This is a pronouncement by the Court regarding the rights of a party to a dispute or transaction.  The court declares these rights, hence the term declaration.

Today one individual can sue another seeking a declaration.

Exception in Cap 40  - The law is set to change because there was a landmark case that was decided last week where the High Court Judge handed a decision the effect of which firstly it he said it is possible to grant an injunction against the government.   In the case of High Court Misc Civil Application No. 1609 of 2003 and it was by way of Originating Summons in the matter of Samuel Pipo Limet.  This matter deals with the Children’s Act and is between Marie Elizabeth Christian Adelaide de Brouwer V. the Attorney General as the Respondent.  This case involved a deportation order that was issued by the Minister of State and the Applicant brought an originating summons seeking the following prayers. An injunction to restrain the defendant from executing the deportation order.  The prayer in the O.S. were for the following
1.            Injunction to restrain the Defendant from executing a deportation order
2.            Declaration that the deportation order was illegal and a threat to the rights of the child.

The Applicant also filed a Chamber Summons seeking an interlocutory injunction to restrain the defendant/respondent from executing the deportation order until the main suit is heard and determined.

The O S is seeking a perpetual injunction by the chamber summons is seeking an interlocutory injunction to restrain the Defendant.  The Interlocutory Injunction was granted because the Respondent did not answer to the Chamber Summons Application.

The case is interesting for having set the rule so far that it is possible to obtain an injunction against the government.  (this case was under the Children’s Act).

An appeal cannot be sustained regarding the interlocutory order has time to appeal has elapsed.

The position in England is that the power to make a declaration is now statutory though it emanated from equity.  See Chapman v. Michaelson [1909] Ch. 238

Jubilee Insurance Co. v. John Sementengo 

Facts of the case.

The issue arising from this case is whether the insurance company has the right to seek a declaration that an insurance that has been obtained through non-disclosure of facts and misrepresentation.  The crux of the matter was that under the insurance policy John Sementengo answered the two questions one in the affirmative and the other one none and when asked to give a record of any accident he said none while the lorry had been involved in an accident.

Non Disclosure

Is the vehicle at present in a thorough state of repairs Yes – Misrepresentation.
Give record of accident and or loss during the past five years in connection with any motor vehicle owned or driven by you, None.   None disclosure.

Sementengo is saying the suit is premature and that the insurance should wait until there is an action asking insurance to pay.  The insurance company has every right to file a suit for a declaration before any case is commenced and that it can avoid a policy.

One seeks a declaration in respect of diverse issues, not in relation to a particular matter but in many issues although there some limits as to what kind of rights will issue.

Matalinga & Others v. A-G

1.            Kenya Clinical and Medical Association seeking a declaration or fighting for the rights of categories in the medical profession.

Was this the kind of dispute that could be entertained by the court of equity

Was the allegation that the seemingly different treatment of medical officers insofar as the salaries were concerned unconstitutional?

A mandatory injunction cannot issue to a Government official and therefore could not be made against the defendant.

Is there  a right that people can entertain to say that one category of officers are as good as the qualifications of another category of government officers and therefore the two categories are entitled to the same salary.

The court can grant a declaration in respect of unconstitutional discriminatory treatment but in Matalinga’s case no such discrimination was alleged.

They are not seeking a declaration in respect of any legal rights.

What is the law that applies in Kenya vis-à-vis the contract of employment?  In relation to the law of contract, a contract of employment is that one exercise the freedom to contract and having signed that contract one has a duty to fulfil the contract.  You sign a contract you are bound by it.

A mandatory injunction cannot issue to a government official and therefore could not be made against the defendant but in the light of Ojwang and his case of issuing an interlocutory injunction against the A.G.


Like Us on Facebook

Contact Form


Email *

Message *