Normally, when an employee resigns, he or she is not entitled to claim damages against the employer. Indeed, if the employee resigns without giving the requisite contractual notice, the employer is entitled to recover the pay in lieu of notice through legal proceedings and there is usually no valid defence to such a claim. However, constructive dismissal is treated as a dismissal by the employer and the employee is entitled to damages for unfair termination.
Since 2007 Kenya has had one of the most robust labour law regimes in the world. The Employment and Labour Relations Court is famed worldwide for its pro-employee ideology and is known to bend over backwards to ensure that employees who call on it do not go home empty handed. It is therefore surprising that Kenya has not enacted legislation to regulate the seamless transfer of employees from one company to another following a merger or acquisition.
For a termination to be lawful, the employer must have a valid reason and adopt a fair termination process. Further, the reasons must be given before the termination takes place. The law does not require that the employee accept the reasons given, but if the employee disputes their validity, he or she could challenge the termination on grounds of unfairness. As it is unrealistic to expect an employee facing dismissal to accept the reasons given, Parliament should reconsider this requirement.
The validity and enforceability of restrictive covenants during the employment period is usually not debatable. However, what frequently results in litigation is whether and to what extent these restrictive covenants are enforceable after the termination of employment. For a restrictive covenant to stand, the employer must demonstrate that it has a legitimate proprietary interest and that the intention is not merely to punish the employee.
The Special Economic Zones Act has elicited much speculation about whether it is the right tool to promote Kenya's economic development. The act seeks to revolutionise trade in Kenya by creating a conducive environment for investment. 'Special economic zones' are selected geographical regions where certain policies that enhance business are put in place. As far as import duties and levies are concerned, they are regarded as being outside the customs territory.
Failure to grant a contemnor the right of audience in an appeal or application for stay of execution of orders limits a fundamental right provided for by the Constitution and leads to an abuse of judicial power and unenforceable orders. Despite the value of the law on contempt of court, a contemnor's right of audience should not be limited arbitrarily. Contempt proceedings should not be used to serve the interests of the parties at the expense of the administration of justice.
Safaricom has faced challenges since the Communications Authority of Kenya proposed regulations that aim to declare it a dominant player due to its control of the telecoms industry. The new regulations would significantly affect how an entity in the sector can be declared dominant. Safaricom's chief executive officer has suggested that such a move is akin to punishing success.
The Evidence Act does not provide directly for the use of lie detectors or the admissibility of polygraph reports in court. However, it does provide for the admissibility of computer-generated reports, with certain qualifications. Written consent from the tested parties will demonstrate that a lie detector test was not taken under duress or undue influence. The signature of an agreement ought to be witnessed by independent witnesses.
The Kenyan Constitution guarantees the right of every individual to acquire and own land in Kenya, either individually or in association with others. Kenyan citizens have the right to own land of any description in any part in Kenya, and they cannot be deprived of this right except under exceptional circumstances. Foreigners can hold land in Kenya only under a leasehold tenure not exceeding a 99-year term.
The Constitution, the Lands Act and the Land Registration Act grant the right to each person, either individually or in association with others, to acquire and own land in Kenya. Many foreign investors have been duped into entering into agreements with locals with a view to the locals purchasing properties on their behalf. Such unnecessary partnerships often turn sour and should be avoided.
The new Constitution heralded a new dawn in the management of public affairs. Conflict and competition ensued among the three arms of government and the courts were faced with balancing the respective powers and interests of the three institutions. In recognition of the constitutional issues involved, the chief justice constituted a five-judge bench to hear the issues around the doctrine of separation of powers, governance and the rule of law.
Two recent cases have seen convictions quashed as the identification parades were deemed highly unsatisfactory or improper. The general jurisprudence in Kenyan courts is that failure to adhere to identification parade guidelines will invalidate any evidence gathered there. Recent police reforms should ensure that the evidence obtained during a parade cannot be impeached due to a minor technicality.
The Advocates Act prescribes the requirements necessary to qualify to act as an advocate of the Kenya High Court. Any action taken up by an unqualified person is considered illegitimate. In a recent decision the court held that an advocate was an unqualified person as he did not have a practising certificate. The election petition was dismissed on the sole ground that an unqualified advocate had purported to act.
The Nairobi Centre for International Arbitration Act demonstrates the government's commitment to promoting reconciliation, mediation, arbitration and traditional dispute resolution mechanisms in Kenya. The act's main objective is to establish an independent, non-profit-making international organisation for commercial arbitration based in Nairobi.
Kenya is poised to be the third African country to establish a real estate investment trust (REIT) as an investment vehicle if the Capital Markets Authority's promise to gazette the 2012 Capital Markets Regulations by May 2013 is delivered. With Kenya's developed capital market and high demand for real estate, investment in a REIT will guarantee a high level of continuing income for investors.
Following the enforcement of the Anti-counterfeiting Act, three HIV/AIDS patients petitioned the Constitutional Court to declare the act illegal because it could deny them access to generic medicines. The court ruled that intellectual property should not override the right to life, right to health and right to human dignity outlined in the Constitution.
As part of the judicial reform process the Constitution commands Parliament to enact law establishing procedures for vetting judicial officers to determine their suitability to continue in office. The Judges and Magistrates Vetting Board has already declared several senior judges unfit to continue holding office. This triggered the filing of five suits with the Constitutional High Court challenging the process of removing the judges.
In 2010 Kenya ratified the Constitution 2010 through a national referendum. A key theme of the new Constitution was to clean up the judiciary, which was perceived as being corrupt. The Vetting of Judges and Magistrates Board has already vetted judges of the Supreme Court and the Court of Appeal, and has made public its determinations. The process of vetting judges continues to receive widespread public support.
Arbitration can be distinguished from litigation due to its flexibility, low cost and lack of complex procedures. However, these attributes are no longer characteristic of arbitration, as the arbitral process is gradually becoming as expensive as litigation – especially if the award is challenged in court. In such case, the same technicalities apply as in civil proceedings.
The minister for finance recently published the Public-Private Partnerships Bill 2012. The bill is to be submitted to Parliament, which will debate it and may pass it with or without amendments. The bill is aimed at providing a framework by which public-private partnerships (PPPs) will be governed. It is hoped that, once passed, the bill will spur the growth of PPPs and ensure the efficient delivery of services to Kenyans.