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Court of AppealDismissedCivil Appeal 179 of 2015· [2017] KECA 766 (KLR)

Alfred Asidaga Mulima & 2 others v Attorney General & 8 others

Court of Appeal
24 February 2017
7,484 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal blocked former East African Airways workers from reviving 1977 benefit claims, ruling the matter was already decided and decades too late.

What this practically means

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Executive summary

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The appellants, officials of the Ex-East African Airways Staff Welfare Association suing for themselves and former Kenyan employees of the defunct East African Airways Corporation, appealed against the High Court's dismissal of their petition claiming provident fund and redundancy benefits exceeding Kshs. 600 billion, allegedly owed since the Corporation's winding up in 1977. They invoked multiple provisions of the 2010 Constitution against the Attorney General, the Barclays trustee entities and government ministries. The Court of Appeal, in a single unanimous judgment, addressed four issues. First, it held that although the East African Community Mediation Agreement Act addressed provident funds, the trial court was not exclusively bound by it and properly considered the 2011 Taskforce Report, which showed payments had been made and that no trustee respondent held any funds. Second, it affirmed that the petition was res judicata, the same claims having been determined by the High Court (Lenaola J), the East African Court of Justice and the Industrial Court. Third, it held the claim, filed nearly 37 years after the cause of action accrued, was statute barred under section 4(1)(d) of the Limitation of Actions Act, and that the inordinate delay caused the trustee respondents serious prejudice, denying them a fair trial; constitutional avoidance also applied. Fourth, it held the 2010 Constitution does not operate retrospectively, so newly created rights could not found a 1977 claim. The court left undisturbed the High Court's order directing the Attorney General to publish information about uncollected liquidation dividends, dismissed the appeal in its entirety, and ordered each party to bear its own costs of the appeal.

Key legal issues

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01

Whether the EACMAA exclusively governed the provident fund claims

Holding

The EACMAA addressed provident funds, but the trial court was not exclusively bound by it and could consider other material, including the Taskforce Report.

Reasoning

The court analysed Article 10 of the Mediation Agreement and the EACMAA First Schedule, which deals with pension and provident fund assets of the defunct Community corporations. It found the Act addressed provident funds but held the trial court was also bound to consider other material relating to the claims against the 2nd to 6th respondents, including the 2011 Taskforce Report, which found payments had been made and that no respondent held any provident funds.

p. 11
02

Whether the petition was res judicata

Holding

The petition was res judicata, having been litigated before Lenaola J, the East African Court of Justice (First Instance and Appellate Divisions) and the Industrial Court.

Reasoning

The court applied section 7 of the Civil Procedure Act and Explanation 6 thereto, and its earlier decision in Pop-In (Kenya) Ltd v Habib Bank. The same claims by former EAC employees, including the appellants' association members, had been heard and finally determined by courts of competent jurisdiction; re-litigating identical issues on the same facts would also be an abuse of process.

p. 13
03

Whether the claim was time barred and whether delay defeated a fair trial

Holding

The claim, accruing in 1977 and filed in 2014, was statute barred under section 4(1)(d) of the Limitation of Actions Act, and the delay caused the 2nd to 6th respondents serious prejudice.

Reasoning

The cause of action arose in 1977; the petition was filed nearly 37 years later. Even in constitutional claims, delay must be considered for reasonableness and prejudice, and constitutional avoidance applies. Records had been destroyed or lost under the Records Disposal Act, so the respondents could not get a fair trial.

p. 15
04

Whether the Constitution of Kenya, 2010 applies retrospectively

Holding

The 2010 Constitution does not apply retrospectively; new rights created under it are not enforceable for pre-2010 causes of action.

Reasoning

Relying on Samuel Kamau Macharia v Kenya Commercial Bank, the court held that where constitutional provisions are forward-looking, courts must not import retrospectivity, especially where it would divest accrued rights. Most rights invoked were conferred only under the 2010 Constitution and were not recognised under the repealed Constitution when the cause of action arose in 1977.

p. 15

Legal principles established

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  • A suit is res judicata where the matter was directly and substantially in issue in a former suit between the same parties or parties litigating under the same title, heard and finally decided by a competent court.
  • Even in constitutional litigation, inordinate and unexplained delay that prejudices the respondent bars relief; courts should consider whether the delay was unreasonable and prejudicial.
  • The constitutional avoidance principle requires a court not to determine a constitutional issue where the matter may properly be decided on another basis.
  • New rights created under the Constitution of Kenya, 2010 cannot be enforced in respect of causes of action that arose before its commencement unless recognised under the previous Constitution.

Court orders

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  1. 1.Appeal dismissed in its entirety
  2. 2.Each party to bear its own costs of the appeal
  3. 3.The High Court's order directing the Attorney General to publish, within 90 days, the names and addresses of former employees who received dividends, those who had not collected their monies, and the total amount lying in the Official Receiver's account at National Bank, left undisturbed

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 20(1), 23, 27, 28, 29(f), 35, 40, 41, 43, 47, 48, 57
  • East African Community Mediation Agreement ActNo. 7 of 1987; First Schedule, Article 10
  • East African Community Mediation Agreement, 1984Article 10 (10.01, 10.03, 10.05)
  • Limitation of Actions ActSection 4(1)(d)
  • Civil Procedure ActSection 7 and Explanation 6 thereto
  • Records Disposal ActSection 4 (Cap 14)
  • East African Airways Corporation Act, 1967Section 25 (Cap 16, repealed)
  • Pensions Actamendments referred to

Cases cited (11)

  • Samuel Amugune & Others v The Attorney General
    Nairobi HCCC No. 1879 of 2009 (consolidated with HCCC No. 743 of 2002)

    Prior suit by former EAC employees on same claims; foundation of res judicata finding

  • Samuel Kamau Macharia & Another v Kenya Commercial Bank Limited & 2 Others
    eKLR [2011]

    Constitution does not apply retrospectively absent express provision

  • Emmanuel Mwakisha Mjawasi & 748 Others v The Attorney General of the Republic of Kenya
    Appeal No. 4 of 2011; [2012] eKLR

    Dismissal of appeal on same terminal benefits claims; res judicata

  • Emmanuel Mwakisha Mjawasi & Others v The Attorney General
    [2012] eKLR

    Petition on same claims struck out as res judicata

  • Pop-In (Kenya) Ltd & 3 Others v Habib Bank AG Zurich
    [1990] eKLR

    Scope of the plea of res judicata

  • North West Water Ltd v Binnie & Partners
    [1990] 3 All ER 547

    Issue estoppel and abuse of process in re-litigating decided issues

  • Wachira Waihere v The Attorney General
    [2003] eKLR

    Cited by appellants: no limitation period for constitutional redress

  • Attorney General of the Republic of Uganda v Omar Awadh & 6 Others
    [2013] eKLR

    Necessity of prompt litigation of rights; legal certainty even in human rights cases

  • Communication Commission of Kenya v Royal Media Services & 5 Others
    [2014] eKLR

    Principle of constitutional avoidance

  • Charles Murigu Muriithi & 2 Others v Attorney General
    [2015] eKLR

    New rights under 2010 Constitution unenforceable unless recognised under previous Constitution

  • Bliss v Lambeth, Southwark and Lewisham Health Authority
    [1978] 2 All ER 126 (CA)

    Prejudice to defendants from long delay (cited by respondents)

On appeal from
High Court of Kenya at Nairobi
High Court Petition No. 113 of 2013
Jurisdiction invoked
Appellate jurisdiction of the Court of Appeal over the High Court (Constitution of Kenya, 2010, Article 164)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Alfred Asidaga Mulima & 2 others v Attorney General & 8 others", Case Analysis (2017). Civil Appeal 179 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/766/eng@2017-02-24

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.