[2013] KEHAT 4 (KLR)

SKK v Kenya Defence Forces (Tribunal Case 6 of 2012) [2013] KEHAT 4 (KLR) (15 November 2013) (Judgment)

Neutral citation: [2013] KEHAT 4 (KLR)

Republic of Kenya

In the HIV and AIDS Tribunal

Tribunal Case 6 of 2012

JO Arwa, Chair, A Siparo, Vice Chair, J Kyambi, S Bosire, J Muriuki & MN Kullow, Members

November 15, 2013

Between

SKK

Claimant

and

Kenya Defence Forces

Respondent

Judgment

Jurisdiction – tribunals - HIV and AIDS Tribunal – whether the Tribunal had jurisdiction to entertain cases involving violation of fundamental rights and freedoms - whether the Tribunal had jurisdiction to entertain and give redress in employment disputes – whether the Tribunal could assume jurisdiction over matters that took place long before the Constitution of Kenya, 2010 and the HIV and AIDS Prevention and Control Act, 2006 came into force – validity of the Claimant’s statement of claim – HIV and AIDS Prevention and Control Act, 2006, section 31; Employment Act, 2007, section 87. Brief Facts: 1. The Claimant filed a suit seeking various reliefs against the Respondent. He alleged that he was unfairly dismissed from the Kenya Army where he was serving as a Corporal on account of his HIV status, terming the dismissal as discriminatory, unconstitutional and in violation of his fundamental rights under the Constitution. He further alleged that he was dismissed from service without being accorded the procedural safeguards as provided by law and that he was never accorded the right to be heard before such a decision was made. Conversely, the Respondent denied the allegations by the Claimant maintaining that the Claimant was lawfully terminated because of his absence from service for a period of 204 days without leave.

2. The Respondent further argued that notwithstanding the allegations, the Tribunal lacked jurisdiction to entertain the matter before it on the grounds that the Tribunal could not adjudicate over employment cases; that the case raised issues on violations of fundamental rights and freedoms in the Constitution and hence fell outside the jurisdiction of the Tribunal; and that the Claimant was terminated back in 2005, long before both the Constitution, 2010 and the HIV and AIDS Prevention and Control Act, 2006 came into force and could therefore not be retrospectively applied to the suit.The main issues for determination by the Tribunal were:i.Whether the Tribunal had jurisdiction to entertain cases involving violation of fundamental rights and freedoms;ii.Whether the Tribunal had jurisdiction to entertain and give redress in employment disputes;iii.Whether the Constitution of Kenya, 2010 and the HIV and AIDS Prevention and Control Act, 2006 could be applied retrospectively.

Held: 1. It was prudent that whenever an issue of jurisdiction was raised by a party to litigation, the same ought to be dealt with immediately. Jurisdiction was everything and without it, a court had no basis to continue with the proceedings before it. Owners of the Motor Vessel “Lillian S” – vs – Caltex Oil Kenya Limited [1989] KLR 1.

2. Tribunals and other subordinate courts had jurisdiction to entertain and give redress in cases touching on alleged violations of fundamental rights and freedoms. Y.B.A –vs- Brother Nicholas Banda & others Tribunal Case 7 of 2012.

3. There was conflict between section 87 of the Employment Act, 2007, providing that all employment disputes be resolved by the Industrial Court, and section 31 of the HIV and AIDS Prevention and Control Act, 2006, which expressly stated that all cases relating to HIV and AIDS in the workplace must be adjudicated upon by the HIV and AIDS Tribunal. Notwithstanding the conflict between the two statutes, the Tribunal had jurisdiction to entertain all matters relating to termination of employment on account of actual or perceived HIV status, discrimination in the workplace on account of actual or perceived HIV status and all other matters pertaining to HIV and AIDS in the workplace. Y.B.A –vs- Brother Nicholas Banda & others Tribunal Case 7 of 2012.

4. The Claimant was terminated from service back in 2005. The HIVandAIDSPrevention and Control Act, 2006, which the Claimant sort to rely on came into force in 2009. The Respondent could not be condemned for not complying with the provisions of the HIV and AIDS Prevention and Control Act since to do that would amount to applying the Act retrospectively. Therefore, the Tribunal could not assume jurisdiction over matters that took place long before the Act that established it was passed. Further, the Constitution was promulgated five years after the Claimant was terminated from service and hence it could not be applied retrospectively.

5. The Tribunal lacked jurisdiction to entertain the matter before it and hence the Claimant’s statement of claim should be struck out. Statement of Claim struck; no order as to costs.

DATED AND DELIVERED AT NAIROBI THIS 15TH DAY OF NOVEMBER, 2013. J. ARWA - CHAIRMANA. SIPARRO - VICE-CHAIRPERSONJ. KYAMBI - PROF.-MEMBERS. BOSIRE - DR-MEMBERJ. MURIUKI - MEMBERM.N. KULLOW - MEMBER.