Friday 30 May 2008

CIVIL SERVANTS CORRESPONDENCE PROTECTED BY PRIVILEGE

Baseline Architects Ltd. & Others v National Hospital Insurance Fund
High Court of Kenya  [2008] eklr
[http://www.kenyalaw.org/]
Warsame J  7th May, 2008

This case raised a fundamental problem of balancing or reconciling
two kinds of public interest which may clash due to the stakes
involved. On the one hand there is the public interest that harm
should not be done to the nation or the public by disclosure of
certain documents and on the other hand there is the public interest
that administration of justice should not be frustrated by
withholding of documents which must be produced in evidence if
justice is to be done.

The law is that no one should be compelled to produce documents in
his possession which any other person would be entitled to refuse to
produce if they were in his possession unless there is mutual
consent.

For purposes of public policy and protection, a client may consult
an advocate for the purpose of his cause of action and of litigation
which is pending and that the policy of the law says that in order to
encourage free intercourse between him and his counsel the client has
the privilege of preventing his advocate from disclosing anything
which he gets when so employed and of preventing its being used
against him, although it might otherwise be evidence against him.
This privilege also extends to the Attorney General for he provides
legal opinion and advise to the Government and all public
corporations in areas where his intervention is sought or necessary.

The applicant, the National Hospital Insurance Fund appointed the
2nd respondent as consulting quantity surveyor for a proposed
resource centre in Karen Nairobi. The 1st respondent was also
instructed to be the lead consultant for the design and supervision
to completion of the proposed training centre.

However, a dispute arose between the applicant and the respondents
which was referred to arbitration. Thereafter an award was made and
published in favour of the respondents to the tune of Kshs. 350
million.

NHIF was aggrieved by the decision of the arbitrator they filed the
present application to expunge certain documents from the record.
Reason being that the documents were allegedly privileged.

The applicant, in support of the application, submitted that the
documents annexed to the respondents' affidavits were in breach of
privilege and therefore could not be a basis of adjudication on the
issues before court. The applicant's counsel submitted that the
evidence adduced in the two affidavits was not admissible because the
documents related to an opinion from the Attorney General in respect
of an ongoing litigation or advice given by an advocate to his
client. Counsel submitted that the information was privileged
communication which could not be used against the applicant.

Counsel for the respondents submitted that section 137 and 134 of
the Evidence Act (Cap. 80) permitted the respondents to produce the
evidence on record. He also submitted that the documents produced
were exceptional to the rule of privilege and confidential
information. And that the communication with the Attorney General
fell within the permitted exceptions of section 137 of the Evidence
Act.

The court, after considering counsel submissions, stated that a
party to a litigation is not obliged to produce documents which do
not belong to him but which have been entrusted to his company by a
third party in confidence. It would be an abuse of that confidence to
disclose it, without the permission of the owner of the original
documents.

The court went further to say that where a document has been
communicated voluntarily for a limited and restricted purpose, it
would be unjust and unlawful to allow the original or a copy of it to
be communicated in any manner except for that purpose.

However the court opined in certain cases a possible injury to
public interest must be balanced with another risk which is the
frustration of administration of justice by such refusal.

The documents in question were meant for the internal consumption
and use of the applicant and other Government bodies who would be
concerned or interested in the outcome of the dispute between the
parties. The documents from the Chief Executive Officer of the
applicant to the Attorney General were marked as confidential because
the CEO was seeking an opinion and/or advice of the AG.

The court posed the question whether the documents in question were
within the boundary of documents which any right minded person would
say clearly ought not to be the subject of production in an action.

The court held that it is of utmost importance that public service
should function properly and it cannot do so unless commonplace
communications between one civil servant and another are privileged
from production. It would be an injustice to civil servants to hold
that they are so timid that they would not write freely and candidly
unless they know what they wrote could in no circumstances
whatsoever, come to the light of the day to be used by a person not
intended to see or rely on the contents of such documents.

Public policy requires that the most unreserved communication should
take place between public servants and it should not be subject to
restraints or limitations. But it is quite clear that if the
documents in possession of the respondents was allowed to be
produced, used and relied upon in court, that would in essence
restrain the freedom of communication and render public officers to
proceed in a more cautious, guarded and reserved manner in their
communication and concerns.

The contents of the documents clearly showed that the documents
belonged to a class which on grounds of public interest must, as a
class, be withheld from production. The documents fell within the
scope of privilege and confidential correspondence in the course of
obtaining legal advice. It would be both wrong and dangerous if
parties were allowed to intercept legal opinions between the office
of the Attorney General and government departments and to rely on the
same for the success of their case, because they thought the documents
are favourable to the success of their case.

The balance of public good in the circumstances of this particular
case tilted in favour of refusing the production of the subject
documents.

 Download Case
<http://kenyalaw.org/Downloads_FreeCases/Confidential_communications.pdf>

Reported by BENJAMIN MBATIA of KLR

PRESUMPTION OF MARRIAGE BY COHABITATION

In the matter of the Estate of Patrick Kibunja Kamau(Milka Githikia
Kamau Vs. Faith Wangechi Kamau[2008] eKLR

High Court of Kenya at Nakuru (M.Koome J.),May 16,2008.

 Under kikuyu customary law, there can be marriage by cohabitation,
which could be presumed where parties have been cohabiting together.

 The petitioner, Milka Githikia Kamau, while describing herself as
the widow of the deceased petitioned for the letters of grant of
administration on 12th February 1999. According to her, the deceased
Patrick Kibunja Kamau died on 19th January 1999 at Nyahururu and was
survived by herself (as petitioner) and three minor children.

 The letters of administration were issued to the petitioner on 13th
May 1999. On 7th December 1999 the petitioner applied for the
confirmation of the grant. That is when Faith Wangechi Kamau (the
applicant) filed a protest, of the grant being confirmed, on the
grounds that the deceased was also married to her from 1993. She
contended that she had two children with the deceased who also
survived the deceased. The applicant contended that she was left out
as a widow of the deceased and she protested the confirmation of the
grant unless her name and those of her children were included as
beneficiaries of the deceased. The petitioner Milka Githikia Kamau
however denied any knowledge of the applicant as well as the
children. The petitioner also relied on the evidence of one Elkana
Kibunja, the father of the deceased who denied that the deceased had
married the applicant under the Kikuyu Customary Law since the
applicant was never introduced to him or her children.

 When the matter came up in court, the petitioner gave evidence and
relied on the evidence of her father-in-law Elkana Kibunja and one
Leah Nduta, a step-mother of the deceased. It was the petitioner's
case that she got married to the deceased in 1981 under the Kikuyu
Customary Law and they were blessed with three children. Upon
marriage, the petitioner and the deceased cohabited as husband and
wife in Mombasa, and then moved to Maralal, then Kabarnet District
and finally, Nyahururu.

 The deceased was working with the Ministry of Agriculture and as at
the time he passed away he was the Deputy Provincial Director of
Agriculture based in Nyeri. The deceased is said to have also been
running a business at Subukia town centre where he used to visit
frequently to check on his business but he would always return to
Nyahururu where the petitioner lived with the children. When the
deceased was taken to hospital he was at Subukia and he was admitted
at the Nyahururu Cottage Hospital where he passed away. Upon his
death, meetings to arrange the burial were held at Subukia by friends
and relatives. The funeral committee decided that the death of the
deceased be announced by way of advertisement in the newspapers but
the name of the petitioner or the children were not included. The
petitioner sought an explanation from the deceased's father why they
were left out in the death announcement, Elkana Kibunja held a
meeting with the funeral committee at Subukia and directed that the
names of the petitioner and the applicant as well as any other woman
claiming to be his wife be included in the death announcement. Thus
the name of the petitioner, the applicant and all their children were
included in the death announcement and also in the funeral programme

 The petitioner denied that all the time they lived with the
deceased, the deceased had another wife or that she had met the
applicant or her children. The deceased never disclosed to the
petitioner that he had another wife. The petitioner also vehemently
denied that she had differences with the deceased prior to his death.
She denied that the deceased been separated and was living in a hotel
in Nyahururu instead of the matrimonial home. Asked why the deceased
was taken ill while at Subukia and why the funeral meetings were held
in Subukia instead of the matrimonial home in Nyahururu, the
petitioner explained that the deceased was at his business premises
and it was in Subukia where he had many friends and relatives.

 Elkana Kibunja, deceased father supported the petitioner's evidence
in every material aspect, and so did Leah Nduta, Elkana Kibunja's
wife, and the deceased's step mother

 Faith Wangechi the applicant testified that she met the deceased in
1990. They became friends and he is the biological father of her two
children. The first child was born in 1991 and the second child was
born in 1993. In October 1993, the deceased requested the applicant
to start living with him as a wife. They moved in together, moved to
Subukia and eventually the deceased bought a plot and constructed a
business premises called Village Villas Inn. The applicant was
in-charge of the business and the deceased used to live with her.

 She contended that the deceased married her and paid Kshs.19,000 as
dowry. She contended that she was the one who looked after the
deceased when he was in hospital. According to the applicant, she is
the second wife of the deceased. She recognised the petitioner as the
first wife and urged the court to grant the letters of administration
to the two widows.

 Her evidence was supported by one Peter Chege, a friend of the
deceased who confirmed that she was married to the deceased.

 When the matter came up for determination by the court, the single
issue for determination was whether the applicant and her children
are beneficiaries of the deceased's estate. In particular, whether
the applicant was married to the deceased under the Kikuyu Customary
Law and whether the deceased was the biological father of the
applicant's children or whether he had adopted them under the
Customary Law by virtue of the marriage to the applicant.

 Counsel for the applicant invited the court to find that there was
marriage by cohabitation which could be presumed from the
relationship between the deceased and the applicant.

 The court also needed to establish whether the applicant had been
able to discharge the burden of prove that due to the long
cohabitation living as man and wife with the deceased, the court
should presume a marriage. On the issue of whether her children were
deceased's the court stated that ordinarily if they were the
deceased's children they ought to have borne the names of his
parents. From the evidence on record, the applicant had not proved
that these were deceased's children. No birth certificates were
produced or even evidence to show that the deceased used to support
them.

 The final issue to determine is whether the applicant discharged the
burden of prove that by virtue of the long cohabitation she should be
presumed a wife of the deceased. On this, the court answered the
question on the affirmative. On reaching this answer, the court
considered that the deceased used to live with the applicant at
Subukia from 1993. The deceased personal effects such as clothes and
motor vehicle were retrieved from the applicant's house when the
deceased passed away. It is the applicant who took the deceased to
hospital when he was taken ill. The funeral meetings took place in
Subukia which was recognised as the deceased's residence. The funeral
committee included the applicant as the widow of the deceased and she
was accorded the full honours of a widow. The deceased who was
married to the petitioner under the customary marriage had capacity
to marry the applicant.

 The court was categorical that it would be unconscionable for it to
hold that the applicant was a mere impostor looking out to enrich
herself as the petitioner has described her. All those years the
applicant must have held legitimate expectations that she was the
wife of the deceased and thus entitled to a share of his estate and
that denying her a share of the deceased estate would be tantamount
to denial of the fundamental rights as regards fair treatment and
equality before the law.

 In summation, the court held that the applicant can be presumed a
wife of the deceased. However, her children could not be declared the
beneficiaries of the deceased. The deceased was therefore survived by
the petitioner, the petitioner's three children and the applicant who
was each entitled to 1/5 of the deceased's estate

 Download File
<http://kenyalaw.org/Downloads_FreeCases/succ_82_of_1999.pdf>

 Reported By Timon Kosgei of KLR

 May, 2008

 Nairobi Kenya.

The Average Lawyer

The average lawyer is essentially a mechanic who works with a pen instead of a ball peen hammer.

-Robert Schmitt-

L-K’ers: What is your take on this? Email your opinion now to: pmusyimi@gmail.com

Of Lawyers and IQ

What do you call a lawyer with an IQ of 15?

A lawyer.

What do you call a lawyer with an IQ of 10?

Your honor.

Thursday 29 May 2008

Proposed Amendments to introduce mediation in Kenya

The proposed amendments affect the Civil Procedure Act, introduce a new Order XLV B and create new forms. The amendments were presented to the Rules Committee for consideration. 

The rules are a blend of the Ontario Rules spiced with the Zambian Rules. These were considered to be the most apt for our jurisdiction.    The final draft was then presented to the Rules Committee on 30th November 2004.

AMENDMENTS TO THE CIVIL PROCEDURE ACT

Mediation" means an informal and non-adversarial process whereby a neutral third person called a mediator acts to encourage and facilitate the resolution of a dispute between two or more parties with the aim of helping the disputing parties reach a mutually acceptable and voluntary agreement.

 

"Mediator" means an impartial person whose role in mediation is to assist an encourage parties to a dispute:

·        To communicate and negotiate in good faith with each other;

·        To identify and convey their interests to one another;

·        To assess risks;

·        To consider possible settlement options;

·        To resolve voluntarily their dispute.

 

"Impartial" means being and being seen as unbiased towards to a dispute, toward their interests and toward the options they present for settlement.

 

"Mediation Coordinator" is a person to be designated by the Chief Justice to be responsible for the administration of mediation under this Act.

 

Part IV – Special Proceedings

 

Mediation

 

S. 59 A (1)      Every suit may be referred to mediation unless otherwise excepted by statute, rule or court order or the suit involves constitutional issues, matters of public policy or has pending applications that seek to dispose the suit in a summary manner or where the trial court considers the case to be unsuitable for referral to mediation.

 

            (2)        A court ordered mediation shall be conducted according to the Rules.

 

 PROPOSED AMENDMENTS TO THE CIVIL PROCEDURE RULES

 

ORDER XLV B

 

MEDIATION UNDER ORDER OF A COURT

 

Referral to mediation

1.   (1) In every suit instituted in court, a first scheduling and settlement conference shall within thirty days after close of pleadings for the purpose of referring the case to mediation be held and presided over by the mediation coordinator.

 

(2) A mediation under sub rule (1) shall be conducted by a person:

(a)   Chosen by the agreement of the parties from the list of approved mediators.

(b)   Assigned by the Mediation Coordinator from the list of mediators.

(c) Who is not named on the list if the parties consent.

 

List of mediators

2.   The court shall maintain a panel of approved mediators that meet specific qualifications and who adhere to court approved mediator ethics. The mediator shall be of not less than seven years in their respective fields.

 

 Mediators Fees

3.      (1) The mediators fees for the mandatory mediation session shall not exceed the amount shown in the following Table:

 

TABLE

 

Number of Parties
Maximum Fees (excluding taxes and expenses).

2

Kshs. 15,000.00

3

Kshs. 20,000.00

4

Kshs. 25,000.00

5 or more

Kshs. 30,000.00

 

(2) Each party is required to pay an equal share of the mediator's fees for the mandatory session at least seven days before the first mediation session.

(3) The mediator's fees for the mandatory mediation session cover up to three hours of actual mediation.

 

(4) After the first three hours of actual mediation, the mediation may be continued if the parties and the mediator agree to do so and agree on the mediator's fees or hourly rate for the additional time.

 

(5) If the mediator cancels a session under Rule 6 (2) of this Order because a party fails to comply with Rule 6 (1) that party shall pay any cancellation fees.

 

(6) If the mediator cancels a session under Rule 7 (2) of this Order because a party fails to attend within the first thirty minutes of the session, the party who fails to attend shall pay any cancellation fees.

 

(7) Two or more parties who fail to comply or attend, as the case may be shall pay the cancellation fees in equal shares.

 

(8). A party's failure to pay a share referred to in Rule 3 (2) or 3 (7) does not increase the share or shares of the other party or parties.

 

(9) A party who has instituted a suit in forma pauperis with respect to the proceeding is not required to pay fees under this Order.

 

Time limit

4.      A mediation settlement shall take place within three (3) months after being referred to mediation provided that time may be extended for a further sixty days by the mediation coordinator having regard to the number of parties or complexity of issues or with the consent of the parties which consent shall be duly filed in court.

 

Mediation hearing

5.      (1) The assigned mediator shall immediately fix a date for the mediation settlement and shall at least twenty days before that date, serve on every party a notice stating the place, time and date of the mediation of the settlement conference and advising parties that the settlement conference is mandatory.

 

(2) The assigned mediator shall file a copy of the notice in court.

 

Procedure before mediation

6.      (1) Every party shall at least seven days before the settlement conference comply with the following conditions:

(a). Prepare a statement in the prescribed form and provide a copy to every other party and to the mediator.

(b). The statement shall identify the factual and legal issues in dispute and briefly set out the position and interests of the party making the statement.

(c) The party making the statement shall attach to it documents that the party considers of central importance to the action.

 

(2) If it is not practical to conduct a mediation session because a party fails to comply with sub-rule one, the mediator shall cancel the session and immediately file with the mediation coordinator a certificate of non-compliance.

 

Attendance at Mediation Session


7.     
(1) The parties, and their lawyers if the parties are represented, are required to attend the mediation session unless the court orders otherwise. If the party is a corporation, partnership, government agency or entity other than an individual, an officer or director of sufficient rank to settle the matter shall attend.

(2). If it is not practical to conduct a scheduled mediation session because a party fails to attend within the first thirty minutes of the time appointed for commencement of the session, the mediator shall cancel the session and immediately file with the mediation coordinator a certificate of non-compliance.

 

Statement of Understanding on Role of Mediator

8.      At the commencement of the mediation, the mediator shall read and explain to the parties the statement of understanding on the role of the mediator in the prescribed form and shall require the parties to the sign the form.

 
 

Non-compliance

9.      (1) When a certificate of non-compliance is filed, the mediator shall refer the matter to the court.

(2) The court may make any of the following orders;

(a)   an order that further mediation shall occur on any terms that the court considers appropriate.

(b)   an order that the pleadings of the non-complying party be struck out, unless the party satisfies the court that there was reasonable excuse for the non-attendance and that striking out the party's pleadings will be inequitable.

(c)    an order that the defaulting party pays costs.

 

 

Confidentiality

10.  All communication at a settlement conference and the mediator's notes and records shall be deemed to be without prejudice settlement discussions.

 

Mediator's Report

11.  Within ten days after the mediation is concluded, the mediator shall give the mediation coordinator and the parties a report on the mediation in the prescribed form.

 

Agreement 

   

12.  (1) If there is an agreement resolving some or all of the issues in dispute, it shall be signed by the parties and filed in court within ten days after the mediation is concluded.

(2) If the agreement settles the action, the mediator shall file in court a notice to that effect and the court shall enter judgment.

(3) If no agreement is reached the parties shall set the suit down for hearing.

 

Consent Order for Additional Mediation

13.  At any stage in the proceedings, the mediation coordinator may with the consent of the parties make an order requiring the parties to participate in an additional settlement conference for purposes of dealing with all matters required to be dealt with in any case at such a settlement conference.

 

No appeals against settlement

 

14.  No appeal shall lie against a registered mediated settlement.

 

Inadmissibility in Other Court Proceedings

 

15  (1) Anything said at a mediation session shall be inadmissible in any proceedings before any court of law.

      (2) Neither the mediator nor any person present at the mediation session may be summoned, compelled or otherwise required to testify or to produce records or notes relating to the mediation in any proceedings before any court of law.

      (3) A mediation session shall not be taped nor any transcript of it kept.

      (4) Any record of what took place at a mediation session shall not be admissible before any court of law, unless the parties agree in writing.

      (5) The provisions of this rule do not:

(a)   apply to a mediated agreement, or;

(b)   prevent the admission of factual evidence relating to the cause of action that would be admissible apart from sub rule (1) and/or (2) above.

 

 Immunity

 

16. A mediator shall have the protection and immunity in the same manner and to the same extent as granted judicial officers and judges under Section 6 of the Judicature Act (Chapter 8 of the Laws of Kenya).

_______________________________________

These are the proposed court-mandated mediation rules. But the amendments seems to have stalled mid-way. What is your take on them?

This extract was an annex to a paper by Allan Gachuhi: Court Mandated Mediation- the Final Solution to Expeditious Disposal of Cases (2006)


ELECTION PETITION DISMISSED FOR LACK OF SERVICE

Reported by ABRAHAM GACHIE
May, 2008

Nairobi-Kenya

Nasir Mohamed Dolal Vs Duale Aden Bare & 2 Others [2008] eKLR
(www.kenyalaw.org)

 High Court, at Nairobi (Visram J) 12th May 2008
 "dropping off court process at the gate of the MPs brother's house
could not constitute 'personal service' on the MP"

 The High Court has stuck off an election petition against Dujis MP
Mr Duale Aden Bare. The Petition was brought by one of his opponent
in the 2007 December Elections Mr Nasir Mohamed Dolal.

 Dismissing the petition High Court Judge Alnashir Visram said that
Mr Bare was not served with the petition papers as required by law.

 Mr Dolal had sought through a petition presented on 25th January
2008 to challenge the election results of Dujis constituency and had
prayed the court to declare the election of Mr Bare as the MP null
and void.

 However the MP sought to have the election petition struck off
arguing that he had not been served with election papers in
accordance with the law. He argued that the law required an election
petition to be presented and served within twenty-eight days after
the publication of the election results in the gazette. He said that
whereas the petition was infact drawn, filed and presented on time,
it was not properly served on him. He found out about the election
petition against him from a notice in the Daily Nation newspaper of
31st January, 2008.

 Mr Dolal on the other hand told the court that the MP was personally
served at his residence in Lavington. He vividly recounted how the MP
was served with the election petition papers. He said that he
accompanied his process server Mr Felix Munuve to the MPs house at
4.30pm on 25th January 2008, and on reaching the gate, he remained in
the car, while Mr Munuve proceeded to talk to the watchman. The
watchman then called the MP to the gate and on his arrival, Mr Dolal
came out of the car, identified the MP to the process server who
served him personally with the petition.

 Mr Bare the MP deponed that he had no residence in Nairobi and that
the 'house' referred to by Mr Dolal the petitioner appeared to fit
the description of his brother's house in Kileleshwa( not Lavington).
He also said that on 25th January, 2008 he was not in that house but
had spent most of the day in parliament with other members of
parliament.

 He narrated to the court a full account of his activities on the
25th January, 2008. He testified that he was at parliament in the
morning, walked to Jamia Mosgue for prayers at Lunch time in the
company of a colleague MP, and had lunch with her at 2pm. He spent
the rest of the afternoon at his Continental House office until
4.45pm, had tea at parliament with his colleagues and proceeded to
Savannah Restaurant in the city center with a colleague and then to
parklands at 6.15pm.

 Mr Dolal through his advocate Mr Mutua urged the court to disregard
the MPs testimony on account of serious contradictions as to time.
The court however dismissed his plea arguing that it was in the
nature of human conduct to differ on basic things, such as time.
People don't always remember everything in exactly the same way, the
judge said. He observed that Mr Dolal and his process server had also
contradicted each other on the time they went to the MPs "house", with
Mr Dolal saying it was 4.30pm while Mr Munuve the process server said
it was at 5.30pm. The judge observed that that alone did not make
them untruthful as unlike in a criminal trial, the precision of time
was not so crucial in civil disputes where the court was required to
decide issues of fact on a balance of probability.

 Justice Alnashir Visram considered at length what personal service
envisaged in the light of the Court of Appeal case In Kibaki vs Moi
where the court had stated:

 "Election petition are of such importance to the parties concerned
and to the general public that unless parliament has itself
specifically dispensed with the need for personal service, then the
courts must insist on such service".

 The Kibaki vs Moi decision handed by a bench consisting of five
eminent Judges of Appeal had elicited considerable public debate. The
arguments canvassed there were that there were circumstances where it
was not possible to effect "personal service", for instance on a
sitting president whose security detail would not allow personal
service.

 The Judges of Appeal in that case had ruled that:

 " . . . Section 20 (1) (a) of the Act (the National Assembly and
Presidential Elections Act cap 7) does not prescribe any mode of
service and in those circumstances, the courts must go for the best
form of service which is personal service. Before this Court, the
appellant did not offer any reason why he did not go for personal
service though in the High Court, it had been contended that the 1st
Respondent in his capacity as the President, is surrounded by a
massive ring of security which is not possible to penetrate. But as
the Judges of the High Court correctly pointed out no effort to serve
the 1st Respondent was made and repelled . . . .

 The decision clearly recognized that if personal service which is
the best form of service in all areas of litigation is not possible,
other forms may be resorted to."

 Justice Visram also cited the recent Court of Appeal case of Mwita
Wilson Maroa vs Gisuka W Machage & Others where the court held that
personal service was "actual physical service".

 The Judge therefore found that personal service was the best form of
service as was also held in the Abu Chiaba Mohamed vs Mohamed Bakari
(2005) eKLR where it was said that:

 "the truth of the matter is that personal service remains the best
form of service in all areas of litigation and to say that Members of
parliament are a different breed of people and different rules must
apply to them as opposed to those applicable to other Kenyans cannot
support the principle of equality before the law."

 The High Court judge said that the MP had presented a credible and
compelling case that he was indeed at Savannah Restaurant in the
company of an MP colleague at the time he is alleged to have been
served with the election petition papers at his brother's residence.

 He also found that Mr Dolal and Mr Munuve his process server went to
the MPs brother's house in the evening of 25th January, 2008 and found
a watchman at the gate. Upon asking him on the whereabouts of Mr Aden
Bare MP for Dujis Constituency, the watchman said he did not know of
such a person whereupon Mr Munuve the process server dropped the
papers under the gate.

 The court ruled that dropping off court process at the gate of the
MPs brother's house could not constitute "personal service" on the
MP. The court held that the petition was not served on the Member of
Parliament within the period of time prescribed by law and therefore
struck out the petition.

 Download File
<http://kenyalaw.org/Downloads_FreeCases/Election_Petition_No_28_of_2008_(2).pdf>

PROVISIONS OF PUBLIC PROCUREMENT AND DISPOSAL ACT 2005 OVERTUNED

By DAVID MUTUNGA

Republic v Public Procurement Administrative Review Board and
another Ex parte Selex Sistemi Integrati [2008] eKLR
(www.kenyalawreports.org )

 High Court, at Nairobi

 Nyamu J

 May 2, 2008

 The High Court has overturned the provisions of the Public
Procurement and Disposal Act, which provide that if a party is
dissatisfied with the decision of the Public Procurement
Administrative Review Board and prefers to challenge the same through
Judicial Review, that Review should be determined within thirty days.

 Selex Sistemi Integrati participated in a tender which had been
announced by Kenya Civil Aviation Authority and which the Authority
cancelled before the results of the tender had been announced.
Aggrieved by the decision of the Civil Aviation Authority to
terminate the tender without giving reasons for the decision to
terminate the tendering process, Selex Sistemi lodged an appeal for
administrative review with the Public Procurement Administrative
Review Board challenging the Civil Aviation Authority's decision. The
Board upheld the decision of the Aviation Authority by stating that
the Authority was right in terminating the tendering process.

 Jurisdiction

 Section 36 of the Public Procurement and Disposal Act 2005 provides
that a procuring entity may at any time terminate procurement
proceedings without entering into a contract and that such
termination shall not be reviewed by the Review Board or a Court.The
Act further states under section 100(4), that if judicial review is
not declared by the High Court within thirty days from the date of
filing, the decision of the Review Board shall take effect.

 Selex Sistemi on 20th December 2007 made an application for Judicial
Review challenging the decision of the Public Procurement
Administrative Review Board in which the Board upheld termination of
the procurement proceedings.

 When the application for judicial review came up for hearing the
Court's attention was drawn to a Notice of Preliminary Objection made
by the Civil Aviation Authority that the court had no jurisdiction to
hear a judicial review application, which had not been determined
within thirty days and further that the limitation clause was put in
the Public Procurement and Disposal Act to ensure speedy
determination of Public tendering process. Further the Civil Aviation
Authority contented that speedy determination of the public tendering
process was in the nature of public interest and therefore the court
was bound by the provisions of the Act limiting the time frame within
which the court could determine an application for judicial review
arising from the Public Procurement and Disposal Act.

 Selex Sistemi opposed the objection on grounds that section 36(1),
(6) and section 100(4) of the Public Procurement and Disposal Act
2005 was defective and unconstitutional as neither the Law Reform Act
and order 53 of the Civil Procedure Act which govern applications for
judicial review nor the Constitution puts a time limit on the High
Court within which to determine an application for judicial review.
Selex Sistemi contented that determination of judicial review
proceedings within thirty days in the instant case was impracticable
and as such section 100(4) does not apply to situations where it is
impracticable to complete judicial review proceedings within thirty
days.

 Issues

 The court was faced with the challenge of determining whether
section 100(4) Public Procurement and Disposal Act 2005 ousts the
jurisdiction of the court in judicial review, whether the said
section is therefore unconstitutional and whether the public interest
of finality in procurement procedures outweigh judicial adjudication.

 In a 58 page ruling Justice Nyamu stated that judicial review plays
an important role in our society which is to check excesses,
omnipotence, arbitrariness, abuse of power and also accountability
and maintenance of constitutionalism and the rule of law. In
reiterating the words of an American Chief Justice Marshall in the
celebrated case of Marbury v Madison, Justice Nyamu stated that
judicial review provides the best means of enforcing the peoples will
as declared in the Constitution without resort to drastic remedy of
Revolution. Without judicial review, the legislative branch would
enjoy a practical and real omnipotence and would reduce to nothing
what is deemed the greatest improvement on political institutions- a
written constitution. He stated that the High Court has jurisdiction
to review legislation in order to establish whether it complies with
the Constitution, and further that judicial review enables the High
Court to review acts, decisions and omissions of public authorities
in order to establish whether they have exceeded or abused their
power.

 Justice Nyamu said that the Constitution from where the Court
derives its judicial review powers is the supreme law of the land and
if any other law is inconsistent with the Constitution that law shall
to the extent of the inconsistency be void. He stated that section 36
(6) of the Public Procurement and Disposal Act 2005 purports to oust
jurisdiction of the Court that had been granted by the constitution
to determine all matters of judicial review. He further noted that
section 100 (4) of the Public Procurement and Disposal Act 2005
authorised challenge of the Review Board's decisions by way of
judicial review yet at the same time imposing a time bar within which
the Court can express its opinion.

 Justice Nyamu stated that Legislative provisions that suggest a
curtailment of the courts' power of review, give rise to a tension
between the principle of legislative mandate and the judicial
fundamental of access to courts.Judges must search for critical
balance and deploy various techniques in trying to find it. The Court
has to look into the ouster clause as well as the challenged decision
to ensure that justice is not defeated.He further stated that
statutory provisions tending to oust the jurisdiction of the Court
should be construed strictly and narrowly.

 Justice Nyamu stated that though the intention of the Public
Procurement and Disposal Act 2005, of efficiency and speed in
determination of Public procurement is fundamental, the court must
put all public interest considerations in the scales other than
finality and efficiency considerations. He stated that fairness,
transparency and accountability were core values of our modern
society and could not be sacrificed at the altar of finalising the
public procurement decisions. He stated that the court must look into
each and every case and its circumstances and balance the public
interest with that of a dissatisfied applicant.

 Justice Nyamu held that speed is the hallmark of judicial review as
leave to make application for judicial review is filed under
certificate of urgency, and therefore finality is the very nature of
judicial review.

 As to whether section 100 (4) of the Public Procurement and Disposal
Act 2005 was unconstitutional, Justice Nyamu stated that the
constitution envisages hearing of a case within a reasonable time
with due regard to practicality.A reasonable time is not defined but
it is an issue of construction by the judge who presides over a
case.A reasonable time would depend on the circumstances of the case
and other relevant factors that the court must consider. He stated
that due to the backlog, the judge/population ratio, the thirty days
stated under section 100 (4) is not reasonable in Kenya.

 The judge stated that section 100 (4) of the Public Procurement and
Disposal Act 2005 offends provisions of section 77 (9) of the
constitution which provides what a reasonable time should be for any
judicial task or function. He stated that the legislature by
providing that the Courts must hear and determine a judicial review
case within thirty days and the enthusiastic implementation of the
same by the executive was a deliberate encroachment to the strictly
operational independence of the judicially which is an independent
arm of the government and therefore section 100(4) was
unconstitutional.

 The judge ruled that ouster clauses which attempt to prevent the
judicial determination where the targeted body has no jurisdiction or
acted in excess of jurisdiction are incapable of ousting judicial
review jurisdiction of the Court. He stated that for an ouster clause
to be effective, it should be clear and unambiguous and that section
100 (4) of the Public Procurement and Disposal Act 2005 was vague,
ambiguous and indefinite therefore incapable of ousting the
jurisdiction of the Court.

 Supremacy of the Constitution

 Justice Nyamu held that the Court cannot blindly apply the so called
ouster clauses. He stated that unlike the English judges who must
always obey, or bow to what parliament legislates, because parliament
is the supreme organ in that legal system, in Kenya the Constitution
is supreme and the judges' first loyalty is to the Constitution and
in deserving cases the judge is at liberty to strike down laws that
violate the Constitution. He said that where jurisdictional issues
are involved ouster clauses, no matter how tightly worded would not
prevail and the court has the jurisdiction to declare any decisions
as nullities.

 The court in overruling the preliminary objection finally stated
that section 100 (4) of the Public Procurement and Disposal Act
purports to allocate judicial time in advance which constitute
usurpation of judicial function, and therefore unconstitutional. It
further stated that procurement matters are substantially contractual
and civil in nature and therefore the High court has unlimited
jurisdiction in both civil and criminal matters which cannot be
limited by the legislature or the executive by ouster clauses.

 Finally the court stated that it could have struck section 100 (4)
down for the reason that it is unconstitutional had a constitutional
application been made for that purpose.

 Download Case
<http://kenyalaw.org/Downloads_FreeCases/Procurement_Act_and_court_calendar.pdf>

When delay in lodging appeal was inexcusable

North Kisii Central Farmers Co. Ltd-v-Attorney General (Civil Application No. NAI. 186 of 1993 (unreported)

 

Court of Appeal: Tunoi, J,A (in Chambers); 30th September, 1993

Advocate for Applicant: Mr. Oira

Advocate for the Respondent: Not disclosed

 

Authorities Cited

  1. The public Trustee of Kenya-v-Francis Muchina Kamau (Civil Application No. Nai. 26 of 1985 (unreported)-Distinguished
  2. John Kuria-v-Kalen Wahito (Civil Application no. Nai. 19 of 1983 (unreported)-Distinguished

 

Issue: Whether inordinate delay in lodging appeal could be excused on the ground that it was allegedly caused by negligence of an advocate?

 

The application was for leave to lodge notice and records of appeal out of time under rules 4, 9, 42 and 76 of the Court of Appeal Rules.

 

The judgment appealed against had been delivered two years before. It was argued in support of the application that the delay in instituting the appeal was attributable to the advocate previously acting for the applicant. The contention was that even though the judgment was passed in 19th November, 1991, the advocate did not inform the applicant about it until March 1993.

 

Delay mistake of the applicant's advocate

It was submitted for the applicant that to deny the leave would be to visit the mistake of the advocate upon the litigant. The court was reminded in support of the holding in The public Trustee of Kenya-v-Francis Muchina Kamau (Civil Application No. Nai. 26 of 1985 (unreported). The Court of Appeal in that case held in that case that mistakes by advocates should not prejudice litigants in any litigation and should be excused.

 

The applicant also expressed the view that in land matters, parties should not be obstructed in having their disputes finally determined by the court. In support, the decision of the court of Appeal in John Kuria-v-Kalen Wahito (Civil Application no. Nai. 19 of 1983 (unreported) was cited.

 

Opposition on ground that delay inordinate

The application was opposed on the ground that there had been excessive, flagrant and inordinate delay on the part of the applicant.

 

The court agreed with Respondent and held that the delay was excessive, flagrant and inordinate. The learned judge was convinced that the delay was occasioned by the fact that the applicant did not bother whichever way the judgment went.

 

Court's reasons for agreeing delay inordinate

In coming to this conclusion, the court considered that the applicant evidently knew when the trial came to an end and also the date fixed for the delivery of judgment. Further, it reasoned that obviously the applicant was anxious to know the conclusion and the decision and therefore was incumbent upon it as a prudent litigant to be in constant touch with its advocate. In the circumstances, the court thought it unthinkable that the applicant would agree to be in the dark for about two years.

 

The authorities distinguished

The fact that the applicant did not file the application until after two months after the advocate informed him of the judgment was also considered. The court concluded that even if it was to be assumed that the former advocate was guilty of negligence, such delay by the applicant of being informed of the judgment was culpable.

 

On the fact that land issue was involved, the court considered that an innocent third party purchaser of the land not party to the subject suit was involved. It concluded that that explained why the applicant had been compensated for by damages.

 

Conclusion

In conclusion, the court found that the applicant had not given a reasonable explanation for the inordinate delay that had occurred and that the same had not been explained to the court's satisfaction. The court therefore declined to exercise its discretion in favour of the applicant and therefore dismissed the application with costs.

Lawyers historically monsters

I think we may class the lawyer in the natural history of monsters.

-John Keats-

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A bored judge and a funny lawyer

A judge, bored and frustrated by a lawyer's tedious arguments, had made numerous rulings to speed the trial along. The attorney had bristled at the judge's orders, and their tempers grew hot.

Finally, frustrated with another repetition of arguments he had heard many times before, the judge pointed to his ear and said, "Counsel, you should be aware that at this point, what you are saying is just going in one ear and out the other."

"Your honor," replied the lawyer, "That goes without saying. What is there to prevent it?" The insult escaped the judge!

Wednesday 28 May 2008

A general word on injunctions

With regard to the application of the Plaintiff for injunction, The need to preserve the status quo in favour of a client during the tenancy of a suit or after the suit has ensured the proficiency and popularity of injunctions as civil remedies. There is no denying that an injunction is a versatile remedy. It is also a unique one in that it is available preliminarily as an interim order and also as final relief upon judgment on merit.


But what injunctions really are a matter that practicing advocates as have been loath to interrogate. This is mainly because of the alleged academic nature of such exercise. But on clear inspection, the matter is seldom academic, at least it presents useful knowledge for counsel who does not wish to be caught off-guard. This article seeks to purge the ignorance of what is generally the nature of injunctions.


Courts on remedy of injunction

With unprecedented generosity of spirit in judicial description, injunctions generally have been variously described by courts. For one, the order of injunction has been called the strong arm of equity. Injunctions have also been generously described as 'drastic remedy', 'formidable weapon' and 'transcendent or extra-ordinary remedy'. See R. Kuloba's Principles of Injunctions for more details.


In ordinary parlance, an injunction mean a command, directing/or enjoining or being enjoined. The Reader's Digest Illustrated Oxford Dictionary (1998) defines the word 'injunction' as an authoritative warning or order.


Dictionary meaning of injunction

In the legal setting the word injunction originates from the Latin word 'injunctio' which was the legal word given to a judicial order restraining a person from an act or compelling redress to an injured party.


In the authoritative book, Principles of Injunction, the learned Kuloba J paraphrasing Brar, Ag.J in a ruling in Ex parte Mayfair Bakeries Ltd, H.C Misc C.C. No. 246 of 1981 defines an injunction as:


'a solemn and authoritative remedial judicial command of a court of equity, generally acting in personam, couched in a formal order or decree directed against a person named in it and requiring him to take positive steps to do or to refrain from doing or persisting in the doing of an act or continuing a particular omission, which is precisely spelled out in the order or decree."


Injunction defined

The long and short of the above definition, in my view, is that an injunction is a an equitable judicial remedy in an order or decree requiring a named person to do, refrain from an act, stop an act or omission strictly stated therein. What emerges from this is that as equitable remedy, injunction is a discretionary remedy and, in addition a remedy that can be granted by a court acting in personam. Equity acts in personam to avoid making orders in vain!


Thus injunction will not generally issue where it is requested to apply to the whole world i.e. in rem. Same way, an injunction will not be granted where another remedy, say damages, will suffice to compensate the injury of the act sought to be restrained.


Main classifications of injunctions

Loosely, injunctions admit to two main classifications. That is based on their permanence i.e. perpetual injunction and temporary injunction and, based on their innate nature i.e. prohibitory injunction and mandatory injunction. There are other two injunctions, namely quia timet injunction and ex-parte injunctions. These do not, strictly speaking, merit a class of their own and it would serve to describe them merely as special injunctions. They are special injunctions because, overall, they are merely mutations of the other established injunction for purposes of meeting a special need.


Perpetual injunction

A perpetual injunction is a perpetual relief granted at final judgment on the merits of the case. It serves to curtail future similar infringements similar to the one in the current claim and therefore save the Plaintiff and the court the strain of having to deal with every future infringement individually.


Temporary injunction

A temporary injunction on its part is provisional and mainly engendered in an order of the court, usually pursuant to an application under Order XXXIX of the Civil Procedure Rules. Essentially, it lasts for a defined time or occasion defined by the order in contrast to the perpetual injunction. It is also called an interlocutory, interim or preliminary injunction as it affords a relief preliminary to the final one afforded by a judgment on merit.


Ex-parte injunction

Where the matter sought vide the injunction is urgent to wait service and hearing to the opposite side before the same is arrested, an application for temporary injunction seeking first that service in the first instance be done away with and the matter is be heard urgently is usually the is what is made. In such an instance, the court may make the order for injunction as sought without giving the other side an opportunity to be heard. Such an injunction is what is called an ex parte injunction. It usually lasts 14 days unless extended by the parties on consent e.g. by adjourning inter partes hearing of the injunction application beyond the 14 days.


As for the class of injunctions based on their nature, it is important to note from the onset that these can be temporary or perpetual depending when they are sought and/or ordered. So that a prohibitory injunction may be issued in an application for temporary injunction as it may be issued in the final judgment. Same way, a mandatory injunction may be issued as a temporary order and also as a relief in the final judgment.


Mandatory injunction

A mandatory injunction, as the name suggest, is a order commanding the person against whom it is issued to do a given act to remedy a condition or, at least, to do his legal duty. Its key characteristic is that it requires the doing of a mandatory injunction was issued was to compel the only commercial electricity supplier in Kenya to resume supply of electricity to a client during the currency of suit over distribution of electricity.


Prohibitory injunction

On the other hand, a prohibitory injunction is the original, more common and most ancient of compared to mandatory injunction. It is distinguished in that it does not require any positive action on the part of the person against whom it is made. The injunctive order seeks to restrain the actions of the person named in the order from doing the stated action. For instance, an injunction may be sought against a party to restrain it from demolishing fixtures in suit land.


Quia timet injunction

A prohibitory injunction may also prohibit the continuation of a wrongful act or even an anticipated one. In the latter case, it comes in the form a quia timet injunction. Here, the harm sought to be prevented usually has not occurred but it is anticipated and/or threatened. The injunctive order is thus sought to prevent the future occurrence.


Richard Kuloba in his already cited book on injunctions observes that it looks like the quia timet classification is a mere luxury given that all injunctions look to the future and prevent apprehended injurious acts or omissions. With respect, the learned judge cannot be right on this point. There is no doubt that the main feature of quia timet injunctions that distinguish it from other injunction is merely what distinguishes anticipatory bail from normal bail. It is the fact that there is no action at present that may be said to have precipitated the application for injunction.


Conclusion

In a nutshell, injunctions are equitable remedies either in form of an order or decree requiring a particular action, whether restraint from or doing the same, from the person against whom they are issued. There are mainly two classes of injunctions and a third one made of special injunctions.


Finally, we have established that injunctions may be loosely said to be of six types: perpetual injunctions, temporary injunctions, prohibitory injunctions, mandatory injunctions, quia timet (anticipatory) injunctions and ex-parte injunction. Each of these is unique depending on the nature, the timing and context of the order or relief it supplies.

Some Quotes By Aesop

The injuries we do and the injuries we suffer are seldom weighed on the same scales.

Every truth has two sides. It is well to look at both sides before we commit ourselves to either side.

A liar will not be believed, even when he speaks the truth.

Appearances often are deceiving.

Little by little does the trick.

We often give our enemies the means for our own destruction.

Distrust interested advice.

A doubtful friend is worse than a certain enemy. Let a man be one thing or the other, and we then know how to meet him.

He that is neither one thing nor the other has no friends.

Better be wise by the misfortunes of others than by your own.

After all is said and done, more is said than done.

People often grudge others what they cannot enjoy themselves.

We should look to the mind, and not to the outward appearance.

Self conceit may lead to self destruction.

The smaller the mind the greater the conceit.

He that always gives way to others will end in having no principles of his own.

It is in vain to expect our prayers to be heard, if we do not strive as well as pray.

Outside show is a poor substitute for inner worth.

Yield to all and you will soon have nothing to yield.

The unhappy derive comfort from the misfortunes of others.

Injuries may be forgiven, but not forgotten.

United we stand; divided we fall

He that is discontented in one place will seldom be happy in another

Union gives strength.

We would often be sorry if our wishes were granted.

I am sure the grapes are sour.

It is not only fine feathers that make fine birds.

Destroy the seed of evil, or it will grow up to your ruin.

It is easy to be brave from a safe distance.

Please all, and you will please none.

Example is the best precept.

The gods help those who help themselves.

Our insignificance is often the cause of our safety.

Never trust the advice of a man in difficulties.

Slow and steady wins the race.

-Aesop (620–560 BC)-
A slave and story-teller who lived in Ancient Greece

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Tuesday 27 May 2008

Arbitration as an alternative to litigation in Kenya


Arbitration in Kenya: A viable tried and tested alternative to Arbitration is a private process of dispute resolution. Arbitration is often times with the sanctioned by statute and involves determination of disputes by a tribunal, whether made of a single individual or several persons, chosen by parties or through a process agreed to by the parties.


Definition of arbitration

The following definition of arbitration by Lord Justice Raymond 250 years ago is still valid:


"An arbitrator is a private extraordinary judge between party and party, chosen by their mutual consent to determine controversies between them, and arbitrators are so called because they have arbitrary power; for if they observe the submission and keep within their due bonds their sentences are definite from which there lies no appeal". (Quoted in Totterdil B (2003) An introduction to construction adjudication: Comparison of Dispute Resolution Techniques.)


The International Law Commission has defined arbitration in respect of sovereign states as follows:


"A procedure for the settlement of disputes between states by a binding award on the basis of law and as a result of an undertaking voluntarily accepted."


Key features of arbitration

The following features of arbitration are discernible. One, the procedure of settlement is as agreed by parties either point by point or by adopting a pre-existing procedure made by an institution. Arbitration awards are on basis of the law just like judgements in litigation. This may be contrasted to decisions in other mechanisms e.g. negation which may not necessarily be on merits of the law. Thirdly, an arbitrator is a private judge chosen by parties or through a process agreed upon by the parties and given arbitrary power to decide the dispute between them. Arbitration award is usually binding upon the parties and subject to appeal like any other a normal judgement of a subordinate court. Finally, the definition of arbitration necessarily refer to agreement between parties which agreement is often times embodied in the arbitration clause in contracts.


Advantages of Arbitration (www.lcia.com)

Arbitration as a mode of disputes resolution is possessed of the following advantages among others:


  • Confidential: Arbitration is a private process. Parties select an arbitrator privately and proceedings are held privately. This eliminates the presss element highly prevalent in litigation and mitigates bad publicity that disputes may yield.

  • Experienced and knowledgeable Arbitrators. Unlike court litigation Parties choose arbitrators or appoint the person or body so to do. They can thus inject integrity in the process at will. Where the matter involved is complex or technical, there are no qualms choosing an arbitrator knowledgeable in the field or with relevant experience. For example, in building and construction disputes, an architect who is also an arbitrator will be an ideal choice..


  • Expeditious: The private nature of arbitration and the possibility of parties consenting to expedite the process make arbitration a speedier process compared to litigation. Often, the arbitrator has no other pending matter can, therefore, dispose of the case with expedition.


  • Affordable: Given its speed and flexibility (as we shall see in a moment) Arbitration is, overall, cost-effective in comparison with litigation. That is not denying that arbitral tribunals or arbitrators require to be paid for their services. So do the lawyers and persons who represent parties in the arbitration process.


  • Flexible: By private and by consent arbitration can be very flexible. There are no formal or unchangeable rules like one finds in the courts. Parties and arbitrators are free to adopt flexible procedures and rules which suit everybody. After confidentiality, flexibility is perhaps the most attractive attribute of arbitration.


  • Representation: in the courts one needs a lawyer to represent him. Lawyers are expensive. In arbitration one may appear in person or send a lawyer or representative or indeed anyone one chooses. It is part of flexibility.


  • Limited Appeals – expediency: Except in the most blatant cases of bad arbitrating the arbitrator's award will be final and binding on the parties. Where the law allows appeals it will usually be in cases of disregard for the principle of natural justice or the express agreement of the parties.


  • Minimum formality and expeditious disposal of matters: Procedure in courts is founded on rules of practice some of which are of great antiquity. The court procedures require an experienced lawyer to apply them correctly. In arbitration these rules do not apply. The rules to apply are either those agreed by the parties or some institutional procedural rules like those of the Chartered Institute of Arbitrators (UK) or the London Court of International Arbitration.


The overriding rules of arbitration may simply be paraphrased as the rules which will enable justice to be rendered between the parties with a minimum of formality and with expedition. These rules will be found in what is called "rules of natural justice." The application of the rules of natural justice as a minimum starting point ensures that justice is done and seen to be done.


Limitations of Arbitration in Kenya

Despite all the advantages that it possesses, arbitration has practicability restrictions. Internationally though, it is probably the most acceptable and effective method of resolving disputes. However, at the national level in Kenya, the process of arbitration is governed by a statute, the Arbitration Act, 1995.


The Act in section 4 requires an Arbitration clause to be in writing and in essence to be signed by the parties. Basically, the Act envisaged the application of arbitration in the context of commercial dispute resolution.


Arbitration in the context of Kenyan law

Arbitration in Kenya is recognized under the Arbitration Act 1995. The Act contains provisions relating to arbitral proceedings and the enforcement of the ultimate awards by the court. "Arbitration" is defined in section 3(1) of the Act to as "Any arbitration whether or not administered by a permanent arbitral institution".

Arbitration is thus conceived to include all types of arbitrations that can be envisaged in society. Traditional institutions dealing with issues brought before them can still carry out arbitrations. In any case, persons appointed by parties to be arbitrators need not be affiliated to any formal organization.


There is no doubt that at arbitration has a vast potential as a dispute resolution mechanism as is afforded wide application by the law. The hassles of litigation can thus be avoided through arbitration. As a plus, the Arbitration Act ensures that parties retain their autonomy in critical matters including venue, language of arbitration and procedures. These are luxuries unheard of in litigation.


The Kenyan Arbitration Act deals with domestic and international arbitration (see section 3(2) thereof. The statute is similar in many respects to the Arbitration Act 1996 of the United Kingdom (UK). In section one, the UK Act states that the provisions of the part shall be founded on the following principles and shall be construed accordingly:


  1. The object of arbitration is to obtain the fair resolution of disputes by an impartial tribunal without unnecessary delay or expense.

  2. The parties should be free to agree on how their disputes are resolved subject only to such safeguards are necessary in the public interest.


When arbitration is international in Kenya

As per section 5(3) Arbitration Act of Kenya, arbitration is international where:


  1. The parties to an arbitration agreement have, at the time of the conclusion of that agreement, their places of business in different states;

  2. One of the following places is situated outside the state in which the parties have their places of business;

  1. The place of arbitration if determined or pursuant, to the arbitration agreement; or

  2. Any place where a substantial part of the obligations of the commercial relationship is to be performed or the place with which the subject matter of the dispute is mostly closely connected.

  1. The parties have expressly agreed that the subject matter of the arbitration agreement relates to more than one state.

  2. For the purposes of subsection (3) –

    1. if a party has more than one place of business, the place of business is that which has the closest relationship to the arbitration agreement; and

    2. if a party does not have a place of business reference is made, to his habitual residence.


Recognition and enforcement of foreign Arbitral awards

The Act further deals with the recognition and enforcement of arbitral awards irrespective of the state in which it was made subject to certain limitations (as outlined under section 37). The refusal to enforce can be on the grounds of incapacity, lack of jurisdiction and public policy.


The distinction between local, private and public international arbitration becomes somewhat blurred, however in cases involving a private party and a state. Here we find processes that combine features of both public and private arbitration and which shift uncertainly between the two (Arbitrations under ICSID are good examples of arbitrations of this kind).


Conclusion

Arbitration is a binding process of dispute resolutions. The decision of the Arbitrator is final. Arbitration is governed by the Arbitration Act 1995 and is generally a formal process.


Arbitration as envisaged in Kenyan law is just as adversarial as litigation. There is a tendency that Arbitration assumes a formal and cumbersome streak especially where lawyers are involved in representing parties.


But overall, it affords a cost effective, binding, confidential and expeditious decision making method that parties to disputes should tap to avoid undue litigation. There is also the chance that it will preserve business relationships while solving the contentious issues betweens the parties.


So next time you are handling a contract, you may need to consider whether it bears an arbitration clause. Equally important, you may consider advising a client before to implore to pursue arbitration instead of litigation. At least, your efforts will unclog our courts! And if you are a player in legal reforms in Kenya, be part of the effort to customise arbitration to suit Kenya's the local dispute resolution needs.