Whether the Kenya School of Law, acted reasonably in the selection of examinable subjects for pre-bar or it amounted to re-examination of students on the courses that were already examined by the universities accredited by the Council for Legal Education.
  7. Whether the effect of the amendment in so far as to relates to the Kenya School of Law Act was to adversely affect the rights accrued by the petitioners or even some of them.
Statute-interpretation- Second Schedule of the Kenya School of Law Act- changeover or transition period to the Kenya School of Law Act- whether the effect of the amendment in so far as to relates to the Kenya School of Law Act was to adversely affect the rights accrued by the petitioners or even some of them- Which institution between the Legal Education Appeals Tribunal and the High Court had the jurisdiction to entertain the controversy between the Petitioners and the Respondents-Constitution of Kenya, 2010, article 165(3) (d); Second Schedule to the Kenya School of Law Act No. 26 of 2012, section 1
Constitutional Law-fundamental rights and freedoms-right against discriminations- whether the Respondents discriminated the Petitioners thus violating their rights under the Constitution of Kenya- whether the Respondents violated the constitution on obligations relating to fair administrative action- Constitution of Kenya, 2010, article 47
Constitutional Law-constitutional doctrine- doctrine of legitimate expectation- whether the Respondents countermanded a legitimate expectation in favour of the petitioners- Constitution of Kenya, 2010, article 10; Council of Legal Education Act (cap 16A),(Repealed), section 5
Constitutional Law-constitutional test-test of unreasonableness- whether the Kenya School of Law in charging fees for the supposed pre-bar exams acted unreasonably-whether the Kenya School of Law, acted reasonably in the selection of examinable subjects for pre-bar or it amounted to re-examination of students on the courses that were already examined by the universities accredited by the Council for Legal Education- Constitution of Kenya, 2010, article 10 Kenya School of Law Act No. 26 of 2012, section 5(b)
Judicial Review- procedure for judicial review- whether the Kenya School of Law, acted reasonably in the selection of examinable subjects for pre-bar or it amounted to re-examination of students on the courses that were already examined by the universities accredited by the Council for Legal Education- Fair Administrative Action Act No. 4 of 2015, section 9
Jurisdiction-Jurisdiction of the High Court versus the jurisdiction of a Legal Education Appeals Tribunal- which institution between the Legal Education Appeals Tribunal and the High Court had the jurisdiction to entertain the controversy between the Petitioners and the Respondents- Constitution of Kenya, 2010,article 165(3) (d); Legal Education Act No. 27 of 2012, section 31(1)

Constitution of Kenya, 2010
Article 24


(1) A right or fundamental freedom in the Bill of Rights shall not be limited except by law, and then only to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including––

(a) the nature of the right or fundamental freedom;
(b) the importance of the purpose of the limitation;
(c) the nature and extent of the limitation;
(d) the need to ensure that the enjoyment of rights and fundamental freedoms by any individual does not prejudice the rights and fundamental freedoms of others; and
(e) the relation between the limitation and its purpose and whether there are less restrictive means to achieve the purpose

(2) Despite clause (1), a provision in legislation limiting a right or fundamental freedom—

(a) in the case of a provision enacted or amended on or after the effective date, is not valid unless the legislation specifically expresses the intention to limit that right or fundamental freedom, and the nature and extent of the limitation;
(b) shall not be construed as limiting the right or fundamental freedom unless the provision is clear and specific about the right or freedom to be limited and the nature and extent of the limitation; and
(c) shall not limit the right or fundamental freedom so far as to derogate from its core or essential content.

(3)The State or a person seeking to justify a particular limitation shall demonstrate to the court, tribunal or other authority that the requirements of this Article have been satisfied.


Kenya School of Law Act No. 26 of 2012
Section 5- Powers of the School


The School shall have the power to—

(a) establish and manage a centre for research and training in legal education for the furtherance of the objects of the School;
(b) charge reasonable fees and other charges for services rendered and liaise with appropriate bodies to extend loans and other assistance to enable and assist needy students to meet their fees obligations;
(c) regulate and supervise the discipline of the students of the School;
(d) co-operate with institutions of higher learning in any manner that may be conducive to the objects of the School;
(e) collaborate with other local and international organizations or bodies in the furtherance of the objects of the School;
(f) make such regulations as may be considered necessary for regulating the affairs of the School; and
(g) perform such other acts as are necessary, for the attainment of the objects of the School.

Second Schedule to Kenya School of Law Act, No 26 of 2012 OR (Statute Law (Miscellaneous) Amendment Act, 2014
Section 1 -Admission Requirements into the Advocates Training Programme

(1) A person shall be admitted to the School if—

(a) having passed the relevant examination of any recognized university in Kenya, or of any university, university college or any other institution prescribed by the Council, holds or becomes eligible for the conferment of the Bachelor of Laws (LLB) degree of that university, university college or institution; or
(b) having passed the relevant examinations of a university, university college or other institutions prescribed by the Council of Legal Education, holds or has become eligible for the conferment of the Bachelor of Laws Degree (LLB) in the grant of that university, university college or other institution—

(i) attained a minimum entry requirement for admission to a university in Kenya; and
(ii)
obtained a minimum grade B (plain) in English Language or Kiswahili and a mean grade of C (plus) in the Kenya Certificate of Secondary Education or its equivalent; and
(iii)
has sat and passed the pre-Bar examination set by the school.

Council of Legal Education (cap 16A) (Repealed)
First Schedule
Section 5 -Admissions Requirements into the Advocates Training Programme


A person shall not be eligible for admission for the Post Graduate Diploma (Advocate Training Programme) unless that person has–

(a) passed the relevant examination of any recognized university in Kenya, he holds or has become eligible for the conferment of the Bachelor of Laws Degree (LL.B) of that university;
(b) passed the relevant examinations of a university, university college or other institutions prescribed by the Council, he holds or has become eligible for the conferment of the Bachelor of Laws Degree (LL.B) in the grant of that university, university college or other institution, had prior to enrolling at that university, university college or other institution–

(i) attained a minimum entry requirements for admission to a university in Kenya; and
(ii) a minimum grade B (plain) in English Language and a mean grade of C (plus) in the Kenya Certificate of Secondary Examination or its equivalent;

(c) a Bachelor of Laws Degree (LL.B) from a recognized university and attained a minimum grade of C+ (C plus) in English and a minimum aggregate grade of C (plain) in the Kenya Certificate of Secondary Examination, holds a higher qualification e.g. “A” levels, “IB”, relevant “Diploma”, other “undergraduate degree” or has attained a higher degree in Law after the undergraduate studies in the Bachelor of Laws Programme; or
(d)
a Bachelor of Laws Degree (LL.B) from recognized university and attained a minimum grade of C- (C minus) in English and a minimum of an aggregate grade of C- (C minus) in the Kenya Certificate of Secondary Examination sits and passes the Pre-Bar Examination set by the Council of Legal Education as a precondition for admission.

Legal Education Act No. 27 of 2012
Section 3- Objective of Act

The objective of this Act is to—

(a) promote legal education and the maintenance of the highest possible standards in legal education; and
(b)
provide a system to guarantee the quality of legal education and legal education providers.

Fair Administrative Action Act No. 4 of 2015
Section 9– Procedure for judicial review.

(1) Subject to subsection (2), a person who is aggrieved by an administrative action may, without unreasonable delay, apply for judicial review of any administrative action to the High Court or to a subordinate court upon which original jurisdiction is conferred pursuant to Article 22(3) of the Constitution.
(2)
The High Court or a subordinate court under subsection (1) shall not review an administrative action or decision under this Act unless the mechanisms including internal mechanisms for appeal or review and all remedies available under any other written law are first exhausted.
(3)
The High Court or a subordinate Court shall, if it is not satisfied that the remedies referred to in subsection (2) have been exhausted, direct that applicant shall first exhaust such remedy before instituting proceedings under sub-section (1).
(4)
Notwithstanding subsection (3), the High Court or a subordinate Court may, in exceptional circumstances and on application by the applicant, exempt such person (5) from the obligation to exhaust any remedy if the court considers such exemption to be in the interest of justice.
A person aggrieved by an order made in the exercise of the judicial review jurisdiction of the High Court may appeal to the Court of Appeal.

Held:
  1. From section 31(1) of the Legal Education Act, it was clear that the Tribunal’s power was restricted to matters relating to the Act. The powers of the Tribunal were however enumerated under section 35 of the said Act stated that upon hearing appeals, the tribunal could confirm, set aside or vary the order or decision in question; exercise any of the powers which would have been exercised by the Council, in the proceedings in conclusion with which the appeal was brought or made any other order, including an order, for cost as it could consider just.
  2. Under article 165(3) (d) of the Constitution, the High Court was the proper forum to hear any question respecting the interpretation of the Constitution including the determination of inter alia the question as to whether any law was inconsistent with or in contravention of the Constitution; the question whether anything said to be done under the authority of the Constitution or of any law was inconsistent with, or in contravention of, the Constitution. Therefore, the dispute did not fall within the jurisdiction of the Tribunal in order to warrant the invocation of section 9 of the Fair Administrative Action Act.
  3. Section 1 of the Second Schedule to the Kenya School of Law Act provided for the eligibility for joining the Advocates training Programme. The eligibility required inter alia that a person (candidate) to have passed the relevant examination from any recognised university in Kenya or from any university college or any other institution prescribed by the Council, held or became eligible for the conferment of the Bachelors of Law (LLB) degree of that university college or other institutions prescribed by the Council of Legal Education, held or had become eligible for the conferment of the Bachelors of Law Degree, in the grant university, university college or other institution. Such a person was required to have attained a minimum entry requirement for admission to a university in Kenya; and obtained a minimum grade B (plain) in English Language or Kiswahili and a mean grade of C (plus) in the Kenya Certificate of Secondary Education or its equivalent; and had sat and passed pre-Bar examination set by the School.
  4. It was clear that the Second Schedule had not locked out those who had alternative qualifications from being eligible for admission to the Programme. What was however required was that whatever qualification an applicant possessed it should be equivalent to a mean grade of C (plus) in the Kenya Certificate of Secondary Education. There was no contention that by applying the standard equivalent to KCSE other applicants with alternative qualifications had been necessarily locked out. However notification of pre-bar examination seemed not to have factored in the other equivalent eligibility for admission. The notification only mentioned KSCE qualifications. To the extent that the notification of pre-bar examination did not conform to the Second Schedule to the Act and as such, that notification was clearly unlawful.
  5. The law required the Applicants to the School to demonstrate that they had become eligible for conferment of Bachelor of Laws Degree and that the applicants could show by furnishing the School with provisional transcripts. The School would, however, not accept applicants who had not completed their Bachelor of Laws Degree programme. Under the law, such applicants were not eligible to join the ATP programme.
  6. Under the Second Schedule the criteria for admission to the ATP was inter alia that the applicant held or had become eligible for the conferment of the Bachelor of Laws Degree (LLB) in the grant of a recognised university, university college or other institution. There was no hard and fast rule thereunder that an applicant should possess the degree certificate since eligibility for conferment thereof was an option. The notice clearly provided for the option of eligibility for conferment. To impose conditions which were not contemplated under the Act amounted to acting ultra vires the powers conferred by the Act.
  7. Whereas the School was entitled to decide what amounted to proof of eligibility for conferment with a degree, such proof should be reasonable in the circumstances. There was no reason why the School could not rely on documents confirmed by the accredited Higher Institutions of Learning to admit the applicants. To the extent that the notice talked of final transcripts which the Petitioners contend were only issued upon graduation, that requirement was not only unreasonable but outside the contemplation of the Act.
  8. Section 5(b) of the KSL Act empowered the School to charge reasonable fees and other charges for services rendered and liaise with appropriate bodies to extend loans and other assistance to enable and assist needy students to meet their fees obligations. It was not mere unreasonableness which would justify the interference with the decision of an inferior tribunal. This was so because unreasonableness per se was largely a subjective test and therefore to base a decision merely on unreasonableness placed the Court at the risk of determination of a matter on merits rather than on the process.
  9. To justify interference the decision in question should be so grossly unreasonable that no reasonable authority, addressing itself to the facts and the law would have arrived at such a decision. Such a decision should be deemed to be so outrageous in defiance of logic or acceptable moral standards that no sensible person applying his mind to the question to be decided would have arrived at it. Whereas the Court was entitled to consider the decision in question with a view to finding whether or not the Wednesbury test of unreasonableness was met, it was only when the decision was so grossly unreasonable that it could be found to have met the test of irrationality for the purposes of Wednesbury test of unreasonableness. The Courts would only interfere with the decision of a public authority if it was outside the band of reasonableness.
  10. The doctrine that powers should be exercised reasonably had to be reconciled with the no less important doctrine that the court should not usurp the discretion of the public authority which Parliament appointed to take the decision. Within the bounds of legal reasonableness was the area in which the deciding authority had genuinely free discretion. If it passed those bounds, it acted ultra vires. The court should therefore resist the temptation to draw the bounds too lightly, merely according to its own opinion. It should strive to apply an objective standard which leaves to the deciding authority the full range of choices which the legislature was presumed to have intended. In the instant case, the threshold for Wednesbury test of unreasonableness or irrationality was in a more appropriate term met with respect to the payment required from the Petitioners.
  11. Where discretion was donated to a particular body the Courts ought to exercise restraint in and ought not to readily accede to invitation to interfere with the exercise of such powers and discretion. Article 47 of the Constitution was now emphatic on the fairness of administrative action. The purpose of judicial review was to check that public bodies do not exceed their jurisdiction and carry out their duties in a manner that was detrimental to the public at large. It was meant to uplift the quality of public decision making, and thereby ensure for the citizen civilised governance, by holding the public authority to the limit defined by the law. Judicial review was therefore an important control, ventilating a host of varied types of problems. Judicial review was an acknowledged most powerful enforcer of constitutionalism, one of the greatest promoters of the rule of law and perhaps one of the most powerful tool against abuse of power and arbitrariness.
  12. The circumstances under which the Court would be entitled to interfere with discretion even where it appeared to be unfettered were only:
  1. where there was an abuse of discretion;
  2. where the decision-maker exercised discretion for an improper purpose;
  3. where the decision-maker was in breach of the duty to act fairly;
  4. where the decision-maker had failed to exercise statutory discretion reasonably;
  5. where the decision-maker acted in a manner to frustrate the purpose of the Act donating the power;
  6. where the decision-maker fetters the discretion given;
  7. where the decision-maker failed to exercise discretion;
  8. where the decision-maker was irrational and unreasonable.
  1. In the instant case, to curtail the powers of the School in deciding what subjects to examine its prospective students would amount to usurping the powers of the School and substituting the Court’s discretion for that of the School. There was nothing inherently wrong or unreasonable in the School setting what in its view were appropriate exams for the admission of students to the School as long as the exams in question were relevant to the course of study. The Court could not decide for the School which subjects were appropriate for it to administer on their prospective students even if the Court was of the view that such subjects were not suitable as long as they were geared towards the attainment of the School’s objectives. The school was the best judge of merit pertaining its standards and not the Court.
  2. So long as the body entrusted with the task of framing the rules or regulations acted within the scope of the authority conferred on it in the sense that the rules and regulations made by it had a rational nexus with the object and purpose of the statute, the court should not concern itself with the wisdom of the efficaciousness of such rules and regulations. It was exclusively within the province of the Legislature and its delegate to determine, as a matter of policy, how the provision of the statute could best be implemented and what measures substantive as well as procedural would have to be incorporated in the rules and regulations for the efficacious achievement of the object and purposes of the Act.
  3. It was not for the Court to examine the merits and demerits of such a policy because its scrutiny had to be limited to the question as to whether the impugned regulation felt within the scope of the regulation-making power conferred on the delegate by the statute. The responsible representative entrusted to make bylaws should ordinarily be presumed to know what was necessary, reasonable, just and fair.
  4. Under Article 10 of the Constitution some of the values and principles of governance included equity and non-discrimination. The said Article bound all State organs, State officers, public officers and all persons whenever any of them enacted, applied or interpreted any law or made or implemented public policy decisions. In enacting the Amendment Act, Parliament did not set out to deprive the Petitioners of their rights if any or discriminate against them and it could not do that. The presumption was and had always been the principle that Parliament enacts constitutional legislation. Every statute passed by the legislature enjoyed a presumption of legality and it was the duty of every Kenyan to obey the very law that were passed by the representatives in accordance with their delegated sovereign authority.
  5. State Officers, public officers and all persons should adopt an interpretation which promoted and underpinned values and principles of governance set out in the Constitution unless the contrary intention appeared in the enactment. A legislative enactment should be presumed to uphold constitutional values and principles including the Bill of Rights unless the provisions of Article 24(1), (2) and (3) of the Constitution were complied with. Parliament did not set out to apply the enactment retrospectively or in a manner that discriminated against the rights of the Petitioners.
  6. The position adopted by the School before the Amendment Act was the correct position as it was in line with the values and principles in Article 10. There was no express intention by Parliament to effect the amendment retrospectively; the Amendment Act was not unconstitutional. Pursuant to Article 20(3) (b) the court was required to adopt the interpretation that most favoured the enforcement of a right or fundamental freedom and in the instant case equality and freedom from non-discrimination.
  7. A legitimate expectation arose where a person responsible for taking a decision had induced in someone a reasonable expectation that he would receive or retain a benefit of advantage. It is a basic principle of fairness that legitimate expectations ought not to be thwarted. The protection of legitimate expectations was at the root of the constitutional principle of the rule of law, which required predictability and certainty in government’s dealings with the public.
  8. Parliament did not dictate the manner in which the implementation was to be done. It should be presumed however that Parliament intended that the implementation of the enactment complied with the dictates of the Constitution Just like the school correctly interpreted the enactment that preceded the Amendment Act; the Respondents were likewise expected to interpret the Amendments Act in a manner that upholds the constitutional values and principles.
  9. There was a legitimate expectation that public authorities would comply with the Constitution and the law. It was expected that public authorities would adhere to the constitutional values and principles including those enumerated in Article 10. The Petitioners could therefore be said to have expected the Respondents to interpret the Amendment Act in a manner that upheld their rights and fundamental freedoms as long as the interpretation did not contradict the express language of the Act. An interpretation that upheld the freedom of equality and non-discrimination could not be said to be inimical to the Amendment Act just like it was not inimical to the prior enactment.
  10. The School appreciated that some of the Petitioners’ predecessors and who were with the said Petitioners at the University had not been subjected to the same treatment. It had not been shown that the circumstances between the said Petitioners and their predecessors had changed. To subject those Petitioners to whom a benefit had been conferred in order to avoid discriminating against them, in itself amounted to discrimination.
  11. Discrimination which was forbidden by the Constitution was unfair or prejudicial treatment of a person or group of persons based on certain characteristics. The element of what was unfair or prejudicial treatment had to be determined objectively in the light of the facts of each case. Unfair discrimination which recognized that although a society which afforded each human being equal treatment on the basis of equal worth and freedom was a fundamental goal, it could not achieve that goal by insisting upon identical treatment in all circumstances before the goal was achieved.
  12. Each case, therefore would require a careful and thorough understanding of the impact of the discriminatory action upon the particular people concerned to determine whether its overall impact was one which furthered the constitutional goal of equality or not. A classification which was unfair in one context could not necessarily be unfair in different context.
  13. In the instant case, there was the recognition that not all distinctions resulting in differential treatment could properly be said to violate equality rights as envisaged under the Constitution. The appropriate perspective from which to analyse a claim of discrimination had both a subjective and an objective component.
  14. According to the Black’s Law Dictionary, discrimination was the effect of a law or established practice that conferred privileges on a certain class or that denied privileges to a certain class because of race, age, sex nationality, religion or handicap or differential treatment especially a failure to treat all persons equally when no reasonable distinction could be found between those favoured and those not favoured. Similarly, The Bill of Rights Handbook, Fourth Edition 2001, defined discrimination as a particular form of differentiation on illegitimate ground. The law did not prohibit discrimination but rather unfair discrimination.
  15. Unfair discrimination was treating people differently in a way which impairs their fundamental dignity as human beings, who were inherently equal in dignity. Unlawful or unfair discrimination could be direct or subtle. Direct discrimination involved treating someone less favourably because of their possession of an attribute such as race, sex or religion compared with someone without that attribute in the same circumstances. Indirect or subtle discrimination involved setting a condition or requirement which was a smaller proportion of those with the attribute are able to comply with, without reasonable justification.
Orders
The extent that the notification by the School only mentioned KCSE qualifications, the same notification did not conform to the Second Schedule to the Act, and to that extent alone, the same was unlawful and set aside.
The extent that the pre bar notice talked of final transcripts, that requirement was not only unreasonable but outside the scope and contemplation of the Act and was set aside.
The Petitioners who were already in the LLB Class prior to the enactment of the Kenya School of Law Act were to be treated in the manner contemplated by the guidelines issued by the School prior to the enactment of the Amendment Act. i.e those who had not been admitted in the LLB Class prior to the enactment of the Kenya School of Law Act are to comply with the provisions of the said Act.
No order as to costs


Kenya Law
Case Updates Issue 039/2015
Case Summaries

COMPANY LAW Legal threshold which must be met in order to obtain leave of the court to sue on behalf of the company

Amin Akberali Manji & 2 others vs. Altaf Abdulrasul Dadani & another
Civil Appeal No. 101 of 2014
Court of Appeal at Nairobi
Waki, GBM Kariuki & Ouko JJA
September 25, 2015
Reported by Kipkemoi Sang

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Brief Facts:
The appellant and the respondent formed the company (ML) together in 1993, with the main object of importing and selling musical instruments. Each of them had 50% share and directorship in the company. The respondent controlled the day today operation of the company while the appellant took charge of financial matters. All was well with the company until 1999 when the appellant chose to resign from office of directorship and nominated another (Kamur), who continued his role of financial controller and another nominee (Madhani) to whom he transferred all his shares to hold in trust. He nevertheless continued to participate actively in the management of the company’s affairs.
In May 2000 the appellant allegedly refused to release money for purposes of replenishing stock and payment of creditors thereby paralyzing the company’s business. The respondent felt frustrated and the operations of the company ground to a halt. The respondent claimed that the appellant had incorporated another company (MML) which had a deceptively similar name as ML, expropriated the stock and assets of ML, and started operations of similar business in the premises of ML in conjunction with Kumar (his nominee) hence breaching fiduciary duty towards ML and that in cahoots with his nominee they intended to defraud not only ML but also the creditors of ML and the respondent. The respondent moved to court seeking leave to prosecute the suit of derivative action on behalf of ML and its creditors and indemnity by ML for all the cost and expenses reasonably incurred in prosecution. The appellant reacted to the allegation and appealed against the decision of the High court which had inter alia declared that the closure of ML was unlawful and wrongful, it had temporary injunction restraining MML from carrying on business in ML’s premises and compelled the appellant to furnish ML with audited reports. The orders of the High court to which the appellant objected included the question of leave before instituting a derivative.

Issues:

  1. Whether the instant case met the legal threshold of a derivative action at the trial stage and if so, whether the High Court erred in granting order to allow the plaintiff to be indemnified for all the expenses incurred in respect of the suit
  2. Whether the commencement of the case prior to obtaining leave of the court was fatal to the case
  3. Whether the High Court acted judiciously in the exercise of its discretion to issue the orders it did at an interlocutory stage

Company Law-derivative claims and or action-legal threshold for derivative action - derivative claims in the absence of minority shareholders- circumstances for necessary derivative actions in the absence of minority shareholders-Whether the instant case met the legal threshold of a derivative action at the trial stage and if so, whether the High Court erred in granting order to allow the plaintiff to be indemnified for all the expenses incurred in respect of the suit-Companies Act (cap 486)

Civil Practice & Procedure- leave of court-procedure for filling leave of court to sue the company- effect of clear procedure for filing leave of court to sue the company and or delivery claims-Whether the commencement of the case prior to obtaining leave of the court was fatal to the case- Whether the High Court acted judiciously in the exercise of its discretion to issue the orders it did at an interlocutory stage-In the matter of CMC Holdings Limited [2012]eKLR Civil Procedure Act (cap 21), section 3A Read More...

Held:

  1. The legal threshold which must be met in order to obtain leave of the court to sue on behalf of the company are:
    1. The aggrieved company has a cause of action, which means a “legal right that has been violated”
    2. That it is impossible for the company to sue on its own to redress the wrong or breach. Especially if the wrongdoers themselves are the directors or majority shareholders in the company and will not allow it to file suit against themselves or where there was no majority shareholding which could overrule the directors, it would be impossible to institute the suit in the name of the company, if the director fail to do so.
    3. The representative has locus standi or legal standing as a major shareholder, to commence the suit.
  2. A majority shareholder is one who “owns less than half the total shares.” The respondent who held half or 50% of the shares of ML was not a minority shareholder; he in fact had equal voting right with the appellant. It was not open for the respondent to institute a derivative suit citing the appellant (Manji or Kamur) as director, if they were in control of the company. The respondent simply had no locus standi in the instant matter.
  3. A derivative action was an American term amounting to one more than a ‘representative suit’ filed on behalf of a plaintiff (in other instances) under disability, like a minor or person or unsound mind. In the instant context, it was a suit instituted by shareholder on behalf of the company as its representative when the company itself could not sue. In the alternative if the suit was a derivative one, it required leave but none was sought or granted before the suit was filed as spelt out in the Companies Act.
  4. There was no express provision in Kenyan company laws to govern the procedure for granting leave to mount a derivative action. The procedure that was available was the English Common Law. Leave of the court should be obtained before filling a derivative suit, but could also be obtained to continue with the suit once filed. The crucial requirement was for the applicant to establish a prima facie case demonstrating that he had locus standi to institute an action, the company was entitled to the intended relief and that the action fell within any of the exceptions to the rule in Foss vs Habottle
  5. The rule in Foss vs Harbottle (the rule) established two principles. That of “proper plaintiff” and that of “the majority” where the first rule required that a wrong done to the company may be vindicated by the company alone and the second principle required that if the alleged wrong could be confirmed or ratified by a simple majority then a shareholder was barred from bringing actions. The principle effect in the rule is to bar action by minority shareholders. However, the exception to the rule in Habottle included: firstly, where what had been done amounts to fraud and the wrongdoers were themselves in control of the company, secondly; where it was alleged that personal rights of the plaintiff shareholder had been or were about to be infringed and thirdly, any other case where the interest of justice required that the general rule required suits by company to be disregarded.
  6. Where no application for leave was filed or where one was filled long after the suit was filed, different considerations would apply. The application for leave to continue with the suit filed in the instant matter was not made long after the suit was filed. Both were filed contemporaneously and were placed before a judge on the same day under the certificate of urgency and as such was heard ex parte. Owing to the need for the trial court to exercise discretion, equitable principles were applicable and ought to be exercised judiciously which the trial court observed on the basis of the prima facie case. The trial court was right in exercising the discretion to maintain the leave granted and to give the parties the opportunity to contest the real issues in controversy in the main suit.
  7. A derivative claim was necessary to rescue the company if it was truly in distress. In the instant case, there was apparent threat and mischief. Equally, there was nothing that could prevent any party from making an application to have the ex parte orders. The company was in a peculiar and unique position of having only two members who were equal in power and glory in relation to the company. There was no majority or minority shareholder. The two shareholders/directors had reached a stalemate. The property of the company was disappearing or being taken over by a third party but the company was doing nothing about it.
  1. Orders made by the High Court on the application dated 26th November, 2002 seeking to have the defence filed stack out and judgement on the prayers made by the appellant set aside.
  2. The Ruling and other orders of the High Court made on 5th April 2004 were otherwise upheld
  3. Each party to bear its own costs of the appeal and of the motions before the High Court
LAND LAW Applicability of the doctrine of lis pendens to the grant of injunctions in land disputes

Naftali Ruthi Kinyua v Patrick Thuita Gachure & another
Civil Appeal Number 44 of 2014
Court of Appeal at Nairobi
R N Nambuye, D K Musinga & A K Murgor, JJA
March 6, 2015
Reported by Beryl A. Ikamari and Robai Nasike Sivikhe

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Brief facts:
The appellant sued the 1st and 2nd respondent at the high court as proprietors of a parcel of Land known as Land Reference No. 8285/1522 also known as Plot No. 133 Kariobangi Light Industries, Nairobi. The appellant had purchased the suit property from Peter Muthaura on July 5th 1979 and subsequently notified the 2nd respondent about the purchase. He paid stand premiums, survey and conveyancing fees as demanded by the respondent in order to secure the title documents. The appellant was issued with a deed plan in respect of the suit property on August 9th 2011.
While waiting for issuance of the title documents, he discovered that the 1st respondent had entered the suit property and was commencing developments in the property. The 1st respondent had also acquired the relevant documents in relation to the land from the 2nd Respondent and was in the process of acquiring title documents.
In the course of proceedings, the appellant sought an injunction pending hearing and determination of the suit. The appellant argued that he had a prima facie case. His case was based on documentation which showed that he had purchased the property from Peter Muthaura and paid the relevant fee to the 2nd Respondent. Furthermore, as the lawful allottee of the suit property since 1980, he alleged that he would suffer irreparable harm and the balance of convenience tilted in his favor.
Additionally, the appellant contended that the principle of first in time was applicable since his claim dated back to 1980 while the 2nd respondent’s claim arose in 2011. Further, the appellant cited the doctrine of lis pendens under section 52 of the Transfer of Properties Act, 1882, of India (ITPA) as relevant for purposes of preservation of the suit property pending hearing and determination of the suit. However, the high court declined to issue an injunction.
The appellant appealed against the ruling on grounds that both the appellant and respondent did not have a perfected title and therefore an injunction should have been issued to preserve the suit property. It was further contended that injunctive orders restraining further dealings with the suit property should have been issued on the basis of the doctrine of lis pendens.

Issues:

  1. Whether the application met the legal threshold required for the grant of an injunction.
  2. Whether the doctrine of lis pendens was applicable to land disputes and the grant of an injunction given that the Indian Transfer of Property Act had been repealed.

Land Law-lis pendens- application of the doctrine of lis pendens - whether the doctrine of lis pendens still applied despite repeal of ITPA- whether the doctrine of lis pendens could be applied by court for preservation of property pending hearing and determination of a suit- whether the trial court had misdirected itself when it failed to consider and apply the doctrine of lis pendens- Transfer of Property Act, 1882, of India, section 52; Land Registration Act, No of 2012, section 107 (1).

Common Law- lis pendens- doctrine of lis pendens as a common law doctrine- relevance of common law to the application of doctrine of lis pendens - whether the doctrine of lis pendens, as a common law doctrine, could be applied to the preservation of property pending hearing and determination of a suit concerning the property- whether the trial court had misdirected itself when it failed to consider and apply the doctrine of lis pendens- Judicature Act, (Cap 8), section 3(1).

Civil Practice and Procedure- injunctions- interlocutory injunctions- principles applicable to the grant of an injunction - whether the appellant had met the stipulated conditions for the grant of an injunction- whether the trial court had misdirected itself when it declined to grant the appellant an injunction on grounds that he failed to establish a prima facie case with chances of success. Read More...

The Transfer of Property Act, 1882, of India
Section 52

52. Transfer of property pending suit relating thereto
During the active prosecution in any Court having authority in British India, or established beyond the limits of British India by the Governor-General in Council, of a contentious suit or proceeding in which any right to immovable property is directly and specifically in question, the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein, except under the authority of the Court and on such terms as it may impose.

Land Registration Act, No. of 2012, Laws of Kenya
Section 107 (1)

107. Savings and transitional provisions with respect to rights, actions, dispositions
(1) Unless the contrary is specifically provided for in this Act, any right, interest, title, power, or obligation acquired, accrued, established, coming into force or exercisable before the commencement of this Act shall continue to be governed by the law applicable to it immediately prior to the commencement of this Act.

Judicature Act, Cap 8, Laws of Kenya
Section 3 (1)

3. Mode of exercise of jurisdiction
(1) The jurisdiction of the High Court, the Court of Appeal and of all subordinate courts shall be exercised in conformity with—
(a) the Constitution;
(b) subject thereto, all other written laws, including the Acts of Parliament of the United Kingdom cited in Part I of the Schedule to this Act, modified in accordance with Part II of that Schedule;
(c) subject thereto and so far as those written laws do not extend or apply, the substance of the common law, the doctrines of equity and the statutes of general application in force in England on the 12th August, 1897, and the procedure and practice observed in courts of justice in England at that date:
Provided that the said common law, doctrines of equity and statutes of general application shall apply so far only as the circumstances of Kenya and its inhabitants permit and subject to such qualifications as those circumstances may render necessary.

Held:

  1. For an injunction to be granted, an applicant had to satisfy the court that he had established the existence of a prima facie case with chances of success and that he would to suffer irreparable loss which would not be compensated by an award of damages but in case the court was in doubt, the application was to be determined on a balance of convenience.
  2. The appellant had to establish that he had a prima facie case with chances of success. Therefore, the appellant had to show that he owned the suit property, or had a valid claim that was capable of defeating a claim by a third party in respect of the property in dispute.
  3. It was clear that both the appellant and 1st respondent were not in possession of title documents over the property, hence the dispute between the parties was a contest over who had a superior claim over the other. In light of those factors, it was incumbent upon the parties to produce relevant documents to support their claim over the suit property to the exclusion of the other.
  4. The appellant’s documents showed that he attempted to register his interest before the 1st respondent sought to register his. There was sufficient documentation that indicated that the appellant maintained a claim in respect of the suit property which was valid and continued to subsist. Hence, it was evident that the appellant had established a prima facie case with chances of success.
  5. The appellant was the lawful allottee to the suit property from 1980. He stood to suffer irreparable harm if the defendant was not restrained from taking over the suit property pending the hearing and determination of the suit.
  6. In case there was doubt that the appellant established a prima facie case and stood to suffer irreparable loss, the application ought to have been determined on a balance of convenience. The balance of convenience tilted towards the preservation of the property pending hearing and determination of the suit. That could only be accomplished by granting the orders of injunction.
  7. The doctrine of lis pendens was applicable to the circumstances as the case concerned a property dispute in which rights to the suit property were in contention. The doctrine was therefore of relevance to the application for an injunction.
  8. With the repeal of the ITPA by the Land Registration Act (LRA), which provided for the doctrine of lis pendens, the question of applicability of the doctrine of lis pendens arose. However, the applicability of the doctrine had to be considered in light of section 107 (1) of the Land Registration Act which provided for transitional provisions.
  9. Section 107 (1) of the Land Registration Act allowed for the continued applicability of rights and interests as provided for in legislation that governed titles and rights to property acquired prior to the repeal of such legislation. Hence, rights that flowed from section 52 of the ITPA, including the doctrine of lis pendens were to be recognized by virtue of section 107 (1) of the Land Registration Act.
  10. The doctrine of lis pendens was also a common law principle. Common law was applicable in Kenya by virtue of section 3 (1) of the Judicature Act. Therefore, the doctrine of lis pendens was part of the Kenyan law under section 3(1) of the Judicature Act.
  11. The trial court should not have disregarded the adjudicative support of the doctrine of lis pendens for purposes of preservation of the suit property until the suit was heard and determined. The trial court had erred when it failed to consider and apply the doctrine of lis pendens for purposes of the injunctive relief sought.
  12. The high court misdirected itself when it declined to grant an injunction and concluded that a prima facie case had not been established. The dispute involved competing interests between the appellant and respondent and on the basis of existing documentation, the appellant had established the existence a prima facie case.
  13. The high court misdirected itself when it failed to consider the doctrine of lis pendens for purposes of preserving the suit property pending hearing and determination of the suit.

Appeal allowed.
Ruling delivered by the high court on May 17th 2013 set aside.

JURISDICTION

The Wildlife Conservation and Management Act 2013 is the guide in determining awards for damages for death, or injuries caused by wildlife.

Joseph Munyoki Kalonzo v Kenya Wildlife Services
High Court of Kenya at Garissa
Civil case 5 of 2014
October 12, 2015
G. Dulu J
Reported by Njeri Githang’a and John Ribia

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Brief facts:
The plaintiff was the father of the deceased who was alleged to have been fatally injured by a crocodile while she fetched water at Tana River in Tseikuru District. The plaintiff sued the defendant as the legal representative of the estate of M M. The plaintiff sought compensation in the sum of Kshs. 5,000,000/= as provided under section 25 of the Wildlife Conservation & Management Act 2013. The plaintiff also sought special damages, costs and interest.
The defendant relied upon the doctrine of volenti non fit injuria and stated that the accident, if it occurred, was caused by the negligence of the deceased and the plaintiff. The defendants also pleaded that the suit was bad in law and did not disclose any cause of action. Through a preliminary objection, the defendant moved the court to have the suit struck out with costs and interest.
The plaintiff admitted partial liability and subsequently the parties counsel filed a written consent. The consent distributed liability at the ratio of 80:20 in favour of the plaintiff.

Issues:

  1. Whether the court had the jurisdiction to determine a claim for compensation for injuries or death caused by wildlife when section 25(1) of the Wildlife Conservation and Management Act 2013 had established a commission to deal with the same.
  2. Whether the Fatal Accidents Act and the Law Reform Act could be used to determine an award for damages for deaths and injuries caused by wildlife.
  3. Whether the Wildlife Conservation and Management Act 2013 was the guide in determining awards for damages for death, or injuries caused by wildlife.

Jurisdiction – the jurisdiction to determine a claim for compensation for injuries or death caused by wildlife- jurisdiction of the High Court vis a vis jurisdiction of the County Wildlife Conservation and Compensation Committee - whether the court had the jurisdiction to determine a claim for compensation for injuries or death caused by wildlife when section 25 (1) of the Wildlife Conservation and Management Act 2013 established a commission to deal with the same - Wildlife Conservation and Management Act 2013, section 25 (1).

Tort Law– damages- award of damages for loss of life- compensation-award for damages for deathor injuries caused by wildlife- whether the Fatal Accidents Act and the Law Reform Act could be used to determine an award for damages for deaths and injuries caused by wildlife - whether the Wildlife Conservation and Management Act 2013 was the guide in determining awards for damages for death, or injuries caused by wildlife- wildlife Conservation and Management Act 2013 section 25 (1) Read More...

Wildlife Conservation and Management Act 2013, section 25 (1)

(1) Where any person suffers any bodily injury or is killed by any wildlife listed under the Third Schedule, the person injured, or in the case of a deceased person, the personal representative or successor or assign, may launch a claim to the County Wildlife Conservation and Compensation Committee within the jurisdiction established under this Act.

Held:

  1. A suit that disclosed no cause of action was not similar to a suit that claimed a court did not have jurisdiction. Jurisdiction is the legal power of the court to hear and determine a matter. Cause of action dealt with whether the plaintiff or litigant had a legal claim which he could pursue in court. The defence did not challenge the power of the court to adjudicate over the matter, but challenged the ability of the plaintiff to sustain the claim. The defence did not raise an issue of jurisdiction.
  2. Section 25 (1) of the Wildlife Conservation and Management Act 2013 that stated that persons injured or the personal representatives of persons killed by wildlife could launch compensation claims to the County Wildlife Conservation and Compensation Committee was permissive. It used the word may, it did not specifically claim that the ordinary courts had no jurisdiction in such claims. The court had jurisdiction to determine the matter.
  3. The preliminary objection raised by the defense could not satisfy requirements for a preliminary objection. The preliminary objection was filed late on the hearing date without prior notice and it did not specify the sections or section of the Wildlife Conservation and Management Act 2013 that were violated by the proceedings, nor did it indicate the nature of the alleged violation which could amount to an abuse of court process.
  4. The consent entered into by the parties counsel with regard to liability was a proper recorded consent and as such it was contractual and binding on all parties and their counsel. The defendant took up 80% liability and the plaintiff took up 20% liability.
  5. The plaintiff was entitled to compensation under the Wildlife Conservation and Management Act 2013, which was the specific Act that dealt with accidents and fatalities associated with wildlife conservation. Since the Act was also a more recent law and since Parliament had in its wisdom decided to treat damage, injuries and deaths caused by wildlife differently, the act was the guide in determining awards for damages for death, or injuries caused by wildlife. The general law under the Fatal Accidents Act and Law Reform Act could not be used to determine damages as Parliament had made specific provision for the same under the Wildlife Conservation and Management Act of 2013.
  6. It was proved that the deceased died due to a crocodile attack, as such Kshs. 5,000,000/= was awardable to her estate as damages as compensation, as provided under section 25 of the Wildlife Conservation and Management Act 2013. The plaintiff also proved special damages of Kshs. 40,000/= for costs of litigation to obtain letters of administration. Subject to calculations varied by the consent entered into by the parties counsel, the plaintiff was entitled to Kshs. 4,032,000/= as compensation to the estate of the deceased.

Costs, interest and damages awarded to the plaintiff in the sum of Kshs. 4,032,000/=

LAND LAW Presumption of tenancy in common where the land register does not indicate whether the land is held jointly or in common

Moses Bii v Kericho District Land Registrar and 2 others
Civil suit No.8 of 2014
High Court at Kericho
October 2, 2015
Munyao Sila, J
Report by Teddy Musiga and Daniel Hadoto

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Brief facts:
The suit land was first registered in 1970 under the names of four persons, namely, Kiprono Bii, Moses Bii (the plaintiff), John Bii, and Cheriro Tuimising. As at the time of the hearing, the title deed had never been issued to them. In the course of time, John Bii and Kiprono Bii died. The plaintiff contended that despite their death, the Kericho District Land Registrar had failed to register their death certificates and refused to delete their names from the register, although he had been duly notified. The plaintiff prayed that the names of Kiprono Bii and John Bii to be deleted from the register and a title deed be issued in the names of himself and Cheriro Tuimising as joint proprietors of the suit property.

Issue:

  1. What happens where a property was registered in the name of several proprietors but there was no indication as to whether they held the property jointly or in common?

Land Law - Tenancy - Proprietorship of land - joint proprietorship and proprietorship in common – registration of more than one name but not indicating the nature of proprietorship – rule in determining form of proprietorship where more than one name is registered but there is no indication of the nature of proprietorship – The Land Registration Act, Act No. 3 of 2012 Section 91 (8); Registered Land Act, section 101 (1); 102, 103(repealed) Read More...

Section 101 (1) of Registered Land Act, Cap 300, (Repealed)

An instrument made in favor of two or more persons, and the registration giving effect to it, shall show-

(a) Whether those persons are joint proprietors or proprietors in common; and
(b) Where they are proprietors in common, the share of each proprietor.

Section 102 of the Registered Land Act (Repealed)
(1) Where the land, lease or charge is owned jointly, no proprietor is entitled to any separate share in the land, and consequently –

(a) dispositions may be made only by all the joint proprietors; and
(b) on the death of a joint proprietor, his interest shall vest in the surviving proprietor or the surviving proprietors jointly.

(2) For avoidance of doubt, it is hereby declared that -

(a) the sole proprietor of any land, lease or charge may transfer the same to himself and another person jointly; and
(b) a joint proprietor of any land, lease or charge may transfer his interest therein to all the other proprietors.

(3) Joint proprietors, not being trustees, may execute an instrument in the prescribed form signifying that they agree to sever the joint proprietorship, and the severance shall be completed by registration of the joint proprietors as proprietors in common and by filing the instrument.

Section 103 of the Registered Land Act (Repealed)

(1) Where any land, lease or charge is owned in common, each proprietor shall be entitled to an undivided share in the whole, and on the death of a proprietor his share shall be administered as part of his estate.
(2) No proprietor in common shall deal with his undivided share in favour of any person other than another proprietor in common of the same land, except with the consent in writing of the remaining proprietor or proprietors of the land, but such consent shall not be unreasonably withheld.

Section 91 (8) of the Land Registration Act, Act No. 3 of 2012

On and after the effective date, except with leave of a court, the only joint tenancy that shall be capable of being created shall be between spouses, and any joint tenancy other than that between spouses that is purported to be created without the leave of a court shall take effect as a tenancy in common.

Held:

  1. Section 101(1) of the Registered Land Act, Cap 300, (repealed) provided that in every situation where the proprietors were more than one, the register had to reflect whether their registration was joint or in common. The RLA did not envisage a situation where there were several proprietors, without it being disclosed in the register, whether they are joint proprietors or proprietors in common. Section 102 and 103 of the Registered Land Act (repealed) gave the characteristics of the two kinds of proprietorship (joint properties or proprietors in common).
  2. Where proprietorship was joint, the persons did not have any separate shares in the land, and therefore if one proprietor died, his interest automatically vested upon the surviving proprietor. Thus if land was owned jointly by A and B, and A dies, B now becomes the sole proprietor of the land and did not hold it in trust for the estate of A. There were no separate shares for the proprietors.
  3. Where land was owned in common, each proprietor had a separate share, only that the same was undivided and held together with the other proprietor/s as one whole. Thus if one proprietor died, his share did not vest in the surviving proprietor, but vests in his estate.
  4. In the instant case, the register did not show whether the proprietorship was joint or in common. The RLA did not contemplate a scenario where the register did not indicate whether land was held jointly or in common, and did not provide for the course to follow where there were several proprietors but no indication as to whether they held the land jointly or in common. If the register did not reflect whether land was held jointly or in common, the fallback position would be to presume that the land was held in common. Joint proprietorship, where the same had not been explicitly indicated, would only be presumed in the clearest of circumstances, where there could be no shred of doubt that the contemplation of the parties was to have the property held jointly.
  5. The current law, which was contained in the Land Registration Act, Act No. 3 of 2012 (which repealed the RLA and which came into effect on 2 May 2012) in fact frowned deeply on joint proprietorship. It effectively banned them unless the proprietors were spouses or unless by order of court. The operative section was Section 91 (8).
  6. In the instant case, the proprietors were four brothers. They became registered as proprietors on 16th February, 1970. The register did not show whether they were proprietors in common or whether they are joint proprietors. The courts presumption was that they were registered as proprietors in common. In fact, the nature of their holding fortified that position. The four persons were first registered proprietors. This view, pointed at a holding, which tended to be a holding in common, rather than one which was joint
  7. The Land Registrar could not be faulted for failing to presume that the proprietorship was joint, and for failing to issue a title deed only bearing the names of the surviving proprietors. It could be said that the Land Registrar was correct in registering a restriction, barring any dealings, until the interest of the survivors of one of the deceased proprietors is catered for.
  8. The suit was filed on 22nd February 2014, at a time when the Registered Land Act had been repealed at a time when Section 91 (8) of the Land Registration Act, was effective. In essence, if the new law was applied, the plaintiff automatically failed. But it didn’t matter, for even on application of the old law, the plaintiff would still fail.

Proprietorship was deemed to be a proprietorship in common.

Suit dismissed with costs
JURISDICTION Jurisdiction of the Supreme Court to review Court of Appeal decisions on certification that an intended appeal involved matters of general public importance

P M Wamae & Co Advocates v Hon Ntoitha M'mithiaru
Civil Application No 48 of 2014
Supreme Court of Kenya at Nairobi
K H Rawal DCJ & VP, P K Tunoi, J B Ojwang, S C Wanjala & S N Ndungu, SC JJ
October 19, 2015
Reported by Beryl A Ikamari

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Brief facts:
The Applicant represented the Respondent in Ntoitha M’mithiaru v Maoka Maore & 2 others, Election Petition No. 1 of 2003, High Court at Meru. When the case was concluded the Applicant presented a fee note for taxation to the Deputy Registrar, as the Taxing Master. The Bill was taxed at Ksh. 3, 236,343.68/=
The Respondent challenged the taxation at the High Court. The grounds on which the taxation was challenged included an allegation that the Applicant was a NARC Party volunteer who via a letter dated March 20, 2003, agreed to take Ksh. 400,000, for conducting the hearing on condition that if the Petition was successful, the Applicant would be entitled to receive the balance of their fees from the costs to be recovered. It was also the Respondent's contention that the Applicant was estopped from filing a Bill of Costs against him. The High Court dismissed the reference while stating that the letter did not meet the provisions of Section 45 (1)(b) of the Advocates Act (Cap 16.)
On a further appeal to the Court of Appeal, the High Court decision was overturned and the Court of Appeal held that the Applicant was bound by the representations made in the letter dated March 20, 2003. For purposes of lodging a further appeal at the Supreme Court, the Applicant sought certification that the matter was of general public importance. The Court of Appeal declined to grant the certification and elaborated that the dispute between the parties was a private one. At the Supreme Court, the Applicant sought a review of the Court of Appeal decision on certification.

Issues:

  1. Whether the Supreme Court had jurisdiction to entertain the review application.
  2. Whether the intended appeal involved matters of general public importance.

Jurisdiction-jurisdiction of the Supreme Court-certification that an intended appeal involved matters of general public importance-whether the Supreme Court had jurisdiction to review a Court of Appeal decision which entailed a denial of the requisite certification.

Jurisdiction-jurisdiction of the Supreme Court-certification that an intended appeal involved matters of general public importance-circumstances in which a matter would be found to transcend the circumstances of the case and to have a bearing on public interest-whether a dispute between an advocate and client over fees owed and representations made by the advocate on fees due, was a dispute involving matters of general public importance-Constitution of Kenya, 2010, article 163(5). Read More...

Held:

  1. The jurisdiction of the Supreme Court to review applications for certification under article 163(5) of the Constitution was to be harmonized with the Constitution. Access to justice was one of the fundamental rights recognized in the Constitution and all litigants were to be accorded an equal right to access the Court. Therefore a party could approach the Supreme Court for a review of a decision granting leave (certification) or denying leave (certification.)
  2. Whether a matter was one that involved issues of general public importance was a question to be determined on a case by case basis. Among the principles applicable to such a question was that the matter needed to be one that transcended the circumstances of the particular case and had a significant bearing on public interest.
  3. The matter in issue was a dispute between an advocate and a client over the fees owed to the advocate, wherein an advocate made representations in a letter and sought to rely on legal provisions in order to avoid the representations. It was not a general question on whether advocates fees could be based on unexecuted agreements. It was therefore not a matter that transcended the circumstances of the case.
  4. The Applicant framed the issues arising from the matter as issues relating to whether the common law doctrine of estoppel could be applied retrospectively, the circumstances in which common law principles may take precedence over written law and whether the Court of Appeal was a Court of record, in light of the provisions of Articles 162(1) and 163(7) of the Constitution. However, the record did not indicate that the issue on the common law doctrine of estoppel was determined by the Court of Appeal. A finding was not made as that was not one of the issues brought before the Court for determination. The Supreme Court as an appellate Court could not exercise jurisdiction over such an issue.

Application dismissed. (Court of Appeal ruling affirmed.)