[2019] KESC 30 (KLR)

Law Society of Kenya v Attorney General & another (Application 4 of 2019) [2019] KESC 30 (KLR) (Civ) (31 May 2019) (Ruling)

Law Society of Kenya v Attorney General & another [2019] eKLR

Neutral citation: [2019] KESC 30 (KLR)

Republic of Kenya

In the Supreme Court of Kenya

Civil

Application 4 of 2019

MK Ibrahim, SCJ, DK Maraga, CJ, SC Wanjala, NS Ndungu & I Lenaola, SCJJ

May 31, 2019

Between

Law Society of Kenya

Applicant

and

Attorney General

1st Respondent

Central Organisation of Trade Unions

2nd Respondent

(Being an application for Stay of Execution of the Judgment and Orders of the Court of Appeal (Waki, Makhandia & Ouko JJA) at Nairobi delivered on 17th November, 2017 in Civil Appeal No. 133 of 2011)

Ruling

ARGUMENTS. Ruling Of The Court 1The Applicant, the Law Society of Kenya, filed an application dated 1st February, 2019 and filed on 4th February, 2019, seeking orders that this application be certified urgent, that the Court grant an order staying the execution of the whole of the Judgment of the Court of Appeal in Civil Appeal No. 133 of 2011: The Hon. Attorney General v Law Society of Kenya & Another and that the status quo prevailing before delivery of the judgment be restored. The application is brought under Articles 1, 41(1), 159, 163, 258, 259, of the Constitution, Sections 3, 21(2), 24(1) of the Supreme Court Act 2011; Rules 3, 23, 26 of the Supreme Court 2012 and all other enabling provisions of the law.

2The Applicant sets out the grounds in support of the application in a Supporting affidavit sworn on 1st February, 2019 by Peter Mwaura Kamau and Supplementary Affidavit sworn on 19th February, 2019 and filed 20th February, 2019. It is its case that as a consequence of the Court of Appeal Judgment, thousands of Work Injury Benefits Cases pending before Magistrates’ Courts were transferred to the Employment and Labour Relations Court (ELRC) which then referred them to the Director of Occupational Safety and Health Services (the Director) for adjudication in accordance with a Memo dated 11th July 2018 and titled “Handling of Work Injury Benefits Cases” circulated by the Principal Judge of the ELRC.

3The Applicant submits in its written submissions dated 19th February, 2019 and filed on 20th February, 2019 that the effect of the Court of Appeal’s decision is to remove jurisdiction to hear Work Injury Benefits Cases arising from the Work Injury Benefits Act 2007 from Magistrates’ Courts. This has occasioned, it argues, a major crisis in the Courts as all Magistrates have refused to deal with any case falling under the Act resulting in such matters being stalled countrywide.

4It was further submitted by the Applicant that an order of stay of execution and restoration of the status quo is merited since the appeal before this Court is arguable and not frivolous because it touches on grave violations of the Constitution. Particularly, it submits that the question who should wield judicial authority under Article 159(1) should be resolved as the Court of Appeal Judgment vests in the Director, jurisdiction to singlehandedly adjudicate on work injury claims, which is tantamount to denying claimants access to justice and a fair hearing as guaranteed by Articles 48 and 50(1) of the Constitution. Should the order of stay sought be refused, the Applicant has submitted that the appeal, were it to succeed, would be rendered nugatory since all files touching on the Act are being transferred to the Director for re-adjudication and damages would not suffice as a remedy to compensate legal practitioners and litigants.

5In conclusion, the Applicant has submitted that an order of stay is in the public interest because the general welfare of the numerous claimants who instituted claims prior to the Act, and even after the impugned Sections of the said Act were declared unconstitutional by the High Court, is at stake, with some claims being part-heard while others would require re-adjudication upon transfer to the Director.

6The 1st Respondent, in opposing the application, filed a Replying Affidavit dated 12th March, 2019 in which it claims that if the appeal were to succeed, then the pending claims will be referred to the Courts and the slight delay or inconvenience caused can be compensated with an award of damages or costs and interest. It adds that decisions made by the Director will not prejudice claimants as Section 52(2) of the Act provides for an appeal mechanism whereas prejudice will be caused by an order of stay as the claims already transferred to the Director would have to be transferred back to the Courts and then back to the Director again should the appeal fail and such an absurdity points to the balance of convenience tilting in favor of not granting a stay order.

7Lastly, it has been argued by the 1st Respondent that prejudice would be caused by the Applicant’s failure to act expeditiously since the Judgment sought to be stayed was rendered on 17th November, 2017, the circular implementing the Judgment being issued on 11th July, 2018 and this application being filed on 1st February 2019 thus causing inordinate delay.

8The 2nd Respondent in a Replying Affidavit dated 6th March, 2019 and filed on 7th March, 2019 opposes the application stating that the appeal will not be rendered nugatory if the stay order is not granted as the impugned Act remains in place and continues to provide an avenue for workers and the general public to seek redress and to grant stay would be to deny such opportunity. Further, that the Applicant is effectively giving evidence from the Bar as it has not provided any evidence from any litigant that its members would prefer to go to the Magistrate’s Court and not follow the dispute resolution channels provided in the Act.

9In its written submissions dated 6th March, 2019 and filed on 7th March, 2019 the 2nd Respondent added that there is no arguable appeal before this Court as there are no special facts that the Court of Appeal failed to take into account and the subject law is in force and has been operational for the last 12 years. It also submitted that the appeal will not be rendered nugatory since claims for compensation continue to be brought before the Director under Sections 26 and 52 of the Act and if a stay of execution is granted, this would be a denial of the rights to access to justice and fair hearing as enshrined in the Constitution.

10. In conclusion, the 2nd Respondent has submitted that the order sought would not serve the public interest as the filing of a claim for compensation is time sensitive and Section 27(1) of the Act specifically places a 12 month period to bring such a claim after which the right to benefits would lapse. To grant an order of stay for an indefinite period would therefore deny claimants their right to institute claims within the statutory timeframes thus causing injustice 11. On our part, taking into account the above submissions, WE NOTE as follows;(a)As provided under Section 21(2) & (3) of the Supreme Court Act 2011 the Court may make any ancillary or interlocutory orders. That Section must be read with Rule 3(5) of the Supreme Court Rules, 2012, which maintains the Court’s inherent powers to make such orders or give such directions as may be necessary for the ends of justice or to prevent the abuse of the process of the Court.(b)In Board of Governors, Moi High School, Kabarak & Another v Melcom Bell [2013] eKLR this Court held (and later confirmed in Teachers Service Commission v Kenya National Union of Teachers & 3 Others [2015] eKLR) that it has jurisdiction to grant declaratory orders, and more particularly, orders of stay of execution of decrees issued by other superior Courts.(c)In Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 Others [2014] eKLR the principles the Court on whether or not to grant a stay of execution were set out thus: “(i) The Appeal or intended appeal is arguable and not frivolous and that; (ii) Unless the order of stay sought is granted, the appeal or intended appeal, were it to eventually succeed, would be rendered nugatory. (iii) These principles continue to hold sway not only at the lower courts but in this Court as well. However, in the context of the Constitution of Kenya, 2010, a third condition may be added namely; (iv) That it is in the public interest that the order of stay be granted.”(d)The Court was also instructive in Malindi Law Society v Law Society of Kenya of Kenya, Nairobi Branch & 5 others [2018] eKLR where it said that “a grant of stay of existing orders cannot be a matter of course. It rests upon genuine conditions of urgency, merit and dispatch - which in this case are missing.”

12. In the above context, the Applicants in the present Application do not put forward sufficiently convincing evidence of “genuine conditions of urgency, merit and dispatch” and although the appeal is certainly arguable, we agree with the Respondents that the time lapse between the delivery of the Court of Appeal Judgment, the issuing of the circular implementing the Judgment and the date of filing this application is such that the grant of an order of stay at this late hour would not serve the public interest and would only serve to confuse the on-going adjudication process in Work Injury Benefits cases. It is indeed instructive that litigation has been ongoing since delivery of the Court of Appeal Judgment on 17th November 2017 and to stay any proceedings at this late hour would unduly hamper the fair administration of justice.

13Having therefore considered the application and affidavit in support thereto and the written submissions of the respective parties, by a unanimous decision of this Bench, we make the following orders under section 21(2) & (3) of the Supreme Court Act, 2011 and Rule 3(5) of the Supreme Court Rules, 2012;

Orders(a)The application dated 1st February, 2019 is hereby dismissed;(b)The above orders notwithstanding, the appeal herein shall be set down for hearing on 14th June 2019 to enable the Court determine the issues in contestation.(c)The Deputy Registrar of this Court is directed to ensure that all necessary documents are filed by the parties before the hearing.(d)Costs of the application shall abide the Appeal. (14)Orders accordingly.

DATED AND DELIVERED AT NAIROBI THIS 31ST DAY OF MAY, 2019D. K. MARAGA M. K. IBRAHIMCHIEF JUSTICE & PRESIDENT JUSTICE OF THE SUPREME COURT OF THE SUPREME COURT................................................S. C. WANJALA NJOKI NDUNGUJUSTICE OF THE SUPREME COURT JUSTICE OF THE SUPREME COURTI. LENAOLAJUSTICE OF THE SUPREME COURTI certify that this is a truecopy of the original.REGISTRARSUPREME COURT OF KENYA