DOUGLAS KARIUKI KAGAI V ATTORNEY GENERAL& ANOTHER [2013] KEELRC 227 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether a state corporation already represented by the Attorney-General may file an application through privately instructed counsel without the Attorney-General's consent
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.
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.
Whether the ex-parte judgment ignored the respondents' case
No. The court confirmed that the respondents' pleadings, documents and counsel's oral submissions were taken into account in arriving at the judgment.
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.
Whether a prayer for leave to defend was tenable
No; it was misconceived because a memorandum of response was already on record and counsel had been heard at least at the submissions stage.
Legal principles established
#- 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
#- 1.The application dated 21.05.2013 and the notice of appointment filed on 22.05.2013 are expunged from the record
- 2.The 2nd respondent shall pay the costs of all the proceedings leading to this ruling
- Jurisdiction invoked
- Original employment and labour relations jurisdiction of the Industrial Court; Article 156(4) of the Constitution considered on representation
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.