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Court of AppealDismissedCivil Appeal No. 45 of 2012

Royal Media Services Limited v Attorney General [2018] KECA 218 (KLR)

Court of Appeal of Kenya
26 October 2018
PWP. N. WakiRNR. N. NambuyeAMAsike Makhandia
7,848 words in judgment
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The bottom line

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Kenya's Court of Appeal ruled that ordinary debt disputes must go through normal civil suits, not constitutional petitions, dismissing Royal Media Services' claim.

What this practically means

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Executive summary

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Royal Media Services appealed against the High Court's dismissal (Majanja J, 16 December 2011) of its petition claiming Kshs 104,895,667, the unpaid balance of 32 civic-education contracts with the defunct Constitution of Kenya Review Commission. It alleged violation of its rights to property (s 75) and freedom from discrimination (s 82(2)) under the repealed Constitution, and sought payment with interest, restitution or quantum meruit. The Court of Appeal (Waki, Nambuye and Makhandia, JJ.A) framed two issues: whether the petition was the proper procedure, and whether fundamental rights were breached. On procedure, the Court held that a disputed debt-collection claim belonged in an ordinary civil suit, endorsing the Karume principle that a prescribed procedure must be strictly followed, condemning the trend of 'constitutionalising virtually everything' as an abuse of process, and invoking constitutional avoidance. On the merits, the Court agreed that 'property' includes a debt but held that mere refusal or failure to pay a debt is neither deprivation nor compulsory acquisition under s 75; only an undisputed debt, or one reduced to judgment, qualifies. On discrimination, the Court held that s 82 confines discrimination to the enumerated grounds of race, tribe, place of origin, residence, political opinions, colour, creed or sex, none of which the corporate appellant could establish, and that the words do not permit a broader interpretation to include arbitrariness or the fashioning of new remedies. The appeal was dismissed with no orders as to costs, each party bearing its own costs.

Key legal issues

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01

Whether the constitutional petition was the proper procedure for the claim

Holding

No - a claim for payment of a contractual debt, with disputed contracts and quantum, must be brought by ordinary civil suit, not a constitutional petition

Reasoning

The Court invoked the Karume principle that where a clear procedure exists it must be followed, endorsed the constitutional-avoidance doctrine, and condemned the trend of constitutionalising every grievance as an abuse of process. Affidavit evidence in a petition was ill-suited to resolve disputed contracts and quantum; the ordinary civil procedure was the just avenue.

p. 4
02

Whether the appellant's right to property under section 75 of the repealed Constitution was violated

Holding

No - non-payment of a disputed debt is neither deprivation nor compulsory acquisition of property

Reasoning

Both parties accepted that 'property' includes a debt, but the Court held that deprivation arises only where the State bars the right to recover the debt. The debt here remained alive and the ordinary legal process was open to the appellant; only undisputed debts or those reduced to judgment fall within section 75 enforcement proceedings, per Shah and Gairy.

p. 8
03

Whether the appellant was discriminated against contrary to section 82(2) of the repealed Constitution

Holding

No - discrimination under section 82 is limited to the enumerated grounds of race, tribe, place of origin, residence, political opinions, colour, creed or sex, none of which the appellant demonstrated

Reasoning

Reading section 82(3), the Court confirmed discrimination is confined to the specified descriptions. The appellant, a corporate body, could not show it suffered different treatment attributable to any of the listed grounds; non-settlement of a debt simply does not amount to discrimination on any of those grounds.

p. 8
04

Whether a broad and purposive interpretation of sections 75 and 82 could extend them to arbitrariness and new remedies

Holding

No - the words of section 82 do not permit broader interpretation to cater for additional grounds such as arbitrariness, nor the fashioning of other remedies

Reasoning

The Court endorsed the trial judge's reasoning that unlike India's Article 14 equality clause, section 82 enumerates closed grounds of discrimination. Even a purposive interpretation does not envisage modification to include arbitrariness, and the words of the section do not permit the fashioning of other remedies.

p. 8

Legal principles established

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  • Where the Constitution or a statute prescribes a clear procedure for redress of a particular grievance, that procedure must be strictly followed
  • A constitutional petition is not a substitute for ordinary civil proceedings; debt collection claims do not belong in constitutional petitions
  • Failure or refusal to pay a debt does not amount to deprivation or compulsory acquisition of property under section 75 of the repealed Constitution
  • A disputed debt qualifies as property under section 75 only if undisputed or reduced to judgment or decree following adjudication by a competent court
  • Discrimination under section 82 of the repealed Constitution is confined to the enumerated grounds and a corporation cannot bring itself within them
  • The principle of constitutional avoidance requires a court to decide a case without reaching a constitutional issue where possible

Court orders

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  1. 1.Appeal dismissed
  2. 2.No orders as to costs
On appeal from
High Court of Kenya at Nairobi, Milimani Commercial Courts
High Court Petition No. 421 of 2009
Jurisdiction invoked
First appeal against a judgment of the High Court delivered under section 84 of the repealed Constitution (as the court then constituted)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (17)

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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, "Royal Media Services Limited v Attorney General [2018] KECA 218 (KLR)", Case Analysis (2018). Civil Appeal No. 45 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/218/eng@2018-10-26

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