Automated Summary
Key Facts
The petitioner, Isaac Aluoch Polo Aluochier, claimed the Kenya National Commission on Human Rights (KNCHR) and Gilbi Construction Company Limited violated his constitutional rights by failing to pay contractually agreed fees. The court found the dispute centered on a private contractual matter, not a constitutional issue, and dismissed the petition as lacking merit. The KNCHR correctly exercised its discretion to decline jurisdiction, as the matter fell outside its mandate to investigate human rights violations in favor of civil law remedies.
Transaction Type
Construction contract for quantity surveying services in a housing project
Issues
- Determination of appropriate remedies, including exemplary and compensation damages, for alleged constitutional breaches by the Respondents.
- Evaluation of whether the Kenya National Commission on Human Rights (KNCHR) violated Article 47(1) by delaying its response to the Petitioner's complaint beyond the 21-day statutory period.
- The court determined whether the Petition raised constitutional issues under Article 165(3)(b) and (d) of the Constitution regarding the High Court's jurisdiction.
- Assessment of whether the Petitioner's right to property under Article 40 of the Constitution was violated by the 2nd Respondent's failure to pay contractual money.
- Declaration of the constitutionality of Sections 30(f), 32, and 34 of the Kenya National Commission on Human Rights Act, which the Petitioner argued limited access to justice under the Constitution.
Holdings
- The court applied the principle of constitutional avoidance, declining to address constitutional issues when the matter could be resolved on non-constitutional grounds. The Petitioner's claims under Articles 47 and 48 were found insufficient due to the availability of civil remedies and proper processing of his complaint by the KNCHR and Commission on Administrative Justice.
- The court dismissed the petition, finding that the matter was a contractual dispute between private parties and should be resolved through civil law rather than constitutional law. The Petitioner failed to prove ownership of the disputed property rights under Article 40, and the KNCHR's delay in responding was deemed reasonable given staffing challenges.
- The court upheld the constitutionality of Sections 30(f) and 34 of the Kenya National Commission on Human Rights Act, stating these provisions appropriately limit the KNCHR's jurisdiction to avoid duplication and ensure efficiency. The Petitioner's arguments against these sections were based on a misinterpretation of the KNCHR's mandate.
Remedies
The petition is dismissed and each party to bear their own costs.
Legal Principles
- The court applied the principle of constitutional avoidance, declining to decide constitutional issues when the matter could be resolved on non-constitutional grounds (breach of contract). This principle holds that courts should avoid constitutional rulings if a case can be decided on alternative legal bases.
- The court emphasized the presumption of constitutionality for statutory provisions, requiring the petitioner to prove that Sections 30(f) and 34 of the KNCHR Act were inconsistent with the Constitution rather than assuming unconstitutionality by default.
Precedent Name
- Uhuru Muigai Kenyatta v Nairobi Star Publications Limited
- Charles Omanga & Another v Independent Electoral & Boundaries Commission & Another
- Jasbir Sing Rai and 3 Others v Tarlochan Sing Rai Estate and 4 Others
- NM & Others vs Smith and Others (Freedom of Expression Institute as Amicus Curiae)
- Minister of Home Affairs vs Bickle & Others
- Hambardda Wakhana vs. Union of India
Key Disputed Contract Clauses
- The 2nd Respondent claimed the Petitioner served as a temporary assistant for administrative tasks, not a professional quantity surveyor. The Petitioner contended his role involved professional services entitling him to a percentage-based commission under the contract.
- The core dispute involved the interpretation of payment obligations under the contract for quantity surveying services. The Petitioner claimed vested rights to unpaid fees, while the 2nd Respondent denied the existence of a valid agreement and argued the matter was pending arbitration.
- The 2nd Respondent challenged the existence of a formal contract, asserting the Petitioner was not a registered quantity surveyor and the agreement lacked enforceability under the Quantity Surveyors Act. The Petitioner argued the contract conferred property rights under Article 40 of the Constitution.
Cited Statute
- Constitution of Kenya
- Kenya National Commission on Human Rights Act, 2011
- Income Tax Act
- High Court (Organisation and Administration) Act, 2015
Judge Name
Isaac Lenaola
Passage Text
- The High Court (Organisation and Administration) Act No 27 of 2015 provides for the establishment of the Constitutional and Human Rights Division, which focuses on constitutional matters under Article 165(3)(b) and (d) of the Constitution.
- The Court found that the Petitioner's complaint fell outside the KNCHR's statutory mandate as it was a 'private contractual matter' and advised pursuing it through civil courts.
- The Court dismissed the Petition, stating it 'lacks in merit' and emphasizing that 'not every ill in society should attract a constitutional sanction.'
Damages / Relief Type
- Compensation for outstanding contract amounts, including 2% monthly interest and 20% late tax penalty as per Income Tax Act.
- Payment of tax to Kenya Revenue Authority (KRA), including 20% late tax penalty and 2% monthly interest.
- Exemplary Damages of KShs 1 million ordered against the 1st Respondent for constitutional breaches.