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Court of AppealPartially AllowedCivil Appeal 248 of 2020· [2022] KECA 391 (KLR)

National Land Commission v Munubi & 4 others

Court of Appeal
4 March 2022
DMD K MusingaWKW KaranjaPKP O Kiage
5,005 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed the National Land Commission must honour renewed contracts for its former directors, but refused them extra damages despite finding their rights were violated.

What this practically means

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Executive summary

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The National Land Commission appealed against an ELRC judgment (Maureen Onyango, J., 24 May 2019) which, while dismissing Petition No. 8 of 2019, ordered renewal of the contracts of four seconded directors in line with NLC Commission resolutions of 8th May 2018 and 13th December 2018. The respondents cross-appealed, seeking declarations of violations of Articles 28, 41 and 47, accrued salaries, and damages of about Ksh. 31.2 million. The Court of Appeal (Musinga, Karanja and Kiage, JJA) held that the Chairman exceeded his powers in converting the directors' terms to permanent and pensionable, since the Commission's resolution only renewed directors' contracts for five years subject to age 60. The court upheld the renewal order despite it not being specifically pleaded, applying the Odd Jobs exception because the issue arose from and was fully canvassed in the proceedings, and relying on section 12 of the ELRC Act. The appeal was dismissed in its entirety. On the cross-appeal, the court found that the 2nd and 4th respondents proved inhumane treatment - lock-out, stopped salaries and denial of benefits - in violation of Articles 28, 41 and 47, the 1st and 3rd respondents having been lawfully suspended under the Anti-Corruption and Economic Crimes Act. Damages were refused on proportionality grounds since salaries were payable and the CEO's contempt conviction was deterrent. The cross-appeal succeeded only to the extent of the declaration. Costs of the appeal and cross-appeal went to the respondents; each party to bear its own costs in the trial court. The decision binds subordinate courts and tribunals on the pleadings exception and the purpose of constitutional remedies.

Key legal issues

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01

Whether the trial court could order renewal of contracts not specifically pleaded

Holding

No error; the issue arose from the pleadings and evidence and was fully canvassed, and section 12 of the ELRC Act permits appropriate relief

Reasoning

The dispute centrally concerned the respondents' employment status and the conversion of their terms; renewal was inexorably intertwined with issues pleaded. All parties addressed it, so the Odd Jobs exception to the pleadings rule applied. Section 12 of the ELRC Act also empowers the court to grant appropriate relief.

p. 7
02

Validity of the Chairman's conversion of directors' terms to permanent and pensionable

Holding

The Chairman acted in excess of his powers; the Commission's resolution only converted staff below deputy director to permanent and pensionable terms, and directors' contracts were to be renewed for 5 years

Reasoning

The 8th May 2018 resolutions distinguished directors (5-year renewal subject to age 60) from staff at deputy director level and below (permanent and pensionable). The Chairman's memo of 9th May 2018 directing conversion of all staff, including directors, exceeded the resolution and the NLC Act framework.

p. 7
03

Whether the 2nd and 4th respondents' rights under Articles 28, 41 and 47 were violated

Holding

Yes - they were denied access to offices and attendant benefits despite a subsisting court order, meeting the Anarita Karimi Njeru threshold

Reasoning

The appellant gave no evidence of renewing the contracts after the judgment; the respondents were locked out, unpaid and denied medical cover in disregard of a court order. The 1st and 3rd respondents were lawfully suspended under section 62 of the ACECA, so no violation was established against them.

p. 8
04

Whether damages should be awarded for the constitutional violations

Holding

No damages awarded; the declaration suffices given salary payments were ordered and the contempt conviction of the CEO served deterrence

Reasoning

The court weighed proportionality and rationality: the contract renewal order already secured payment of salaries for the lock-out period, a declaration would vindicate the rights, and the CEO's contempt conviction and fine were themselves punitive and deterrent.

p. 9

Legal principles established

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  • A court may base its decision on an issue not specifically pleaded if it arises in the course of proceedings and is fully canvassed by the parties.
  • The primary purpose of a constitutional remedy is to vindicate rights and deter future infringement; damages are not automatic and depend on proportionality and rationality.
  • A constitutional petitioner must plead with reasonable precision the provision infringed and the manner of infringement.

Court orders

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  1. 1.Appeal dismissed in its entirety
  2. 2.Clarification that contracts were to be renewed for a further 5 years subject to attaining the statutory retirement age of 60 years
  3. 3.Alternative order that the Commission compute and pay the respondents' salaries for the period of their contracts subject to statutory deductions and other dues
  4. 4.Clarification that the order will not interfere with administrative actions taken in respect of the 1st and 3rd respondents pursuant to Anti-Corruption Case No. 33 of 2018
  5. 5.Declaration that the 2nd and 4th respondents' rights under Articles 28, 41 and 47 of the Constitution were violated (cross-appeal allowed to that extent)
  6. 6.Refusal to award damages for violation of constitutional rights
  7. 7.Costs of the appeal and cross-appeal awarded to the respondents/cross-appellants; each party to bear its own costs of the suit before the trial court

Authorities

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Legislation

  • Constitution of KenyaArticles 28, 30, 41, 47, 50, 67; Chapter Six
  • National Land Commission ActSection 19, Section 23, Fourth Schedule paragraph 4
  • Anti-Corruption and Economic Crimes ActSections 62, 62(1), 62(4), 63
  • Civil Procedure ActSection 1A
  • Civil Procedure RulesOrder 11 rule 3(i)(h)
  • Employment and Labour Relations Court ActSection 12
  • Court of Appeal RulesRule 29(1)(a); Rule 93

Cases cited (10)

  • IEBC vs Stephen Mutinda Mule
    Civil Appeal no. 219 of 2013

    Parties are bound by their pleadings and cannot raise a different or fresh case without due amendment

  • Thomas De La Rue K. Ltd vs David Opondo Omutelema
    CA No. 65 of 2012

    Cases must be decided on the issues on record; other issues require amendment

  • Captain Harry Gandy vs Caspar Air Charters Ltd
    [1956] 23 EACA 139

    A judge may not decide an issue he raised himself without amending the pleadings

  • Nyati Security Guards & Services Ltd vs Municipal Council of Mombasa
    [2004] eKLR

    Principles guiding consolidation of two or more suits

  • Housing Finance Company of Kenya v. J. N. Wafubwa
    [2014] eKLR

    Where parties canvass an issue and leave it to the court, judgment may be pronounced on it though not pleaded

  • Selle vs Associated Motor Boat Company Ltd
    [1968] E.A. 123

    Duty of a first appellate court to re-evaluate evidence and draw its own conclusions

  • Odd Jobs vs Mubea
    (1970) E A 476

    Exception to the pleadings rule - decision may rest on an unpleaded issue fully canvassed

  • Anarita Karimi Njeru vs Republic
    [1979] eKLR

    Precision required in pleading constitutional violations

  • Judicial Service Commission vs Daniel Mudanyi Ochenja
    [2020] eKLR

    Once breach of the Constitution is found, the court is duty bound to determine the question of damages

  • Evans Arthur Mukolwe vs A.G. & Another
    [2019] eKLR

    Damages equivalent to unserved term of fixed contract based on legitimate expectation

On appeal from
Employment and Labour Relations Court at Nairobi
Petition No. 8 of 2019 (heard with ELRC No. 1643 of 2018)
Jurisdiction invoked
First appeal under Rule 29(1)(a) of the Court of Appeal Rules

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (4)

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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, "National Land Commission v Munubi & 4 others", Case Analysis (2022). Civil Appeal 248 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/391/eng@2022-03-04

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