Bench Bulletin - Issue 12 - Kenya Law Reports

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KENYA LAW REPORTS BENCH BULLETIN FROM THE COURTS — COURT OF APPEAL Powergen Technologies Limited and the respondent company in this application. The tender was awarded to Betterline Company Limited. The respondent lodged a request for review at the Public Procurement Administrative Review Board challenging the tender process, after which the Board dismissed the request for review and directed that the procurement process proceed. Being aggrieved by the decision of the Board , the respondent moved to the superior court by way of an application for judicial review for orders of certiorari to quash the decision of the applicant to award the tender to Betterline Company Limited, and further to quash the decision of the Board dismissing the respondent’s request for review. The respondent also asked court for orders of prohibition to stop the applicant from signing any contract related to the tender in question and further asked court for orders of mandamus to direct the applicant to evaluate the aforesaid tender and award the same in compliance with the Public Procurement and Disposal Act and its regulations. The application for judicial review was preceded by an application for leave to institute judicial review proceedings, with a request that the leave would operate as a stay of the signing, implementation and performance of any contract in terms of the tender awarded pending the hearing and determination of the judicial review proceedings. The superior court granted the leave and ordered that the leave operate as stay on any contract in relation to the tender in question pending hearing and determination of the judicial review proceedings. It was against the superior court’s decision that the applicant moved to the Court of Appeal seeking orders that the proceedings in the superior court be stayed pending the hearing and determination of the intended appeal. Counsel for the applicant contended that the application for judicial review orders was filed out of time and that the public interest in the contracts outweighed the commercial interest of the respondent. In response, counsel for the respondent contended that the delay in the application fell within the court vacation hence qualified as excluded days according to the provisions of Interpretation and General Provisions Act. The issue before the Court of Appeal was whether application for leave for judicial review orders would operate as stay. Held: 1. The main ground of appeal that the application for leave was time barred was not frivolous. The applicant had intended to show in the appeal that the superior court erred in law in granting leave when the respondent had not shown a prima facie case for grant of judicial review orders. 2. The intended appeal was indeed arguable since the applicant had intended to show in the appeal that the order or stay of implementation of the contract was wrongly granted. 3. It was clear from the application for judicial review that it was the decision of the Review Board dismissing the Request for Review which was the proper subject matter of the judicial review, and not the decision of the applicant awarding the contract to the 2nd interested party, whether such contract and consequential sub-contracts could be rescinded or implementation thereof suspended through judicial review jurisdiction. In those circumstances, the order of stay of implementation of the contract was a very drastic order. 4. Except in very exceptional cases involving jurisdictional and substantial public interest issues and where a stay has been granted, there could not be any basis for allowing any such applications in view of the clear provisions of section 8 of the Law Reform Act which contemplate only one appeal to the Court of Appeal in terms of section 8(5) and only in respect of the actual judicial review orders. In the present case however, there were both jurisdictional and public interest elements and therefore the case fell within the exception to the rule. For the same reasons, the court considers that the intended appeal could be rendered nugatory since it has often been rightly said that jurisdiction is everything. 5. Per Bosire JA (dissenting): Other than the delay in providing services to the people, the other losses, by whichever party, were financial and damages would be an adequate remedy for those losses. 6. Per Bosire JA (dissenting): Although the intended appeal was arguable, granting a stay would render the respondent’s suit pending in the superior court worthless. Application allowed. Advocates Mr. Kiragu for the Applicant. Mr. Mutinda for the 1st Interested Party. Mr. Wetangula for the 2nd Interested Parties. Mr. Gichuru for the Respondent. 40 Issue 12: April-June 2010
KENYA LAW REPORTS BENCH BULLETIN FROM THE COURTS — COURT OF APPEAL Termination of Employment Jimi Masege v Kenya Airways Limited Civil Application 63 of 2003 Court of Appeal at Nairobi Omolo, Waki & Onyango Otieno, JJ.A June 11, 2010 Reporter: Monica Achode Case History An appeal from the judgment of the High court of Kenya at Nairobi (Kuloba, J.) dated 25th July, 2000 in H.C.C.C. NO. 1165 OF 1998 The Hon. Mr. Justice W. Onyango Otieno Employment – termination of – appeal against a decision finding the termination of appellant’s employment lawful and on disciplinary grounds – claims over rebate tickets – respondent having argued that the rebate tickets were concessionary and only a privilege to staff – claims that they could be changed or withdrawn or augmented by the respondent as deemed fit – circumstances under which the appellate court would find differently from a superior court – whether the appellant had an litigable entitlement to the tickets Tort – libel – appeal against an award for damages paid to the appellant by the superior court – appellant having claimed that the respondent circulated a defamatory memo about him – respondent failing to refute the appellant’s claims – guidelines when testing matters of libel – principles guiding awards to damages – whether KQ was liable for defamation – whether the appellant was entitled to damages The appellant brought an appeal against a high court decision declaring his dismissal from the respondent’s employment lawful. The appellant had also sued the respondent for libel for sending out an allegedly defamatory memo to other staff members warning them not to associate with him. The appellant had been terminated on disciplinary grounds although the respondent chose to pay him his terminal benefits. The appellant also claimed rebated tickets which he argued, were an entitlement of the employee who, him, had worked in excess of ten years and had either left on retirement, termination or reassignment. It was his contention that this was his right and not a privilege and the respondent had to surrender the same to him. Neither party exhibited the terms of appointment and the provisions therein relating to termination of employment. Held: 1. Although the Court on appeal would not lightly differ from the judge at first instance on a finding of fact it was undeniable that it had the power to examine and re-evaluate the evidence on a first appeal if it became necessary. It was a strong thing for an appellate court to differ from the finding, on a question of fact, of the judge who tried the case, and who had had the advantage of seeing and hearing the witness. 2. The letter of termination was clearly predicated on various incidents of indiscipline cited by the respondent therefore the appellant’s employment was lawfully terminated and was terminated on disciplinary grounds. The appellant therefore did not have litigable entitlement to the rebate tickets. 3. In an action for libel, the trial court in assessing damages is entitled to look at the whole conduct of the defendant from the time libel was published down to the time the verdict is given. It may consider what his conduct has been before action, after action, and in court during the trial 4. The guidelines when testing matters of libel were; the objective features of the libel itself, such as its gravity, its province, the circulation of the medium in which it is published, and any repetition, the subjective effect on the plaintiff’s feelings not only from the prominence itself but from the defendant’s conduct thereafter both up to and including the trial itself, matters tending to mitigate damages, such as the publication of an apology, matters tending to reduce damages and vindication of the plaintiff’s reputation past and future. 5. Under those tests the damages awarded by the superior court were neither inordinately too high nor inordinately too low to warrant interference by the appellate court. There was no error in principle. Appeal and cross appeal dismissed. Issue 12: April-June 2010 41
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