Friday, January 18, 2008

WHY COURT HALTED ORDER ON MAYOR’S TERM

By Michael Murungi

Town Clerk, Municipal Council of Embu & another v John N.M. Nyaga [2007] eKLR
(
www.kenyalaw.org)
Court of Appeal at Nairobi
(Appeal Judges S.E. Bosire, E.M. Githinji & W.S. Deverell)
December 7, 2007


John N. M. Nyaga was elected as a councillor of Kamiu ward for Municipal Council of Embu in the year 2001 and subsequently, on 6th July, 2006 he was elected as the mayor of the Municipal Council of Embu. On 23rd October, 2007 the Minister for Local Government dissolved all councils to pave way for the civic election to be held together with Presidential and Parliamentary General Elections on 27th December, 2007.

The dissolution of the council was published in the Kenya Gazette No. 10228 of 23rd October, 2007. On the same day the Permanent Secretary in the Ministry of Local Government issued guidelines to all Town Clerks on how the affairs of the councils were to be managed. The circular notified the Town Clerks that with the dissolution, the offices of the Mayors, Chairmen and Councillors had been rendered vacant and that all office holders should vacate their offices and surrender all properties of councils.

John Nyaga filed a suit in the High Court against the Municipality of Embu and its town clerk. He stated that as a Mayor he was supposed to continue in office until a succeeding Mayor was elected and asked the Court for a declaration to that effect. He also asked for a permanent injunction restraining the Town Clerk and the Municipal Council from barring him from performing any duty as a Mayor and from enjoying his office, civic regalia, motor vehicles and other facilities due to his office. By an interlocutory application filed with the plaint, he asked for an injunction against the respondents and to be allowed to continue in his office as a Mayor. The application was heard and allowed on 7th November, 2007 and an order was issued allowing John Nyaga to continue in office.

The Municipal Council and the Town Clerk filed an appeal against the decision and brought an application asking the Court of Appeal to stay the order of the High Court pending the hearing of the appeal. The following is an excerpt from the decision of the Court of Appeal on that application.

“The decision of the High Court was mainly dependent on the construction of section 13 (2) of the Local Government Act which provides:

“Subject to section 16 the mayor shall, unless he resigns or ceases to be qualified or becomes disqualified, continue in office until his successor is elected and assumes offices”.

The High Court construed that section to mean that Parliament did not intend that the office of the mayor should at any time be vacant; that Parliament never intended the occupant of the office to be removed until a replacement is in office.
Section 58 (1) of the Act under which the Minister dissolves all councils provides:

“Where there is general election under the National Assembly and Presidential Elections Act, there shall simultaneously be held an election of all councillors required to be elected under this Act and for that purpose the Minister shall forthwith upon dissolution of Parliament, dissolve all Local authorities”.

Section 12 (1) provides, among other things, that a Municipal council shall consist of a number of councillors as may be elected, nominated or appointed. Under Section 13 (1), a Mayor of a municipal council shall be elected by the council from among the councilors at the first meeting of the council and subsequently at each second annual meeting of the council. Section 27 (1) limits the term of office of the elected councillor to 5 years.
The Acting Town Clerk swears in the supporting affidavit, among other things, that section 13 (2) of the Act is inapplicable once the council is dissolved; that a mayor cannot continue to be in office while enjoying the perks and privileges of such office when a council is dissolved; that the respondent who by operation of law ceased to be a councillor cannot sit as a mayor; that the respondent did not move the High Court to quash the order of the minister dissolving all councils and that section 13 of the Act was not properly construed.
It is clear from the Act that the Mayor is elected from amongst the councillors and that the mayor and the councillors constitute a council.
It is not also contested that a Mayor is elected periodically every two years and that the Minister acted lawfully when he dissolved all councils to pave way for civic elections. Some of the pertinent questions which arise, are firstly, whether section 13 (2) of the Act applies to periodic elections of Mayors or to all cases including when the Council has been dissolved pursuant to law, and secondly, whether the office of a Mayor can legally exist when the whole council including the offices of councillors has been lawfully dissolved. On analysis, we are satisfied that the intended appeal raises a serious question of national importance on the interpretation of the law regarding the term of office of a Mayor.
The Acting Town Clerk further deposes that unless the orders of the High Court are stayed, the intended appeal would be rendered nugatory.
The respondent has been granted at an interlocutory stage the same reliefs that he seeks in the suit. The interlocutory orders are operative pending the hearing and determination of the suit. It is highly improbable that the respondent would be interested in the prosecution of the suit having obtained the desired orders or that the suit would be heard before the 27th December, 2007 when national civic elections are due. It would be unjust and a heavy financial burden to the Council which is run by public funds to maintain a Mayor in office indefinitely when the existence of the office is seriously contested. Furthermore, the Council would suffer great financial loss, if it is ultimately found that the office of a Mayor to which the respondent has been restored by a court order did not legally exist after the dissolution of the Council. On the other hand, if the application is allowed and the appeal is ultimately dismissed, the respondent can be adequately compensated for any financial loss that he may have suffered.
In the final analysis, the application is allowed with the result that the execution of the Ruling/Orders of the High Court dated 7th November, 2007 is stayed pending the hearing and determination of the intended appeal.
The costs of this application shall be costs in the intended appeal”.

FACTORY EMPLOYEE TO BE COMPENSATED FOR INDUSTRIAL ACCIDENT

Reported by Michael Murungi

Cosmo Plastics Ltd v Stephen Kiamba Nzuva [2007] eKLR (www.kenyalaw.org)
Court of Appeal at Nairobi
(Appeal Judges S.E.O. Bosire, E.M. Githinji & J.W. Onyango-Otieno)
December 7, 2007

A factory employee who was disabled in an industrial accident and was unable to find gainful employment thereafter will be compensated by his former employer for past and future medical expenses and for loss of earning capacity. Early in December of 2007, the Court of Appeal dismissed an appeal filed by Stephen Kiamba Nzuva’s former employer, Cosmo Plastics Ltd, against an award of over Kshs. 2 Million given to Nzuva by the High Court.

Nzuva had joined Cosmo Plastics in July 1995. The company was engaged in the printing business and Nzuva had been employed as a fitting machine operator at one of its factories in Nairobi. On September 2, 1999, Nzuva was assigned to work on a piece of equipment known in the industry as a six column machine. After working on it for two hours, his supervisor moved him to a four column machine on which he was required to fix a roller. It appeared that during its last servicing, the machine had not been restored to its proper condition - a pin that was usually attached inside two rotating shafts had been replaced with a protruding four-inch metal plate. While he was operating the machine, Nzuva’s overalls were caught by the protruding metal and the machine drew him into its belly. By the time his colleagues freed him, his right hand had been mangled at the shoulder and the elbow.

Nzuva was admitted at the Nairobi West Hospital where he underwent surgery and he was discharged after for 8 days. His employer later referred him to the Kenyatta National Hospital and while there, he underwent further surgery to remove gangrene that had developed on his hand. Though his discharge voucher from that hospital was signed on November 22, 1999, he was detained on account of an outstanding medical bill of Kshs. 213,000. He was released from the hospital a month later after a relative pledged his motor vehicle as security for the bill. Nzuva’s employment at Cosmo Plastics would later be terminated in December, 2001. He could not keep his next job because the accident had severely limited the use of his arm.

In July of 2000, Nzuva filed a suit in the High Court against Cosmo Plastics claiming damages for pain, suffering, loss of the amenities of life, past and future medical expenses, loss of earnings and loss of future earning capacity. He told the court that the accident and the losses that he had suffered had been caused by the negligence of Cosmo Plastics. He gave testimony on his own behalf and called two witnesses. For its part, the company denied the claim and argued that Nzuva’s injuries had been solely caused or substantially contributed to by his own negligence. The company did not call any witnesses though its advocate conducted a cross-examination of the testimony of Nzuva and his witnesses.

On September 23, 2002, the High Court delivered its verdict apportioning the liability for the accident at 70% against Cosmo Plastics and 30% against Nzuva. This meant that Nzuva had contributed to the accident by his own negligence or failure to observe caution and therefore any award made against the company was to be reduced by the extent of his contribution. The Court awarded Nzuva Kshs. 800,000 for pain and suffering; Kshs. 450,000 for future medical care; Kshs. 1,620,000 for loss of future earning capacity and Kshs. 217,500 for direct expenses (special damages). All of these reduced by 30% and by a further Kshs. 213,000 which was to be paid directly to Kenyatta National Hospital would leave Nzuva with Kshs. 1,945,450.

However, Cosmo Plastics was not satisfied with the decision of the High Court. It filed an appeal against it in the Court of Appeal challenging both its liability for Nzuva’s injuries and the manner in which the High Court had arrived at its awards of damages.

The Court of Appeal did not find any merit in the argument that the company was not liable for the factory accident. It was clear that Nzuva had been tasked to operate a machine without being sufficiently advised on a matter which was important for his safety – the fact that a replacement piece of metal had been left dangerously protruding from the machine. As an employer, therefore, the company had failed to observe a legal duty placed on it by the Factories Act (Chapter 514 of the Laws of Kenya). However, the Court of Appeal also agreed with the High Court on its finding that Nzuva also had the duty to exercise diligence and carry out his own inspection and inquiry to confirm the safety of operating the machine. The appellate court therefore found no reason to interfere with the decision of the High Court apportioning the liability for the accident to both Cosmo Plastics and Nzuva.

On the question of the monetary assessment of the injuries and losses suffered by Nzuva, the Court of Appeal observed that it was not in a good position to evaluate the decision of the High Court. Firstly, it had not had the advantage of seeing Nzuva in person and secondly, Cosmo Plastics had not annexed the medical reports prepared by two doctors who had examined Nzuva. “How can we conclusively and with any precision decide on the award for pain and suffering when we have no medical report to enable us see what injuries the doctors said the respondent suffered and compare the same with the conclusions made by the [High Court]… It would be an impossible task and no fairness can be claimed in regard to such a decision”, the Court of Appeal stated in its judgment. In the absence of the medical reports, the appellate court had no alternative but to accept the High Court’s awards for pain and suffering and for future medical care.

Finally, on the award for loss of future earning capacity, the Court of Appeal considered that since Nzuva was aged 39 years when he filed his suit and since he would normally have retired at the age of 55 years, the High Court could not be faulted for applying a multiplier of 15 years against his salary in order to arrive at its award.

Ultimately, the Court of Appeal found no merit in the entire appeal. It dismissed it and awarded the costs to Nzuva.