Baobab Beach Resort and Spa Limited v 1. Duncan Muriuki Kaguuru 2. Destination Africa Dmc Limited
The bottom line
#Kenya's Court of Appeal confirmed that private individuals and companies can be sued for discrimination under the Constitution, not just the government.
What this practically means
#Executive summary
#Key legal issues
#Horizontal application of the Bill of Rights
The Bill of Rights under the Constitution 2010 applies both vertically and horizontally; a private person or company can be sued for discrimination under Article 27(4) and (5)
Reading Articles 22(1), 27(4) and (5) together with Article 260's definition of 'person' (which includes companies and associations), the Court held that a person discriminated against by another person, including a corporate entity, may enforce the Bill of Rights against that person. This marked a distinct shift from the position under the repealed Constitution, where claims were restricted to vertical claims against the State.
Jurisdiction of the High Court vis-à-vis the NCIC
The NCIC has jurisdiction over racial and ethnic discrimination complaints, but not exclusive jurisdiction; the High Court's jurisdiction is not ousted by the NCIA
While the NCIC is mandated to investigate and recommend on complaints of ethnic and racial discrimination under the NCIA, the Constitution confers on the High Court superior jurisdiction over constitutional disputes. The NCIC lacks power to grant reliefs or hear civil suits. The respondents were therefore entitled to select the High Court as forum for their combined claim.
Status of the Constitutional & Judicial Review Division
The Division is merely a division of the High Court, not an independent court, and may hear a petition conflating constitutional and civil causes of action
Relying on Peter Nganga Muiruri v Credit Bank, the Court reiterated that the High Court is one court with unlimited original jurisdiction; its divisions are purely administrative. Prudence favours hearing both causes of action in one suit to avoid a multiplicity of suits.
Preliminary objections as pure points of law
The objection raised was properly a pure point of law on jurisdiction, consistent with the Mukisa Biscuits test
Applying the classic definitions in Mukisa Biscuits, the Court accepted that the question whether the Constitutional & Judicial Review Division had jurisdiction was a pure point of law that could be raised by way of preliminary objection, since it assumed the facts pleaded were correct.
Legal principles established
#- Unlike the repealed Constitution, the provisions of the current Constitution's Bill of Rights apply both vertically and horizontally, and may be enforced by one private person against another private person or body
- The NCIC does not have sole and exclusive jurisdiction over matters of racial discrimination; the High Court's jurisdiction under Articles 23(1) and 165 is not ousted by section 25 of the NCIA, which confers only investigative and recommendatory powers
- The Constitutional & Judicial Review Division is not a stand-alone court but a division of the High Court, and the conflation of two causes of action in one petition does not preclude it from hearing the matter
- Where a civil or criminal matter can be decided on the basis of existing legislation or an alternative remedy without invoking constitutional provisions as the foundation of the suit, the alternative course should be adopted
- Whether a claim should invoke the Constitution or be commenced as a civil suit must be determined on the basis of its own particular facts
Court orders
#- 1.The appeal is dismissed with costs to the respondents
- On appeal from
- High Court of Kenya at Nairobi (Constitutional & Human Rights Division)
- Constitutional Petition No. 223 of 2012
- Jurisdiction invoked
- First appellate jurisdiction under the Constitution of Kenya, 2010 (Article 164) over appeals from the High Court
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
Cite this brief
#Cite this brief
Caselaw, "Baobab Beach Resort and Spa Limited v 1. Duncan Muriuki Kaguuru 2. Destination Africa Dmc Limited", Case Analysis (2017). Civil Appeal No. 296 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/192/eng@2017-11-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.