Chapter 3 Constitutional Values, Principles, and Policy
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Kenya's Supreme Court
Kenya’s Supreme Court: Old Wine in New Bottles? By Special Correspondent As the six Supreme Court judges were adjudicating Kenya’s first presidential election petition in March 2013, Justice Kalpana Hasmukhrai Rawal was waiting for a new president to take office and the newly elected National Assembly to convene so that her nomination as Deputy Chief Justice could move forward. The Judicial Service Commission (JSC) had settled on her appointment after interviewing a shortlist of applicants in February 2013. The Judges and Magistrates Vetting Board had earlier found her to be suitable to continue serving as a Court of Appeal judge. Justice Rawal eventually joined the Supreme Court on 3 June 2013. Two years later, Justice Rawal became the second Deputy Chief Justice (after Nancy Baraza, who resigned after she was heavily criticised for abusing her authority by threatening a security guard after the guard demanded to search her at a mall) to be embroiled in controversy. In 2015, Rawal challenged a notice that she retire at the age of 70. Around the same time, the then Chief Justice, Dr Willy Mutunga, would announce that he wanted to retire early so that the next Chief Justice would be appointed well ahead of the next election. In May 2014, Justice Philip Kiptoo Tunoi and High Court judge David Onyancha challenged the JSC’s decision to retire them at the age of 70. They argued that they were entitled to serve until they reached the age of 74 because they had been first appointed judges as under the old constitution. What seemed like a simple question about the retirement age of judges led to an unprecedented breakdown in the collegiate working atmosphere among the Supreme Court judges that had been maintained during the proceedings of the presidential election petition. -
Petition (Application) 47 of 2019
Petition (Application) 47 of 2019 Case Number Petition (Application) 47 of 2019 Parties GEO Chem Middle East v Kenya Bureau of Standards Case Class Civil Isaac Lenaola, Mohammed Khadhar Ibrahim, Philomena Mbete Mwilu, Smokin Judges C Wanjala, Susanna Njoki Ndungu Advocates Mr. Eric Mose for the Plaintiff Mr. Kisinga for the 1st Defendant Case Action Ruling Case Outcome Notice of Motion allowed Date Delivered 23 Sep 2020 Court County Nairobi Case Court Supreme Court of Kenya Court Division Civil REPUBLIC OF KENYA IN THE SUPREME COURT OF KENYA (Coram: Mwilu DCJ & VP, Ibrahim, Wanjala, Njoki & Lenaola, SCJJ) PETITION (APPLICATION) NO. 47 OF 2019 BETWEEN GEO CHEM MIDDLE EAST..................APPELLANT/APPLICANT AND KENYA BUREAU OF STANDARDS...........................RESPONDENT ____________________________________________________________ (Being an application to file a Supplementary Record of Appeal) ____________________________________________________________ RULING OF THE COURT 1. UPON perusing the Notice of Motion by the Appellant/Applicant dated 11th September 2020 and filed on 14th September 2020, which application is brought under Rule 40(4) of the Supreme Court Rules, 2010; and 2. UPON perusing the supporting affidavit of Counsel for the Appellant/ Applicant, Fredrick Ngatia, sworn to on 11th August 2020; and 3. UPON considering the written submissions by the Appellant/Applicant dated 14th September 2020 and filed on the same day wherein the Appellant/Applicant contends that the delay in filing the Supplementary Record of Appeal was occasioned by inability to obtain the Judges’ notes as they were not available at the time of filing the Appeal and that three letters; (i) one dated 23rd March 2012 from the Respondent to the Commissioner General, Kenya Revenue Authority; (ii) another dated 25th June 2013 from the Appellant’s lawyers, M/s Mahmoud & Gitau Advocates, to the Respondent and; (iii) another dated 15th July 2013 from the Respondent to the Appellant’s lawyer, M/s Mahmoud & Gitau Advocates, were all inadvertently omitted from the Record of Appeal and; 4. -
The Kenya Gazette
oe RN t_¢ A THE KENYA GAZETTE Published by Authority of the Republic of Kenya (Registered as a Newspaperat the G.P.O.) Vol. CXVITI—No. 132 NAIROBI, 28th October, 2016 Price Sh. 60 CONTENTS GAZETTE NOTICES PAGE PAGE Government Appointments........... .... 4392-4399, 4400 The Physical Planning Act—Completion of Part Development Plan ..........cecccecccseecssecssseessseessseecsseesssesssteesseense 4424 The Births and Death Registration Act—Declaration............ 4399 The Environmental Management and Co-ordination Act— Task Force on the Establishment of Tourism Protection Environmental Impact Assessment Study Repott............ 4424-4426 Service—Appointment 0.0... eeeceeeccecccccssessseessteesstecsseeenee 4400 Disposal of Uncollected Goods....... 4426 Task Force on the Operationalization of the National Loss of Share Certificates ......cc.ccccccecccceecsssesssseesssessseeessessseesseess 4426 Convention Bureauee eecceeccsseecccsseeecnseseecsneeesnsneeecnneees 4400 Lossof Policies 4426-4436 The Land Control Act—Appointment ...0....0..00...cceceeceeeeee 4401-4406 Change of Names 4436-4437 The Land Registration Act—Issue of Provisional Certificates, CC oeeeccecccecccessesssesssessessseessesssessessseessesseeeseeese 4406-4422 The East African Community Customs Management Act, SUPPLEMENTNos. 171 and 172 2004—Appointment and Limits of a Transit Shed, Customs Area, etc—Amendment..... 4422 Legislative Supplement County Governments Notices ..........ccceecceecceccssesesseeeseessteeeseees 4422 LEGAL NOTICE No. The Human Resource Management Professionals -
Judging the Judges: Who Are the Supreme Court Justices?
By Apollo Mboya If there is a jurisdiction that the Justices of the Supreme Court of Kenya curse is the court’s exclusive original jurisdiction to hear and determine presidential election petitions. It is both legal and political but politics reign supreme. In a highly divided country, the court will be doomed whichever way it rules. Former Chief Justice Dr. Willy Mutunga, conscious of the impact of “political jurisdiction” on the courts, expressed his frustrations in a public forum that courts ought not handle election disputes but instead politicians should “deal with their own shit” elsewhere. In his dissenting opinion in Bush v. Gore, Justice Stevens, underscoring CJ Mutunga’s thinking sympathized with the Supreme Court of the United States and indeed the judiciary following the highly disputed 2001 election dispute between George Bush and Al Gore opining as follows: Although we may never know with complete certainty the identity of the winner of this year’s presidential election, the identity of the loser is perfectly clear. It is the Nation’s confidence in the judge as an impartial guardian of the rule of law. Although SCOTUS does not have exclusive jurisdiction on presidential election dispute as Kenya’s, Bush v. Gore has been the court’s sore thumb that is thought to have led to a “court generated president”. Erwin Chemerinsky in his book The Case Against the Supreme Court notes: Bush v. Gore obviously cost the Supreme Court in terms of credibility. More than forty-nine million people who voted for Al Gore, and likely almost all of them regard the Court’s decision as a partisan ruling by a Republican majority [judges] in favour of the Republican candidate. -
Chapter 20 Constitutional Commissions And
CHAPTER 20 CONSTITUTIONAL COMMISSIONS AND INDEPENDENT OFFICES IN KENYA AND AFRICA: EXPERIENCES, CHALLENGES AND OPPORTUNITIES1 This Chapter may be cited as: Ben Sihanya (due 2021) “Constitutional Commissions and Independent Offices in Kenya: Experiences, Challenges and Opportunities,” Chapter 20 in Ben Sihanya (due 2021) Constitutional Democracy, Regulatory, and Administrative Law in Kenya and Africa Vol. 1: Presidency, Premier, Legislature, Judiciary, Commissions, Devolution, Bureaucracy and Administrative Justice in Kenya, Sihanya Mentoring Prof Ben Sihanya Advocates, Nairobi & Siaya 20.1 Problem Statement on Kenyan Constitutional Commissions and Independent Offices Why have the Constitutional Commissions and independent offices CCIOs not delivered on the constitutional promise of popular sovereignty, liberty, service delivery and constitutional democracy? Why does tribal colonialism, tyranny and hegemony persist in elections, appointments, contracts, tenders, service delivery and manipulation and intimidation especially in public service in spite of the constitutional commissions and independent offices? In the ensuing sections of this Chapter, an Afro-Kenyanist conceptualisation and problematisation is used in analysing constitutional commissions and independent offices. I have also discussed some of the debates regarding CCIOs in the context of Building Bridges Initiative (BBI) 2019 and 2020 reports, and the Constitution of Kenya (Amendment) Bill 2020. Sovereignty has at least three components under the Constitution of Kenya 2010 and in constitutional theory and practice. First, sovereignty is the constitutive power including constitution making and constitutional amendment. Second, sovereignty is the power to elect, impeach or recall governors or rulers. Third, sovereignty is the power to monitor and evaluate the government, governors or rulers, governance and to hold them accountable. This chapter assesses the meaning, mandate, operation and significance of constitutional commissions and independent offices. -
National Assembly
October 27, 2016 PARLIAMENTARY DEBATES 1 NATIONAL ASSEMBLY OFFICIAL REPORT Thursday, 27th October, 2016 The House met at 2.30 p.m. [The Speaker (Hon. Muturi) in the Chair] PRAYERS COMMUNICATION FROM THE CHAIR MEDIATION COMMITTEE ON ASSISTED REPRODUCTIVE TECHNOLOGY BILL Hon. Speaker: Hon. Members, you may recall that yesterday, Wednesday, 26th October 2016, I conveyed a Message from the Senate regarding its decision on the Assisted Reproductive Technology Bill, National Assembly Bill No.36 of 2014. In the Message, it is noted that the Bill was lost at the Second Reading on 19th October 2016 in the Senate. The effect of this is that the Bill now stands committed to a Mediation Committee in accordance to the provisions of Article 112 of the Constitution. Indeed, the Senate has already nominated five Senators to the aforesaid Mediation Committee. Hon. Members, arising from the above and in consultation with the leadership of the Majority Party and Minority Party in the House, I have appointed the following Members to represent the National Assembly in the Mediation Committee: Hon. Millie Odhiambo Mabona, MP. Hon. John Sakwa, MP. Hon. (Dr.) James Nyikal, MP. Hon. (Ms) Cecilia Ngetich, MP. Hon. (Ms) Florence Kajuju, MP. Hon. Members, the Mediation Committee is advised to expeditiously commence the process of developing an agreed version of the Bill in line with the provisions of Article 113 of the Constitution. Hon. Members, knowing that the House may be proceeding for some short recess, the Committee is encouraged to remember that it has a maximum of 30 days within which to complete its function. -
Monitor Electoral
BALANCE DE LAS ELECCIONES PRESIDENCIALES EN KENIA TRAS EL FALLO DEL TRIBUNAL SUPREMO 11 DE OCTUBRE DE 2017 MONITOR ELECTORAL Imagen: Los Angeles Times ANÁLISIS E INVESTIGACIÓN El pasado 8 de agosto tuvieron lugar las elecciones en Kenia para elegir al próximo Presidente, donde los principales candidatos fueron el actual Presidente, Uhuru Kenyatta, de la tribu kikuyu y el líder opositor, Raila Odinga de los lúo. A pesar de que ambos candidatos hicieron un llamado a celebrar la jornada con normalidad, de manera pacífica y respetando las reglas acordadas, conforme se fueron publicando los resultados que daban como ganador al Presidente Kenyatta, Raila Odinga realizaba comentarios sobre un supuesto fraude electoral. Tras estos señalamientos, su coalición opositora, la Súper Alianza Nacional (NASA), solicitó a la Comisión Electoral (IEBC) de Kenia que declarara a Odinga como “Presidente legítimo”, porque, según sus datos, aventajaba con alrededor de 700,000 votos al actual Jefe de Estado, Uhuru Kenyatta. En este sentido, el Tribunal Supremo de Kenia anuló el pasado 1º de septiembre los resultados de las elecciones celebradas y ordenó celebrar nuevos comicios en los próximos 60 días (a más tardar el 26 de octubre), invalidando así la victoria del actual Presidente. 1 MONITOR ELECTORAL Introducción: perfil político-electoral de Kenia Kenia es una república con un sistema presidencial que se divide en Poder Ejecutivo, Legislativo y Judicial. El Poder Ejecutivo es representado por el Presidente, quien es el Jefe de Estado y de Gobierno, así como el Comandante de las Fuerzas Armadas. El Presidente es electo para un período de 5 años con la posibilidad de reelección para un segundo mandato. -
Civil Application 20 of 2020
Civil Application 20 of 2020 Case Number Civil Application 20 of 2020 Parties Ecobank Kenya Limited v Meya Agri Traders Limited Case Class Civil Isaac Lenaola, Mohammed Khadhar Ibrahim, Philomena Mbete Mwilu, Smokin Judges C Wanjala, Susanna Njoki Ndungu Munyithya, Mutugi, Umara & Muzna Advocates for the Applicants Robson Advocates Harris Advocates for the respondent Case Action Ruling Case Outcome Application dismissed. Date Delivered 24 Mar 2021 Court County Nairobi Case Court Supreme Court of Kenya Court Division Civil REPUBLIC OF KENYA IN THE SUPREME COURT OF KENYA (Coram: Mwilu; Ag. C J & P, Ibrahim, Wanjala, Njoki & Lenaola, SCJJ) CIVIL APPLICATION NO. 20 OF 2020 - BETWEEN- ECOBANK KENYA LIMITED.................................................................................APPLICANT -AND- MEYA AGRI TRADERS LIMITED....................................................................RESPONDENT (An application for extension of time to lodge a Notice of Appeal against the Judgment of the Court of Appeal at Nairobi (Kiage, Sichale & Okwengu, JJ.A) delivered on 5th June 2020 in Civil Appeal No. 108 of 2016) RULING OF THE COURT [1] Before the Court is a Notice of Motion Application dated 30th July 2020 and filed on 11th August 2020, brought pursuant to Rule 15(2) of the Supreme Court Rules, 2020, and is premised on several grounds in the body of the application and the Supporting Affidavit of Caroline Mbenge, the Head of Legal and Company Secretary of the Applicant sworn on 30th July 2020. [2] The Application raises one issue for determination -
Download Here
www.gradeup.co 1 www.gradeup.co Part-1 1.Which of the following statements is/are correct? i. Recently, Indian economist Amartya Kumar Sen has been conferred with Spain's Princess of Asturias Award 2021 in the social sciences category. ii. Amartya Sen won the Nobel Prize in Economics in 1998 A. i only B. ii only C. Both i and ii D. Neither i nor ii 2.When is World No Tobacco Day observed? A. May 13 B. May 3 C. May 31 D. May 24 3.Indian Broadcasting Foundation (IBF), the apex industry body of broadcasters, was renamed as……………. A. Indian Broadcasting and Digital Foundation B. Indian Board of Digital Foundation C. Indian Broadcasting and Digital Media D. Indian Broadcasting and Digital Council 4.Which state has appointed ‘Guardian Ministers’ to review implementation of central and state government policy? A. Kerala B. Uttar Pradesh C. Rajasthan D. Assam 5.When is International Day of UN Peacekeepers observed? A. May 19 B. May 29 C. May 30 2 www.gradeup.co D. May 23 6.The Ministry of Education recently launched YUVA- Prime Minister’s Scheme For Mentoring Young Authors. Identify the points that are correctly related to the YUVA scheme. i. Full form of YUVA is Young, Upcoming and Versatile Authors. ii. It is an Author Mentorship programme to train young and budding authors (below 40 years of age). iii. The National Book Trust, India under the Ministry of Education, is the Implementing Agency of the scheme. A. ii and iii only B. i and iii only C. -
Criminal Procedure Bench Book
CRIMINAL PROCEDURE BENCH BOOK February 2018 Table of Contents ACKNOWLEDGMENTS ............................................................................. xi FOREWORD ................................................................................................ xiii LIST OF ABBREVIATIONS ...................................................................... xv USER GUIDE ............................................................................................... xvi CHAPTER ONE: PRINCIPLES UNDERPINNING THE CRIMINAL JUSTICE SYSTEM .......... 1 I. Introduction .............................................................................................. 2 II. The Constitutional Framework for State Organs ...................................... 3 III. Equality and Dignity ................................................................................. 3 IV. Vulnerable and Disadvantaged Groups .................................................... 4 V. Freedom from Torture, Cruel, Inhuman, and Degrading Treatment ........ 5 VI. Privacy ...................................................................................................... 5 VII. The Constitution and the Judicial Process Generally ............................... 6 Independence of the Judiciary: The Institution and the Court .................. 6 Expeditious Trial ...................................................................................... 6 Undue Regard for Technicalities .............................................................. 6 Transparency and Accountability -
Policy Briefing
Policy Briefing Africa Briefing N°94 Nairobi/Brussels, 15 May 2013 Kenya After the Elections I. Overview Kenyan democracy was severely tested in the lead-up to, during and after the 4 March 2013 elections. On 9 March, following a tense but relatively peaceful election, the Independent Electoral and Boundaries Commission (IEBC) declared Jubilee Coali- tion’s Uhuru Kenyatta president-elect. He garnered 50.07 per cent of the vote – barely passing the threshold for a first round victory. His closest opponent, former Prime Minister Raila Odinga, challenged his victory in court, but despite allegations of irregularities and technical failures, the Supreme Court validated the election. Although Odinga accepted the ruling, his party and several civil society organisations questioned the election’s shortcomings and its impact on democracy. President Ken- yatta and his deputy, William Ruto, will have to restore confidence in the electoral process and show robust commitment to the implementation of the new constitution, in particular to devolution, land reform, the fight against corruption and national reconciliation. Failure to do so risks further polarising the country and alienating the international community. Despite some clashes preceding the vote, and following the court’s decision, the nation avoided a repeat of the 2007-2008 post-election violence. A number of fac- tors contributed to a predominantly peaceful election, including a general consensus between the political elite and the citizenry not to bring Kenya to the brink of civil war again. International pressure, in particular from the current International Crim- inal Court (ICC) cases, media self-censorship, restrictions on freedom of assembly, and deployment of security forces to potential hotspots also helped avert unrest. -
Over-Turn Election Put the Supreme Court on Trial
ISSUE NO. 30, OCTOBER 2017 OVER-TURN ELECTION PUT THE SUPREME COURT ON TRIAL Peter Kagwanja Kenya has made history. Its Supreme Court and a run-off on November 16. In Austria, made a rare ruling, annulling the re-election of where the presidential elections took place on President Uhuru Kenyatta in the August 8, April 24, 2016, the Supreme Court annulled the 2018 elections with a huge margin of 1.4 million results of a second-round run-off on May 22, votes. Blissfully, the ruling affirms Kenya as a 2016 paving the way for a revote on December new bona fide liberal democracy. But it also 4, 2016. reveals creeping ideological and jurisprudential divisions in our courts, likely to undermine This is the second ruling by the Supreme public perception of the impartiality of the Court, created by the 2010 constitution. The judiciary, exposing it to potential reprisals by first was a unanimous affirmation of the results sections of aggrieved political class. of the 2013 presidential elections. In contrast, the 2017 ruling was by a simple majority with Kenya becomes the first country in Africa, and strongly dissenting opinions. exceptionally very few in recent history, where a Supreme Court has over-turned officially Of the six judges involved, four—Chief Justice declared results of a presidential election. David Maraga, his deputy Lady Justice Philomena Mwilu, Justice Smokin Wanjala and It joins Maldive and Austria where the supreme Justice Isaac Lenaola—were of the opinion courts have recently overturned the will of the that ‘irregularities’ and ‘illegalities’ affected the people on legal and administrative conduct of the polls.