Case Brief Supreme Court Petition No. 4 of 2019 Law Society of Kenya (LSK) V. Attorney General (AG) and Another

By Ian Njathi

(LL.M., LLB, Dip in Law)

Coram: Maraga (CJ &P) Wanjala, Njoki, Lenaola & Ibrahim, SCJJ

Background of the Case
1. The petition was filed on 4th February 2019 by the petitioners LSK as an appeal challenging the decision of the Court of Appeal (COA)dated 17th November 2017. The COA had reversed the order of the High Court that had declared sections 4; 7(1) (2); 10(4); 16; 23(1); 25(1)(3); 52(1)(2) and 58(2) of the Work Injuries Benefit Act of 2007 (WIBA) null and void as they contravened certain sections of the former Constitution.

2. Following the High Court decision, the aggrieved party AG, filed Civil Appeal No. 133 of 2011 arguing that the learned Judge erred in law by declaring the 9 sections of WIBA inconsistent with the former Constitution.

3. On 17th November 2017, the COA (Waki, Makhandia, Ouko, JJA) allowed the appeal only to the extent it set aside the High Court orders declaring the sections to be inconsistent with the former Constitution. It however found section 7, in so far as it provided for the minister’s approval or exemption, and section 10(4) were inconsistent with the former and current Constitution.

4. The appellate court agreed with the learned judge that section 7 contravened section 80 of the former Constitution and would limit the freedom of association.

5. With regard to the other impugned sections of the Act, the Court found that nothing in section 16 offended the Constitution.

6. Secondly, section 23 did not contravene the Constitution since powers of the Director are donated by statute and the exercise of that power is circumscribed and not arbitrary. Thirdly, Section 25 (1) and (3) was not in conflict with section 82 of the former Constitution and that a party in whose favour a decision is made may stlll be dissatisfied with the award and challenge the Directors award at the High Court. The learned Judges of the appeal further observed that the latter provision had the effect of granting right to appeal to an objector and not the other party wishing to vary the award. However, they were of the opinion that this was a pure drafting error as they found no reason why in an adversarial litigation only one party had the right of appeal hence they found the subsection not inconsistent with the former Constitution and could easily be redrafted by Parliament.

7. With regard to section 58, the COA found that although the section was in harmony with the former and current Constitution, it still required further consideration to ensure smooth transition to WIBA from the Workmen’s Compensation Act.
Supreme Court Petition
8. Aggrieved by the decision of the COA, the petitioner filed an appeal seeking the entire order by the COA be set aside and substituted with a judgement.

9. They also sought to affirm the finding of the High Court’s judgement dated 4th March 2009 in High Court Petition No. 185 of 2008

10. They further sought a declaration that section 16 of the Act was unconstitutional as it impeded the right of an employee to a fair trial therefore contravening Article 48 of the Constitution 2010 and section 75 of the former Constitution which corresponds to Articles 40 and 50 of the Constitution 2010

11. Thirdly, they sought a declaration that section 23 of the Act was unconstitutional in that it fails to confer equal rights of appeal to both the Objector and the other party thus contravening section 60 and 77(9) and (10) of the former Constitution and Articles 50(1), 159(1), 163(2)(a) as well as 23(1) and 165(3)(b) of the Constitution 2010

12. Additionally, they sought a declaration that section 25 (1) and (3) was unconstitutional as it discriminated against employees thus contravening Section 80 of the former Constitution which corresponds to Article 27 of the Constitution 2010

13. Furthermore, the petitioners sought a declaration that section 52(1) and (2) was unconstitutional as it failed to confer equal rights of appeal to both the objector and the other party thus contravened section 82 of the former Constitution which corresponds to Art 27, 41(1) and 48 of the Constitution 2010

14. Finally, they sought a declaration that section 58 contravened Section 75 of the former constitution which corresponded to Article 40, 41(1), 48 and 50 of the Constitution 2010 as it purports to promote the retrospective application of the Act.
Petitioners Case
15. The petitioner submitted that their case met the requisite jurisdictional threshold under Article 163(4)(a).

16. It was also the petitioner’s submission that the COA focused almost exclusively on the former Constitution’s provisions while interpreting the impugned sections of the Act and failed to analyse corresponding Articles of the Constitution 2010 thus violating Article 159(2) which provides that courts and tribunals in exercising their judicial authority shall protect and promote the purposes of the Constitution.

17. They further argued that the COA failed to consider section 23(1) in terms of Article 159(1) and 23(1) of the Constitution as read with Article 165(3)(b) which vests exclusive jurisdiction in interpreting the Bill of Rights on the High Court.

18. Additionally, they argued that the COA failed to recognize that section 52(1) and (2) was not only discriminatory but inhibited litigant’s right to access justice as under Article 48 as well as the right to fair labour practices under Article 41(1)

19. The petitioner’s argued that the Appellate Court ought to have adopted a purposive approach while interpreting the provisions of the new and progressive Constitution 2010 against the impugned sections of the Act.

20. The petitioners submitted that the COA failed to take account of the sovereign will of the people to enact Article 41 and 2(4) of the Constitution and thus was an abuse to the sovereign power exercised under Article 1 and added that any law inconsistent with the Constitution was is void to the extent of the inconsistency.

21. Moreover, the petitioner argued that section 16 acted to extinguish an employees right to file n action for recovery of damages from an employee in respect of any occupational accident or disease resulting in disablement or death of an employee and thus infringed on Article 40(1)(2) right to property and Article 48 and 50 on enjoyment of the rights of fair access and fair hearing.

22. Further, the petitioners argued that section 23(1) violated Article 50 (1), 159(1) 162(2)(a) and 165 as it conferred judicial authority upon an individual, the Director, thereby blocking jurisdiction of the High Court.

23. The petitioners argued that the requirement under section 25(1) and (2) empowering the Director to appoint a medical practitioner to examine an employee to determine the requisite compensation, allowing the employee to have a medical practitioner of their choice present while denying the employer a similar opportunity amounted to discrimination violating Article 27 of the Constitution.

24. The petitioners further argued that parliament disregarded national values and principles of governance while enacting section 25(1) ad (2) as it discriminated against an employer denying him enjoyment of privilege granted to employee contrary to provisions of Article 27.

25. The petitioners conclude by arguing that section 52 had the effect of granting right of appeal to the objector and not the opposite party nor affected person wishing to vary the award. They contended that it was not only discriminatory and contrary to article 27 but also violated Article 41(1) which provides for the litigant’s right to fair labour practices.

26. Additionally, the provision denies affected party right to access justice guaranteed by Article 48 and was discriminatory as it creates an opportunity to appeal to the objector and none to the affected party.
1st Respondents Claims
27. With regard to section 16 compatibility to the Constitution, they argued that it was an ouster clause which was not unique and was permitted by law.

28. Regarding section 23 compatibility, the respondents submitted that courts do not have exclusive rights to deal with disputes. They urged that the Constitution allows powers to vest in a person or tribunal as opposed to courts alone.

29. Additionally, they provided that section 53 provided for grievances that may be dealt with a Director and such did not include Human Rights violations and thus did not oust jurisdiction of the High Court and vest it in the Director.

30. The respondents submitted that section 25(1) and (2) provided for neutrality in dealing with work injury claims and the Director was acting as a neutral party in the medical examination of the claimant.

31. The respondents submitted that employers had the option to refer their own medical examiners after seeking the approval of the Director and the employee had the option of having their own practitioner present. Thus the contested section secured the interests of both employer and employee and was not discriminatory.

32. The respondents contended that the petitioner has incorrectly interpreted section 52(1) and (2) and argued that both employer and employee may simultaneously file a grievance and t is usually the dissatisfied party that files a grievance. The objector’s entitlement to lodge an appeal is not to the exclusion of the other.

33. The respondents argued that retrospective application of the Act through section 58(1) does not make it inconsistent with the Constitution.
2nd Respondents claims

34. They argued that section 16 was not unconstitutional and that the right of access to court may be limited by law

35. They further submitted that section 23(1) did not contravene the Constitution as courts can be divested off their authority by statute especially if they are administrative matters and such authority could be vested upon a person or tribunal.

36. With regard to section 25(1) and (2), they argued that the section gave both the Director and employer equal rights to require an employee submit themselves for examination by a medical practitioner and in so doing the employee had the right to have a medical practitioner of his choice present.

37. They further submitted that section 52(1) and (2) did not discriminate against the objector and the employee as it confers equal rights upon the two in case of an unfavourable decision by the Director.

38. With regard to section 58, they submitted that by Gazette Notice No. 60 of 27th May 2008 commencement was stated to be on 2nd June 2007 which was a defect they noted and would be dealt with.

39. They urged the court to dismiss the petitioners appeal with costs
Issues for determination
40. Whether section 16,23(1) and (3), 25(1) and (2), 52(1) and (2) and 58 of WIBA are inconsistent with the former Constitution and/or Constitution 2010.
Ruling
41. The Supreme Court dismissed the petition and upheld the Appellate Courts decision.
42. Each party was to bear their own costs.
Holding
43. The Supreme Court held that there is a general but rebuttable presumption that a statutory provision is consistent with the constitution and the party alleging inconsistency has the burden of proving such contention.

44. Additionally, purposive interpretation should be given to statutes so as to reveal the intention of legislature and thus the Court must determine the object and purpose of the impugned Act through the discernment of the intention expressed by the Act itself.

45. The Court added that in searching for the purpose, it is legitimate to identify the mischief sought to be remedied.

46. With regard to WIBA the court was of the opinion that its purpose was a noble one, that of offering protection to employees should they be injured or contract a disease in the course of duties.

47. In determining whether sections 16, 23(1) and (3), 25(1) and (2), 52(1) and (2) and 58 were contrary to the former Constitution and/or the Constitution 2010, the Court pointed out the bone of contention in section 16, according to the petitioner, was the extinguishment of the right to file an action for damages in respect of any occupational accident or disease resulting in death or disablement thereby infringing on the employees right to property under Article 40(1) and (2) as well as restriction to right of access to justice and fair hearing contrary to Article 48 and 50 of the Constitution 2010. Whereas the Attorney General argued that the provision was not unconstitutional and was merely an ouster clause permitted by the law.

48. Secondly, with regard to section 23(1), the contention was the conferment of judicial authority upon an individual (the Director) thus violating Articles 50(1),159(1), 162(1)(a) and 165 of the Constitution 2010 thereby ousting the jurisdiction of the High Court to deal with constitutional questions and violations arising from such claims.

49. Thirdly, the court noted that the petitioners had raised a contention as to the COA’s focus on the former Constitution without analysing the extent to which the impugned provisions contrived that Constitution against the article of the Constitution 2010 thus violating Article 159(2) which provides that all courts and tribunals shall protect and promote that constitution in exercising their judicial authority.

50. Moreover, the court acknowledged that it was necessary to determine whether the Constitution 2010 should be applied retrospectively and in situations arising during the operation of the former Constitution.

51. With regard to the retrospective application of the Constitution, the Court held that a constitution is not necessarily subject to the same principles against retrospectivity as ordinary legislation. It may and does embody retrospective provisions or provisions with retrospective ingredients.

52. However, in interpreting the constitution to determine whether it permits retrospective application of its provisions, a court must pay due regard to the language of the constitution.

53. If the words used in a particular provision fail to contain an element of retrospectivity, they should not be imported into the language of the constitution. Furthermore, more caution should be taken if the importation of the retrospectivity has the effect of divesting an individual their rights legitimately acquired before the commencement of the constitution.

54. It is in this regard that all legislation prior to 2010 should in their application and interpretation be brought in conformity to the Constitution 2010 and as such the impugned sections of WIBA must be interrogated in that way.

55. While reading the Constitution 2010’s provisions alongside WIBA’s provisions, it was revealed that section 16’s intention was not to limit access to the court but to create a statutory mechanism where any claim by an employee is subjected initially to a process of dispute resolution (ADR) provided for under section 23, starting with investigation and award by the Director and thereafter under section 52 an appeal to an industrial court if an aggrieved party is dissatisfied with the Director’s decision.

56. As such section 16 cannot be read in isolation so as to create an impression that it curtails the right to access the courts. Through looking at the intentions of the provisions, access to justice cannot be said to have been denied.

57. The Court held that by granting the Director authority to make inquiries necessary to decide upon any claim or liability, the jurisdiction of the High Court to deal with constitutional questions or violations arising from such claims under Article 165 is not ousted. Similarly, the appellate mechanism to the industrial court cannot be legitimately questioned.

58. The Court added that the Director was performing quasi-judicial functions under section 23 and by dint of Article 165(6), the High Court has supervisory jurisdiction over any person or body exercising judicial or quasi-judicial functions. Therefore, the actions or decisions of the Director are still subject to the overriding authority of the High Court.

59. With regard to section 52, the Supreme Court agreed with both the High Court and Appellate Court that the limitation of appeals by the legislature from the decisions of the Director to the Industrial Court was a case of unrefined drafting.

60. On whether Section 16 amounted to an ouster clause, the Court was clear that that section 16 could not be read in isolation because if read with section 23 and 52, it provided for legal redress at the industrial court (now Employment and Labour Relations Court). Therefore, section 16 cannot be said to be an ouster clause but merely facilitative of what may eventually end up in court.

61. The Court opined that section 16 did not permanently limit access to courts or left aggrieved parties without access to justice, it merely allowed ADR mechanisms to be invoked before one could approach the courts.

62. In concluding the court found nothing inconsistent with sections 16, 23 nor 52(1) with the former and Constitution 2010.

63. With regard to section 25, the Court noted that it was the petitioner’s contention that it was discriminatory and contrary to section 80 of the former Constitution which corresponds to Article 27 of the Constitution 2010. The 1st respondent refuted the contention urging that all parties have equal rights under the Act and therefore the provision was consistent with both constitutions.

64. The court in determining the matter disagreed with the petitioner and agreed with the COA that there was no prejudicial treatment in the manner medical examinations were conducted.

65. They opined that the Director was a neutral party and as a safeguard against the use of his arbitrary powers, the employer, following approval of the Director, can refer the employee to its own medical practitioner and the employee at their own expense is at liberty to have their own medical practitioner present for the examination.

66. It was the Courts opinion that the effect of section 25 was to ensure that the medical examination and report is objective, fair, accurate and sound thus securing the interests of both employer and employee advancing equality and does not accord differential treatment. Therefore, the section does not contravene both constitutions.

67. With regard to section 58(2)’s retrospective application, the Court was of the opinion that it is legislative practice where a new judicial forum is created to replace an existing one is meant to ensure finalization of all proceedings pending in the previous system before the forum they were commenced.

68. They agreed with the Appellate Court that claimants with pending cases under the previous law have legitimate expectation that upon passage of the Act their cases would be concluded under the judicial process they evoked.

69. Additionally, the Court opined that the retrospective operation of statutes is not illegal nor is it in contravention of the Constitution. In so doing, they disagreed that the effect of section 58 was to take away the right to legal process, extinguish access to courts and take away property rights without due process.

70. Additionally, the Court opined that all matters pending resolution under the previous legal regime were to be continued under WIBA and they saw no evidence of denial of any right. Furthermore, they saw nothing unconstitutional in WIBA being applied in a manner consistent with its provisions but taking into account the invoked legal regime.

Conclusion
71. The Court in concluding the matter saw no merit in the appeal and were satisfied with how the Appellate Court had properly applied its collective mind to the issues of unconstitutionality raised. It therefore saw it fit not to issue any remedies save for dismissal of the petition. With the matter being one of public interest, they precluded the petitioner from paying costs.