Locus classicus on preliminary objections - The Case of Mukisa Biscuit Manufacturing Co. Ltd vs West End Distributors Ltd (1969) EA 696

 In Mukisa Biscuit Manufacturing Co. Ltd vs West End Distributors Ltd (1969) EA 696, the locus classicus on preliminary objections in this region, Law JA stated:

 

So far as I’m aware, a preliminary objection consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the court, or a plea of limitation, or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration.

 

For a preliminary objection to succeed the following tests ought to be satisfied:

• Firstly, it should raise a pure point of law;
• secondly, it is argued on the assumption that all the facts pleaded by the other side are correct; and
• finally, it cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion.

The Disciplinary process : Seii v LVCT Health (Cause 1452 of 2017) [2024]

Background:

On disciplinary proceedings, in the above cited case, the Claimant alleged that procedural fairness was absent in the termination of her employment because her request to call an external witness was denied when the Executive Director ruled that the disciplinary process was an internal process and as such an external witness could not be allowed.

In the case, the Employment and Labour Relations Court found that the claimant's dismissal was unfair due to procedural flaws, notably the denial of her right to call an external witness during the disciplinary hearing.

Brief Facts of the case:

Mercy Jebet Seii, employed by LVCT Health under a two-year fixed-term contract, was demoted in April 2017 without prior notice or justification. She was informed of her demotion in a meeting on April 24, 2017, and was given until April 28, 2017, to respond. Subsequently, on May 4, 2017, she was offered a different position, which she declined. The respondent claimed that her performance was unsatisfactory, but failed to provide concrete evidence to support this assertion.

On May 19, 2017, the respondent issued a notice to show cause, detailing allegations against Seii and scheduling a disciplinary hearing. She was informed that she could be accompanied by a fellow employee during the hearing. However, when she requested to have an external witness present, the Executive Director denied this request, stating that the process was internal and external witnesses were not permitted.
 

Court's Findings:

The court emphasized the importance of procedural fairness in disciplinary proceedings, as outlined in Section 41 of the Employment Act, 2007. This section allows an employee to be accompanied by a fellow employee or a trade union representative during a disciplinary hearing. The court distinguished between the right to be accompanied and the right to call witnesses. It held that denying an employee the opportunity to call external witnesses could undermine their right to a fair hearing under Article 50 of the Constitution.

Furthermore, the court found that the respondent failed to provide sufficient evidence of Seii's alleged poor performance. No performance evaluations or reports from the donor were presented to substantiate the claims. Additionally, the respondent's witness admitted that there was no documented evidence of the claimant's attendance or performance issues.

In the court’s view, there is a difference between the accompanying person (a colleague or trade union representative) contemplated under Section 41 of the Employment Act and a person that an employee may wish to call as a witness to give evidence in support of the employee’s defence against the allegations.

An accompanying person is, in character, a representative who makes submissions on behalf of the employee and cross-examines the evidence and documents presented by the employer.

The law does not prohibit calling external witnesses, and denying the opportunity to do so can undermine an employee’s right to a fair hearing.
 

Conclusion

The court concluded that the termination of Seii's employment was both substantively and procedurally unfair. It awarded her compensation for the unfair dismissal, including notice pay, salary for days worked, and compensation for the unfair termination. However, the court declined to grant reinstatement due to the time elapsed since the dismissal and the claimant's indication that she was no longer willing to work with the respondent.

This case underscores the critical importance of adhering to fair procedures in disciplinary processes and the necessity for employers to provide clear and documented evidence when alleging poor performance.

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FORCED TRANSFER AND ARBITRARY REDUCTION IN SALARY AMOUNTS TO CONSTRUCTIVE DISMISSAL: The Case of Gatuma v Kenya Breweries Ltd & 3 others (Petition E023 of 2023)(2024)KESC 52 (KLR)(30th August 2024)(Judgement)

Brief Facts:

The case began when Symon Wairobi Gatuma, an employee of Kenya Breweries limited (KBL), filed a claim against his employer and its subsidiaries. Gatuma had been employed as a machine technician since 1986 and had later been transferred to the malting section. 

In 2003, KBL restructured its operations, transferring the malting unit to its subsidiaries, Kenya Malting Limited and East Africa Malting Limited. Gatuma and his colleagues were forced to sign new employment contracts with the subsidiaries who offered lower salaries and allowances. 

Gatuma argued that the new terms were not negotiated with the trade union, Kenya Union of Commercial Food and Allied Workers (KUCFAW) and that the transfer amounted to constructive dismissal. He therefore sought several reliefs, including compensation for unfair termination and reinstatement to his previous position.

The Industrial Court ruled in favour of Gatuma and awarded him compensation for unfair termination  in addition to reinstement to his employment position. However, KBL and its subsidiaries appealed the decision which led to a protracted legal battle that eventually reached the Supreme Court where the apex court clarified the following:

The Issues for determination:

1: Whether the forced transfer and reduction in salary amounted to constructive dismissal?

2: Whether the new employment terms imposed without proper negotiation and that violated the terms of his original contract and bargaining agreement with KUCFAW amounted to a breach of the employment contract?

3: The case also raised questions on the legality of transferring employees to subsidiaries without their consent and the implications on their employment rights.

Court’s Determination:

Issue 1: 

On the issue of whether the forced transfer and reduction in salary amounted to constructive dismissal, the court opined that Constructive dismissal occurs when an employee resigns because their employer’s behaviour has become so intolerable and has made life so difficult that the employee has no other choice but to resign. The Court held that the forced transfer and reduction in salary did indeed constitute constructive dismissal. Additionally, it emphasized the need for employers to ensure that any change in employment terms is negotiated and agreed upon by the affected employees or their representatives.

Issue 2: 

On whether the new employment terms amounted to a breach of the employment contract, the Court found that KBL and its subsidiaries had in fact breached Gatuma’s employment contract by imposing new terms without proper negotiation. It underscored the importance of adhering to collective bargaining agreements and respecting the rights of employees during corporate restructuring.

Issue 3: 

On Employee rights in Corporate Restructuring, the judgement highlighted that employees cannot be transferred to subsidiaries without their consent and any such transfer must not result in less favourable terms of employment. The Court further emphasized that employers must prioritize the welfare of their employees during restructuring processes.

On violation of Human Rights: The case of Ndegwa v Attorney General & another (Petition 121 of 2019) [2024] KEHC 9991 (KLR) ( SECTION 8(4) OF THE KENYAN CITIZEN AND IMMIGRATION ACT,2011)

SECTION 8(4) OF THE KENYAN CITIZEN AND IMMIGRATION ACT,2011 DECLARED UNCONSTITUTIONAL
 

Background: 
In the case of Ndegwa v Attorney General & another (Petition 121 of 2019) [2024] KEHC 9991 (KLR), the Honorable Justice LN Mugambi, J delivered a judgment on 12/08/2024 declaring penalties imposed under section 8(4) of the Kenya Citizen and Immigration Act,2011 for non-disclosure of dual citizenship by Kenyan citizens as unconstitutional.

The petitioner, a Kenyan citizen by birth who had acquired dual citizenship, challenged the constitutionality of Section 8(4) of the Kenya Citizenship and Immigration Act, 2011. This provision imposed criminal penalties (fine of up to KES 5 million or imprisonment for up to 3 years) on Kenyans with dual nationality who failed to disclose their second citizenship within three months of acquiring it.

Issues for Determination:

Whether Section 8(4) of the Citizenship and Immigration Act violated the Constitution.

Whether the penalties under Section 8(4) were reasonable and justifiable in a democratic society.

Arguments by the Petitioner:

The provision infringed constitutional rights under:

Article 16 – Right to Kenyan citizenship

Article 19 & 24 – Limitation of rights must be reasonable and justifiable

Article 27 – Equality and non-discrimination

Article 28 & 29 – Human dignity and freedom from arbitrary arrest

Article 39 – Freedom of movement

The penalties were excessive, arbitrary, and disproportionate to the failure to disclose.

Arguments by the Respondents:

The provision aimed to ensure national security and immigration control.

Disclosure of dual citizenship was a reasonable administrative requirement.

Court's determination/Holding:

The High Court declared Section 8(4) unconstitutional, holding that:

The provision violated multiple constitutional rights, particularly the right to citizenship and human dignity.

The penalties were disproportionate, unreasonable, and not justifiable in a democratic society.

Citizenship rights are inalienable, and the state cannot criminalize failure to report dual citizenship. 

It was unreasonable and unjustifiable limitation on the right of dual citizenship and limiting the freedom and the security of the person and freedom of movement; a clear violation of human rights.

The court found that the penalties were disproportionate and unjustifiable, constituting an unreasonable limitation on the right to dual citizenship and infringing upon personal freedoms 

Implications of the Ruling

This judgment sets a significant legal precedent, reinforcing the constitutional protection of dual citizenship in Kenya. It underscores the importance of proportionality and reasonableness in the enforcement of legal obligations. The ruling may prompt legislative reforms to align the Kenya Citizenship and Immigration Act with constitutional principles, ensuring that penalties do not unduly infringe upon individual rights . 

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