Tests that courts should apply when faced with the issue of establishing whether mental incapacity affected the performance of a person in their work duties.
Headnote: The appeal arose from the jurisdiction of the Supreme Court to determine appeals arising from a decision by judges that were deemed not to be fit for office by the Tribunal formed for the purpose of determining a petition of removal of a Judge. The petitioner was a Judge of the Environment and Land Court who was held to be unable to perform the functions of her office due to mental incapacity. Aggrieved the petitioner filed the instant appeal. The Supreme Court provided the guidelines that courts should follow in determining mental incapacity, and the tests that courts should apply when faced with the issue of establishing whether mental incapacity affected the performance of a person in their work duties. Ultimately the court held that the petitioner was unfit to hold office due to her mental incapacity.

MMG v Tribunal Appointed to Investigate the Conduct of Hon. Lady Justice MMG, Judge of the Environment and Lands Court of Kenya (Petition 10 (E013) of 2022) [2023] KESC 73 (KLR) (12 September 2023) (Judgment)
Neutral Citation: [2023] KESC 73
Supreme Court of Kenya
MK Ibrahim, SC Wanjala, NS Ndungu, I Lenaola, and W Ouko, SCJJ
September 12, 2023
Reported by John Ribia
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Heath Law – mental capacity – definition of mental incapacity – procedures to be followed by a court in making an assessment of mental incapacity – applicable tests in determining an employees ability to perform functions based on their mental capacity - what was the legal definition of mental incapacity - what guidelines should courts follow in matters which involve an assessment of mental incapacity - what tests should courts apply when they were faced with the issue of establishing whether mental incapacity affected the performance of a person in their work duties - whether a diagnosis of Schizophrenia and the resulting mental incapacity would render a Judge incapable of performing the functions of a Judge – Mental Health Act (Cap 248) section 2; Mental Health Act 1983, (United Kingdom) Mental Capacity Act, 2005, (United Kingdom) section 2(1) and (2); United Nations Principles for the Protection of Persons with Mental Illness and the Improvement of Mental Health Care, 1991, principle 1(7)
Jurisdiction – jurisdiction of a Tribunal formed for the purpose of determining a petition of removal of a Judge – where the matter before the Tribunal was the mental capacity of the Judge - whether a Tribunal formed for the purpose of determining a petition of removal of a Judge could had the jurisdiction to consider the mental capacity of said Judge – Constitution of Kenya, 2010 article 168(2) to (7)

Brief Facts:
Pursuant to a petition by Judicial Service Commission (JSC), the President vide Gazette Notice No 8625 of 2021 suspended the petitioner (a Judge of the Environment and Land Court) from office and appointed a Tribunal to inquire on whether the petitioner was fit to hold office.
On account of the medical evidence adduced at the hearing, the Tribunal established that the petitioner had severe schizophrenia and within a span of five (5) years, her mental illness had deteriorated. Thus, the Tribunal concluded that the question of whether the Judge had schizophrenia was proved to the required standard of beyond reasonable doubt.
Aggrieved, the petitioner filed the instant appeal under article 168(8) of the Constitution. The petitioner contended that the tribunal went outside its mandate when it made conclusions and findings on mental illness and mental incapacity, treatment, psychosocial support, and the petitioner’s mental illness and its impact on the right to access justice. The respondent opposed those contentions and reiterated that it acted within its mandate.
The petitioner also contended that it was not established that she suffered mental incapacity. It was her case that the required standard of proof was not met and the Tribunal erroneously concluded that mental illness amounted to proof of mental incapacity. The respondent on the other hand urged that the standard of proof that the mental illness had affected the petitioner’s ability to perform her duties as Judge was satisfied on account of the evidence adduced. The petitioner also contended that the process followed by the JSC and the Tribunal to remover her from office were procedurally unfair.

Issues:
  1. Whether a Tribunal formed for the purpose of determining a petition of removal of a Judge could had the jurisdiction to consider the mental capacity of said Judge.
  2. Whether the Tribunal erred in arriving at a finding that the Judge was incapable of holding office due to her mental incapacity.
  3. What was the legal definition of mental incapacity?
  4. What guidelines should courts follow in matters which involve an assessment of mental incapacity?
  5. What tests should courts apply when they were faced with the issue of establishing whether mental incapacity affected the performance of a person in their work duties?
  6. Whether a diagnosis of Schizophrenia and the resulting mental incapacity would render a Judge incapable of performing the functions of a Judge.
Held:
  1. The process of removal of a Judge from office was provided for under article 168(2) to (7) of the Constitution. It was initiated by the Judicial Service Commission (JSC) on its own motion or upon a petition being filed by any person for consideration by the Commission. If satisfied that the petition disclosed a ground for the removal of a Judge, the JSC shall send the petition to the President. The President thereafter suspended the Judge within fourteen days and also appointed a Tribunal to hear the petition and make recommendations to the President for the removal or reinstatement of the Judge.
  2. The tribunal was responsible for the regulation of its proceedings, and for inquiring into the matter expeditiously and report on the facts and make binding recommendations to the President. The Supreme Court, pursuant to article 168(8) of the Constitution had the jurisdiction to hear a Judge who was aggrieved by the decision of the tribunal and appealed within ten days after the tribunal made its recommendation. The Supreme Court’s jurisdiction under article 168(8) of the Constitution was expansive in that the court was required to re-evaluate and re-assess the evidence on record with a view of establishing whether the tribunal misdirected itself and whether the tribunal’s conclusion should stand.
  3. The Tribunal conducted an in-depth inquiry as to whether the petitioner was unable to perform her judicial functions due to mental incapacity. The Tribunal exercised its mandate pursuant to article 168(1)(a) of the Constitution. The Tribunal found that the petitioner suffered from a mental illness that led to mental incapacity and inability to undertake the functions of her office. The Tribunal confined itself to the matters contained in the petition submitted to the President by the JSC. The Tribunal did not consider issues extraneous to its jurisdiction.
  4. Mental Health Act, did not define mental incapacity. It however defined a person with mental illness in section 2 as a person diagnosed by a qualified mental health practitioner to be suffering from mental illness. The Mental Health Act was however silent on the resultant effect of mental capacity of persons with mental illness.
  5. United Kingdom law (Mental Health Act 1983, Mental Capacity Act, 2005) was clear that under the common law, every person was presumed to have mental capacity until the contrary was proved. Adults were presumed to have decision-making capacity, but that presumption could be rebutted for particular decisions if the person had some impairment or disturbance of mental functioning that rendered him or her either: unable to comprehend and retain the information that is material to the decision, or; unable to use and weigh the information as part of the process of making the decision. The ultimate decision on mental capacity was one for the Court to make.
  6. The Tribunal established that the petitioner admitted to being diagnosed with Schizophrenia in the year 2008, which diagnosis was also confirmed by doctors who submitted evidence. On account of the medical evidence adduced at the hearing, the Tribunal established that the petitioner had severe schizophrenia and within a span of five (5) years, her mental illness had deteriorated. The Tribunal established beyond reasonable doubt, that the Petitioner had a mental illness, schizophrenia.
  7. In no instance did the Tribunal equate mental illness to mental incapacity. We also note that one of the effects of the illness although not manifested every day was that the patient experiences difficulty in thinking and reasoning. Based on the nature of the disease, symptoms, result of relapses, and mental impairment caused by the disease and upon our evaluation of the evidence before the Tribunal, the Tribunal’s finding that the petitioner’s mental illness caused mental incapacity was arrived at correctly.
  8. There was a necessity to strike a balance, on the one hand, of the rights of an individual in a free society and, on the other hand, the need to protect the individual, employment environment, and society at large, from the adverse effects of mental illnesses and disorders. Therefore, in determining cases of mental incapacity, and bearing in mind that conclusions could not be transposed from one case to another, following guidelines were established for courts to follow in matters which involve an assessment of mental incapacity:
    1. Mental incapacity included but was not limited to a person’s inability to make a decision, understand information about a decision, remember information, use the information to make a decision, or communicate a decision.
    2. Mental incapacity can result from mental illness but it did not necessarily follow that mental illness equaled mental incapacity.
    3. Mental incapacity must be diagnosed by a qualified professional.
    4. A court was bound to consider whether an employer caused the establishment of an independent medical board of duly qualified members to determine whether the employee was, by reason of an infirmity of mind, incapable of discharging the functions of the relevant office.
    5. If an employee’s mental illness was adversely affecting their ability to perform their duties, in some instances, the employer, following due process, may terminate the employee’s contract of employment or recommend the employee’s removal from office.
    6. A court must consider the diagnosis by a qualified professional, and medical expert evidence and assess whether, on a balance of probabilities, the employee’s mental illness affected their work duties.
    7. Where a person was deemed to lack mental capacity, any interference with his or her fundamental rights and freedoms must be the least restrictive possible.
  9. The Environment and Land Court (ELC) heard and determined complex legal issues in relation to a finite resource often with numerous parties and lengthy hearings due to the voluminous documents to be scrutinised and parties to be heard. The petitioner had considerably handled several matters but had numerous judgments and rulings that were pending delivery.
  10. The petitioner’s performance as a Judge in the period under review was affected by absenteeism caused by her mental illness. Her absence was not only when she was hospitalised but also when she fell ill and not admitted to hospital. Her absence from duty became acute in the Financial Years 2015/2016 and 2016/2017. Her absence from duty resulted in cases in her docket being re-allocated to other Judges when applications were filed under certificates of urgency. The cases due for hearing were adjourned to other dates when the Judge resumed duty after recovering from illness. That negatively impacted the performance of the ELC due to the burden of caseload assumed by other Judges in the absence of the petitioner.
  11. The Presiding Judge received numerous complaints from advocates and litigants against the petitioner in relation to her conduct in court and on delays in rendering judgments and rulings. The retired Chief Justice had received similar numerous complaints from advocates and the public about the petitioner. Some advocates complained of instances when the petitioner was not concentrating on the case before her and at times would ask questions totally unrelated to the case at hand. Due to no fault of her own, the petitioner was not performing at her optimum mental level.
  12. The side effects of the use of the drugs; Clozapine, Haloperidol and Risperidone some of which included drowsiness, lethargy and tiredness. Those could impact on the concentration and alertness of the petitioner. The petitioner’s doctor had prescribed Benzhexol to counter some of the side effects and thus by parity of reason, the petitioner was experiencing some side effects.
  13. The requisite standard of proof that applied to and that was applied by the Tribunal was that of below beyond reasonable doubt but higher than a balance of probabilities. There was no reason to interfere with the Tribunal’s finding that the petitioner was unable to perform the functions of a judge of the ELC. While considering this illness and its attendant consequences on mental capacity, the Tribunal was well within its rights to consider its treatment and psychosocial support both integrally linked to the ability of the petitioner to perform her functions of office.
  14. A two-stage test would guide courts when they are faced with the issue of establishing whether mental incapacity affected the performance of a person in their work duties. Firstly, there must be proof that a person had an illness or injury that affected the manner in which the brain or mind works. Secondly, that the illness or injury affected the person to the extent that they were unable to perform their duties to the requisite standard.
  15. The jurisdiction of the Supreme Court extended only to enquiry of the proceedings of the Tribunal and not the JSC. Section 13 of the second schedule of the Judicial Service Act (JSA), provided that the Tribunal shall not be bound by strict rules of evidence but shall be guided by the rules of natural justice and relevancy. The Tribunal was compliant with the provisions of the second schedule on how a hearing by the Tribunal was conducted. The petitioner did not also specifically fault how the Tribunal failed to comply with the rules of natural justice during the hearing. There was no basis to fault the Tribunal for failing to adhere to procedural fairness.
  16. Despite the petitioner’s ailment, she exuded great determination in the functions of her office as a Judge whenever she was able to do so. The petitioner’s mental illness that led to mental incapacity in the performance of her functions was not her fault or her own doing.
  17. The Supreme Court was guided by principle 1(7) of the United Nations Principles for the Protection of Persons with Mental Illness and the Improvement of Mental Health Care, 1991. It provided that where a court or other competent tribunal found that a person with mental illness was unable to manage his or her own affairs, measures shall be taken, so far as was necessary and appropriate to that person's condition, to ensure the protection of his or her interest. Although the Supreme Court had established that the petitioner was unable to perform the functions of the office of a Judge which required immense alertness, endless concentration, presence, a good frame of mind to observe the demeanour of witnesses, back-breaking research, writing/typing skills, this was not to mean that she could not undertake other duties pertaining to the legal profession.
  18. Mental Health Act (Cap 248) guided by best practices and provide for inter alia a clear definition of mental capacity, the test for mental capacity, insight, pension for Judges and other state officers who may be removed from office due to mental incapacity, and so forth. In this regard, the Legislature would also need to align the provisions of the Pension Act (Cap 289) with any new amendments. Parliament should also consider aligning the Employment Act with mental health considerations and accommodations such as the provision of clauses that place an onus on employers to ensure that they create a safe working environment and that mental health issues are not caused or exacerbated by work-related stress; clauses that provide that employers have a legal duty to reasonably accommodate employees with mental illness providing the same can be done without undue hardship to the employer; what is ‘reasonable’ will depend on the facts of each case; to give but a few examples.”
Petition dismissed.
Orders: -
  1. The Tribunal’s finding that the petitioner was unable to perform the functions of her office due to mental incapacity was affirmed.
  2. The Tribunal’s recommendation to the President for the Petitioner’s removal from office under article 168(1)(a) of the Constitution was affirmed.
  3. No orders as to costs.
  4. The sum of Kshs. 6000/- deposited as security for costs in the appeal was to be refunded to the petitioner.


Kenya Law
Case Updates Issue 031/23-24
Case Summaries
CIVIL PRACTICE PROCEDURE Availability of general damages as a remedy for breach of contract does not warrant certification as involving matters of general public importance

Headnote: The application sought review of the Court of Appeal decision declining to certify the intended appeal as being one involving matters of general public importance. The issues proposed to be certified revolved primarily around the availability of general damages as a remedy for breach of contract and the extent of such remedy, if at all. The Supreme Court found that in differing with the basis upon which the High Court had awarded general damages, the Court of Appeal did not negate but rather affirmed the general rule. Further, the Court of Appeal affirmed that there was no ambiguity in the legal practice since the appellate court did not misinterpret its previous decisions that general damages were not awardable for breach of contract except in exceptional circumstances.
Sundowner Lodge Limited v Kenya Tourist Development Corporation (Application E039 of 2023) [2023] KESC 100 (KLR) (8 December 2023) (Ruling)
Neutral citation: [2023] KESC 100 (KLR)

Supreme Court of Kenya
PM Mwilu, DCJ & V-P, MK Ibrahim, SC Wanjala, NS Ndungu & I Lenaola, SCJJ
December 8, 2023
Reported by Kakai Toili

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Civil Practice and Procedure – appeals – appeals to the Supreme Court – appeals in matters certified as of general public importance - whether the issue of availability of general damages as a remedy for breach of contract and the extent of such remedy warranted certification as involving general public importance – Constitution of Kenya, 2010, article 163(4)(b).

Brief facts
The applicant filed the instant application seeking review of the Court of Appeal decision declining to certify the intended appeal as being one involving matters of general public importance. The applicant’s claim at the trial court was premised on breach of the lending contract to which the applicant filed a suit and sought general and special damages, interests and costs. The trial court awarded the applicant Kshs 153,000 as special damages and Kshs 30,000,000 as general damages. On appeal, the Court of Appeal set aside the award of Kshs 30,000,000 as general damages.
The applicant contended that a review of the Court of Appeal’s decision was merited as the intended appeal to the Supreme Court raised questions of general public importance that transcended beyond the parties; as a result of the Court of Appeal’s misinterpretation of its prior decisions, its decision in the matter had a likelihood of causing confusion in the legal practice and among the lower courts regarding the recoverability of general damages for breach of contract.

Issue:

  1. Whether the issue of availability of general damages as a remedy for breach of contract and the extent of such remedy warranted certification as involving general public importance. Read More..

Held:

  1. The Court of Appeal, in differing with the basis upon which the High Court had awarded general damages did not negate but rather affirmed the general rule. Further, vide the ruling dated September 22, 2023 in Civil Application No Sup 19 of 2018, the Court of Appeal, affirmed that there was no ambiguity in the legal practice since the appellate court did not misinterpret its previous decisions that general damages were not awardable for breach of contract except in exceptional circumstances, which had to be justified. Therefore, that issue was well settled and the issue of contradictory previous decisions did not arise.
  2. The applicant sought another opportunity to have a third bite at the cherry by seeking to revisit factual findings and conclusions already resolved by the superior courts below. Determinations of fact in contests between parties were not, by themselves, a basis for granting certification for an appeal to the Supreme Court. The Court of Appeal correctly interrogated the proposed issues as against the threshold set out in the Hermanus Phillipus Steyn case in arriving at its decision that they did not warrant a certification as involving general public importance.

Application dismissed; costs to be borne by the applicant.

JURISDICTION

Whether the Supreme Court has appellate jurisdiction as of right in cases involving interpretation of the Constitution to determine matters relating to the conduct of an arbitrator and arbitral proceedings

Headnote: The matter related to three applications; the first application was by the intended interested party seeking to be joined in the petition as an interested party; the second application sought the striking out of a petition; while the third one sought leave to exceed the mandatory limit of 15 pages of written submissions in support of the petition. The court held that alleged breaches of the Constitution could not be properly introduced by way of an application to set aside an arbitral award. The court found that it did not have jurisdiction under article 163(4)(a) of the Constitution to hear and determine the appeal as the matters before the superior courts did not involve interpretation and application of the Constitution at all.
Goodison Sixty One School Ltd v Symbion Kenya Ltd; Ngotho (Intended Interested Party) (Petition (Application) E027 of 2023 & Application E042 of 2023 (Consolidated)) [2023] KESC 111 (KLR) (21 December 2023) (Ruling)

Supreme Court of Kenya
December 21, 2023
Reported by Kakai Toili

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Jurisdiction – jurisdiction of the Supreme Court – appellate jurisdiction – appeals as of right in cases involving the interpretation or application of the Constitution - whether the Supreme Court had appellate jurisdiction as of right in cases involving interpretation of the Constitution to determine matters relating to the conduct of an arbitrator and arbitral proceedings – whether alleged breaches of the Constitution could be introduced by way of an application to set aside an arbitral award - Constitution of Kenya, 2010, article 163 4(a).

Brief facts
Three separate applications were filed before the court. The first application was by the intended interested party seeking to be joined in the petition as an interested party. The intended interested party was the arbitrator who determined the dispute between the appellant and respondent. He contended that he had been mentioned in the pleadings before the instant court and was subject of the proceedings in High Court.
The second application was by the respondent seeking the striking out of Petition No E027 of 2023 -Goodison Sixty-One School Ltd v Symbion Kenya Ltd for want of jurisdiction. The respondent contended that the court lacked jurisdiction to hear and determine the petition under article 163(4)(a) of the Constitution of Kenya, 2010 (the Constitution) The respondent further contended that the appellant had not sought certification from the Court of Appeal that the matter raised issues of general public importance and that in any event, the petition did not fall within the ambit of matters contemplated by article 163(4)(b) and that there was no provision for a further appeal from the Court of Appeal on an arbitration matter.
The third application was by the appellant seeking leave to exceed the mandatory limit of 15 pages of written submissions in support of the petition. The appellant contended that; separate submissions were filed by the parties in the 3 substantive appeals at the Court of Appeal; and that it was not seeking to file 15 pages per appeal but 27 pages for the consolidated appeal. The appellant further contended that no prejudice would be caused to the respondent if the application was allowed.

Issue:

  1. Whether the Supreme Court had appellate jurisdiction as of right in cases involving interpretation of the Constitution to determine matters relating to the conduct of an arbitrator and arbitral proceedings
  2. Whether alleged breaches of the Constitution could be introduced by way of an application to set aside an arbitral award. Read More...

Held:

  1. The Supreme Court had previously settled the twin questions of whether both the Court of Appeal and the Supreme Court were vested with the jurisdiction to hear and determine appeals arising out of arbitration disputes. In determining the above questions, the court had to first evaluate whether the contested issues in the petition were issues of constitutional controversy that had been substantively determined by the High Court and the Court of Appeal.
  2. The issues before the superior courts did not involve the interrogation of any constitutional question(s) that rose through the normal appellate mechanism to enable the court exercise its jurisdiction on the interpretation and application of the Constitution under article 163(4)(a) of the Constitution.
  3. Alleged breaches of the Constitution could not be properly introduced by way of an application to set aside an arbitral award. Breaches of the Constitution were properly governed by articles 165(3) and 258 of the Constitution and could not by litigational ingenuity be introduced for adjudication by the High Court by way of invocation of section 35 of the Arbitration Act.
  4. The court did not have jurisdiction under article 163(4)(a) of the Constitution to hear and determine the appeal as the matters before the superior courts did not involve interpretation and application of the Constitution at all. The issues relating to the conduct of the arbitrator and the arbitral proceedings which were at the core of the applications before the High Court could not by any shade of imagination translate into issues requiring the interpretation of the Constitution. Furthermore, the appellant's case had not met the criteria set in Synergy Industrial Credit Limited v Cape Holdings Limited, SC Petition No 2 of 2017 [2019] eKLR to have enabled either the Court of Appeal or the instant court to have jurisdiction to entertain the same. As a consequence, Petition No E027 of 2023 was struck out for want of jurisdiction.
  5. Having struck out Petition No E027 of 2023, the applications seeking joinder of the intended interested party and leave to exceed the page limit of the appellant’s submissions were rendered otiose.

Applications partly allowed.
Orders

  1. The notice of motion dated October 9, 2023 was allowed.
  2. Petition No E027 of 2023 was struck out.
  3. The notice of motion dated October 6, 2023 was struck out.
  4. The notice of motion dated October 12, 2023 was struck out.
  5. The court directed that the sum of Kshs 6000 deposited as security for costs in the appeal be refunded to the appellant.
  6. The appellant shall bear the costs of the application dated October 9, 2023 and the same shall be paid to the respondent only. The intended interested party shall bear his costs.