On July 9th 2010 Bosire, Githinji & Nyamu, (JJA) held that the Attorney General (AG), who is the government legal advisor can represent a public officer or even a state corporation as a counsel. In reversing the decision of the superior court (Ojwang J ) that the AG had no power to represent a State Corporation, the three member bench ruled that though the AG cannot competently institute a suit in his own name on behalf of a State Corporation, he has unquestionable right to represent it in Civil proceedings. Section 26 of the current Constitution establishes the office of the AG as the ‘principal legal adviser’ to the Government of Kenya.
In this appeal, the court seemed to stress the distinction between power of the Attorney General to institute civil proceedings and the discretion of the Attorney General to appear as a counsel for a party in civil proceedings.
The brief facts of this case are that Joseph Kipruto (appellant) had filed a suit against the respondents on the basis that the two had wrongfully and fraudulently terminated his contract of employment as executive chairman of Investment Promotion Centre (IPC). [IPC is a State Corporation established under the Investment Promotion Centre Act (Cap 485, Laws of Kenya).] The AG was sued on behalf of the Permanent Secretary (PS), Ministry of Trade & Industry as he was the one who allegedly terminated the appellant’s services. Upon service of the summons to enter appearance together with plaint on IPC, the Managing Director of IPC requested the AG to represent it by a letter dated June, 2004. Thereafter, the AG prepared a joint defence and counter-claim of himself as first respondent and also IPC (second respondent). These were verified by the affidavit of the Managing Director of IPC. In July, 2004 the AG entered appearance on behalf of the two respondents and also filed a joint defence and counter-claim on behalf of the 1st and 2nd respondents. The appellant then filed an application for orders that the defence and counter-claim be struck out and for leave to enter judgment for non-appearance and default in filing defence by the IPC. The application was mainly based on the ground that the memorandum of appearance and the defence filed by the AG on behalf of IPC was an abuse of the process of the court as the AG had no locus standi to file pleadings on behalf of IPC since IPC was a body corporate with power to sue and be sued in its name. The AG opposed the application contending, among other things, that IPC was legally and properly being represented by the AG.
The High court was not convinced by an earlier decided case in which it was held that it was entirely within the administrative discretion of the Attorney General to decide whether it was in the interest of the crown (State) that it should provide legal representation for a particular litigant.In allowing the application, the court (Ojwang J.) held that the AG had no legal standing to enter appearance and file a defence and counter-claim on behalf of IPC and that the appearance and defence and counter-claim were thus a nullity with the result that IPC must be taken as not having filed a defence and counter-claim. IPC then instructed a firm of Advocates to enter appearance on behalf of it and the firm filed an application seeking to set aside the exparte judgment entered against IPC under the Civil Procedures Rules (CPR). The application was ultimately heard and allowed by Ransley, J. in September, 2005 thereby precipitating the instant appeal.
The current appeal was against the exercise of judicial discretion to set aside judgment entered ‘‘in default of appearance and defence’’ and also against the consequential order giving IPC leave to enter appearance and file a defence.
Although the Court of Appeal agreed that the AG cannot competently step into the shoes of a State Corporation which had power to sue and be sued in its corporate name and institute a suit in his own name on behalf of the State Corporation,the Court however clarified that there are instances where the AG has unquestionable right to represent a State Corporation in Civil proceedings and this was such one. In an earlier High Court ruling, Justice Ringera (as he then was) had stated, “I think the Attorney General’s institution of a suit for and on behalf of the National Irrigation Board which is a body corporate with power to sue and be sued in its own name is a legal misadventure. It is an action without juridical basis. The Attorney General has no locus standi to do so…”. Ringera, J. was however guided by section 34 of the Government Proceedings Act which authorizes the Government to control or intervene in proceedings affecting its rights, property or profits and stated as follows: “In my view, the Attorney General may step in such proceedings by either offering legal services as counsel or by applying to be joined either as a plaintiff or defendant as the case may be or as a necessary party…”.
The appellate court however distinguished this case with the present one in that the AG had not instituted the suit in his own name on behalf of IPC. Rather, the AG and IPC had been sued as co-defendants. The court further held that the decision of the superior court that the AG had no locus standi to represent IPC was solely based on the narrow ground that IPC was a body corporate with its own power to sue and be sued in its own name. The court stressed that there was, however, no restriction on the right of representation. The superior court had thus confused the power of the Attorney General to institute civil proceedings and the discretion of the Attorney General to appear as a counsel for a party in civil proceeding.
In dismissing the appeal, the appellate court concluded that the court below had erred in law in excluding the Attorney General from representing IPC and in striking out the appearance, defence and counter-claim filed on its behalf by AG.