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ELRCDismissedPetition No. 4 of 2014 (Formerly H.C. Petition No. 372 of 2012 Nairobi)· [2015] KEELRC 912 (KLR)

Michael Mbogo Kibuti v Attorney General [2015] KEELRC 912 (KLR)

Employment and Labour Relations Court of Kenya
10 June 2015
MNMathews N. Nduma
1,973 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A former soldier's rights petition over his 1982 court martial failed because it relied only on the 2010 Constitution, which didn't exist then.

What this practically means

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Executive summary

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The Petitioner, a former Senior Private in the Kenya Air Force discharged in 1984, was arrested, tried by Court Martial on 29th December 1982 and convicted of mutiny arising out of the failed coup of 1st August 1982, serving six months after a sentence review from one year. He petitioned under Articles 22(1) and 23(1) of the Constitution of Kenya 2010 alleging violations of Articles 25(a), 27(1), 29(c), (d) and (f), 47(1), 49(1) and 50(1) - including being left submerged in water for seven days at Naivasha Maximum Prison, solitary confinement in a dark room without sanitation, denial of legal representation at trial, and failure to be informed of the reasons for arrest. The Respondent, through a Replying Affidavit of Lieutenant Colonel Joseph Kosen Karbauli, denied all violations, asserted the Petitioner was lawfully arrested, tried and convicted under section 22(1) of the Armed Forces Act cap 199, invoked section 86(4) of the 1969 Constitution excluding most Bill of Rights protections for disciplined forces, and contended the petition was filed 32 years late and was an abuse of process. The court framed two issues: whether the Respondent violated the Petitioner's rights, and what remedies were available. It never reached the merits. Because the petition was pleaded exclusively on provisions of the 2010 Constitution that did not exist when the cause of action arose in 1982, and applying the principle that parties are bound by their pleadings (drawing on IEBC v Stephen Mutinda Mule, Malawi Railways v Nyasulu, Libya Arab Uganda Bank v Adan Vessiliadis, Jones v National Coal Board and Adetoun Oladeji), the court held the petition incompetent and disclosing no cause of action, refusing to substitute a case under the repealed 1969 Constitution as that would ambush the Respondent. The petition was dismissed with costs to the Respondent.

Key legal issues

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01

Whether a petition pleaded exclusively on the Constitution of Kenya 2010 for a cause of action arising in 1982, when only the 1969 Constitution applied, is competent

Holding

The petition is incompetent and discloses no cause of action to the extent all alleged violations relate to provisions of the 2010 Constitution that were non-existent when the cause of action arose

Reasoning

The petitioner pleaded violations solely under Articles 22, 23, 25, 27, 29, 47, 49 and 50 of the 2010 Constitution, yet the arrest, trial and detention occurred in 1982 under the 1969 Constitution, which even contained a discipline-force exception (section 86(4)). Relying on authority that parties are bound by their pleadings, the court held it could not substitute a cause of action under the repealed Constitution without ambushing the Respondent.

p. 4
02

Whether the court could, of its own motion, frame the case under the Constitution of Kenya 1969 (repealed)

Holding

No - doing so would exceed the pleadings and ambush the Respondent

Reasoning

Citing the Court of Appeal in IEBC v Stephen Mutinda Mule (itself relying on Malawi and Uganda authority adopting Lord Denning's dictum in Jones v National Coal Board) and the Nigerian Supreme Court in Adetoun Oladeji, the court held that evidence and argument at variance with the pleadings go to no issue and must be disregarded, so the court's hands were tied by the petitioner's own pleading choices.

p. 4

Legal principles established

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  • Parties are bound by their pleadings, which limit the issues upon which a trial court may pronounce; a petition founded entirely on constitutional provisions that did not exist when the cause of action arose discloses no cause of action and cannot be reformulated to rely on the repealed Constitution, as that would ambush the respondent.

Court orders

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  1. 1.The petition is dismissed with costs

Authorities

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Legislation

  • Constitution of Kenya 2010Articles 22(1), 23(1), 25(a), 27(1), 29(c), (d), (f), 47(1), 49(1)(a)(i)-(iii), (c), (d), 50(1)
  • Constitution of Kenya 1969 (repealed)sections 71, 72(5), 73, 74(1), 77(1)(a), (c) and (d), 82(2), 84(1), 86(4)
  • Armed Forces Act, cap 199 (repealed)section 22(1)
  • Armed Forces (officer and service men's) Pension Regulations of 1980

Cases cited (7)

  • Peter M. Kariuki Vs Attorney General
    Civil Appeal No. 79 of 2012
  • Independent Electoral and Boundaries Commission and 2 Others Versus Stephen Mutinda Mule and 3 Others
    Civil Appeal No. 219 of 2013
  • Malawi Railways Ltd Vs Nyasulu
    (1998) MWSC 3
  • Libya Arab Uganda Bank for Foreign Trade and Development and Another Vs Adan Vessiliadis
    (1980) UG/CA/6
  • Jones Vs National Coal Board
    (1953) 2 QB 55
  • Adetoun Oladeji (Nig) Ltd Vs Nigerian Breweries Plc
    S.C. 91/2002
  • HCCC No. 403 of 2006 (Musinga J)
Jurisdiction invoked
Articles 22(1) and 23(1) of the Constitution of Kenya 2010 (enforcement of Bill of Rights)

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, "Michael Mbogo Kibuti v Attorney General [2015] KEELRC 912 (KLR)", Case Analysis (2015). Petition No. 4 of 2014 (Formerly H.C. Petition No. 372 of 2012 Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/912/eng@2015-06-10

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