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ELRCOtherCause No 24 of 2012· [2013] KEELRC 227 (KLR)

DOUGLAS KARIUKI KAGAI V ATTORNEY GENERAL& ANOTHER [2013] KEELRC 227 (KLR)

Industrial Court of Kenya
7 June 2013
1,597 words in judgment
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The bottom line

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A Kenyan state corporation cannot hire its own lawyer and challenge a court judgment without the Attorney-General's consent — this board tried and lost, paying all costs.

What this practically means

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Executive summary

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On 22 March 2013 the Industrial Court entered judgment for the claimant against the respondents for Ksh.938,882 plus interest and costs. The hearing had proceeded ex-parte after the respondents' counsel failed to attend, but counsel later appeared at the submissions stage and made detailed oral submissions, and the respondents' pleadings and documents were on record and undisputed. On 21 May 2013 the 2nd respondent, Pyrethrum Board of Kenya, through Gladwell V. Mumia Advocate of the Federation of Kenya Employers, moved to set aside the judgment, seek leave to defend and to cross-examine the claimant, citing lack of notice of the hearing date and financial hardship. The claimant opposed, arguing abuse of process, improper representation, and that the court had no residual jurisdiction to reopen a final judgment. The court held that the Board, a body corporate under the Pyrethrum Act, Cap 340, is part of 'government' in the wide sense and is amenable to constitutional representation by the Attorney-General under Article 156(4), linked to the executive through Article 132(3). Without the Attorney-General's express or implied consent, the Board could not instruct its own advocate and file the application; no leave of court for the changed representation was sought either. The application was therefore filed in breach of due process. The prayer for leave to defend was also misconceived given the memorandum of response on record. The court expunged the application and notice of appointment from the record and ordered the 2nd respondent to pay the costs of all proceedings leading to the ruling.

Key legal issues

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01

Whether a state corporation already represented by the Attorney-General may file an application through privately instructed counsel without the Attorney-General's consent

Holding

No. The respondent, being a public body under the Pyrethrum Act, is part of government in the wider sense and the Attorney-General is its constitutional representative under Article 156(4); without his express or clearly implied consent it could not file the application.

Reasoning

The court construed 'government' widely to include semi-autonomous bodies exercising public authority, and linked statutory bodies to the executive through Article 132(3) on assignment of responsibility for implementation of Acts. The 2nd respondent's unilateral filing was an attempt to erase the Attorney-General's constitutional role, rendered 'invisible'. No leave of court for changed representation was obtained either.

p. 3
02

Whether the ex-parte judgment ignored the respondents' case

Holding

No. The court confirmed that the respondents' pleadings, documents and counsel's oral submissions were taken into account in arriving at the judgment.

Reasoning

Although the hearing proceeded ex-parte after the respondents' counsel's unexplained absence, counsel appeared at the submissions stage, apologised, made detailed oral submissions and did not seek to recall the claimant for cross-examination or to call witnesses. All relevant documents were on record and undisputed, so the set-aside application could not succeed on that footing.

p. 2
03

Whether a prayer for leave to defend was tenable

Holding

No; it was misconceived because a memorandum of response was already on record and counsel had been heard at least at the submissions stage.

Reasoning

p. 3

Legal principles established

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  • A state corporation established under an Act of Parliament is part of government and is amenable to constitutional representation by the Attorney-General; it cannot instruct separate counsel or make a court application without the Attorney-General's express or implied consent
  • Representation by counsel goes to the root of the constitutional role of the Attorney-General under Article 156(4); filing an application through a newly appointed advocate without the Attorney-General's consent is a breach of due process

Court orders

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  1. 1.The application dated 21.05.2013 and the notice of appointment filed on 22.05.2013 are expunged from the record
  2. 2.The 2nd respondent shall pay the costs of all the proceedings leading to this ruling

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 156(4)
  • Constitution of Kenya, 2010Article 132(3)
  • Pyrethrum Act, Cap 340Establishment of the respondent
Jurisdiction invoked
Original employment and labour relations jurisdiction of the Industrial Court; Article 156(4) of the Constitution considered on representation

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "DOUGLAS KARIUKI KAGAI V ATTORNEY GENERAL& ANOTHER [2013] KEELRC 227 (KLR)", Case Analysis (2013). Cause No 24 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/227/eng@2013-06-07

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