Escolar Documentos
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SUBMITTED BY GROUP 10
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GROUP MEMBERS:
G34/2758/2011_______________
G34/2775/2011_______________
3. Stella Nasirumbi
G34/2708/2011_______________
G34/2789/2011_______________
G34/2831/2011_______________
G34/2763/2011_______________
G34/2726/2011_______________
G34/2752/2011_______________
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Kenya .
Kenya ..
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explore some of the key challenges faced by the Tribunal, the place of judicial review in
handling such cases, and we even go further to recommend key changes in legislation.
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- To summon witnesses and to require the production of documents;- To order the payment of costs;
and the provisions of the law relating to Commissions of Inquiry in Kenya with respect to the
protection of the members of the Tribunal from suit, the form of summonses to witnesses; to
giving or fabricating of false evidence; the duty and indemnity of witnesses, and the penalty
for contumacy, insult or interruption of proceedings; and the appearance of advocates.
The purpose for establishing the Tribunal was mainly to arbitrate disputes arising in the sugar
industry. The Tribunal is to consist of a Chairman who shall be a person qualified for
appointment as a Judge of the High Court as well as two other persons with expert knowledge
of matters likely to come before the Tribunal. It is also a requirement that these officials of
the Tribunal should not have direct material interest in the sugar industry. They shall be
appointed by the Minister of Agriculture (now Cabinet Secretary of Agriculture) in
consultation with the Attorney General and would not serve a term of more than 3 years.
The Minister of Agriculture may in consultation with the Kenya Sugar Board come up with
regulations to govern the operations of the tribunal.9
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postal order issued in favour of the Tribunal. The fee can also be paid through the Ministry of
Agriculture, to the Tribunal. After the fee has been recorded in the register, a receipt shall be
issued accordingly.
There are instances whereby the Tribunal can demand additional fees. This is whereby the fee
charged upon filing of the complaint does not take into account the award as the case may be.
The additional fee will be demanded at the conclusion of the case since the award will have
been
quantified
then.
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First Schedule
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Notices need to be served by hand delivery, registered post or any other manner appropriated
by the Tribunal. These should be served on the person or his agent at the addressed furnished
for service. The notice may also be delivered at the place where the recipient resides,
personally works for gain or where he carries out his business. The agent, in this case, should
be a person empowered to be served on behalf of the person himself.
The Tribunal may also require that a return of service giving details of served documents.
Their date and manner of service be filed as proof of such evidence.
No service shall be deemed invalid just because there is a defect in the description of the
person or his name. Similarly, no hearing shall be invalidated by reason of a defect unless, on
an objection, the Tribunal is of the opinion that injustice would be caused by the defect.
It is important to note that pleadings will be rendered closed upon the expiry of 15 days since
the filing of reply or defence to the suit or to the counterclaim.
Hearing12
A date of hearing the dispute shall be set by the Tribunal. In fixing the hearing date, the
Tribunal will consider things such as convenience based on its diary as well as business
schedule. It will also issue a hearing notice of the same.13 As a requirement, the proceedings
of the Tribunal should be open to the general public. However, the proceedings can be
conducted on camera but only where the Tribunal deems it fit. It is the Tribunal which shall
determine the time, date and place14 of hearing of any dispute before it.
Any party who seeks to rely on witnesses shall apply in written form or formally to the
Tribunal and the Clerk shall prepare witness summons. 15 The party will then serve the
witnesses with the summons accordingly. In line with the Constitution16a person may be
represented by a counsel.17 Also, during the hearing, the Tribunal can invite comments by
persons on the issues involved. 18
Rule 30 provides for the calling of experts at any stage of the hearing. This can be on
application by the parties or on the Tribunals own motion. The experts will include
professionals and consultants but not limited to the same. The experts may be cross-examined
by the parties with a view to gain as much evidence as possible. Also linked to this provision,
is that which makes it possible for Tribunals to nominate persons to visit places for the
purpose of inspecting and reporting on the same, be it the existence or status of the place or
its facilities and circumstances therein.19
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First Schedule
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15
First Schedule
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Art.47 Constitution of Kenya 2010
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17
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The Tribunal may also direct the parties involved in the dispute to appear before the persons
designated to inspect and make reports to the Tribunal so as to present their views on the
matters referred to. Such reports submitted by the nominated persons to the tribunal shall
form part of the records and shall be given to each party. The parties may file their copies in
support or even in opposition of the opinion or report. These filed copies shall be considered
by the Tribunal in deciding the dispute.
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TRIBUNAL
EX-PARTE
ESTHER
This case was brought forth in the High court of Kisumu with the applicant seeking orders to
remove into the honourable court, for the purpose of quashing the decision of the respondent
(made on 8th February 2012 in proceedings before it) in the hearing of the Sugar Arbitration
Tribunal Dispute No. 1301 of 2012 filed by Notice of Motion under certificate of urgency.
There was a statement of claim by South Nyanza Sugar Company Limited (hereinafter)
called Sony against Trans Mara restraining the applicant, her agents workers and or any
person claiming under them from buying, harvesting, transporting and or milling and or in
any other manner whatsoever handling sugar cane from any of the growers and out growers.
This was as per several sections of South Nyanza Sugar Belt with whom Sony have in force a
cane supply or cane growing contracts and whose names are as per cane census reports
appended and marked Appendix 1 pending the hearing and determination of the application
inter partes, (hereafter the Order of the Tribunal).
1. To apply for an order of certiorari to quash the proceedings filed in the Sugar
Arbitration Tribunal by Sony against Trans Mara.
2. To apply for an order of Prohibition to prohibit the respondent from hearing a dispute
between Sony Sugar and Trans Mara, relating to the buying, harvesting, transporting
and/ or milling and/ or in any other manner whatsoever handling sugar cane of the
applicant without involvement of the applicant.
3. To apply for an order of prohibition to prohibit the respondent from exercising
purported power under Rule 32 or Rule 42 of the Sugar Arbitration Tribunal Rules
2001
4. The grant of leave shall operate as a stay of the order of the Sugar Arbitration
Tribunal made on 8th February 2012 and extended to 24th February pending the
determination of this matter or further orders.
5. The application by Notice of Motion for the substantive orders of certiorari and
Prohibition to be lodged within ten (10) days hereof.
There was a dispute therefore between Sony and Trans Mara and the matter went to the
tribunal. The tribunal issued interim orders of injunction which stopped Trans Mara from
dealing with Sonys farmers or people it had contracted. Sony had contended that Trans Mara
was poaching her farmers.
From the pleadings on record it was evidently clear that the ex parte applicant herein had a
contractual agreement between her and Sony dated 20th June 2010. The validity or otherwise
of the said contract was not for the court to decide. The determination of this contract was
allowed clearly in Section 29 (1) of the Sugar Act which states, There shall be for the
purposes of this Act, agreements negotiated between growers and millers, growers and out
growers institution and millers and out growers institutions.
Justice Chemitei set aside the orders sought with costs charged to Sony.
CONCLUSION
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The sugar industry is very troubled because of lack of clarity and preciseness in the Sugar
Act. It is not clear who can approach the Sugar Arbitration Tribunal for arbitration. It is
apparent that the Sugar Arbitration Tribunal has no jurisdiction over all the stakeholders in
the industry leaving out a gap that if filled could bring order in the sector. It is therefore our
recommendation that the Act be amended to provide solid guidelines on the powers of this
tribunal. These should involve streamlining and harmonizing conflicting ambiguous
provisions and removing inherent impediments in a way that will guarantee an enabling
environment for the growth of the Industry and serve the interests of all stakeholders.
Stakeholders have also expressed their concern in the lack of power on the part of the tribunal
to carry out its decisions. Decisions by the tribunal have been ignored. Further, some
authorities in the sugar industry have suggested that the Sugar Arbitration Tribunal should
not be amenable to judicial review. They claim it is pointless to have a dispute solved when
one can always ignore the decision and go to a higher court. The common view of this group
is that such a move would be giving the Sugar Arbitration Tribunal immense powers. Like all
public bodies and authorities the Sugar Arbitration Tribunal should be subject to judicial
review with a view to protect the stakeholders rights.
As seen in the hearing of the two cases above, this tribunal has been accused of acting ultra
vires to the Act subsequently forcing the aggrieved parties to seek judicial review remedies in
higher courts. This has rendered it devoid of the objective of justice stipulated in Article 47
(1) of the Constitution and Section 31 of the Sugar Act. The Sugar Arbitration Tribunal has
been formed to arbitrate over contentious issues that may arise in the industry. This is
intended to engender harmony, mutual understanding and provide an amicable way to
expeditiously handle disputes. If this ultimate objective has not been met then the Tribunal is
deficient. To ensure its effectiveness, another proposal would be to subject the Sugar
Arbitration Tribunal to evaluation procedures. Its performance should be reviewed at least
annually to ensure that it is feasible and produces the intended results. According to the
Constitution, justice should not only be done, but seen to be done. Therefore the Sugar
Arbitration Tribunal should not only exist because it has been created by Statute but its
desired output should be witnessed to be achieved.
Bibliography
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