CRITIQUE OF THE JUDGMENT IN PETITION N0.278 OF 2011 - NAIROBI LAW MONTHLY VS KENGEN & OTHERS

With tremendous respect to the Judge in this matter, the judgment is a relegation to right of information reform efforts. The Petitioner is denied orders for the respondents to supply the information, and disentitled to damages for the reason that the Petitioner is a juristic person and not natural person. The judgment is sound from paragraph 1 to 66 whereafter, I believe the Judge got misguided. For instance, the judgment argues that “An interpretation of Article 35(1) (b) as urged by the petitioner implies that ‘another person’, other than the State, has an obligation to give a journalist or media outlet whatever information (s)he or it demands in order to exercise the freedoms under Articles 33 and 34. Put differently, such a reading implies, not just the negative obligation not to interfere with the exercise by the media of its freedoms under these two Articles, but a positive obligation on everyone to give it whatever information it seeks in order to enable it publish stories and information.”

This finding is unsupported by any logical reasoning. The Constitution of Kenya is categorical and doesn’t purport to qualify who is a person for purposes of enjoyment of provisions on right of information.

The decision that “The intention in Article 35(1) was clearly to create two distinct situations with regard to the right of access to information: one in which the citizen was entitled as of right to information held by the State; the other in which a citizen could access information from another, a private person, for the exercise or promotion of another right or freedom” is an error in interpretation of that article. The numbering of as 35 (1) (a) and 35 (1) (b) is merely to list what kind of information a citizen is entitled to, and not to create any distinction whatsoever.

The judgment also infers that the petitioner relied on Article 35 (1) b of the Constitution. The Petitioner in fact relied on the whole of Article 35 and not just 35 (1) b. As such, the Petition was based on competent provisions of the law, and were requesting for information held by a public entity (which the judge correctly affirmed it is).

The argument that a media house as juristic person cannot enforce the right of information is mysterious. How then are these juristic persons who have been recognized by the Constitution (through guarantee of freedom of press) supposed to discharge the mandate (which curiously the judge acknowledges within the judgment)?

How then can the press exercise freedom of press if they are not recognized as beneficiaries to the right to information provisions?

Even if corporations are not citizens within the meaning of certain provisions, they surely must have the same capacity as natural persons to effectively enjoy and exercise their constitutional rights to press freedom which the judge acknowledges is critical for a democracy, transparency and accountability.

Moreover, a cited case to the effect that corporations are not citizens within the meaning of THAT CLAUSE’ can only mean that they (corporate media houses) are citizens within the meaning of SOME OTHER CLAUSES.

In order for media houses (often registered as corporations) to enjoy the rights conferred by Article 35 (2), they surely must have a right of access to information as contemplated under article 35 (1) just like a natural person.

CONCLUSION

We trust that you have found the above critique enlightening. Feel free to contact us at info@stralexgroup.co.ke or on + 254 715 310 677 for any legal enquiry.

Yours faithfully,

For: Strategic Legal Solutions Group Limited

Centre for Legal Research & Policy Development – a participating consultancy firm in the SLS Group of consultancies.

COMMENTARY ON PUBLIC PROCUREMENT AND OVERSIGHT AUTHORITY’S CIRCULAR NO. 1 OF 2012 ON PROCUREMENT OF PROFESSIONAL SERVICES, ITS RELEVANCE TO PROFESSIONAL SERVICES FIRMS AND THE ISSUE OF INTEREST ON OVERDUE ACCOUNTS

Power to Issue Directions

Public Procurement and Oversight Authority’s Circular No. 1 of 2012 (hereinafter referred to as the PPOA Circular 1/2012) was issued by the Public Procurement and Oversight Authority in exercise of powers conferred upon it pursuant to section 9 (c) (iv) of the Public Procurement and Disposal Act, 2005. The Section provides that one of the functions of the Authority is to:

issue written directions to public entities with respect to procurement including the conduct of procurement proceedings and the dissemination of information on procurements.

Necessitating Factors for the Circular

Among other reasons, it was necessitated by practical challenges that professional services providers faced in respect of award of tenders, many of which would be awarded to firms which often presented financial proposals below scales prescribed by the legislations governing professional fees chargeable. This consequently led to complaints of unfair competition by firms who made financial proposals based on relevant professional services regulations, as procuring entities, in a bid to cut costs, often awarded professional services tenders to firms who quoted lower professional fees.

Conflict of Laws Argument

At this point, it is arguable that the principal law governing all matters affecting procurement is the Public Procurement and Disposal Act, 2005, and accordingly, it prevails in the event of any inconsistency with any other statute on matters of public procurement. For clarity, section 5 (1) of the Act provides that:

If there is a conflict between this Act or the regulations made under this Act and any other Act or regulations, in matters relating to procurement and disposal, this Act or the regulations made under this Act shall prevail.

This argument would be advanced on the basis of Section 66 of the Public Procurement and Disposal Act, with a PE positing that it’s obliged to award the tender to the lowest evaluated tenderer. This argument will not succeed if the conflict of laws provision is read in tandem with Section 2 of the Act, relating to the Purpose of the Act. Among others, the Public Procurement and Disposal Act purposes:

(a) to promote competition and ensure that competitors are treated fairly;

(a) to promote the integrity and fairness of those procedures.

With that in mind, all the provisions of the Act must be read and interpreted in consideration of Section 2 of the Act, and on that basis, an argument citing the conflict of laws section together with the mandate on public entities to award tenders to the lowest evaluated tenders, would fails.

Procurement of Professional Services

Professional services under the Act are often (but not exclusively) procured by a process of prequalification, followed by procuring entities requesting for proposals (in the form of RFPs) from prequalified firms. In response, it is the practice that firms would submit technical proposals (showing how they would go about executing the project as well as their professional competences and experiences relevant to the project) and financial proposals (showing their professional fees, VAT, reimbursables, miscellaneous expenses, etc for consideration). For instance, financial proposals from law firms should be governed by the Advocates (Remuneration) Order.

This is where problem arise. Law firms would charge fees below scale in order to win RFPs or PEs would favour firms with lower quotes, sometimes below the professional prescribed scale. Consequently, both firms and PEs become complicit in breach of relevant laws, namely, Section 36 of the Advocates Act and Section 2 of the Public Procurement and Disposals Act, respectively.

It is in an attempt to level the playing field for all professional service providers and further the intent of Section 2 of the Act, that PPOA issued PPOA Circular 1/2012, whose effect is to direct all PEs to decline quotes below the scales provided for in professional services fees regulations.

Further, the PPOA Circular 1/2012 obliges PEs to settle professional fees per scale and not below scale. This therefore calls for the need of PEs officers managing the procurement process as well as settlement of professional fees to be conversant with the provisions of the professional scale fees regulations. Deliberate training initiatives are therefore necessary for such public officers, especially in view of the complexity of calculation of professional fees.

Way Forward for Professional Services Firms

Whereas service providers are acutely aware of instances of challenging economic times even for PEs, law firms (for example) still have an obligation to enforce the spirit and intents of all laws, and in this instance, the Advocates Act and the Public Procurement and Disposal Act. Firms which are faced with challenges of PEs insisting on fees below scale may therefore cite Section 36 of the Advocates Act, Section 2 of the Public Procurement and Disposal Act as well as PPOA Circular 1/2012 to encourage PEs to settle professional fees per scale.

Interests on Overdue Amounts

Often, some procuring entities take inordinately longer to settle professional fees. It is noteworthy that during prequalification, tenders are requested to indicate timelines within which they would expect their fees to be settled by the PE.

That notwithstanding, there may arise instances when there is inordinate delay in settlement of such fees. Firms and PEs should be aware of section 48 of the Public Procurement and Disposal Act on overdue amounts which provides that:

a)       unless the contract provides otherwise, the procuring entity shall pay interest on the overdue amounts; and

b)       the interest to be paid under paragraph (a) shall be in accordance with prevailing commercial bank rates.

Accordingly, where a PE delays in settlement of professional fees as agreed by the parties following an award of tender and commencement and or completion of a project, firms have the right to demand and enforce interest on overdue amounts. It is therefore in the best interest of PEs and more so PE officers in charge of contract management and settlement of fees to ensure that fees are paid promptly, as and when there are due.

CONCLUSION

We trust that the above will be useful in your decision making processes. However, should you have any further queries regarding public procurement in Kenya, please do not hesitate to contact us at info@stralexgroup.co.ke or on + 254 715 310 677 for clarification.

Yours faithfully,

For: Strategic Legal Solutions Group Limited

Patrick, Teddy & Partners Advocates – a participating Law Firm in the SLS Group of consultancies.

SUMMARY DISMISSAL, COMMENCEMENT OF A CRIMINAL CASE AGAINST AN EMPLOYEE AND THE EFFECTS OF AN ACQUITTAL

Introduction

Following the establishment of the Industrial Court as an arbiter in industrial and employment dispute, there has been as significant increase in cases involving summary dismissal, usually effected after and employee has been charged with a criminal offense.

The issue under consideration in this advice is whether termination arising from summary dismissal would be considered unlawful in the event of an acquittal and therefore entitles an employee to re-instatement.

The Legal Position on Summary Dismissal

Summary dismissal takes place when an employer terminates the employment of an employee without notice or with less notice than that to which the employee is entitled by any statutory provision or contractual term. The law allows an employer to summarily dismiss an employee where the employee has by his conduct indicated that he has fundamentally breached his obligations arising under the contract of service.

Summary Dismissal on Commencement of Criminal Charges

Section 44 (4) (g) of the Employment Act, 2007 provides that summary dismissal shall take place where:

a)      an employee commits, or

b)     on reasonable and sufficient grounds is suspected to have committed criminal offense against or to the substantial detriment of his employer or his employer’s property.

The employer at this point has latitude to determine if there are reasonable grounds to suspect the employee to have committed a criminal offense.

Section 44 (4) (g) of the Employment Act, 2007 thus raises the point of reasonable suspicion, for instance, after the former employee was implicated by his fellow employees.

Where an employer has such suspicion, reasonable and probable cause is established for pressing charges and prosecution of the former employee. Reasonable and probable cause has been defined in the case of HICKS – vs - FAULKNER [1962] A.C 766 in which the Court held as follows:

“An honest belief in the guilt of the accused based upon a full conviction, founded upon reasonable grounds of the existence of circumstances, which, assuming them to be true, would reasonably lead any ordinary prudent and cautious man, placed in the position of the accuser, to the conclusion that the accused was probably guilty of the crime imputed.”      

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                    

It is important to note that the above Reasonable and Probable Cause test applies at the time of the accusation and not at the conclusion of the trial.

An employer’s belief in the guilt of a former employee can always be demonstrated by their action in carrying out a thorough internal investigation of the former employee’s dealings and reporting of the matter to the police by the employer. Most organisations have their internal mechanisms for conducting such investigations for purposes of ascertaining whether the matter can proceed to another level.

A former employee needs to prove (to the court during the hearing) that, in instigating the prosecution had no other motive other than a desire to bring the (former) employee to justice.

Effect of Acquittal on Dismissal Status

An acquittal in the criminal case does not render a dismissal unlawful. The threshold in a criminal case is different from one in a civil suit. It is noteworthy that in a criminal case, the threshold is that the prosecution is supposed to prove to the Court that the accused is guilty beyond reasonable doubt. It is trite law that a plaintiff is required to prove his case in a civil suit on the balance of probability. In a criminal case, there is no contractual relationship and therefore a former employee cannot seek from the former employer a contractual remedy once the criminal charges against them have been terminated.

It should be noted that under section 44 of the Employment Act the employer has the right to dismiss an employee summarily. In most cases therefore, that Employer can freely exercise his right to dismiss the plaintiff summarily upon completion of its own investigations. However it is important for the employer, in the conduct of its investigations, to accord the concern employee the right to a fair hearing. Failure to accord the employee a chance of hearing during this process of internal investigations offends the rules of natural justice.

Considering, for instance, the past negligence and or gross misconduct of the former employee, an employer would be justified in dismissal.

According to Halsbury’s Laws of England, Gross Misconduct is defined thus:

“Conduct so undermining the trust and confidence inherent in the particular contract of Employment that the Employer should no longer be required to retain the employees.”

Halsburys’ Laws of England Vol.16 (IB) 4^th Edition further states as follows on gross misconduct:

“Examples of gross misconduct include theft or fraud, physical violence or bullying, deliberate and serious damage to property, serious misuse of organization’s property or name, deliberately accessing internet sites containing pornographic, offensive or obscene material, serious insubordination unlawful discrimination or harassment, bringing the organization to serious disrepute, serious incapacity at work brought on by alcohol or illegal drugs, causing loss damage or injury through serious negligence, a serious breach of health and safety rules and serious breach of confidence.”

CONCLUSION

In summary, an employer must to follow due process while exercising summary dismissal discretions. In cases where criminal proceedings have been commenced against the former employee, his reinstatement into employment does not depend on the success or failure of the criminal trial (so long as the Reasonable and Probable Cause test applied), but rather on the good will of the former employer. However, where the employee was on Term Contract which hadn’t expired at the time of commencement of criminal prosecution and the subsequent dismissal, the Court may order for the reinstatement of such an employee, or in the alternative, the payment to him of contractual dues which he would have received had his employment not been terminated.

  

We trust that the above advice will be useful to you. However, should you have any further queries regarding labour and employment issues in Kenya, please do not hesitate to contact us at info@stralexgroup.co.ke or on + 254 715 310 677 for clarification.

Yours faithfully,

For: Strategic Legal Solutions Group Limited

Patrick, Teddy & Partners Advocates – a participating Law Firm in the SLS Group of consultancies.