NAIROBI LAW MONTHLY
Date: 25.08.2013
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Of common law, natural
and poetic justice
Judges made controversiat rulings which came
back to haunt them during vetting process
litigation more so, on the question of the
presumption of non­retrospect ivitywrhen
by judges through decisions of interpreting statutory law.
courts and similar tribunals. By contrast,
Of more controversy is the question of
ance of doubt, the constitution in force
civil law (codified/continental law) is set
on statutes adopted through the legisla­
whether the Article of the new Constitu­
repealed as it is can still sustain an action
tion can apply in retrospect, judges at the
tive/parliamentary process and/or regu­
lations issued by the executive branch on
Constitutional Division have also grappled
with the issue without clearing it up.
despite the express provision of Article
264. But any section of the 1963 constitu­
base of the parliamentary statutes.
SK Macharia Vs KCB
Common law, also known as case
law or precedent, is law developed
A common law system is a legal system The South African situation whose con­
that gives great potential precedential stitution bears some resemblance to our
weight to common law, on the principle constitution has not come in handy to pro­
that it is unfair to treat similar facts differ­
vide some light as the situation in South
ently on different occasions. The body of Africa is not equally clearer.
precedent is called "common law" and it
Perhaps the recent dicta from the Su­
binds future decisions.
In cases where the parties disagree on
what the law is, a common law court looks
to past precedential decisions of relevant
courts.
preme Court in Samuel Kamau Macharia
& Another v Kenya Commercial Bank Lim­
ited &2 Others [2012] eKLRthe Supreme
Court noted; At the outset, it is important
to note that a constitution is not necessar­
If a similar dispute has been resolved in
ily subject to the same principles against
the past, the court is bound to follow the retroactivity as ordinary legislation. A
reasoning used in the prior decision (this constitution looks forward and backward,
principle is known as stare decisis).
vertically and horizontally, as it seeks to
If, however, the court finds that the cur­
re­engineer the social order. In this way,
rent dispute is fundamentally distinct a constitution may and does embody ret­
from all previous cases (called a "matter rospective provisions or provisions with
immediately before the effective date,
shall stand repealed on the effective date.
This means that the old constitution
tion must be read together with Section?
of the current constitution.
Before the passing and adoption of the
new constitution, the Court of Appeal was
the highest in the land.
The Court of Appeal from time to time
found itself at loggerheads with the High
Court. This sometimes resembled the war
between Lord Denning who from time
to time rubhhed the House of Lords the
wrong way by not sticking strictly to the
doctrine of stare decisis.
When Justice Ojwang stepped
into Lord Oenning's shoes­
Kenya's JusticeJackton Ojwang found him­
self in the shoes of Lord Denning where
the Appellate Court demonstrated open
criticism against his judgments at the
High Court after he was appointed as the
Judge of the High Court in 2003.
of first impression"), judges have the au­ retrospective ingredients. However, in in­
A case in point is in regard to his inter­
thority and duty to make law by creating terpreting the constitution to determine pretation of rule of naturaljustice in Civil
precedent. Thereafter, the new decision whether it countenances retrospective ap­ Appeal 108 of 2009 Kenya Revenue Au­
becomes precedent, and will bind future plication of any of its provisions, a court of thority vMengi nya Salim Murgani [2010!
courts.
law must pay due regard to the language of eKLR In any litigation rules of natural jus­
From the above working definition the the constitution.
tice must not only be observed but seen to
question that lingers in the minds of many
At the High Court in Petition 65 of 2011 have been observed. But what exactly are
Kenyan law practitioners is whether the Consolidated with Petitions Nos, 123 of rules of natural justice? Naturaljustice
Constitution of Kenya 2010 tramples on 2011 and 185 of 2011 John Harun Mwau denotes specific procedural rights. The »
the body of law that has been developed and Others v the Attorney General and
right to a fair hearing requires that indi­
in the lastsoyears under the independent Others, the Court observed, Section 7 of
viduals should not be penalized by deci­
Constitution.
the Sixth Schedule requires us to construe sions affecting their rights or legitimate
The Sixth Schedule to the Constitution
all laws, immediately in force before the
effective date with alterations, adapta­
stitution of Kenya 2010. Section 7 of the
tions, qualifications and exceptions nec­
expectations unless they have been given
essary to bring them in conformity with
ately in force before the effective date with
the Constitution. For the purposes of sec­
alterations, adaptations, qualifications
tion 7 'all laws' includes the former Con­
and exceptions necessary to bring them
stitution, which must be read in a manner
in conformity with the Constitution."
consistent with the Constituti on.
sent their own case.
sets the transitional clauses of the Con­
schedule states that "all laws, immedi­
This section has been at the center of
But Article 264 unequivocally states
subject to the 6th Schedule and for avoid­
prior notice of the case, a fair opportunity
to answer it, and the opportunity to pre­
In Murgani case Justice Ojwang had
ruled in favor of Murgani in the superior
court where he elevated rules of justice
in a contract of employment in a dispute
between Murgani and Kenya Revenue Au­
thority.
Ipsos Synovate Kenya ­ Acorn House,97 James Gichuru Road ­ Lavington ­ Nairobi ­ Kenya
NAIROBI LAW MONTHLY
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At the High Court and in Civil Case 1139 to the Code of Conduct as it applied to the
of 2002 Menginya Salim Murgani v Kenya respondent.
Instead, the court right from the out­
Revenue Authority [2008] eKLR, justice
Ojwang was unequivocal that; "in a public set purported to import into the contract
institution, invariably, there will be codes both the rules of naturaljustice as It un­
of management which lay down the rights derstood them includes incorporating
and expectations of the employees, as well into the contract of employment the pro­
as procedures of discipline and termina­ visions of section77 of the Constitution.
tion of employment."
The requirements of a fair hearing or
Disciplinary procedures in public bod­ the right of hearingunder section 77 of the
ies are tribunal matters, requiring fair Constitution and the rules of natural jus­
procedures of resolution, these being tice were two ideas which formed part of
expressed in particular in rules of natural the respondent counsel's submissions and
justice.
which the superior court accepted hook,
In the case of the plaintiff herein, the line and sinker, and unilaterally incorpo­
discharge from his employment was re­ rated them into the Code of Conduct.
quired to be in line with a Code of Conduct,
With respect, this was a serious misdi­
which document would serve as the basis rection or misapprehension of the appli­
of fairness and naturaljustice, in any mat­ cable law and of the factual position on the
ter of a disciplinary kind.
part of the Court."
The Court did not, therefore, agree with
This is serious ruling coming from the
KRA's advocate when he contended that
last court in the land as it then was. Rea­
the defendant could have terminated the
sons being that this reasoning was to bind
plaintiff's employment at will, and could
have fully acquitted itself just by paying to
him several months' salary in lieu of no­
all other courts in the land.
tice.
Interestingly the judges faulted Justice
Ojwang for "unilaterally incorporating
rules of natural justice into a contract of
employment." The question that naturally
comes to any legal mind is; what is the op­
Justice Ojwang now sitting the in the Su­
preme Court thus el evated the rules of nat­
ural justice to nature itself as no one can be posite of the term unilateral?
beyond nature. He was of the view that in
The answer being "bilateral" one there­
all tribunal of facts parties must never be fore wonders who justice Ojwang would
condemned unheard which is also a cardi­ have acted bilaterally with or consulted so
nal rule of the rule of law,
that hecould"bilaterally" incorporate the
A progressive ruling
rules of natural justice in the contract of
ahead of its time
employment.
The judge made his ruling in September Court of Appeal Judge
2008 almost two years before the consti­ Justice Philip Wakl.
tution was promulgated in 2010. However
One is therefore left wondering which
one of the two to cite as the correct juris­
prudence.
I am persuaded to believe the answer
lies with the one that is in agreement with
the Constitution of Kenya 2010.
Time for poetic justice?
This reasoning of the Appellate Court
came back to haunt Justices Omollo and
Nyamu before the Vetting Board.
This came in subtle paradox and of po­
etic justice. What is exactly poetic Justice?
Poetic justice has been defined as liter­
ary device in which virtue is ultimately
rewarded or vice punished, often in mod­
ern literature by an ironic twist of fate
intimately related to the character's own
conduct
Notably, poetic justice does not merely
require that vice be punished and virtue
rewarded, but also that logic triumph. If,
for example, a character is dominated by
greed for most of a romance or drama; he
cannot become generous. The action of a
play, poem, or fiction must obey the rules
of logic as well as morality.
When justice Omollo and Nyamu were
re moved bythevettingboardtheyapplied
for review citing rules of naturaljustice
and the Vetting Board ruled;
"we (the board) agree that naturaljus­
tice may require it to give such in certain
circumstances. However the require­
ments of natural justice are flexible and
must be assessed in all the circumstances
of the case. These included that the inter­
viewee is a judge who is professionally ac­
Justice Ojwang's ruling was progressive
customed to discussing legal matters and
Justice Ojwang whose ruling was noted
and somewhat in anticipation of Article
in particular the broad principles or main
236 (b) of the Constitution that provides with concern as a misapprehension of the points underpinning some of the highest­
that a public officer shall not be dismi ssed, law was vindicated by Kenyans during the profile cases of his career."
removed from office, demoted in rank oth­ referendum after they voted overwhelm
Although the board did not use this as
erwise subjected to disciplinary action ingly incorporating the rules of natural the reasons for declining to review its
justice in contract of employ men t.
without the due process of law.
earlier decision on the suitability of the
One would argue that by the wording of judge, it goes without saying that the two
However this did not last for long when
the case landed before former head of the
Article 236 this is in respect of contracts erstwhile appellate judges should not
have casually treated the question of rules
Appellate Court Riaga Omollo, Philip involving all government organs.
But this Article should be read together of natural justice the way they did in the
Wakiand Joseph Nyamu. The judges over­
turned Ojwang's judgment making the with Article 50 that incorporates rules of appeal.
The mere fact that a decision affects
remarks to the effect that: "We note with naturaljustice to all disputes that can be
concern that the superior court did not in
solved by application of the law.
rights or interests is sufficient to subject
That being said, we have two judgments, the decision to the procedures required by
its adjudication process make reference at
naturaljustice.*
all to the evidence concern ingthe discipli­ one from the High Court and the other one
— The writer is an advocate of the
nary steps taken by the appellant pursuant from the Appellate Court.
High Court of Kenya
Ipsos Synovate Kenya ­ Acorn House,97 James Gichuru Road ­ Lavington ­ Nairobi ­ Kenya
NAIROBI LAW MONTHLY
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customed to discussing legal matters and
in particular the broad principles or main
points underpinning some of the highest­
profile cases of his career."
Although the board did not use this as
the reasons for declining to review its
earlier decision on the suitability of the
judge, it goes without saying that the two
erstwhile appellate judges should not
have casually treated the question of rules
of natural justice the way they did in the
appeal.
The mere fact that a decision affects
rights or interests is sufficient to subject
the decision to the procedures required by
naturaljustice.*
— The writer is an advocate of the
High Court of Kenya
Of more controversy is the
question of whether the Article
of the new Constitution can
apply in retrospect. Judges
at the Constitutional Division
have also grappled with the
issue without clearing it up
Ipsos Synovate Kenya ­ Acorn House,97 James Gichuru Road ­ Lavington ­ Nairobi ­ Kenya
NAIROBI LAW MONTHLY
Date: 25.08.2013
Page 22,23,25,25
Article size: 1403 cm2
ColumnCM: 311.77
AVE: 46766666.66
Ipsos Synovate Kenya ­ Acorn House,97 James Gichuru Road ­ Lavington ­ Nairobi ­ Kenya
NAIROBI LAW MONTHLY
Date: 25.08.2013
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Article size: 1403 cm2
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AVE: 46766666.66
Former Judges Joseph Nyamu
and Riaga Omollo. right: Were the
classic case of poetic justice.
Ipsos Synovate Kenya ­ Acorn House,97 James Gichuru Road ­ Lavington ­ Nairobi ­ Kenya
NAIROBI LAW MONTHLY
Date: 25.08.2013
Page 22,23,25,25
Article size: 1403 cm2
ColumnCM: 311.77
AVE: 46766666.66
Ipsos Synovate Kenya ­ Acorn House,97 James Gichuru Road ­ Lavington ­ Nairobi ­ Kenya