THE KENYA LAW BENCH BULLETIN THE KENYA LAW BENCH BULLETIN
January - April 2013 Issue 21 January - April 2013 1 | Issue15:| April-June 2011 Issue15: April-June 2011 THE KENYA LAW BENCH BULLETIN
CONTENTS MAIN HIGHLIGHTS Regulars Kenya Law Board Members 3 Editors Note 5 Chief Justice Speech 6 Citizen Nenkai 7 What They Said 8 Features The Constitutional Domain of Elections: Signalling 96 the Judicial Mandate 9 The Presidential Election Petition 2013 (Featiure Case) The Proper Role and Jurisdiction of the Industrial Court 14 The International Court of Justice Findings on the Kenyan Situation 19 The Judiciary Transformation; What it Means for Kenyans. 23 Leadership and Integrity: Uniform Implementation and the Way Forward. 26 19 Repeal of Section 32 of the Advocates Act Requiring Two Years Post Admission Experience by Advocates Was Unwarranted. 28 Comparative Analysis of Presidential Election 69 Petitions in Kenya and other Jurisdictions 30 Cases Showing a Difference in Judicial Reasoning 41 Study Tour by the Namibian Delegation: 2013 50 Legislative Updates: Analysis of Recent Legislation 51 23 Laws of Kenya Department: Committed to Launch Of The Laws Of Kenya Revised Edition We have Rebranded 2012 F.A.Qs 57 The Doctrine of Judicial Review vis-à-vis the Principles of Good Governance in Public Private Partnerships: Aglimpse into the Public Private 61 Partnerships Act, 2013. 71 Digest of Recent Legal Supplements on Matters 64 of General Public Importance XML Markup 67 Kenya Law Rebrands to Reflect Development, Innovation and Transformation 69 Case Updates KLR Case Updates 71 CaseBack Service 72 Feedback 73 Issue 21 January - April 2013 3 Issue15: April-June 2011 | THE KENYA LAW BENCH BULLETIN
Bench Bulletin January - April 2013 Issue 21
CONTENTS
Departmental Reports When is the Cloud Not the Right Tactic? 76 92 Annual Staff Conference for 2012 78 Kenya Law touches a Child’s Heart. Employee Award Scheme 80 Kenya Law touches a Child’s Heart. 92 50 Cases
Feature Case 93 Study Tour by Summary of the Pre-Trial Matters in the 96 the Namibian Presidential Election Petition Delegation Supreme Court Cases 117 Court of Appeal Cases 124 High Court Cases 133 Industrial Court Cases 241 East African Court of Justice 258
The Power of Temperaments 272
Annual Staff Conference for 2012
Editor Main Feature: Michael Murungi
Editorial Assistant Cornelius W. Lupao
Contributors Michael Murungi |Monica Achode | Cornelius W. Lupao Andrew Halonyere | Njeri Githang’a | Emma Kinya | Wambui Kamau Nelson K. Tunoi | Wanjala Sikuta | Phoebe Ayaya |Yvonne Kirina Lydia Midecha | Sylvie Nyamunga | Naomi Mutunga | Dorcas Kaveke Design and Layout Catherine Moni | Basweti Robert | Geoffrey Andare Proofreaders Phoebe Ayaya | Innocent Ngulu We Have Rebranded
Issue 21 January - April 2013 4 | Issue15: April-June 2011 THE KENYA LAW BENCH BULLETIN The Kenya Law Bench Bulletin
The Hon. Dr. W.M. Mutunga, D.Jur., S.C., E.G.H. Chief Justice of the Republic of Kenya, President of the Supreme Court & Chairman, National Council for Law Reporting. Kenya Law Council Members
The Hon. Justice (Dr.) W.M. Mutunga, D.Jur., S.C., E.G.H Chief Justice, President of the Supreme Court & Chairman, Kenya Law.
The Hon Lady Justice R. Nambuye Mr. A.G. Rukaria - Judge of the Court of Appeal of Kenya Government Printer (Represented by Mr. Paul Sang, Senior Printer) The Hon Lady Justice Lydia Achode Judge of the High Court of Kenya Mr. Michael M. Murungi - CEO/Editor Mrs. Gladys B. Shollei Chief Registrar, The Judiciary Members co-opted to serve in ad-hoc advisory capacity Prof. Githu Muigai, Attorney General Mr. Jeremiah M. Nyegenye, Clerk of the Kenya National Assembly Prof. Annie Patricia G. Kameri-Mbote, SC. Dean, School of Law, University of Nairobi Mr. Justin Bundi, Clerk of the Senate Ms. Christine Agimba, Senior Deputy Solicitor General, Mrs. Flora Mutua, State Law Office Senior Management Consultant, Directorate of Personnel Management, Ministry of State for Mr. Evans Monari – Advocate, Public Service Law Society of Kenya Mr. Christopher Ombega, Mrs. Florence Mwangangi - Advocate, Senior Assistant Inspector General - Law Society of Kenya Representing the Inspectorate of State Corporations
(As from January 1, 2013)
Disclaimer: While theKenya Law has made every effort to ensure both the accuracy and comprehensiveness of the information contained in this publication, the Council makes no warranties or guarantees in that respect and repudiates any liability for any loss or damage that may arise from an inaccuracy or the omission of any information.
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ehind our new brand name and image is something Bmore than just a new splash of colour. To quote Dr. Willy Mutunga, the Chief Justice and Chairman of the Council of Kenya Law, “we have renewed our minds and rededicated Editors Note ourselves to the national values and principles of public service set out in the Constitution of Kenya, 2010 and we have re-engineered our systems and processes to exceed the expectations the people, the Judiciary, our partners and our stakeholders. The essence of this renewal is expressed in a new brand identity - KENYA LAW – and more elaborately set out within the pages of this Strategic Plan”.
Our re-branding has been the natural result of our reflection on where we have come from, where we want to be in the next five years and what it will take for us to get there. The rebranding is a key component of our new Strategic Plan for 2013-2017.
The new Plan is informed by the hopes and aspirations of the people of Kenya, the letter and spirit of the Constitution; the strategic direction of the Kenya Vision 2030 and the Judiciary Transformation Framework, 2012-2016 and last but not least, the promise and commitment of the Council and Staff of Kenya Law.
The key elements of our new strategic approach is a shift in several paradigms: from providing legal information to the creative and innovative use of information to generate and develop legal knowledge; from a legal publisher to a curator of a robust, indigenous, progressive and patriotic jurisprudence; from applying international best standards to being the standard by which law reporting and access to public legal information is measured; and from providing a public service to creating shared value for society and for our employees.
The other key element is, of course, the repositioning of our brand identity. We are glad to be known and addressed by you simply as ‘Kenya Law’.
Welcome to the Kenya Law experience!
Michael M. Murungi
CHIEF EXECUTIVE/EDITOR
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We Don’t Take Public Support for the Judiciary for Granted
This article was also published in the Sunday Nation edition of May 19, 2013.)
Judge Lippman in his Manhattan questions are problematic for chambers, he entirely missed the courts worldwide because what context and substance of our makes sense in law, evidence discussions. and the Constitution may not Going by the reactions online, this always be what makes sense report has caused a great deal of politically. The Supreme Court distress to many Kenyans. I have, judges and I are only too aware therefore, requested the editors that the decision handed down of this newspaper to allow me to in on March 30, 2013 may not exercise the right of reply on this be universally popular. We have matter in order to set the record subsequently taken steps to open straight. spaces for it to be debated, From May 13, 2013, I have been for the benefit of all actors and visiting the United States as part interests involved not just now but of my continuing engagement also for the future. with other jurisdictions to draw lessons on how to speed up the One of the events scheduled Remarks by the Hon. Dr. Willy transformation of the Judiciary upon my return to Kenya is the Mutunga, D. Jur., SC, EGH Chief launched a year ago. It has been handover of all materials from the Justice, President, Supreme Court a mutual learning experience for presidential election petitions to of Kenya. us as well as for our hosts. university law schools in Kenya in In New York, for example, Chief order to launch a robust debate Judge Lippman of Circuit of and lifelong scholarly inquiry on ver since I took my oath of Appeals is working to bring into the cases and the decisions that the mainstream of the justice flowed from them. Eoffice on June 20, 2011, I have system its town and village justices, never been under any illusion that many of whom are non-lawyers Through this engagement, the winning public confidence is a who have been criticised for Supreme Court, and indeed the destination – rather I believe that conduct ranging from appearing Judiciary, will be inviting criticism drunk in court to failing to inform of its processes and outcomes it is a continuous journey. defendants of their right to as well as evaluations and counsel, to convicting defendants affirmations as appropriate. It is a Even at those moments when without trial. We, on the other testament to our acceptance of surveys have found that the hand, are attempting to reconcile the principle that it is only through Judiciary enjoyed some of the the councils of elders, which are constant engagement that we highest public approval ratings for important in traditional Kenyan can build public confidence in a public institution, we have been society, with the protections of Kenya’s justice system. keen to seek ways of winning our new constitution, for example, Whenever the public has the confidence of those who still with regard to women’s rights. expressed confidence in the found our services and attitudes Our discussions also centered workings of the Judiciary, we have unsatisfactory. on experiences in negotiating never seen it as an opportunity budgets with the Executive and to become over-confident in I was, therefore, surprised to read the Legislature as an independent our abilities or rest on our laurels. the online report in the Daily Judiciary. We remain eternally grateful to Nation (Wednesday, May 15, 2013) those Kenyans who continue attributing to me remarks to the I recall telling Chief Judge to keep the faith in the ideal of effect that the proof of Kenyans’ Lippman that unlike in 2007 when the Judiciary created by the confidence in the court system election contestants refused to go Constitution. We remain keenly could be found in the unanimous to court, this time round, on the aware that to those whose faith decision of the Supreme Court in basis of the confidence building may be flagging, we have a duty the recent presidential petition. work we have undertaken since to restore it in our decisions and Nothing could have been further 2011, there was recourse to the conduct. from what I said. It is possible courts and not violence. that since the reporter was not The closest I came to discussing the present at the meeting with Chief petition was to say that political
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WHAT THEY SAID
‘’This Judgment, therefore, may be viewed as a baseline for the Supreme Court’s perception of matters political, as these interplay with the progressive terms of the new Constitution. It is clear that this Judgment, just as it is important to all Kenyans in political terms, is no less important to the Court itself, in terms of the evolution of jurisprudence in the domain of public affairs. It is particularly so, in the light of Section 3(c) of the Supreme Court Act, which vests in this Court the obligation to “develop rich jurisprudence that respects Kenya’s history and traditions and facilitates its social, economic and political growth.”..... By WM Mutunga CJ, PK Tunoi, MK Ibrahim, JB Ojwang, SC Wanjala, NS Ndungu SCJJ in underscoring the importance of the Presidential Election Petition judgment that was being delivered.
“…the pursuit of a legal career is voluntary and those who choose to join the legal profession do so out of choice and therefore agree to abide by the terms of engagement which are regulated by statute. These terms include regulation of training, qualification and practice.”By Majanja J. in Okenyo Omwansa George & another vs. Attorney General & 2 others, while ruling on the constitutionality of section 32 of the Advocates Act requiring post admission experience for advocates before they venture in own practice.
“…there was nothing wrong about the steps the Government of Kenya took in protecting its citizens from the risk of cruel, inhuman and degrading treatment in the Republic of Saudi Arabia until such a time as the Republic of Saudi Arabia shall have put into place mechanisms which will ensure that
the citizens of this country do not face such treatment in that country.” By G.V Odunga J in Khobesh Agencies Limited & 32 others vs. Minister of Foreign Affairs and International Relations & 4 others while dismissing an application to quash the decision by the Minister for Foreign Affairs banning the recruitment and export of domestic workers to the Middle East.
“…it is not every day that every borrower flips through the daily newspapers to see if his lender has effected changes of the rate of interest applicable to his borrowing. In any event, if a lender wishes to use the media as a form of communication, be it electronic or print as one of the mode of notification, it should expressly state so in the security instrument.” By A. Mabeya J in Christopher Ndolo Mutuku & anor vs. CFC Stanbic Bank Ltd. While ruling on a challenge on validity of change in interest rate by the lender communicated through the newspaper.
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The Constitutional Domain of Elections: Signalling the Judicial Mandate By The Hon. Justice (Prof.) J.B. Ojwang Justice of the Supreme Court of Kenya
state; the capacity to of the electoral process. influence the activities of As the conduct and the body politic – [also] outcomes of that process termed civil power.” The are a continual affair, civil power, in modern a recognized agency society, is recognized as of the Constitution must belonging ultimately to periodically ascertain their the national population legitimacy. The task falls to at large. This population, the Courts of law. It thus however, being often needs be clear that the so large, so spread-out electoral process, which and so amorphous, must leads to the constituting have recourse to a special of the governing State instrument of designating offices, is a core element its authorised agents to in the constitutional Paper delivered at the Induction conduct day-to-day process, and falls squarely Workshop for Judges of the functions. All progressive within the jurisdiction of Industrial Court and the Land outlook on governance the Courts, as umpires and and Environment Court, Nairobi, identifieselection , defined custodians of legality. 18 January 2013. in Black’s Law Dictionary as “[the] process of 3. Kenya’s Constitution, and the Content selecting a person to Electoral Process occupy an office ([usually] 1. Parliament and the legislative 1. Introduction a public office)….,” as assemblies in 2. Kenya’s Constitution, And the legitimate mode of the county The Electoral Process delegating the sovereign governments; 3. Representation And Kenya’s power of the people 2. the national executive and Framework Of Governance to public officials. Thus the executive 4. The Executive Branch, And the Constitution, which structures in The Electoral Process is defined in Black’s the county 5. Free And Fair Elections Law Dictionary as “[the] governments; and 6. Election And Representation: fundamental and organic 3. the Judiciary and independent Analogies With International law of a nation or state tribunals.” Law that establishes the 4. The Constitution of Kenya, 2010 7. Conclusion institutions and operations sets off with the people’s of government”, in chant: “We, the people of 1. Introduction its essence, has both Kenya” – before declaring 2. In community, all the day-to-day fixed frameworks and preambular principles activities of individual and operational aspects – to which the people collective survival, welfare the former regulating commit themselves, as and progress, require as and validating the latter. they instal their charter a foundation, a base of The operational aspects of governance. The safeguard and oversight; are to be conducted Constitution begins and this, typically, is by a plurality of State [Article 1] with the the political system, officers who have been “sovereignty clause”: “All incorporating the modern designated in compliance sovereign power belongs State set-up. The State with the prescriptions to the people of Kenya set-up is operationalised of the Constitution: and and shall be exercised through “political power”, typically, they are put only in accordance with thus defined in Black’s in place through the this Constitution.” The Law Dictionary, 8th ed electoral process. The people have recognised (2004): “The power Constitution, therefore, that they will not exercise vested in a person or invariably prescribes the sovereign power body of persons exercising governing norm, and directly; they donate it any function of the establishes the core rules to three primary organs
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of governance [Article as an object of the accordance with 1(3)]: “Sovereign power electoral process, their strength in the under this Constitution therefore, is essentially National Assembly is delegated to the concerned with the [Article 97]; following State organs, executive and legislative 5. Senate membership has both which shall perform their organs of the State: the elective and functions in accordance the legislative function, the nominated with this Constitution because it is the State’s element: 47 – The principle of constant mode of members elected representation, as a vital establishing frameworks of by voters in element in the electoral service to the people; and the individual process, is to be perceived the executive function counties; 16 against the background because this is concerned Senators of the to the terms of Article with the public agency female gender 1(3) of the Constitution. of day-today operations, nominated by It emerges from that in rendering service to political parties Article, that Kenya’s view the people. Thus, the according to their of good governance (as people must elect those numerical strength contemplated in Article in the Legislature, as well in the Senate; 10) incorporates two as those who lead the two members contrasting elements: the Executive Branch. representing majoritarian concept, the youth; which refers to the elective 5. Representation and Kenya’s two members dimension of governance; Framework of Governance representing and the non-majoritarian 1. the Parliament comprises the persons with concept, which refers National Assembly disabilities [Article to the role the standard- and the Senate 98]. setting or adjudicative [Article 93(1)]; 6. To “represent” is defined in the organs, such as the 2. the National Assembly Concise Oxford English Judiciary. The people, “represents the Dictionary, 11th ed by their electoral choice, people of the (2009) as: “be entitled or entrust to both the constituencies and appointed to act or speak legislative and executive special interests for”. As already noted, agencies the positive in the National the people, though they functions of creating, Assembly” [Article be the stakeholders of enlarging and dispensing 95(1)]; the Constitution, can the goods of the 3. the Senate represents the only benefit by it through constitutional order; but counties and representation; and the people also recognise “serves to protect thus, representation is that those agencies may the interests of the a vital element in the fail in that task, or even counties and their overall purpose of the distort the discharge governments” Constitution. The purpose of their mandate, thus [Article 96(1)]; of the Constitution occasioning conflicts 4. the National Assembly substantially emerges from or disputes: and in such membership has its statement of guiding an event, the non- both an elective principles; these include majoritarian agencies and a nominated “national unity, sharing must intervene, so as element: 290 and devolution of power, to restore the original elected members the rule of law, democracy constitutional design and for single-member and participation of the purpose. Both dimensions constituencies people” [Article 10(2)(a)]; in such constitutional elected on a “human dignity, equity, dynamics, are under first-past-the social justice, inclusiveness, obligation to operate in post formula; 47 equality, human rights, the public interest; for of the female non-discrimination all public service is to be gender elected and protection of the guided by the prescribed by the individual marginalized” [Article “national values and counties; 12 10(2)(b)]; “good principles of governance” members governance, integrity, [Article 10], which lay a representing transparency and premium on the rights special interests, accountability” [Article and welfare of the nominated by the 10(2)(c)]; and “sustainable people. Representation, political parties in development” [Article
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10(2)(d)]. These elected chamber. Fifthly, only does the numerical principles must inform the representation in Kenya strength of the legislative Kenyan perception of means incorporating chambers arise from both “representation”, as an a normative element elective and nominative aspect of the electoral in the make-up of a processes, but the objects process. Representation legislative chamber. of representation in these in Kenya’s governance Sixthly, representation in organs bear a wide range. institutions – in the Kenya means constituting It is not the same with National Assembly and political parties into a the Executive Branch, Senate, in the Presidency, nominating authority for a in particular, under the in the County Assemblies – legislative chamber. Such a Constitution of Kenya, transcends bare numerical notion of “representation” 2010. This Constitution associations; it is, instead, transcends the scope establishes a clear about representing the of “election” which the separation of powers people in the relevant Concise Oxford English between the Executive constitutional organs for Dictionary defines and the Legislature the purpose of delivering as: “elect… choose [Articles 129 and 130], the governance values (someone) to hold a providing [Article 136 (1)] declared in Article position, especially public that: “The President shall 10. Kenya is a country office, by voting”. Thus be elected by registered of great diversity election, in the Kenyan voters in a national – geographically, context, is just one device election conducted environmentally, of “representation”, of in accordance with demographically, which A.R. Ball in his this Constitution and economically and work, Modern Politics any Act of Parliament culturally: and each of and Government, 3rd ed regulating presidential these elements is a factor (1983) [pp.124-125] has elections.” The in the practical levels of thus written: “Elections Constitution sets out access to amenities and are the means by which the qualifications for services of relevance the people choose and candidature [Article 137] to the enjoyment of exercise some degree and the responsibilities personal, social and of control over their attached to the Presidency political rights. This is the representatives. However, [Article 129]: “(1) underlying factor in the this is to disguise a Executive authority Constitution’s complex very complex process derives from the people scheme of representation and needs qualifying. of Kenya and shall be in the elective public Elections do not imply exercised in accordance bodies: Representation, control over the policies with this Constitution. “(2) it is evident, may bear the representatives will Executive authority shall an infinite range of support once they are be exercised in a manner significations, in different elected; even in two- compatible with the historical scenarios. In party systems in which the principle of service to the the case of Kenya the elector chooses between people of Kenya, and purpose of representation two competing teams, this for their well-being and is, firstly, electoral choice control is difficult, and in benefit.” It follows that through the ballot. multi-party systems that election for the President Secondly representation, demand bargaining at [and Deputy President] in Kenya, seeks to identify parliamentary level…. has a definite purpose: the winner for an elected the election promises to identify a steward with seat in a legislative of the parties are likely a specific mandate of chamber. Thirdly, to fall further into the governance [Article 131]. representation in Kenya background.” The President, as Head of means, applying differing State and Government, criteria in constituting 7. The Executive Branch, and the “exercises the executive the membership of an Electoral Process authority of the Republic, elected chamber. 8. The scheme and objective of with the assistance of the Fourthly, representation election, in respect of Deputy President and in Kenya means the legislative chambers, Cabinet Secretaries”. implementing affirmative differs in certain respects The President is the action programmes from the position as regards Commander-in-Chief of for particular social the Executive Branch. Not the Kenya Defence Forces; categories, in constituting the chairperson of the the membership of an National Security Council;
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the symbol of national law, regularity and of public affairs, unity. The President is transparency. Such directly or through required to “respect, legitimacy can only be freely chosen uphold and safeguard this delivered from free and fair representatives; Constitution”; “safeguard election. The Constitution, • to vote and to be elected the sovereignty of the with its commitment to at genuine Republic”; “promote and good governance; to the periodic elections enhance the unity of the fundamental rights of the which shall be nation”; “promote respect individual; and to liberal by universal and for the diversity of the and progressive decision- equal suffrage people and communities making by public agencies, and shall be held of Kenya”; and “ensure requires legitimacy in the by secret ballot, the protection of human electoral process leading guaranteeing the rights and fundamental to stewardship in its cause. free expression freedoms and the rule Kenya’s national elections of the will of the of law.” Election for the of March, 2013, as the very electors.” office of President is thus first elections under the 12. The political virtue of conceived on the basis new Constitution, must be Kenya’s new Constitution, that this public servant exemplarily conducted, it may be stated, is bears a fateful leadership thus establishing the historic its scheme of “good role in the implementation constitutional enterprise governance”. Though of the Constitution, and as feasible. There are such a concept is novel for the well-being of the imperatives for ensuring in general practice in people. The electoral that Kenya’s elections Africa, it is by no means process in this regard, of March, 2013 are new, as it has over the is a crucial political conducted in strict years, been a clarion call task in Kenya; and the accordance with the at international fora well people demand that the Constitution, the statute apprised in human rights election of a President law, the applicable values. For instance, the will be conducted in strict rules, and the practices International Covenant compliance with the of the Courts. Moreover, on Civil and Political Constitution and the law. as an element in the Rights (1966) includes quest for legitimacy, gender as an issue of 9. Free and Fair Elections the elections should run representation. By Article 10. It emerges that the elected against the background 3 of the Covenant: “The agencies are the people’s of fair and progressive States Parties…undertake designated bearers of political practices. The to ensure the equal right the burden of advancing political parties, which of men and women to the the action-points of the are the custodians of enjoyment of all civil and Constitution, from which the nomination process political rights set forth in the the welfare benefits leading to election, must present Covenant.” This emerge. However, the refrain from cynical, or right is readily applicable non-elected agencies self-serving or retrogressive to representation, when under the Constitution also cultural practices which considered in the light of have their contributions limit the people’s free Article 25 of the Covenant to the public good: they access to deserved which provides: “Every are the safeguard entities elective office. At this citizen shall have the right on standby, to ensure point, the Judiciary’s role and the opportunity… that lawful process is becomes relevant. The without unreasonable observed, and that the Judiciary, as the custodian rights and guarantees of the legal process, has of the Constitution are to rejig its machinery protected. The elected so as to be ready to agencies, in order to resolve any such major discharge their tasks of electoral dispute as may rendering the benefits arise. Expedition in the of the Constitution, machinery of justice, in this must lend themselves regard, is all-important. to being perceived in good light: and hence 11. Election and they must originate from Representation: Analogies a wholesome electoral With International Law process founded on • to take part in the conduct
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Article 25 of the Covenant prohibits discrimination based rules; and lastly, from reinforcing which provides: “Every citizen on the existence of such diversi- instruments of international law shall have the right and the ties. Article 26 of the Covenant which must inform the evolving opportunity…without unreason- provides that: “[The] law shall practice of the Courts. These able restrictions: Representa- prohibit any discrimination and principles, and the attendant tion without discrimination on guarantee to all persons equal express norms, underline the the basis of gender had much and effective protection against political importance of repre- earlier been recognized, by discrimination on any ground sentation at the various agen- the Convention on the Political such as race, colour, set, lan- cies of governance, and also Rights of Women, 1953 which guage, religion, political or other signal the device of election as thus provides in Article I: “Wom- opinion, national or social origin, the focal point of representa- en shall be entitled to vote in all property, birth or status.” And tion. Qualifying the scheme of elections on equal terms with Article 27 provides that: “In election by a procedure such men, without any discrimina- those States in which ethnic, reli- as nomination, is by no means tion”; in Article II that: “Women gious or linguistic minorities exist, inconsistent with representation, shall be eligible for election to all persons belonging to such mi- where this is conceived to sat- publicly elected bodies estab- norities shall not be denied the isfy political needs arising from lished by national law on equal right, in community with other diversity. However, the primary terms with men, without any members of their group, to enjoy object of the electoral process discrimination”; and in Article their own culture, to profess and is to ensure fairness, integrity III that: “Women shall be en- practise their own religion or to and legitimacy. Thus the conclu- titled to hold public office and use their own language.” sion results that, the “safeguard to exercise all public functions agencies” of the Constitution, established by national law on 13. Conclusion and primarily the Judiciary, must equal terms with men, without It is apparent that the relevant brace themselves for the task any discrimination.” Just as principles to guide Kenya’s of adjudicating upon the many representation in Kenya’s legisla- historic elections of 2013, are disputes likely to be sparked by tive organs accommodates a to be derived in the first place the elections of March, 2013. For variety of categories of social from the terms of the Constitu- the Courts, the watchword will diversity, the International Cove- tion; in the second place from be: “free and fair elections”. nant on Civil and Political Rights the governing statutes and
Injustice anywhere is a threat to justice everywhere.
- Martin Luther King Jr.
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The Proper Role and Jurisdiction of the Industrial Court
By James Rika, Judge Of The Industrial Court Of Kenya
second reason why I will not be made a Superior Court of long is because yesterday, most of Record by the Labour the speakers touched on the role Institutions Act Number and jurisdiction of the Court. The 12 of 2007, and to 2010 Principal Judge Nderi highlighted when the Court became the role of dispute resolution. Mr. a Superior Court of Record Ombuki described the role of under the Constitution of wage adjustment. From Judge Kenya 2010; Nderi and Mr. Ombuki, the role • The traditional role of the of the Industrial Court may be Industrial Court as summarized as follows: to resolve an Institution of Social disputes in a manner that weighs Justice is to avail quick, social justice, against the needs uncomplicated and of economic growth. inexpensive justice to workers. The procedures Mid-Year Review and Training The sticking points in our remarks of trade dispute resolution Workshop for Judges of The in Kisumu were these:- have always been crafted Industrial Court Of Kenya to enable the workers, • The role of the Industrial Court is to deemed not to have the Judiciary Training Institute, facilitate social dialogue. Muthaiga North, Nairobi same bargaining strength Social dialogue includes with their employers, all types of negotiation, 16TH -20TH APRIL 2013 access quick, affordable, consultation, exchange of and effective remedies; Contents information and collective • The shift of the Court into the bargaining. The Industrial Judiciary from the Ministry 1. An Introduction Court facilitates social of Labour has resulted in dialogue by defining a perception by trade 2. Proper Jurisdiction Of The and adjudicating the unions that workers will Industrial Court rights and obligations no longer have easy of the tripartite players- access to industrial 3. Proper Role Of The Industrial governments, employers justice. This could be a Court and employees; misperception, because • Because of the entry of other 4. Illustrative Shared Experiences the same Constitution players who are not has strong provisions traditionally associated 5. Conclusion empowering workers, with the tripartite in the and enhancing rather Introduction world of employment and that limiting access to all labour such as NGOs, forms of justice. We should We had discussed the related the role of the Industrial not however disregard subject on ‘the reconstituted Court has expanded to the apprehension. The Industrial Court of Kenya, and cater for the new players. challenge in restructuring the role of the Social Partners’ at The practice of labour the Court is how to a COTU-K function in Kisumu, on law is no longer restricted accommodate the 28th September 2012. Five Judges to trade unions and concerns of the trade Mrs. Wasilwa, Mrs. Onyango, employer groups; unions and employers Marete, Abuodha and I made • Due to the changing nature of that we are throwing some remarks that relate to the labour markets, the away the dispute the role and jurisdiction of the role of the Industrial Court resolution mechanism Industrial Court. I understand has drastically changed they created, to suit their todays’ subject to entail a review from 1964 when it was unique relations, without of issues we explored at Kisumu. I formally recognized under adequately consulting will therefore take a short moment the Trade Disputes Act them. Those Judges who and allow Judges to make their Cap 234 the Laws of attended the Kisumu comments and discuss. The Kenya, to 2007 when it was function may have noted
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the COTU boss Mr. Atwoli [a] The Industrial Court is a formally any contract of service, the and the FKE CEO Mrs. constituted legal body under the aggrieved party may complain Mugo, were united in the Article 162 [2] of the Constitution to the labour officer or lodge a feeling that the Court, of Kenya 2010, which states, complaint or suit in the Industrial appears to be evolving Court.’’ Section 87 [2] states ‘’ without their adequate ‘’Parliament shall establish courts No other Court other than the consultation. They felt with the status of the High Court Industrial Court shall determine that we are becoming to hear and determine disputes any complaint or suit referred to overly legalistic, and not relating to employment and in subsection [1].’’ Section 73 of minding the non legal labour relations.’’ the Labour Relations Act Number aspects of our form of 14 of 2007 extends jurisdiction to dispute settlement. We [b] The Industrial Court Act the Industrial Court in the following are not considering the Number 20 of 2011 was enacted terms- ‘’If a trade dispute is not essence of Industrial pursuant to Article 162 [2] of the resolved after conciliation, a party Relations. This was very Constitution. It is enacted ‘’to to the dispute may refer it to the interesting unanimity establish the Industrial Court as Industrial Court in accordance of views between the a Superior Court of Record; to with the Rules of the Industrial leaders of capital and confer jurisdiction on the Court Court.’’ Section 74 allows trade labour. We need to look with respect to employment unions to refer to the Industrial at the disputes before and Labour Relations and for Court as a matter of urgency, us not always as legal connected purposes.’’ Section disputes concerning recognition, disputes, but caution 4 states, ‘’In pursuant to Article redundancy, and employees ourselves on the role of 162[2] of the Constitution, there is engaged in essential service. The the Court as an Institution established the Industrial Court for Industrial Court is created and at the centre of Industrial the purpose of settling employment practical Authority given to it, Relations, a facilitator of and industrial relations disputes, by the Constitution, the Industrial social dialogue; and lastly, and the furtherance, securing Court Act and other written laws • We suggested that the Industrial and maintenance of good such as the Employment Act and Court is likely to have a employment and labour relations the Labour Relations Act. higher number of disputes. in Kenya.’’ Not all these disputes will A Court’s jurisdiction, as stated [c] Section 12 of the Industrial call for a legal solution. in the Supreme Court of Kenya Court Act defines the jurisdiction We have a role in sifting Application No.2 of 2011 involving of the Industrial Court. The Court out disputes that call for Samuel Kamau Macharia v. has ‘’exclusive original and judicial settlement, from KCB and Others [2012]e.KLR, appellate jurisdiction to hear and those that are suited to ‘’ ………..flows from either the determine all disputes referred ADR. The Industrial Court Constitution or Legislation or to it in accordance with Article has been a Labour both. Thus a Court can only 162[2] of the Constitution, and Institution, standing at the exercise jurisdiction as conferred the provisions of this Act, or any top of well developed by the Constitution or other written other written law which extends voluntary trade dispute law. It cannot arrogate to itself jurisdiction to the Court relating settlement mechanisms, jurisdiction exceeding that which to employment and labour developed over the years is conferred upon it by law……… relations.’’ by the social partners, and the Court must operate within the constitutional limits. It cannot well- equipped in this role. [d] Among the other principal expand jurisdiction through These were some of the issues we Acts of Parliament that extend judicial craft or innovation.’’ had discussed at Kisumu. jurisdiction to the Industrial Court are the Employment Act Number The Industrial Court’s proper 11 of 2007 and the Labour Relations jurisdiction is as defined in the 2. Proper Jurisdiction of the Act Number 14 of 2007. Section Constitution and the written laws. Industrial Court 87[1] of the Employment Act We may wish to discuss whether states ‘’Subject to the provisions Judges of the Industrial Court Jurisdiction is defined as the of this Act, whenever – [a] an have a clear mandate to sit in an practical authority given to a employer or employee neglects Election Court. Where the Chief formally constituted legal body, or to fulfill a contract of service; or Justice appoints Justices Nderi, a political leader, to deal with and [b] any question, difference or wa Makau from the Industrial make pronouncements on legal dispute arises as to the rights or Court and HPG Waweru from matters, and by implication, to liabilities of either party; or, [c] the High Court to sit on the same administer justice within a defined touching on any misconduct, bench, we must attempt to area of responsibility. Following neglect or ill treatment of either understand the nature of the this definition- party or any injury to the person legally constituted body dealing or property of either party, under with the subject matter, and what
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the defined area of responsibility The Economy is interdependent, the law of the place where the is. If jurisdiction as Judge Abuodha and the divisions given under contracts were made, which may mentioned here yesterday is Article 162 may not always be not be Kenya. In labour law, there everything, we must be certain in mutually exclusive. is the maxim that lex loci laboris, some of the jurisdictional issues, so which loosely translated is that that we do not act in vain. The other recurrent subject the applicable labour law, is the relates to temporal jurisdiction. law of the place. Labour law like We may also wish to explore other You know about section 90 of the criminal law is highly territorial. If a areas of jurisdiction that have kept Employment Act which states dispute involving an International cropping up, in the course of our that we do not receive disputes NGO and its employee is brought daily work. I had a case where that are older than three years. To before you, and you are told the for example, an employee was what extent can you extend time contract of employment says the granted a loan by her employer to limits, and what are your views applicable law is the law of the UK, purchase a house. The employer about the common argument are you going to disqualify yourself was the lending bank. The loan that certain rights have accrued, and refer the employee to the UK, was secured through a piece of and cannot be defeated by even though after termination, land owned by the employee. limitation of time? You will also she remains resident in Kenya, and Her contract of employment was note that Courts are created the concerned employer has a terminated and the employer at a certain point in time, and presence in Kenya? What of the sought to dispose of the security. can only lean backwards to Kenyan employee, contracted She has sued the bank for unfair the extent given by a specific by a Kenyan company termination. She asks the Industrial law. Temporal jurisdiction may incorporated in Rwanda, in a Court that the bank be barred also be reviewed against the contract concluded in Rwanda? from selling her land, pending provisions of the Labour Relations Geographical jurisdictional issues the resolution of her claim in the Act Number 14 of 2007 that give may find their way to our Court. Industrial Court, in which she the Minister discretion in extending We are integrating regionally seeks to be reinstated. If she late reports of termination and and globalizing. We may wish to had come to you seeking an dismissal claims. It is possible that exchange our views on this. We injunction restraining her employer one Claimant goes with a very old need to ponder over this issue. from selling her plot, would you employment claim to the Minister disqualify yourself? In some cases, under the Labour Relations Act, 3. Proper Role of the Industrial you will even find that the matter and the Minister exercises his Court has been through the voluntary discretion in favour of extending dispute resolution mechanisms time. Another individual may The proper role of the Industrial under the Labour Relations come directly before you, under Court as suggested at the Act and all issues including the the Employment Act, and you find discussion paper in Kisumu is land, environment, commercial, your hand as a Judge is tied by the protection and promotion labour and employment aspects, Section 90. The same employment of social dialogue and social canvassed. The Respondent feels wrong is implicated, but the result justice. Workers are understood the dispute should have gone to may not be the same. This is an to have no equality of bargaining the Land Court. It may well go issue of temporal jurisdiction that power. Employers are the wielders before the Commercial Division. is worth our mid-year review and of capital. They have a head- You may find recurrent issues of training. start, in the authoring of the overlapping material jurisdiction. employment contract. Workers You may also wish to discuss The issue whether you can therefore need court protection, whether in cases of overlapping entertain disputes in contracts of which is a function exercised by jurisdiction, you should have employment made outside the the Industrial Court. We ought to truncated proceedings. Should country, for performance in Kenya have it at the back of our minds we separate the portions that and other African countries, will that Industrial Courts were not are fully, labour and employment also keep appearing before designed for the White Collar matters, while taking the parties to you. There are employment employees, the Chief Executives the Land and Commercial Courts contracts affecting the economy and Computer Desk Employees on the other portions? Judge of more than one country. As in a company, but for the Blue Abuodha broached the subject you know Kenya is host to many Collar Employee, who toil in of work injury yesterday. The cross-national employers, and the agricultural plantations and issue of overlapping jurisdiction we have a sizable number of industrial area manufacturing will keep recurring. You may expatriates. We are a popular firms. Trade Unions were not find a matter of occupational destination for international given the procedural exceptions health and safety emerging in labour. Labour has become highly in coming to Court to protect the Environment Court. You should mobile. Kenyan Companies are White Collar Employees. The have it at the back of the mind extending their businesses across flexible industrial justice system that Labour and Employment the borders. Some contracts exemplified in the Trade Disputes Relations are forged on the Land. say the applicable law shall be Act was not designed with the
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White Collar employee in mind. fundamental rights are actualized. ‘’So disruptive were the strikes The challenge we face is how, to of 1890s, that a Commission accommodate the White Collar The Court has recently acquired was established to come up and the Blue Collar Employees in a a very important role. With the with a solution. Thus was born Court that traditionally was meant promulgation of the Constitution one of Australia’s great social to only accommodate the Blue in 2010, the Court has been experiments. The idea found Collar Employee. It must always conferred the jurisdiction to its way into the new federal be remembered that the Chief interpret the Constitution, on Constitution. Before very long, Executives of Companies are matters falling within its jurisdiction. it saw the creation of a unique deemed to have some degree Labour Rights, Social and national court, to bring a new of skills and can negotiate their Economic Rights, have been province of law and justice to way, and are not in an inferior enshrined in the Constitution. the relations between Australia bargaining position with any We have a role to protect and employers and employees…….. employer, calling for needless promote these rights. We have court protection. The Industrial moved away from the era when The Arbitration Court established Justice System was not conceived our role under the legal regime basic wage of seven shillings a with this type of the employee was unclear. We are created by day for Australian workers. In 1922 in mind. Company Executives the Constitution, and given an it introduced the automatic costs started coming to our Court from important mandate to protect of living adjustments to protect 2008 when the new labour laws that Constitution. We no longer workers and their families against became operational. suffer a crisis of legitimacy, and inflation. Between 1920 and 1930, we have the stability to develop it introduced the 44 hour week The role of the Industrial Court is to the law. We have an important into federal Awards. By 1947 the promote industrial harmony, and role to develop the law. working week was reduced to regulate the relations between 40 hours. In 1965, equal pay was employers and their employees; The Industrial Court, more than awarded to Aboriginal Stockmen. between the trade unions and any other Court has a role in In 1968, equal pay for women was employer organizations; and applying, international law to first awarded federally. In 1979 resolve disputes arising from these our domestic labour market. maternity leave was granted. It relations. The Court goes about We are the Institution that the is a remarkable social change, mediating the boundaries of rights International Labour Organization brought about through a national and obligations of employers and looks up to, to implement the judicial institution. The Court employees in accordance with International Labour Standards. Achieved equity, through labour equity, good conscience and the The labour law reforms of 2007, law………. substantive merits of the dispute. which first suggested we could be The primary objective is to attain a Superior Court, were driven by The big challenge in the future is social justice by upholding fair the ILO and the social partners. likely to come from the growing work practices. We have the role to promote moves to render labour standards and protect international labour throughout the world the subject The Labour Relations Act was standards. It would be in the of international rules, though enacted to among other interest of this Court, that the bodies such as the International things, promote sound labour Judiciary does not lose touch with Labour Organization. In a relations through protection the ILO otherwise we may find sense it is the counterpart and and promotion of freedom of ourselves unable to understand counterbalance to the World association, the encouragement the ILO agenda, and our role in Trade Organization. The Industrial of effective collective bargaining its fulfillment. Relations Commission is well and promotion of orderly and placed as an instrument that will expeditious dispute settlement, 4. Some Illustrative Shared assist our economy, to translate conducive to social justice and Experiences changing international standards economic development….’’ into Australian employment Orderly resolution of disputes At Kisumu, I mentioned an practices. Such standards are and encouragement of effective Australian Judge called Michael an increasing part of the global collective bargaining, are Kirby. He was a Judge of the economy of which ourselves are fundamental functions of this High Court of Australia. Between part.’’ Court. The Employment Act 2007 1975 and 1983 he served as the was enacted to declare and Deputy President of the Australian This speech was delivered by define the fundamental rights Conciliation and Arbitration the Hon Judge at the launch of of employees, to provide basic Commission. His speech, Industrial Australian Labour Law Association conditions of employment of Relations Law-Call off the Funeral Newsletter on 18th July 2001. A children and to provide for matters captures the essence of Industrial lot has happened to our own connected with the foregoing. It Justice Systems. It helps us capture labour laws, after 2001 when the is through the instrumentality of the role of the Industrial Court. He Cockar Task Force was set up. It the Industrial Court that these states, is our role to translate changing
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international standards into Industrial Courts is to be found and reasserted our role, in bringing Kenyan employment practices. in the Kansas Court of Industrial about social change. Thank you. The role of the Industrial Court Relations, in the US. In November as an agent of social change 1919 coal miners in Kansas went James Rika is adequately captured in this on strike. It was during a harsh speech. Our role as such agents, winter. Fuel supplies fell short. To Sources operating within the context of break the strike, the Governor 1. Re-Constituted Industrial Court international labour standards, recruited new workers, mostly of Kenya and Role of the Social remains. young university students, paying Partners- J.Rika Tom Mboya Labour them half the wages the strikers College, Kisumu 28th September The second comparative were receiving. After about one 2012. experience I would wish to month the strike was settled. mention is that of the Nigerian 2. The National Industrial Court of Industrial Court. The Supreme Soon the Governor convened a Nigeria: Past, Present and Future, Court of Nigeria held in the case special session of the Legislature, Discussion Paper prepared by of the National Union of Electricity concerned about the effect a Hon. Justice Babatunde Adejumo, Employees and Anor v. Bureau repeat of the coal miners’ strike President National Industrial Court of Public Enterprises [unreported would have on the economy of Nigeria, on 24th March 2011 at Suit No. SC/62/ 2004] that, ‘’ of Kansas. Most Industrial Courts National Judicial Institute Abuja. The National Industrial Court is are created in response to strike a Subordinate Court and does actions. The Kansas Legislature 3. 1999 Constitution of Nigeria and not have exclusive jurisdiction in established the Kansas Court of the Constitution [Third Alteration] matters assigned to it by statute. Industrial Relations. The Court Bill 2010. Unless the Constitution is amended, was actually a three-man board, it remains a Subordinate Court which would make rules, settle 4. Supreme Court of Nigeria No. 62 to the High Court.’’ According disputes and even take over of 2004 between National Union to the President of the Nigerian and run businesses. Collective of Electricity Employees and Anor Industrial Court, this decision dealt bargaining was allowed, but v. Bureau of Public Enterprises [ a heavy blow to the Industrial strikes prohibited. The US Supreme unreported]. Court. It confirmed that like our Court overruled several decisions Court before the coming into of this Industrial Court. In 1925, the 5. Industrial Relations Law-Call off force of the Constitution, the Kansas Legislature abolished the the Funeral- Hon. Justice Michael Nigerian Court could not claim Court. Kirby High Court of Australia, 18th to be a Superior Court of Record, July 2001. or exercise exclusive jurisdiction in This was a Court similar to what employment and labour disputes. I termed in Kisumu as a bastard 6. The Constitution of Kenya 2010. The workers in Nigeria did not judiciary badly in need of restraint. therefore have a Court that It was important that the Industrial 7. The Industrial Court of Kenya could render fast, affordable Court operates within a clearly 2011. and effective industrial justice. defined and legal framework, 8. The Labour Relations Act 2007. On 4th March 2011, the Nigerians under the Constitution, where our proper jurisdiction and role are adopted the Constitution [Third 9. The Employment Act 2007. Alteration] Amendment Bill, well understood. which saw the entrenchment of 10. ‘Social Dialogue in the Process 5. CONCLUSION the National Industrial Court of of Structural Adjustment and Nigeria, into the Constitution. We The Industrial Court of Kenya Private Sector’ – Peter Turn Bull, have shared experiences and faces opportunities as well as ILO Series 2005. shared challenges. The role of challenges under the Constitution. the Industrial Courts everywhere, 11. See Kansapedia, Kansas There are global labour standards as instruments of social change Historical Society, ‘Court of that we need to maintain. The has been recognized. Workers Industrial Relations’ Judiciary and in particular the and employers have achieved Judiciary Training Institute, must constitutional inclusion for this keep facilitating the Judges to Institution that has been at the participate in the programs of the centre of their relationship for the International Labour Organization. past century. The Judges must be facilitated to Not all Industrial Courts have had attend the ILO annual delegates’ a happy ending. Where there is conference and ILO Turin Training failure in defining the role and Institute, for us to keep abreast jurisdiction, there is not likely to of the International Labour be a happy ending. One of Standards. In my view we have the tragic cases in the history of made tremendous achievements,
20 Issue 21 | January - April 2013 The Kenya Law Bench Bulletin
The International Court of Justice Findings on the Kenyan Situation
By Linda Awuor Research and Development Department
the Chamber. dissenting opinion in both cases. He maintained that the ICC was With respect to the criminal not competent because the responsibility of Mr. Muthaura crimes committed on the territory and Mr. Kenyatta, the Chamber of the Republic of Kenya during was satisfied that the evidence the post‐election violence of also established substantial 2007‐2008 in his view were serious grounds to believe that they common crimes under Kenyan were criminally responsible for criminal law, but not crimes the alleged crimes having gained against humanity as codified in control over the Mungiki and Article 7 of the Rome Statute directed them to commit the crimes. However, in relation to Dissenting Opinion – per Justice Mr. Ali, the Chamber found that Hans-Peter Kaul the evidence presented did not n 23rd January 2012 the pre- provide substantial grounds to Although the Pre-Trial Chamber of trial judges at the International O believe that the Kenya Police the International Criminal Court Criminal Court confirmed charges participated in the attack in or (ICC) made a majority decision against four of the six Kenyan around Nakuru and Naivasha. to indict Mr.Ruto, Mr.Sang, suspects claimed to have played Since Mr. Ali was charged with Mr.Muthaura and Mr.Kenyatta the biggest role in the 2007/ 2008 contributing to the crimes through over the 2008 post-election post-election violence that took the Kenya Police, the Chamber violence Justice Hans-Peter the country to the precipice of declined to confirm the charges Kaul was of the opinion that the civil war. In a majority decision, against him. two cases did not warrant the the judges confirmed charges intervention of the war crimes against the Deputy Prime Minister ICC Prosecutor Moreno – court. Uhuru Kenyatta, Eldoret North MP Ocampo accused Mr Ruto and William Ruto, Head of Civil Service Mr Kosgey of planning attacks Judge Kaul penned a dissenting Francis Muthaura (as they were against PNU supporters as far opinion from the majority ruling then) and journalist Joshua arap back as December 2006. The by Judges Ekaterina Trendafilova Sang. Charges against Tinderet prosecutor claimed that Mr Sang and Cuno Tarfusser committing to MP Henry Kosgey and former used his radio programme to trial four Kenyans and acquitting Police Commissioner Hussein Ali collect supporters and provide two others accused of having were not confirmed after the signals to members of the plan the greatest responsibility in Judges found insufficient grounds on when and where to attack. organising the poll violence that for sustaining them. William Ruto, Henry Kosgey and claimed more than 1,300 people Joshua arap Sang each faced and displaced nearly half a million Judges Ekaterina Trendafilova charges of murder, deportation others. and Cuno Tarfusser voted to the or forcible transfer of the people, affirmative while Judge Hans- causing serious injury and Judge Kaul issued dissenting Peter Kaul dissented. In particular, persecution based on political opinions throughout the process of pre Trial Chamber II confirmed ‐ affiliation. Mr Moreno-Ocampo, considering the Kenyan case. He the charges against Mr. Ruto in his application to the court, first disagreed with his colleagues as an indirect co perpetrator ‐ claimed that in response to the in the Pre-Trial Chamber II as to with others, while it found that attacks, three “prominent PNU whether the Kenya situation met Mr. Sang contributed to the members and/or Government the threshold to be handled by commission of said crimes against of Kenya officials Francis Kirimi the ICC and again declined to humanity. However, in relation to Muthaura, Uhuru Muigai Kenyatta rule in favour of the issuance Mr. Kosgey, the Chamber found and Mohammed Hussein Ali of summonses against the six that the Prosecutor’s evidence developed and executed a Kenyan suspects, maintaining that failed to satisfy the evidentiary plan to attack perceived ODM although the evidence tabled threshold required. The evidence supporters in order to keep the showed clearly that crimes had presented by the prosecutor of PNU in power. been committed in Kenya he did Mr. Kosgey’s alleged role within not consider them sufficient to be the organization did not persuade Judge Kaul appended a subjected to the ICC process.
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Judge Kaul also issued a dissenting this respect, he observe that the In his analysis, the Mungiki, like opinion on the confirmation of majority decision addressed the many other criminal gangs in charges, basing his arguments defence arguments in the context Kenya or elsewhere, remain a on his first ruling. In his decision of the applicable law relating to somewhat structured, outlawed, to dissent against confirmation the notion of an ‘organization’ violent criminal gang engaged against Kenyatta and Muthaura, without addressing the issue in organised crime and deriving judge Kaul said: of insufficiency of evidence, revenues from the illegal provision thus disentangling the defence of certain community services to “I remain convinced and reiterate arguments. the local population, mainly in the that the crimes and atrocities slums of Nairobi. described by the prosecutor in the He totally disagrees with fellow amended document containing judges Trendafilova and Tarfusser “In light of the foregoing, I take the charges concerning Mr on the fundamental issues raised the view that the Mungiki cannot Muthaura and Mr Kenyatta fall by the defence, particularly qualify as an ‘organisation’ within within the competence of the during the confirmation of charges the meaning of article 7(2)(a) of Kenyan criminal justice authorities hearing. the Statute. Accordingly, they fall as a matter to be investigated outside the scope of the Statute,” and prosecuted under Kenyan Rights of the defence he again wrote in his dissenting criminal law forthwith,” Judge opinion Monday. Kaul said adding “I join the victims The dissenting judge also appears participating in this case in their to have had a problem with Mr. “The foregoing leads me to desire to see justice delivered.” Ocampo’s persistent demand conclude that had the Kenyan opposing in depth examination of police allegedly not abstained, In his ruling, the judge was the prosecution evidence. He felt had the Mungiki not received however quick to point out that his that the chamber should accept money, uniforms and weapons, dissent to the majority’s decision as dispositive the (prosecutor’s) and had they not been transported was not be misconstrued as any evidence, so long as it was to different parts of the country, determination on his part as to relevant, leaving any analysis of they would not have been able the commission of crimes in the the evidence to the Trial Chamber. to launch the alleged large-scale Republic of Kenya during the He was also firmly convinced that attack against Kenyan civilians 2007/2008 post-election violence. a proper understanding of these over a large geographical area,” He said the ICC lacked jurisdiction rights, especially in light of the he said. rationae materiae in the present purpose of pre-trial proceedings, case. In his critical analysis of the was of fundamental importance “Even if, arguendo, the Mungiki Kenyan cases presented to the not only in the present case but “relied on external funding” in pre-trial chamber by Prosecutor also in future pre-trial proceedings. the “commission of particular Luis Moreno-Ocampo, the judge Such a proper understanding was crimes”, their need for financial particularly felt that the six suspects indispensable for sound and fair support, regardless of its extent, presented before them could decisions on the confirmation of shows that they do not have have been tried under national charges pursuant to article 61 of sufficient means to commit crimes laws in Kenya. the Statute. on a large scale. Therefore, I am at pains to understand how this He thus, concluded in his ruling It was his opinion therefore that it ‘organisation’, heavily dependent that Ocampo did not present was the duty of the prosecutor to on outside logistical support, sufficient evidence to sustain conduct any investigation ab initio could satisfy the criteria I set out charges against the Kenyans as effectively as possible with the in my 31 March 2010 dissenting he wanted tried in The Hague, unequivocal aim to assemble as opinion to the extent of qualifying Netherlands. expeditiously as possible relevant as a State-like ‘organisation’ or and convincing evidence which any other ‘organisation’ with the In the case of Ruto, Kosgey and will enable ultimately the Trial capability, including the means, Sang, the judge raised what, in Chamber to consider whether to target the civilian population his opinion, were fundamental criminal responsibility is proven on a large scale,” he ruled. issues about the notion of the ‘beyond reasonable doubt’. “organization” as advanced More importantly, he said, in by Ocampo. The defence, in Mungiki involvement light of the majority’s finding his opinion, failed to make the excluding the Kenyan police from assessment of facts a precondition Unlike the two other judges, Kaul the ‘organisation’, I have serious to the interpretation of the notion was not convinced, at all, that doubts whether, having been “organizational policy”,” he Mungiki can qualify overall as an deprived of the second pillar in observed. At all events, Judge ‘organisation’ within the meaning the ‘organisation’ structure, the Kaul said, any assessment of of article 7(2)(a) of the Statute. He Mungiki could have launched facts logically implied that the had maintained the same opinion on their own a widespread or court interpret the law first. In in his earlier dissenting opinion systematic attack against civilians, issued on March 15, 2011.
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and persecution. command over the rebels who ‘counterinsurgency.’ His intent committed the atrocities. A three- was genocide. ” Muthaura and Kenyatta had been judge panel issued a unanimous cited as indirect co-perpetrators, decision that Taylor, 64, was guilty The International Criminal Court while Ali was named as having on all 11 counts of the indictment issued an arrest warrant for war contributed to the said alleged against him. The judges found him crimes allegedly committed by crimes against humanity. guilty of aiding and abetting rebel Mr. Al-Bashir marking the third to forces in a campaign of terror arise from the situation in Darfur. In On the other hand, the prosecutor that involved murder, rape, sexual May 2008, the pre-trial chamber accused Ruto, Kosgey and Sang, slavery, conscripting children had issued arrest warrants for for crimes against humanity of younger than 15 and mining Ahmad Harun, former Sudanese murder, deportation or forcible diamonds to pay for guns. Minister of State for the Interior transfer and persecution. and now the Minister of State Sudanese President, Hassan for Humanitarian Affairs, and Ali Ruto and Kosgey were named Ahmad AL BASHIR Kushayb, a Janjaweed leader. as indirect co-perpetrators, while Sang was cited as having ICC Prosecutor Luis Moreno- Former Cote d’Ivoire President contributed to the said crimes Ocampo presented evidence Laurent Gbagbo: against humanity. showing that Sudanese President, Omar Hassan Ahmad AL On 2 November 2012, Pre-Trial The African Scene BASHIR committed the crimes Chamber I of the International of genocide, crimes against Criminal Court (ICC) decided that Former Liberian President Charles humanity and war crimes in Darfur. Mr Laurent Gbagbo was fit to take Taylor The Prosecution evidence shows part in the proceedings before the Court. Consequently, the In a landmark ruling, the ICC that Al Bashir masterminded and judges will soon set a date for the found former Liberian President implemented a plan to destroy confirmation of charges hearing Charles Taylor guilty of aiding in substantial part the Fur, Masalit in the case. The International and abetting war crimes in Sierra and Zaghawa groups, on account Criminal Court has also issued Leone’s notoriously brutal civil of their ethnicity. Members of the an arrest warrant for the wife of war. It was the first war crimes three groups, historically influential Laurent Gbagbo, Ivory Coast’s conviction of a former head of in Darfur, were challenging the former president, saying she state by an international court marginalization of the province; played a role in helping her since the Nuremberg trials of Nazi they engaged in a rebellion. AL husband orchestrate election leaders after World War II. BASHIR failed to defeat the armed movements, so he went after violence that killed 3,000 people. Prosecutors, however, failed to the people. “His motives were prove that Taylor had direct largely political. His alibi was a
I have always found that mercy bears richer fruits than strict justice.
- Abraham Lincoln
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Overview Of Icc Investigations In Africa
Transferred NAME C Indicted G H W Cc Status as at January 2013 to the ICC Joseph Kony UG 8 July 2005 — 12 21 — Fugitive Died on 12 August 2006; Raska Lukwiya UG 8 July 2005 — 1 3 — proceedings terminated on 11 July 2007 Okot Odhiambo UG 8 July 2005 — 3 7 — Fugitive Dominic Ongwen UG 8 July 2005 — 3 4 — Fugitive Fugitive; reported to have died Vincent Otti UG 8 July 2005 — 11 21 — on 2 October 2007 Appealing sentence of 14 Thomas Lubanga Dyilo DRC 10 Feb 2006 — — 3 — 17 March 2006 years’ imprisonment Bosco Ntaganda DRC 22 Aug 2006 — 3 7 — Fugitive Ahmed Haroun SUD 27 April 2007 — 20 22 — Fugitive Ali Kushayb SUD 27 April 2007 — 22 28 — Fugitive 17 October Trial began on 24 November Germain Katanga DRC 2 July 2007 — 4 9 — 2007 2009 Acquittal pending appeal Mathieu Ngudjolo Chui DRC 6 July 2007 — 4 9 — 6 February 2008 (released on 21 December 2012) Trial began on 22 November Jean-Pierre Bemba DRC 23 May 2008 — 3 5 — 3 July 2008 2010 Omar al-Bashir SUD 4 Mar 2009 3 5 2 — Fugitive Charges dismissed on 8 Bahr Abu Garda SUD 7May 2009 — — 3 — Summoned February 2010 Abdallah Banda SUD 27 Aug 2009 — — 3 — Summoned Case in pre-trial stage Saleh Jerbo SUD 27 Aug 2009 — — 3 — Summoned Case in pre-trial stage Charges dismissed on 16 Callixte Mbarushimana RWA 28 Sept 2010 — 5 6 — 25 January 2011 December 2011 (released on 23 December 2011) Charges dismissed on 23 Mohammed Ali KEN 8 Mar 2011 — 5 — — Summoned January 2012 Uhuru Kenyatta KEN 8 Mar 2011 — 5 — — Summoned Case in pre-trial stage Charges dismissed on 23 Henry Kosgey KEN 8 Mar 2011 — 3 — — Summoned January 2012 Francis Muthaura KEN 8 March 2011 — 5 — — Summoned Case in pre-trial stage William Ruto KEN 8 Mar 2011 — 3 — — Summoned Case in pre-trial stage
Joshua Sang KEN 8 Mar 2011 — 3 — — Summoned Case in pre-trial stage Died on 20 October 2011; Muammar Gaddafi LIB 27 June 2011 — 2 — — proceedings terminated on 22 November 2011 Arrested in Libya on 19 Saif al-Islam Gaddafi LIB 27 June 2011 — 2 — — November 2011 Arrested in Mauritania; Abdullah Senussi LIB 27 June 2011 — 2 — — transferred to Libya on 5 September 2012 30 November Laurent Gbagbo IC 23 Nov 2011 — 4 — — Case in pre-trial stage 2011 Arrested in Côte d’Ivoire on 11 Simone Gbagbo IC 29 Feb 2012 — 4 — — April 2011 Abdel Rahim Hussein SUD 1 Mar 2012 — 7 6 — Fugitive
Sylvestre Mudacumura RWA 13 Jul 2012 — — 9 — Fugitive
C – Country
G – Genocide
H – Crimes against Humanity
W – War crimes
Cc – Contempt of court
24 Issue 21 | January - April 2013 The Kenya Law Bench Bulletin
The Judiciary Transformation; What it Means for Kenyans.
By: Stanley Mutuma, Legal Researcher, Office of the Chief Registrar Of The Judiciary.
he judiciary as it exists in any dealings by judicial officers, were a conquering nation and Tjurisdiction is an institution the perception of integrity and thus had come up with laws established for purposes of inter independence of the judiciary and ordinances that ensured alia solving disputes, interpreting must be paramount. Legal that they remain at the top laws, acting as an independent scholars will always state that the and using all manner of force abiter between disputing parties, law must be real and a matter of and diabolical laws that were giving directions to certain perception.1Rule of la Therefore a to be enforced by the judicial matters of law etc. legal system may have either of system they had established. the two elements, but a lack of The indigenous African “native” In this regard the Constitution is one of them will definitely have was to remain subservient to the seen by members of the public as an adverse effect and lead to masters at the time. being of paramount importance discord. when it comes to matters of We need however not linger dispensing and safeguarding Focussing the spotlight now on on the historical matters as their interest. Reason the public our judicial system and the steps they are well chronicled and is alive to the idea that the it is taking in its transformation one would need only to visit other arms of government i.e. campaign. One will need to the national archives or a high Executive in whatever nature ask oneself some few questions school history class to access this it may take and the Legislature to come to an inference to this information. This situation did not may and have at times taken matter. Just like in chemistry for alter much after independence. actions or deeds that have every action there is a reaction However most of the laws that been oppressive and insensitive that follows it. For instance if one were oppressive were amended to the majority of the citizenry. drops a piece of magnesium or repealed all together to In this regard there can be no metal into a beaker of water it will be more favourable to the other alternative to corrective have an explosive reaction, a now independent citizens. The this anomalies whether real or ruling given by a court to a party situation did not change much perceived other than having a be it an individual or a multitude as the new rulers found the revolution of sorts if not turning which is not responsive to the same power structures that to the judicial system. impartiality and independence had been left by the departing of the judiciary will trigger an masters. Cumulatively it led The question then arises as explosion. to the loss of confidence in the to what kind of judicial system judiciary by the members of the is likely to be trusted by the A history of the Kenyan judiciary public at large. “The rich man public? From the outset one must will show that for a long time now always gets his way, Why hire analyse and appreciate that no beginning with the foundations a lawyer when one can buy a matter how efficient or impartial of its establishment during the judge”” Such sentiments and a judicial system is, there will notions were often bandied colonial era, the judiciary was always be instances when it will around without much thought. established as a tool for mainly give rulings or decisions that A casual observer would not suppressing the masses and will seem unfavourable to the fail to note these points. It is the maintaining the status quo of majority of the public. To this end situation that we grew up with; the elite and governing class. therefore as a pre requisite to as one would often hear such The colonial masters at the time avoid feelings of bias and unfair banter thrown around in social 1
| January - April 2013 Issue 21 | January - April 2013 25 The Kenya Law Bench Bulletin
gatherings where adults were new look judiciary was to have board4establishe. The mandate of concerned, of course this was in some new departments/offices the board was established by a hushed tones, lest the dreaded established3Chapter 10 that did provision in the constitution and state security lay their long not exist in the former judiciary. therefore its jurisdiction cannot antennas on the” enemies of the There was to be set up the be ousted by other laws, as state and rumour mongers” Supreme Court and some other the constitution is the supreme administrative offices that law, making any other laws To this end a majority of the included the office of the chief which is inconsistent with the population grew to fear and registrar of the judiciary, office constitution ultravires in as far as hold the judicial system and its of the ombudsman, etc. Not the inconsistency goes. members in great suspicion to mention the judiciary would and the judicial system was now have decentralised and The judiciary established the viewed to be a mystical society devolved structure that would timetable for infusing the ideas full of secrets. Judicial officers make accessibility of justice and views of transformation were greatly revered and to be to the people a priority. The in their minds. The program is in their presence was enough to objective is to be achieved by aimed at having the members turn one knee into jelly. increasing the number of court of the judiciary from the very top stations in the country coupled all the way down to embrace The state of affairs however with an increase in the number the reforms in order to have feared and revered could not of judicial officers and staff to harmonious working relationship hold for long and there after meet the demand. in the institution. This ultimately there was a re-emergence translate in the output and will of multi party democracy in The transformation be manifest in the services they the country. In the early 90’s give the people. The program framework. there was a lot of clamour for is divided into pillars. ©the pillars In launching the transformation radical changes in the country’s define the strategic plan that framework the Chief Justice institutions. . the judiciary has set for itself to spoke of a need to have a shift achieve in the nex4 years. The in the mind set of the persons The post election violence that program is an ambitious one working in the judiciary. As followed the bungled general and has in its centre the needs part of ensuring that change election of 2007 was just the and aspirations of the people. took place wholeheartedly result of an aggrieved citizenry the “ judiciary transformation that could not simply trust the Justice Professor Joe Ngugi is framework” was formulated. judiciary. Thus to get the justice spearheading the transformation During its launch on the 31st of they wanted the people took to the judge who is a former law April , 2012, it was clear to all in the streets and meted the chaos lecturer in the United States the nation that another chapter that followed. The clamour for has a firm conviction which had been opened in regard to new institutions had led to is shared by a majority of the the judiciary. From the speeches the promulgation of the new judicial officers and judicial and skits and poems presented constitution in August 2010. staff. During a conversation on the day it was evident that The new constitution2Passed with the prof. At his chambers a lot of expectations would vy at the Supreme Court building, was to repeal the 1963 be required from the institution. I was greatly impressed by the constitution and it contained The country had placed a lot of enthusiasm and great optimism much reform that the people hopes on the now transforming that he displayed. It was simply themselves had expressed to judiciary. Beginning with the infectious. A great symbolism the drafters. To this end a key sanitisation of the judges and came to my mind during this issue save from devolution in magistrates by the vetting dialogue. His young son Kioni, governance , was the matter judges and magistrates vetting of a transformed judiciary. The who was in the room, was
2 3 4
26 Issue 21 | January - April 2013 The Kenya Law Bench Bulletin
bubbling with energy around The interaction was great, like and workshops to the monthly the room as we proceeded what one would expect to be interactions at the judiciary with our discussion. I had the found in a normal class room breakfast for all members of thought and mental picture that of peers. The transformation each station. the judicial institution in which we dealt with a great deal of items seek to establish for Kioni, and and issues. The main thread of To this end the tireless efforts and millions of other Kenyan citizenry thought being the emphasis firm commitment and resolve and subsequent generations of team work and having a of the Chief Justice, the Chief should grow up with is one mental shift in order to achieve Registrar of the Judiciary, and the that is trustworthy, reliable and the objectives of the new look spearhead of the transformation consistent in its application judiciary. In addition to this framework Prof. Joel Ngugi who with the law. Run by judicial learning exercises and sessions, seems incapable of fatigue, and officers and staff of incorruptible there were fun activities for the all other judicial officers and character. groups and it is really remarkable staff. It is my hope and that of to note how the transformation the citizenry of Kenya that we To summarise this new was working its “magic” on the will continue to embrace the chapter, I attended one of institution. positive developments in the the transformation workshops judiciary and hope, believe held at a Nyeri hotel. It was In conclusion to this article I must and demand that all other one organised for the judicial admit that there would not be government institutions and officers and staff of the family, enough space to write all what the public in general emulate civil and constitutional divisions the transformation framework this beaming example so well of the high court at Milimani in is achieving. To put it simply in illuminated by the judicial Nairobi. At this workshop there other words it can be described institution. were no titles, and no division as a revolution taking place in according to rank or other the institution. From the exciting normal usual arrangements of and somewhat amusing judicial title and cadre in the judiciary. marches, to the public sessions
| January - April 2013 Issue 21 | January - April 2013 27 The Kenya Law Bench Bulletin
Leadership and Integrity: Uniform Implementation and the Way Forward.
By: Michael Obura, Intern Editorial department, Kenya Law
n August 2010, Kenyans ushered provides a General Leadership that since the Constitution should Iin a new Constitution, which and Integrity Code which be given a purposive and liberal in their own right was intended prescribes a general leadership interpretation that promotes to safeguard their rights and and integrity code for state officers public trust, then the idea of freedoms, and in this context, set and incorporates the provisions stepping aside paving way for specific standards for leadership. of Chapter Six. In addition, it investigations, is considered part The Constitution vests in a state incorporates the provisions of the of the Law. officer, public trust that is to Public Officer Ethics Act, No. 4 of The Public Officer Ethics Act be exercised in a manner that 2003) into the Code in so far as it is CAP 183 outlines disciplinary demonstrates respect to the not inconsistent with the provisions procedures for certain ranks of people, brings honour to the of the Act. public officers, this should be nation and dignity to the office. Part III of the Act (sections 37 to interpreted together with the Public confidence in the integrity 39) obliges every public entity provisions of the Leadership and of the office should also be clear to prescribe a Leadership and Integrity Act & the Constitution, in this regard. Integrity Code which shall include therefore I need not to delve all the requirements in the General deeper into that as the statutes Kenyans intended that Chapter Six Leadership and Integrity Code are quite clear. and Article 73 of the Constitution under Part II. Under section 39 I laud Ms. Nancy Baraza, the will be enforced in the spirit in of the Act, the public entity is former Deputy Chief Justice, & which they included them in required to submit the specific Mr. Moses Wetangula, the former the Constitution. The people Leadership and Integrity Code Minister for Foreign Affairs, for of Kenya did not intend that to the Ethics and Anti-Corruption stepping aside after their conduct these provisions on integrity and Commission for approval. was questioned by the public. suitability for public offices be They effectively complied with merely suggestions, superfluous or This forms the basis of the the requirements of chapter six. ornamental; they did not intend application of this chapter, and Mr. Wetangula was later cleared to include these provisions as lofty is not only applicable to every of the charges of illegal dealings aspirations. Kenyans intended Kenyan regardless of whether the in the embassy land saga. He that the provisions on integrity persons are running for elective was re-appointed to the cabinet and suitability for office for public positions, or seeking appointive but in a different capacity. Ms. and State offices should have posts. Every Kenyan should Nancy Baraza on the other hand substantive bite. demonstrate high standards of decided to pursue judicial review integrity, selfless service to the proceedings and later resigned Article 80 of the Constitution, people, and accountability to the from her position. I chose these provides that Parliament shall public for decisions he/she makes. two examples to highlight the enact legislation for establishing For effective administration of force of chapter six. procedures and mechanisms this chapter, first the Government Other public officers should follow for the effective administration has to demonstrate a sense of suit whenever their conduct is of the Chapter, prescribing the good will because in as much questioned. Unfortunately, there penalties, in addition to the as a law may be good, if it’s not has to be public pressure or so it penalties referred to in Article implemented fully then it wouldn’t seems, in order to force them into 75, that may be imposed for a serve the purpose it was intended action. contravention of the Chapter, to. This should be done in a strict and any other provision necessary sense such that if any public Section 35(1)(b) of the Leadership for ensuring the promotion of officer contravenes this chapter, and Integrity Act is very clear on the principles of leadership and then he/she should effectively junior officers acting on orders of integrity referred to in this Chapter, follow procedure and step aside their superiors in that it declares and the enforcement of the to pave way for investigations. such actions a contravention Chapter. This should be a uniform rule in of the leadership and integrity In that regard, parliament application. It sounds good on code if they cause anything to be enacted the Leadership and paper, but practically that is not done through another person that integrity Act No. 19 of 2012, which the case. would constitute a contravention serves the above purpose. In as much as the Law is silent on of the Code if done by the State Part II of the Act (Sections 6 to 36) this matter, it is a presumed fact officer, or allows or directs a
28 Issue 21 | January - April 2013 The Kenya Law Bench Bulletin
person under their supervision or in implementing chapter six Furthermore, one has to control to do anything that is in is dependent on the political exhaust all available alternative contravention of the Code. leaders to realize the importance dipute resolution mechanisms Further under Section 34 of the of high standards of integrity. before resorting to the courts Leadership and Integrity Act, a for interpretation. Courts would state officer shall not bully any Role of the Judiciary normally direct that other person. This would automatically The judiciary has an umbrella role platforms be pursued to rectify amount to a contravention of the of interpreting the laws of the the error before it can be called code. land. This interpretation should upon to intervene. This reduces be independent and devoid the amount of unnecessary of any government control. applications before courts which The Ethics and Anti-Corruption Kenyans have entrusted their ideally would have necessitated Commission (EACC) faith in the judiciary to provide a back-log of cases. It is noteworthy that it is impossible guidance on the constitutional to have a strong and credible interpretation and more In conclusion, the people of EACC1 without revisiting the law specifically on Leadership and Kenya intended that the provisions establishing it with a view to Integrity. In exercising this judicial on integrity of our leaders and strengthening it. Though vested authority, courts shall administer public officers will be enforced with the power under Article justice without undue regard to and implemented. They desired 792, Parliament in enacting the procedural technicalities. these collective commitments to EACC Act in August 2011 was Further Article 258 of the ensure good governance in the clearly in my view driven by Constitution confers every Republic will be put into practice, considerations inimical to the fight person the right to institute and applicable to all in equal against corruption and went to court proceedings, claiming measure. Therefore it would be great lengths in ensuring a weak that this Constitution has been an abuse of the constitutional legal framework for a Commission contravened, or is threatened process to selectively exempt with responsibility for a critically with contravention. this chapter to specific powerful important chapter in the Bearing this in mind, Courts are individuals. Nobody is above the Constitution that is also a key pillar very strict whenever an Article in law, and every person has an in the re-birth of our nation. Thus Chapter six of the Constitution is obligation to respect, uphold and section 133 requires amendments invoked. Clarity and tenacity: An defend the constitution. to give the commission more aggrieved party should be able force of law instead of a blanket to clearly demonstrate how a role. particular Article under Chapter six of the constitution has been Again goodwill from the legislature contravened. Making mere bland is required to achieve this. Progress statements are not enough to show cause as to why the court 1 Ethics and Anti-Corrup- should act. This is the approach tion Commission because the Constitution is not 2 The Constitution of Ke- an ordinary document. It has to be treated with the seriousness it nya, 2010 deserves. 3 The Ethics and Anti- Corruption Act 2011
| January - April 2013 Issue 21 | January - April 2013 29 The Kenya Law Bench Bulletin
Repeal of Section 32 of the Advocates Act Requiring Two Years Post Admission Experience by Advocates was Unwarranted.
By Victor L. Andande: Intern Law Reporting Department
he legal profession being a more experienced colleagues. engineers and accountants. The Tnoble profession has over a He further reiterated that raw Council for Legal Education in its period of time laid down various knowledge gained outside the arguments by analogy observed rules setting standards to be confines of real life experience that public interest does not allow followed by its members. These did not guarantee the provision a fresh graduate from a medical rules have always played a major for quality service to the public. school to conduct heart or brain role in preserving the sanctity of Basing on the foregoing, it is clear surgery. This can be related with this most respected profession in that section 32 of the Advocates the various issues in the legal the world. Act was necessary in preserving field which a newly admitted the dignity of the legal profession advocate can hardly do without In Kenya there are various statutes through quality assurance. Thus, adequate experience such as which regulate the activities of the in my view, the framers of the conveyancing transactions, members of the legal fraternity. Legal Education Act, 2012 acted drafting among others. These include the Advocates in an irrational manner and were Act Cap 16, the Legal Education in blatant ignorance of the public Law as a course takes Act, 2012 among others. The interest. approximately six years, thus, it Advocates Act provides inter is most likely that when young alia the requirements for one to Going by the current trends the lawyers get to the field they practice law in Kenya. Section repeal of Section 32 is likely to tend to have a craving for quick 32 of the Act provided for the open a Pandora box whereby wealth. Such advocates mostly conditions to be met before one various suits premised on don’t have public interest at heart could practice on own behalf. negligence and indiscipline of and may end up overcharging This included the requirement the newly admitted advocates clients or misusing clients’ funds for a newly admitted advocate are likely to erupt. This is because to achieve their overwhelming to practice for two years under the legal profession especially in ambitions. a senior advocate before being the area of litigation requires a lot allowed to practice on own of experience which cannot be It is my humble opinion that behalf. acquired in a classroom context. the repeal of section 32 of the Thus, releasing the inexperienced Advocates Act contravenes In a twist of events, the Legal advocates to the unsuspecting Article 46 of the Constitution which Education Act, 2012 repealed public is the last thing that should protects the rights of consumers to Section 32 of the Advocates Act have been allowed by any right goods and services of reasonable by express provision under Section thinking member of the society. quality. The Constitution aims 50(2). It is not clear to many how at protecting consumers from this section got its way into the It is in public domain that our defective goods and services. Legal Education Act despite the education system is theory based Since the practice of law entails court recently upholding Section and lacks the all important offering legal services to the public, 32 of the Advocates Act. This was practical aspect. Further to this, there should be mechanisms to in the case of Okenyo Omwansa there are so many inconsistencies regulate the quality of services George vs. Attorney General & 2 in our systems to the extent that offered. Therefore, the release others [2011] wherein the court majority of graduates manage to to the public of newly admitted reiterated the importance of the excel and sail through the university advocates with inadequate Section in controlling the practice without gaining adequate practical skills is in violation of the of law. knowledge in the relevant areas constitutional safeguard. of law. Our universities tend to In the above case of Okenyo have very many loopholes that Before signing out, it may be wise Omwansa Justice David Majanja easily allow half baked students to applause the observation of concurred with the respondents to permeate the society. Justice Majanja in the case of on the reasons for enactment Okenyo Omwansa (supra). The of Section 32. The judge held The requirement for experience by learned judge observed inter inter alia that Section 32 was fresh graduates is not a preserve alia that; “the pursuit of a legal necessary to enable newly of the legal profession but cuts career is voluntary and those who admitted advocates acquire across almost all the learned choose to join the legal profession experience and skills from their professions such as doctors, do so out of choice and therefore
30 Issue 21 | January - April 2013 The Kenya Law Bench Bulletin
agree to abide by the terms of section which was in consonance the Council of Legal Education engagement which are regulated with public interest. This is an or an advocate who has been by statute. These terms include absurdity that the framers of the engaged in continuous full-time regulation of training, qualification and practice.” Legal Education Act failed to private practice on his own behalf foresee. in Kenya for a period of not less As can be inferred from the ...... than five years. foregoing therefore, it is important for those venturing in the legal N/B field to be ready to withstand the Section 32 of the Advocates Act (2) The person employing an uphill task before qualifying to which was repealed by section advocate under this section shall practice law. This is the point that 50 (2) of the Legal Education Act, in the prescribed form notify the was missed out by the framers of secretary to the Council of Legal the Legal Education Act, 2012 2012 provided that: since in repealing Section 32 of the "{32. Qualification for practice on Education and the Registrar of the Advocates Act they compromised own behalf High Court of the commencement public interest to impress the (1) Notwithstanding that an and the termination of the young legal professionals. advocate has been issued with employment at the time of In conclusion therefore, the a practising certificate under commencement and at the legal profession being a noble this Act, he shall not engage in termination. profession should at all costs practice on his own behalf either safeguard its sanctity and at all full-time or part time unless he has (3) This section shall come into times put in measures to redeem practised in Kenya continuously operation on 1st January, 2000. its already tainted image. This on a full-time basis for a period [L.N. 94/1999, Act No. 12 of 2012, is notwithstanding the various of not less than two years after Sch.]" sarcastic phrases used by the obtaining the first practising general public to describe lawyers certificate in a salaried post either such as “liars”, “thieves” among as an employee in the office other nasty names. The repeal of the Attorney-General or the of the very important section Director of Public Prosecutions or was thus unwarranted and an an organization approved by ignorance of the spirit behind that
| January - April 2013 Issue 21 | January - April 2013 31 The Kenya Law Bench Bulletin
Comparative Analysis of Presidential Election Petitions in Kenya and other Jurisdictions
By Linda Awuor and Monica Achode May 15, 2013 president are filed and tried by the Supreme Court (Article 163 (3) of the Constitution). On the other hand, elections petitions challenging Parliamentary and County elections are heard by the High Court (Article 165 (3) (a) of the Constitution) and the Resident Magistrate’s court (Section 75 of the Elections Act) respectively.
The following are petitions challenging the election of a person to the office of the 1.0: Introduction respective Courts. president that have been heard A presidential election petition is 2.0: Kenya and decided by the Kenyan the formal process of challenging Before the new constitutional Courts. the process, the outcome or dispensation, there were no time- any aspect of the election of lines in either the Constitution Moi V Matiba & 2 others (2008) a President. The procedure for or the electoral laws regarding 1 Klr (ep) 622 challenging an election varies determination of election petitions. Civil Appeal No 176 of from jurisdiction to jurisdiction but Currently, the Constitution 1993 usually starts by way of an election provides clear time limits within Gachuhi, Cockar &Omolo JJ petition complaining of either an which a presidential election A undue election or undue return. petition ought to be heard. Article Court of Appeal at Nairobi 140 of the Constitution decreed April 22, 1994 The recently concluded this time frame. Article 140 (1) and presidential election petition (2) of the Constitution provides as Rule 4 of the National Assembly in Kenya’s Supreme Court was follows: Elections (election petition) Rules, arguably the first presidential 1993 set out the contents and election petition to be heard and .. A person may file a Petition form of an election petition. In decided on its merits. Previous in the Supreme Court to subsection 3, it provided, among presidential election petitions challenge the election of other things, that “the petition were decided on technical the President-elect within ....shall be signed by all the or procedural matters such seven days after the date petitioners.” as improper service of court of the declaration of the The appellant was the respondent documents, failure to properly results of the presidential to an election petition filed by sign the pleadings, etc. election. the first respondent. The first The Ivory Coast and Ukraine .. Within fourteen days after respondent’s wife had signed the are among the few countries the filing of petition, under petition in exercise of a power of in the world in which a judicial clause (1), the Supreme attorney granted by him. I n the organ cancelled the presidential Court shall hear and proceedings before the Election election results and ordered a determine the petition Court, the appellant had raised repeat poll. and its decision shall be a preliminary point and argued The following is a summary to final. that the petition was incompetent help public understanding of the because it had not been signed recent supreme court decision Previously, all parliamentary and by the petitioner as required in Kenya Raila Odinga & 5 presidential election petitions by rule 4(3). In the appellant’s others v Independent Electoral were filed in the High Court with opinion, the signature appended & Boundaries Commission & 3 parties having the right to appeal to the petition by the petitioner’s others [2013] eKLR and to look to the Court of appeal. In contrast, wife as a donee of a power of at presidential election petitions the Constitution of Kenya, 2010, attorney was irregular and did not in other jurisdictions to establish Election petitions challenging meet the requirements of rule 4(3). how these were decided by the any aspect of the election of a After hearing the submissions,
32 Issue 21 | January - April 2013 The Kenya Law Bench Bulletin
the Election Court ruled that O’Kubasu, Mbito&Mwera JJ a statute could as well have the signature on the petition, May 30, 1994 been intended to operate which was the same signature retrospectively. used by the first respondent in In this case, the petitioner’s main 6. A statute had to have the his nomination and which had ground of claim was that the words to the effect that it could been accepted by the Electoral election of the 1st respondent, the operate retrospectively or such Commission of Kenya fulfilled the president of the Republic of Kenya an effect could be gleaned requirements of rule 4(3) and that following the 1992 presidential from a necessary implication as its acceptance met the justice of election was prohibited by section conveyed by the words used. the case. 9(2) of the Constitution of Kenya. 7. Section 9(2) of the Constitution The appellant appealed against The section provided that a person was not meant to operate the decision. The question on the shall not be elected to the office retrospectively. appeal then became whether of the president for more than two The Petition was dismissed the words used in rule 4(3) in terms with each term lasting for relation to who was to sign the five years. It was contended that Kibaki V Moi & 2 others (no 3) petition were of a mandatory the first respondent had already (2008) 2 Klr (ep) 351 nature or whether they were served 3 terms. 1979-1983, 1983- High Court, at Nairobi merely directory so as to allow 1988, and 1988-1993. Election Petition No 1 of 1998 a donee of a power of attorney Held: O’Kubasu, Mbogholi Msagha to sign a petition on behalf of a 1. The court’s duty was to interpret & Keiwua JJ petitioner the law as it was gleaning the July 22, 1999 Held: intention of parliament from 1. The Constitution (sections 10 the words in the statute being The respondents to the election and 44) had given a right to construed. The plain words of petition moved the court to strike any person who was entitled to a statute being precise and out the petition principally on vote in an election to challenge ambiguous were to be given their the ground that it had not been an election and the correct ordinary and natural meaning. personally served on them as procedure to do so was prescribed 2. Courts did not and could required by law. Each respondent in the National Assembly and not construe to bring out what swore an affidavit to support his Presidential Elections Act. The parliament ought to have application. The petitioner, who Constitution and the Act imposed legislated. The courts were to opposed the application, moved an obligation on a prospective construe the intention of Parliament the court for an order to cross petitioner to observe the rules as was clearly expressed in the examine the respondents on the prescribed in the procedure in statute in question. content of their affidavits. order to be able to enjoy the rights 3. Act no 6 of 1992 amended the Held: to which he is entitled under the Constitution to such an extent that 1. It is not the function of parliament Constitution. could properly be described as to repeal the subsidiary legislation 2. The words such as “signed by giving a new look to the election made by any other rule making the party” or “signed by him” in a and holding of the office of the body under delegated statutory statutory provision must be given President. From the language provision. It is for that other in their natural meaning and that of the whole Act, the set-up of body to follow the cue given by is that the party must personally sections and the reasonable and parliament in amending a section affix his signature. sensible flow therein it was clear of a particular Act 3. The words used in rule 4(3) of the that Parliament made this law with 2. The requirement in rule 14 of Rules were mandatory and the focus on the future. serving an election within 10 days sub rule did not allow the petition 4. In reading, construing applied to a petition under section to be signed by anyone else apart an applying section 9 of the 20(1)(c) of the National Assembly from the petitioner himself. Constitution, the court was of and Presidential Elections Act 4. The action of the Electoral the view that the ordinary and (seeking a declaration that a Commission to accept the natural meaning thereof was seat in the National Assembly had attorney’s signature was not a one attached to the words become vacant) and not under judicial decision of a competent used therein, the context of 20(1)(c). court of law. It was therefore not the amending Act vis a vis the 3. The only mode of service under any kind of authority binding on constitution and the effect of the rule 14(1), if the rule still applied any court and it was wrong for same: the global effect was one to a petition under section 20(1) the Election Court to rely on the attaching to future elections of (a) was personal service. As decision of the Commission. the office of the president. such, service had not been Appeal Allowed, and the petition 5. From the plain language effected, indeed there was no was struck out with costs. of the statutes, they were to suggestion that personal service be interpreted to operate was attempted and repulsed, the Orengo vs. Moi and 12 others prospectively. Only that statute petition was a nullity. High Court at Nairobi could say otherwise. Accordingly The 1st respondent’s application Election Petition No 8 of 1993 it could not be imputed that was allowed and the petition
| January - April 2013 Issue 21 | January - April 2013 33 The Kenya Law Bench Bulletin
struck out 3. The decision clearly recognized as a standard foolscap and This decision was later upheld in that if personal service which is the that even if there were, it would the Court of Appeal by Judges best form of service in all areas not render the respondents Chunga (CJ), A Lakha, Owuor JJ of litigation is not possible, other nomination invalid. and Omolo. forms may be resorted to. The issues for determination The issue of service of election 4. Personal service remains the before the court were whether petitions was later handled by a best form of service in all areas of the provisions of the Constitution full bench of the Court of Appeal litigation and to say that Members as read with section 12 of the in the case of Abu Chiaba of Parliament are a different breed Regulations were breached: Mohamed V Mohamed Bwana of people and different rules must and secondly, whether the Bakari & 2 Others [2005] eKLR. apply to them as opposed to requirement breached was In this case, the 1st respondent those applicable to other Kenyans mandatory and had to lead to brought an election petition cannot support the principle of the invalidation of the nomination. in which he stated that he equality before the law. Held: had been a voter in the Lamu 5. No man can be allowed to rely 1. The nomination herein including East elections and that various on his own wrong to defeat the those of the 2nd respondent and electoral malpractices had taken otherwise valid claim of another the petitioner were valid and that place on account of which the man. The appellant could not all the candidates were entitled to elections should be declared null be allowed to rely on his having participation in the poll. and void. The appellant then took successfully hidden himself from 2. (Orbiter) The primary duty of out a motion seeking to have that the attempts of the 1st respondent any judicial body when construing petition struck out on the ground to personally serve him to defeat any given instruments or writings, that it had not been personally the 1st respondent’s petition is to give the words thereof a served on him within 28 days after challenging the validity of his meaning, an ordinary meaning. In the date of the Kenya Gazette election. The effort made by interpreting all written laws, unless as required by section 20(1)(a) the 1st respondent to personally the context otherwise requires, of the National Assembly and serve him amounted to personal the Interpretation and General Presidential Elections Act. service on him and the learned Provisions Act requires that certain In opposing the motion, the 1st trial Judge was right in holding meanings or effects be given to respondent swore a replying that he had been served. certain expressions. affidavit in which he narrated how The appeal was therefore The Petition was therefore he had made several unsuccessful dismissed. dismissed attempts to personally serve the petition on the appellant. Mwau v Electoral Commission Raila Odinga & The Independent Khaminwa J found in favour of of Kenya & 2 Others Electoral and Boundaries the 1st respondent and declined High Court at Nairobi Commission & 3 others [2013] eKLR to strike out the election petition. Election Petition No 22 of 1993 Supreme Court of Kenya at Nairobi In the appellant’s appeal against O’Kubasu, Mbito&Mwera JJ W.M. Mutunga CJ & P.K Tunoi; M.K the High Court decision, the Court May 11, 1994 Ibrahim; J.B Ojwang; S.C Wanjala; of Appeal comprising of seven N.S Ndungu, SCJJ. judges was asked to overrule its The petitioner herein challenged April 16, 2013 previous decision in Mwai Kibaki the validity of the election of v Daniel Toroitich Arap Moi Civil the successful candidate Daniel Reported by Michael Murungi and Appeal No. 172 of 1999. Toroitich Arap Moi. His contention Emma Kinya Mwobobia The Court held: was that the 2nd respondent (Githinji JA dissenting) had not been duly nominated 1. On the material before the by the Electoral Commission Background To The Petition trial Judge, any reasonable and further that the respondent tribunal would be fully justified did not present the 40 standard On 4th March, 2013 the first general in concluding, as those who sheets of foolscap papers to the election was held in Kenya. This wanted to effect service upon the Commission as was required by was the country’s first election to appellant did, that the appellant section 5(3)(b) of the Constitution. be held under a new Constitution had gone underground with the The petitioner had altered the that had been promulgated in sole purpose hiding from those Commission officials of this August 2010. The election was who intended to effect personal requirement in a write up when he conducted by the Independent service upon him. was presenting his own papers. It Electoral and Boundaries 2. The Kibaki v Moi decision did was the petitioner’s case that the Commission (IEBC). Under article not establish any proposition that respondent failed to provide there 138 (4) of the Constitution it was even where it is proved that a items rendering his nomination provided that a candidate shall party was hiding with the sole invalid. be declared elected as president purpose of avoiding personal The respondent opposed the if the candidate receives more service, yet such a party must still application on the grounds that than half of all the votes cast in the be personally served. there was nothing known in law election and at least twenty five
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per cent of the votes cast in each was based on the allegation void - Constitution of Kenya, 2010, of more than half of the counties. that the electoral process was so articles 10,138,140 fundamentally flawed, that it was During the tallying process by impossible to ascertain whether Election Law – presidential the IEBC, there was a failure of the presidential results declared election – vote tallying - rejected the electronic results transmission were lawful. votes – whether the term “all the system which left the IEBC no votes cast” includes only valid other option but to resort to the At a pre-trial conference held on votes or both valid or rejected manual tallying of results which 25th March, 2013 and presided over votes – whether rejected votes resulted in an inability on the part by the Chief Justice, counsel for all should be included in the tally of the IEBC to declare results as the parties in the consolidated of all the votes cast - claim by and when they were available. petitions agreed on four broad the petitioner that the rejected issues for determination in the votes should be excluded from In its computation of the total three petitions: the presidential election tally votes cast, IEBC had included the and order a re-tally of the votes rejected votes in the calculation of a) Whether the 3rd cast – grounds that the rejected the threshold-percentages in the respondent and the 4th votes were marked ballot papers tallying of the Presidential election respondent were validly that had failed to comply with the votes with the IEBC chairman elected and declared as approved standards in casting of declaring that the rejected votes the President-elect and votes during elections – whether would count towards the final Deputy President-elect of the rejected votes should have tally and that percentages of the Republic of Kenya; been included in the final tally all the votes tallied for each b) Whether the Presidential of the presidential election – candidate would have to be election was conducted Constitution of Kenya, 2010 article updated to reflect the inclusion in a free, fair, transparent 138 (4)(a), Elections (General) of the rejected votes. and credible manner Regulations, 2012 regulation 77 in compliance with the On 9th March 2013, the Chairman Constitution and the Law; Election Law – presidential of the IEBC, Issack Hassan (the c) Whether in determining election – vote tallying - re-tallying 2nd respondent), announced that a candidate has met of presidential votes – allegations that Uhuru Kenyatta (the 3rd the threshold stipulated of discrepancies in some polling respondent) had received in article 138(4)(a) of the stations – where Forms 34 & 36 6,173,433 votes out of a total of 12, Constitution, the term “all which a returning officer uses 338,667 (50.07% of all votes cast), the votes cast” includes to declare presidential election while Raila Odinga (the main i. Only valid votes, or results in a polling station and a petitioner) had received 5,340,546 ii. Both valid and constituency/county respectively, votes (43.31% of the votes cast). rejected votes; reflected discrepancies in 5 out of Pursuant to article 138(4) of the d) What consequential 22 polling stations with respect to Constitution, Uhuru Kenyatta was declarations, orders and numbers of votes cast – whether declared the President-elect. reliefs were available to the discrepancies were substantial the petitioners? so as to affect the credibility of the Subsequent to this declaration, electoral process three petitions were filed in the Supreme Court. The first petition On 30th March, 2013, the court Evidence – burden of proof – contested the inclusion of delivered its findings on these standard of proof - burden and rejected votes in the final tally issues and the reasons for its standard of proof in an electoral which the petitioners alleged decisions were delivered on 16th cause – party on whom the had a distorting effect on the April, 2013. burden of proof lies – the standard percentage votes won by each to which the burden is to be candidate. The second petition Election Law – presidential election discharged – whether proof is contested the manner in which the – validity or presidential election on a balance of probability electoral process was conducted – election petition challenging or proof beyond reasonable by the IEBC with regard to the the validity of the election of the doubt - where evidential burden Presidential election. The third President and Deputy President keeps shifting depending on the petition challenged the legality – grounds that the President – circumstances – threshold to be of the IEBC’s declaration of the elect and deputy President-elect met by a petitioner in an electoral 3rd respondent and 4th respondent had not obtained the basic vote cause as President-elect and Deputy threshold to be validly elected – President-elect respectively. The allegation of various irregularities Jurisdiction – Supreme Court of final petition which was filed by that would affect the credibility Kenya - original and exclusive Raila Odinga and which was later of the presidential election – jurisdiction – special jurisdiction designated as the pilot petition in whether the irregularities were so of the Supreme Court to hear the consolidation of the petitions grave as to render the election and determine presidential
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election petition – jurisdiction Court’s jurisdiction beyond determine whether a firm not boundless as it is limited in the bounds set out in the and unanswered case time and scope – where it only Constitution. The Supreme had been made. relates to legal, factual and Court will only grant orders evidentiary questions relevant to specific to the Presidential 6. The threshold of proof the determination of the validity election. should in principle have of Presidential Election – political been above the balance question – role of the court in 3. According to article 140 of probability though a fundamentally political-cum- of the Constitution, it is not as high as beyond constitutional process – principles clear that expedition of reasonable doubt save that guide the court in its attempt the presidential election that it would not have to resolve the electoral question disputes was of the affected the normal - whether the Supreme Court essence. As the electoral standards where criminal had jurisdiction to preside over process had led to the charges linked to an the presidential election petition declaration of a winner election were in question. – Constitution of Kenya, 2010, who could not have In the case of data specific articles 140,163(3)(a), Supreme assumed office pending electoral requirements Court Act, (Act No 7 of 2011). the determination (such as the threshold of the petition, the specified in Article 138(4) protracted holding on of of the Constitution for Held: a president-elect, as well an outright win in the as a retiring President, presidential election), the 1. The Supreme Court’s would have presented party that bore the legal jurisdiction in a presidential a state of anticipation burden of proof must have election was both original and uncertainty, which discharged it beyond any and exclusive. No court would not have served reasonable doubt. other than the Supreme the public interest. Court had the jurisdiction 7. As a basic principle, it to hear and determine 4. Where a party alleges should not be for the disputes relating to an non-conformity with court to determine who election for the office the electoral law, the comes to occupy the of the President. This petitioner must not only presidential office, save jurisdiction, however, was prove that there had been that the Supreme Court, not boundless in scope as non-compliance with the as the ultimate judicial it is circumscribed in extent law, but that such failure forum, entrusted under and in time. Limited in of compliance had not the Supreme Court Act, extent, in that it relates only affected the validity of the 2011 (Act No 7 of 2011) to an inquiry into the legal, elections. This emerged with the obligation to factual and evidentiary from a long-standing assert the supremacy of questions relevant to common law approach the Constitution and the the determination of the in respect of alleged sovereignty of the people validity or invalidity of a irregularity in the acts of of Kenya must safeguard presidential election. public bodies. Therefore the electoral process and the petitioner must have ensure that individuals 2. The Court must take set out his petition by accede to power in the care not to usurp the raising firm and credible presidential office in jurisdiction of the lower evidence of the public compliance with the law courts in electoral authority’s departures regarding elections. The disputes. The annulment from the prescriptions of Supreme Court must hold of a presidential election the law. in reserve the authority, will not necessarily vitiate legitimacy and readiness the entire general election 5. An electoral cause was to pronounce on the and need not occasion established much in the validity of the occupancy a constitutional crisis, as same way as a civil cause of that office, if there is the authority to declare where the legal burden any major breach of the a presidential election rest on the petitioner, electoral law, as provided invalid is granted by the but depending on the in the Constitution and the Constitution itself. The effectiveness with which governing law. petitioner is required to the petitioner discharged present a specific, concise the burden, the evidential 8. The special circumstances and focused claim, burden could keep in the presidential which does not purport shifting. Ultimately, it election petition required to extend the Supreme was upon the court to an insightful judicial
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approach and there the published registers cent of the votes cast in may have been unlimited were sound and in each of more than half number of ways in which accordance with the laws. of the counties, referred such an approach would only to valid votes cast, have guided the Court. 12. The Court declined to and did not include ballot The fundamental one was make orders or grant papers, or votes cast but the fidelity to the terms reliefs sought by the were later rejected for of the Constitution and petitioner, which would non-compliance with the of such other law that have occasioned conflicts terms of the governing objectively reflected the between its jurisdiction law. intent and purpose of and that of other lower the Constitution which courts especially as 15. IEBC was entitled to represented the special regarded other sets of resort to the use of the and historic compact election, which had manual tallying system among the people and proceeded on the same as the Constitution and had expressly declared Voter Register. the electoral had laws that all powers of specifically given the IEBC governance emanated 13. The conduct of the the discretion to either from the people and were presidential election was work with a full electronic to serve the people. not perfect, even though system or a manual system. the election had been of The Court recognized 9. The purpose of the pre-trial the greatest interest to that due to the inherent conference was set out in the Kenyan people who failure of the electronic rule 10 of the Supreme had voluntarily voted. systems and the fact Court (Presidential Election Although there were many that the manual tallying Petition) Rules, 2013. It is a irregularities in the data had not been faulted preparatory forum used and information capture as being erroneous, the to lay the ground rules during the registration computation could not for the expeditious, fair process, they were not so have been challenged. and efficient disposal of substantial as to affect the Therefore the IEBC had the petition. The pre-trial credibility of the electoral no option after the conference enables the process and besides, no transmission technology court, upon hearing the credible evidence had failed but to revert to the parties and if need be, been adduced to show manual electoral system. on its motion to make that such irregularities appropriate orders and were premeditated 16. The applicable law had give directions for ensuring and introduced by the entrusted the discretion to the fair determination of 1st respondent, for the IEBC on the application of the dispute. purpose of causing such technology as may prejudice to any particular be found appropriate. 10. The evidence on record candidate. Since such technology portrayed that the tallying has not yet achieved a was indeed conducted 14. In regard to rejected level of reliability, it cannot in accordance with the votes being added in as yet be considered a law and the relocation of computing the final results, permanent or irreversible the political party agents once a ballot paper which foundation for the had not undermined the had been cast did not conduct of the electoral credibility of the tallying satisfy the requirements process. nor provided a basis for under the law, it could annulling the outcome of not have been added in 17. It was clear that a fresh the presidential election. determining the election. election under article 140 The progressive character (3) of the Constitution of the Constitution, and would have been triggered 11. The voter registration the interpretation of the by the invalidation of the process was essentially provision of article 138(4) election of the declared transparent, accurate and of the Constitution which President-elect by the verifiable and the voter provided that a candidate Supreme Court following a register compiled from this shall be declared successful petition against process served to facilitate elected as president if such election. Such a the conduct of free, fair the candidate receives fresh election was built and transparent elections. more than half of all votes on the foundations of The explanations given cast in the election and the invalidated election on the discrepancies in at least twenty-five per and could only have
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involved candidates who election results as declared by the national results of the had participated in the IEBC upheld. Presidential elections with original election. There Yoweri Kaguta Museveni would therefore have Each party to the petition to bear garnering (59.28%) against been no basis for a fresh their costs the petitioners 37.36%. nomination of candidates The petitioner, who was for the resultant electoral 3.0: Uganda aggrieved by the declaration contest. Rtd.Col.Dr.Kizza Besigye v of the results, filed a petition Electoral Commission,Yoweri before the Supreme Court 18. According to the law, Kaguta Museveni under Article 104(1) of the the fresh election would (Election Petition No.1 of 2006) Constitution and section 59(1) have been confined to [2007] UGSC 24 of the Presidential Elections the petitioner and the 30 January 2007 Act. President-elect while all the remaining candidates On 23 February 2006, Uganda The Petitioner alleged in the who had not contested the held its first Presidential Election petition that the 2nd Respondent election of the President- under a multiparty political Yoweri Kaguta Museveni elect would be assumed dispensation following the personally committed several to have either conceded change of political system by illegal practices and offences while defeat or acquiesced in a national referendum, from campaigning. He complained the results as declared a movement political system that the 2nd Respondent, used by the IEBC and such under which the country had words or made statements candidates could not been governed since 1986 which were malicious, made have participated in the when the National Resistance statements containing sectarian fresh election. Government assumed power words or innuendos against the following a bush war. This Petitioner and his party, made 19. There was no evidence to was the third Presidential abusive insulting and derogatory prove that the candidate election held under the 1995 statements against the Petitioner, declared as the President- Constitution. The Constitution FDC or other candidates; made elect had not obtained was amended in 2005 to exaggerations of the petitioner’s the basic vote threshold remove Presidential terms period of service in Government and therefore this justified limits from two terms to and the reason why he was his being declared the indefinite eligibility. The moved from several portfolios; validly elected President Presidential election was used derisive or mudslinging of Kenya. held on the same day as the words against the petitioner; used Parliamentary elections unlike defamatory or insulting words; 20. The presidential election in the previous Presidential knowingly or recklessly made was conducted in a elections. false statements at a rally that free, fair, transparent FDC had frustrated efforts to build and credible manner During the elections five another dam, that the petitioner in compliance with candidates were nominated was in alliance with Kony and PRA the provisions of the as Presidential candidates, and other terrorists, and that the Constitution and all the four representing political petitioner was an opportunist and relevant provisions of the parties or organisations a deserter. law. and one as independent. In the petition, the Petitioner The petitioner stood as made complaints against the rd th 21. The 3 and 4 respondents candidate for Forum for respondents. Against the 1st were valid elected Democratic Change (FDC). Respondent, he complained and declared as the The 2nd Respondent stood that it did not validly declare the President and Deputy for the National Resistance results in accordance with the President elect by the Movement (NRM), Mrs Constitution, and the Presidential nd 2 respondent in the Miria Kalule Obote stood as Elections Act; that the election was presidential elections. candidate for the Uganda conducted in contravention of People’s Congress (UPC), the provisions of the Constitution, 22. Rejected votes should while John Ssebaana Kizito Electoral Commission Act and the not have been included Presidential Elections Act; and nd was for the Democratic Party by the 2 respondent (DP), and Abed Bwanika that the provisions of Section 59(6) in calculating and stood as an independent (a) of the Presidential Elections Act determining the final tallies candidate. are contrary to the provisions of in favour of each of the Article 104(1) of the Constitution. presidential candidates. On 25 February 2006, the In a majority decision of four to 1st Respondent declared three, the Court ruled in the favor Petition disallowed. Presidential of Museveni, stating:
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1. It was not proved to the Held: by the registration on the satisfaction of the Court, 1. Under the terms of voters list and no person that the failure to comply articles 32 and 94 of shall be eligible to vote if with the provisions and the Constitution, the not listed on the electoral principles laid down in Constitutional Council roll. the Election Acts and the controls the regularity 5. The secrecy of the vote is Constitution, affected the of the operations of the a principle proclaimed by results of the Presidential election of the President the Constitution in Article election in a substantial of the Republic, rules 33 and that the Electoral manner. on the disputes relating Code as amended by 2. The fact that these thereto and proclaims the Ordinance 2008 - 133 April malpractices were proved final results of them. 14th 2008. The lack of to have occurred is not 2. Under Article 38 of the polling booth constituted enough the petitioner had Code, any candidate has a substantial defect likely to go further and prove the right, through one of to discredit the regularities their extent, degree, and his delegates, to control of the election. the substantial effect they all voting operations, 6. There were actions had on the election. examination of ballots showing well enough that and calculation of the in several polling stations 4.0: Cote D’ivore votes at the premises in some regions of the The presidential election of La where these operations country, voting was not Côte d’Ivoire was held in two are carried out, and to conducted in conditions rounds. The first hurdle took require the registration of freedom, equality place on 31 October 2010 and in the official reports and confidentiality the second round, a two-horse of all the observations, as prescribed by the race between President Laurent protests or disputes on Constitution in Article 32 Gbagbo and the then opposition the aforementioned and in compliance with leader Alassane Ouattara, operations. In this case, the the electoral laws Thus , contested on 28 November complainant explained the electoral process that 2010. On 2 December 2010, the that his representatives took place in these various Ivorian Independent Electoral and delegates in the zones were vitiated by Commission (IEC) released polls were expelled or obvious irregularities likely provisional results indicating that prevented from having to affect the sincerity of opposition Alassane Ouattara access to the polls the poll and to affect had triumphed in the second bid and sometimes they the results in the polling with 54% of the vote. were kidnapped, their stations where they were Laurent Gbagbo appealed to mandates and electoral noted. the Constitutional Council to rule documents destroyed; on the numerous and serious Thus his representatives It was the Court’s decision that the irregularities that marred the and de legates were not requests of Gbagbo Laurent were election in the north. Gbagbo able to supervise neither admissible but partially founded; noted in particular, the absence of the conduct of voting nor The results of the poll in its representatives and delegates the counting of ballots; the departments of Bouake, in many polling stations, they were Korhogo, Ferkessedougou, hunted by the military rebels of 3. The absence of Katiola, Boundiali, Dabakala, Forces Nouvelles who did not hide representatives and Seguela,were canceled; their support to Alassane Ouattara; delegates in various polling Mr. Gbagbo Laurent was the stuffing ballot boxes in favor stations due to abuse proclaimed elected President of of his opponent; the transport of constituted a serious the Republic of Côte d’Ivoire; minutes by unauthorized persons; irregularity engraves likely the lack of voting booth; the to discredit the sincerity 5.0: USA increase of the votes cast in with the poll and justifies Bush v. Gore, favor of his opponent. The net thus cancellation of the United States Supreme Court effect of the above was that poll in the departments 531 U.S. 98 (2000) both Gbagbo and Ouattara mentioned proclaimed themselves as victors 4. From the combined The 2000 presidential election and accordingly, took the sacred reading of Articles 5 and pitted United States Vice President presidential oath of office to 34 of the Electoral Code as Al Gore, a Democrat, against lead their polarised people who amended by Ordinance Texas Governor George W. Bush, a had for some days, bathed 2008-133 of April 14th Republican. As the election results themselves with blood and sweat. 2008, adjustments to were counted, it became clear The Constitutional Council, on the Electoral Code as a that the vote would be very close, reviewing the evidence, held: qualified elector is proven and that the results in the state of
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Florida would decide the election. clause guarantees individuals that justices agreed that Bush was initially declared the their ballots cannot be devalued there was an Equal winner by just a few hundred by “later arbitrary and disparate Protection Clause votes, a tiny margin in a state with treatment,” the per curiam violation in using different millions of voters. However, reports opinion held 7-2 that standards of counting of widespread problems with 1. The Florida Supreme in different counties.[3] ballots (for instance, conflicting Court’s scheme for Three concurring justices ballots that were designed so that recounting ballots was also asserted that the people who thought they were unconstitutional. Even Florida Supreme Court voting for Gore ended up casting if the recount was fair had violated Article II, § votes for another candidate) soon in theory, it was unfair 1, cl. 2 of the Constitution, called the results into question. in practice. The record by misinterpreting Florida Gore’s supporters sued the state suggested that different election law that had of Florida for a recount. Bush’s standards were applied been enacted by the supporters sued to prevent it. To from ballot to ballot, Florida Legislature. make matters more complicated, precinct to precinct, and 6.0: Ukraine Florida’s election laws set an county to county. Yushchenko v. Central Election unchangeable deadline for 2. Because of those and other Commission announcing the final results, so procedural difficulties, the On October 31, presidential the recount had to be begun court held, 5 to 4, that elections were held in Ukraine. quickly if it was to be done at no constitutional recount According to the Central Election all. When the Florida Supreme could be fashioned in the Commission (CEC), a second Court decided in favor of Gore, time remaining (which round was to be held on November and ordered the recount to be was short because the 21 as none of the candidates completed, Bush appealed to the Florida legislature wanted had secured a majority vote. On U.S. Supreme Court. to take advantage of the November 21, voters cast their On December 8, 2000 the Florida “safe harbor” provided by ballots in the second round of its Supreme Court ordered that 3 USC Section 5). presidential elections. According the Circuit Court in Leon County 3. Rehnquist (in a concurring to the final results issued by the tabulate by hand 9000 contested opinion joined by Scalia Central Election Commission, ballots from Miami-Dade County. and Thomas) argued Prime Minister Viktor Yanukovych It also ordered that every county that the recount scheme of the Regions of Ukraine secured in Florida must immediately begin was also unconstitutional 51.49% of the votes while Viktor manually recounting all “under- because the Florida Yushchenko of the Our Ukraine votes” (ballots which did not Supreme Court’s decision bloc secured 48.51% of the votes. indicate a vote for president) made new election law, The Central Election Commission because there were enough which only the state officially announced that Viktor contested ballots to place the legislature may do. Yanukovych won the election. outcome of the election in doubt. 4. Breyer and Souter (writing Viktor Yuschenko’s campaign Governor George Bush and his separately) agreed with team challenged the results in the running mate, Richard Cheney, the per curiam holding Supreme Court on the ground that filed a request for review in the that the Florida Court’s massive fraud denied Yuschenko U.S. Supreme Court and sought recount scheme violated victory in the election. an emergency petition for a stay the Equal Protection The petitioners applied to the of the Florida Supreme Court’s Clause, but they dissented Constitutional Court of Ukraine decision. The U.S. Supreme Court with respect to the with a submission on the official granted review and issued the remedy, believing that interpretation of the provisions stay on December 9. It heard oral a constitutional recount of articles 56.3.4, 64.1.2, 64.15 argument two days later. could be fashioned. of the Law of Ukraine “On the The Court, in adjudicating the The held that time was elections of the President of matter disposed of the following insubstantial when Ukraine” (hereinafter – the Law) questions: constitutional rights were concerning the possibility of the · Did the Florida Supreme at stake. participation in the pre-election Court violate Article 5. The Court ruled that no campaign of the officials and II Section 1 Clause 2 of alternative method could other employees of the executive the U.S. Constitution by be established within the bodies, and the bodies of local making new election law? time limits set by Title 3 of self-government in free time as · Do standardless manual the United States Code (3 well as on the official interpretation recounts violate the U.S.C.), § 5 (Determination of such legal terms as “individuals Equal Protection and Due of controversy as to subordinate to them” and “the Process Clauses of the appointment of electors), place of employment”, used in Constitution? which is December 12. article 64.15 of the Law. Noting that the Equal Protection However, seven of the The Constitutional Court of Ukraine
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in giving the official interpretation will expression of voters who work in executive of the mentioned provisions of the during the elections. bodies and bodies of local Law, Held: 4. According to the provisions self-government for pre- 1. The elections are one of article 64.15 of the Law electoral campaign, and of the forms of direct the candidates to the at working time with the democracy, the means position of the President same purpose – all other of formation of state of Ukraine who hold subordinate persons who bodies and bodies of offices, including those work in the mentioned local self-government combined, in executive bodies and subordinate by the electoral corps. bodies, and bodies of local persons including officials The Constitution has fixed self-government, in state, who work in state, the fundamentals of the municipal enterprises, in municipal enterprises, in electoral law, having institutions, organizations, institutions, organizations, established that the military units (formations), military units (formations); elections to these bodies are prohibited to involve · candidates for the are free and take place into the pre-election position of the President on the basis of general, campaign or to use for any of Ukraine may not use equal and direct electoral type of work related to the at working and leisure right by way of secret pre-election campaign time the official transport, ballot, and the voters are individuals subordinated communications, guaranteed the free will to them (at working time), equipment, premises, expression (article 71 of the official transport, other objects and the Constitution). communications, resources at the working 2. One of the stages of the equipment, premises, place as well as service electoral process is the other objects and or professional meetings, pre-election campaign, resources at the place of personnel meetings for the main objective of employment as well as to conducting pre-election which is to form the will of use service or professional campaign; the voters to vote for this meetings, personnel · “the place of employment” or that candidate running meetings for conducting of candidates for the for the position of the pre-election campaign. position of the President President of Ukraine. The 5. Provisions of article 64.1.2 of of Ukraine is a specific pre-election campaign the Law of Ukraine On the body of the executive may be performed in elections of the President power, body of local any form and way, which of Ukraine” should be self-government, state, do not contradict the understood so that the municipal enterprise, Constitution and the laws officials of the executive institution, organization, of Ukraine (article 58.1 of bodies and bodies of military unit (formation), the Law). local self-government are in which they hold an 3. The Law established prohibited to participate office, including those certain restrictions as to in pre-electoral campaign combined; conducting a pre-election in any time (working or · “The subordinate persons” campaign. In particular, leisure). of the candidates to the according to article 64.1.2 6. Provisions of article 64.15 position of the President of the Law, executive of the Law of Ukraine of Ukraine at the place bodies and bodies of local “On the elections of the of employment are self-government, their President of Ukraine” individuals who execute officials and officers are are to be understood as official (labor) duties in prohibited to participate follows: the executive body, body in pre-election campaign. · candidates for the of local self-government, The mentioned prohibition position of the President institution, organization or is directed, firstly, towards of Ukraine, which hold the serve at the military unit the prevention of usage offices, including those (formation) and have the of the resource of combined, in executive subordinate relations with these bodies during the bodies and bodies of local these candidates. campaign of this or that self-government, in state, 7. The provisions of article candidate for the position municipal enterprises, in 56.3.4 of the Law of Ukraine of the President of Ukraine, institutions, organizations, “On the elections of the secondly, for making it military units (formations) President of Ukraine” are impossible to press upon do not have the right to be understood as the voters. Such prohibition is to involve at working as grounds for the Central caused by the necessity to well as at leisure time Election Commission to create conditions for free the subordinate officials declare a warning to a
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candidate for the position declaration of President John candidate for the 2012 elections, of the President of Ukraine Mahama as the winner of the Nana Addo Dankwa Akufo- and to the party (bloc) December 7 election. Addo, his running mate Dr. which nominated him/her The Electoral Commission gave Mahamudu Bawumia and the against committing by a the final figures as 5,574,761 party’s chairman, Jake Otanka candidate running for this for President Mahama to be Obetsebi-Lamptey who claimed position of acts prohibited announced the winner with 50.7 that the election was rigged by by article 64.15 of the per cent of vote against 47.7 per the Electoral Commission in favor mentioned Law. cent of the NPP’s Nana Dankwa of President Mahama. Akufo-Addo. The petitioner is Annulling the 21 November vote, challenging the integrity of the The petitioners have named the judges ruled that the central elections in December 2012. President Mahama, the Electoral election commission acted The New Patriotic Party (NPP) Commission and the Chairman of improperly by declaring PM challenged the validity and the Commission, Dr. Kwadwo Afari Yanukovich the winner. credibility of the results declared Gyan as respondents. by the Electoral Commission in 7.0: Ghana favour of the National Democratic As at the date of this publication, Akufo-Addo v. Electoral Congress (NDC) arguing that the petition was yet to be heard Commission the process of verification of and determined by the Supreme In The Superior Court of results by political parties was Court of Ghana. Judicature not transparent and that there In The Matter Of a Petition were discrepancies between the Challenging the Validity of total number of votes cast for the Election of John Dramani presidential and parliamentary Mahama as President of elections. The Republic Of Ghana Pursuant To the Presidential NPP said it had reasons to believe Election Held On 7th And 8th that rigging had taken place in December 2012 some constituencies. The party had 28 days to petition the Ghana’s opposition New Patriotic Supreme Court. The petition was Party (NPP) filed a petition at filed by three leading members the Supreme Court challenging of the New Patriotic Party, (NPP) the Electoral Commission’s (EC) comprising the party’s presidential
“True law is right reason in agreement with nature; it is of universal application, unchanging and everlasting; it summons to duty by its commands, and averts from wrongdoing by its prohibitions.”
- Marcus Tullius Cicero
42 Issue 21 | January - April 2013 The Kenya Law Bench Bulletin
Cases Showing a Difference in Opinion in Judicial Reasoning
Compiled By Monica Achode and Linda Awuor
CASE ISSUE JUDGES HOLDING RELEVANT REFORM BODY
LAW REFORM ISSUES
Kenya Bus Service Constitutionality The issues of notice of action and Kenya Law Ltd and another v of section 13(A) of limitation of actions had been taken Reform Minister for Transport the Government up as law reform issues and most Commission and 2 Others Proceedings Act legislatures had implemented the Civil Suit No. 504 Of and section 3(1) of recommendations of their respective 2008 the Public Authorities law reform bodies. In Kenya though, High Court of Kenya Limitation Act law reform efforts had assumed at Nairobi a rather glacial pace particularly D.S. Majanja where technical and non-political September 21, 2012 matters were concerned. The courts were now required to address these matters through litigation founded on enforcement of fundamental rights and freedoms. The issues raised must dealt with in accordance with the Constitution which provides that all law existing prior to the promulgation of the Constitution must, according to section 7 of the Sixth Schedule to the Constitution, “be construed with the alterations, adaptations, qualification and exceptions necessary to bring it in conformity with the Constitution.”
Beatrice Wanjiku & Constitutionality of Order 22 rule 7 is a cause for concern as Rules Another v Attorney Order 22 rule 7(1) of it empowers the court to issue a warrant Committee General & 3 others, the Civil Procedure of arrest upon an oral application by Petition No. 190 of Rules the judgment creditor when passing 201 the decree if the judgment debtor D. S Majanja is within the court precincts. This July 23, 2012 provision in my view, does not entitle the judgment debtor to sufficient notice nor opportunity to pay the debt even where he has the means to do so. The rule as worded is an unnecessary infringement on the rights of the judgment-debtor. This renders this particular rule unconstitutional
| January - April 2013 Issue 21 | January - April 2013 43 The Kenya Law Bench Bulletin
W.M.M v B.M.L Whether there is need The law applicable to the marriage is Kenya Law High Court at to expand the grounds the Matrimonial Causes Act, Chapter Reform Nairobi of marriage namely, 152 of the Law of Kenya. Under Section Commission Divorce Cause No adultery, cruelty and 8(1) of the Matrimonial Causes Act, a 179 of 2009 desertion and by the petition for divorce may be presented GBM Kariuki J. wife on the ground to court either by the husband or the July 26, 2012 of rape, sodomy or wife on the ground, inter alia, that the bestiality on the Respondent has since the celebration part of the husband of the marriage treated the Petitioner as provided in the with cruelty. Cruelty is not defined in Matrimonial Causes the Matrimonial Causes Act but what Act amounts to cruelty as a ground for divorce can be discerned from case law in Kenya as well as from English Common Law applicable to Kenya by virtue of Section 3(1)I of The Judicature Act, Chapter 8 of the Laws of Kenya. One may note that the grounds for divorce set out in Section 8(1) of the Matrimonial Causes Act are the age- old traditional grounds which were the only ones applied in English courts before. I have lamented in many cases the regrettable failure by the Legislature and the Law Reform Commission in Kenya to expand the menu for grounds for dissolution of marriage under the Act. While other jurisdictions have continued to review their law in this branch so as to keep it in tandem with societal changes and values, Kenya continues to lag behind in this area of our laws. As a result, the only grounds for divorce are the traditional three, namely, adultery, cruelty and desertion and by the wife on the ground of rape, sodomy or bestiality on the part of the husband. This is not good enough. In other jurisdictions, grounds such as irreconcilable differences and circumstances that make marriage untenable have been brought into the vortex of grounds for divorce. We ought to be a forward-looking jurisdiction and to set pace in development of our law so as to keep abreast with changes in our society.
44 Issue 21 | January - April 2013 The Kenya Law Bench Bulletin
CASE ISSUE JUDGES HOLDING RELEVANT REFORM BODY
LAW REFORM ISSUES
Kenya Bus Service Constitutionality The issues of notice of action and Kenya Law Ltd and another v of section 13(A) of limitation of actions had been taken Reform Minister for Transport the Government up as law reform issues and most Commission and 2 Others Proceedings Act legislatures had implemented the Civil Suit No. 504 Of and section 3(1) of recommendations of their respective 2008 the Public Authorities law reform bodies. In Kenya though, High Court of Kenya Limitation Act law reform efforts had assumed at Nairobi a rather glacial pace particularly D.S. Majanja where technical and non-political September 21, 2012 matters were concerned. The courts were now required to address these matters through litigation founded on enforcement of fundamental rights and freedoms. The issues raised must dealt with in accordance with the Constitution which provides that all law existing prior to the promulgation of the Constitution must, according to section 7 of the Sixth Schedule to the Constitution, “be construed with the alterations, adaptations, qualification and exceptions necessary to bring it in conformity with the Constitution.”
Beatrice Wanjiku & Constitutionality of Order 22 rule 7 is a cause for concern as Rules Another v Attorney Order 22 rule 7(1) of it empowers the court to issue a warrant Committee General & 3 others, the Civil Procedure of arrest upon an oral application by Petition No. 190 of Rules the judgment creditor when passing 201 the decree if the judgment debtor D. S Majanja is within the court precincts. This July 23, 2012 provision in my view, does not entitle the judgment debtor to sufficient notice nor opportunity to pay the debt even where he has the means to do so. The rule as worded is an unnecessary infringement on the rights of the judgment-debtor. This renders this particular rule unconstitutional
| January - April 2013 Issue 21 | January - April 2013 45 The Kenya Law Bench Bulletin
W.M.M v B.M.L Whether there is need The law applicable to the marriage is Kenya Law High Court at to expand the grounds the Matrimonial Causes Act, Chapter Reform Nairobi of marriage namely, 152 of the Law of Kenya. Under Section Commission Divorce Cause No adultery, cruelty and 8(1) of the Matrimonial Causes Act, a 179 of 2009 desertion and by the petition for divorce may be presented GBM Kariuki J. wife on the ground to court either by the husband or the July 26, 2012 of rape, sodomy or wife on the ground, inter alia, that the bestiality on the Respondent has since the celebration part of the husband of the marriage treated the Petitioner as provided in the with cruelty. Cruelty is not defined in Matrimonial Causes the Matrimonial Causes Act but what Act amounts to cruelty as a ground for divorce can be discerned from case law in Kenya as well as from English Common Law applicable to Kenya by virtue of Section 3(1)I of The Judicature Act, Chapter 8 of the Laws of Kenya. One may note that the grounds for divorce set out in Section 8(1) of the Matrimonial Causes Act are the age- old traditional grounds which were the only ones applied in English courts before. I have lamented in many cases the regrettable failure by the Legislature and the Law Reform Commission in Kenya to expand the menu for grounds for dissolution of marriage under the Act. While other jurisdictions have continued to review their law in this branch so as to keep it in tandem with societal changes and values, Kenya continues to lag behind in this area of our laws. As a result, the only grounds for divorce are the traditional three, namely, adultery, cruelty and desertion and by the wife on the ground of rape, sodomy or bestiality on the part of the husband. This is not good enough. In other jurisdictions, grounds such as irreconcilable differences and circumstances that make marriage untenable have been brought into the vortex of grounds for divorce. We ought to be a forward-looking jurisdiction and to set pace in development of our law so as to keep abreast with changes in our society.
46 Issue 21 | January - April 2013 The Kenya Law Bench Bulletin
Centre for Rights Alignment of the Per EM Githinji JA: Rules Education and Appellate Jurisdiction It is manifest that the former Constitution Committee Awareness & Act and the Court merely established the Court of Appeal another v John of Appeal Rules with and left it to the National Assembly to Harun Mwau & 6 the provisions of the confer appropriate jurisdiction to it. The others [2012]eKLR constitution National Assembly by the Appellate Court of Appeal at Jurisdiction Act conferred jurisdiction on Nairobi the Court of Appeal and subsequently EM Githinji, MK the Court of Appeal Rules were made to Koome, HM prescribe the practice and procedure Okwengu, KH Rawal of the Court of Appeal. In contrast, & DK Maraga JJ A Article 164 both establishes the Court of Appeal and confers jurisdiction on it raising questions whether the Appellate Jurisdiction Act which is one of the Acts saved by section 7 (1) of the schedule and the Court of Appeal Rules are operative. Per MK Koome JA I generally agree with the arguments and also Githinji, JA’s judgment regarding the participation of CREAW de bene esse but, however, I wish to state that, the Appellate Jurisdiction Act and the Court of Appeal Rules have not been revised to align them with the provisions of the constitution. I am particularly conscious that the Court of Appeal is a creature of statue and there is no implied procedure for original jurisdiction. The same Constitution has structured the court and donated original jurisdiction to the High Court. Thus the Court of Appeal deals with the record of appeal and issues that are raised as grounds of appeal from the decision that is appealed against.
| January - April 2013 Issue 21 | January - April 2013 47 The Kenya Law Bench Bulletin
In the matter of Whether a party can “ Whereas the Companies Act and Kenya Law Rupa cotton mills make an application the Companies (Winding Up) Rules Reform (epz) ltd Winding for stay pending should ideally be a complete code Commission up cause no. 40 of appeal within winding on the procedure and remedies 2011, up proceedings applicable to companies’ winding up, High Court at themselves even it does not address every eventuality Nairobi though it is not arising in the course of winding up J. M. Mutava provided for under proceedings. Notwithstanding this, July 12, 2012 Section 223 of the neither the Companies Act nor the Companies Act Rules give the indication of an intention to completely dethrone the application of normal civil procedure to winding up proceedings. This is because a saving for such application was expressly set out in the Companies (Winding Up) Rules in Rule 203 Rule 203 of the Companies (Winding Up) provides: (203) In all proceedings in or before the court, or any judge, registrar or officer thereof, or over which the court has jurisdiction under the Act or these Rules, where no other provision is made by the Act or these Rules, the practice, procedure and regulations in such proceedings shall, unless the court otherwise directs, be in accordance with the rules and practice of the court.
Centre Of Human Streamlining the Centre Of Human Rights And State Rights And appointment of CEO’s Democracy V Moi Teaching And Corporations Democracy V of state corporations Referral Hospital Board And 2 Others Advisory Moi Teaching And –The court is not hesitant to add that Committee Referral Hospital so as to avoid the controversies such through LOK- Board And 2 Others as the one being played out at a Anne Asugah [2012] eKLR petition well-known parastatal and at any no. 8 of 2011 other parastatal there is need for the proper streamlining of the process for the appointment of Chief Executives. In the absence of this due process the sector Minister for MT&RH is reminded that the people of Kenya are watching the Executive’s lurking hand behind the appointment of the parastatal head and the people shall not fail to act to have any unprocedural actions declared unconstitutional.
48 Issue 21 | January - April 2013 The Kenya Law Bench Bulletin
Dr. Anne Kinyua v Whether the On the issue of issuance of notice Nyayo Tea Zone requirement of notice of intention to sue the Government Developmnet of intention to sue as required by section 13A of the Corporation & 2 the Government Government Proceedings Act the others under section 13(A) Court is of view that this section in Industrial Court, at of the Government no longer tenable in context of the Nairobi Proceedings Act is new Constitution and the Attorney Cause Number 1065 unconstitutional General and Law Reform Commission of 2012 need to take cue and propose to JO Abuodha J. Parliament its repeal or amendment October 18, 2012. to align with the Constitution. The reason I say this is that under article 23(3) of the Constitution injunction lies against the Government and this includes interlocutory injunctions which are traditionally issued in situations of urgency where a right is threatened. To require a party to give a thirty days notice in such circumstances is not only unrealistic but runs against the principle of access to justice enshrined in the Constitution. In any event article 159(1) (d) enjoins the Court while exercising Judicial authority to do so without undue regard to procedural technicalities
K.M v AG & Another Whether section 25 - The provisions of the Matrimonial Kenya Law High Court at of the Matrimonial Causes Act requiring alimony to be Reform Nairobi Causes Act is paid to wives was contrary to Article 27 Commission Constitutional unconstitutional in lieu which provides for equality and outlaws and Human Rights of Article 27 and 45(3) discrimination and Article 45(3) which LOK Dpt. Division of the Constitution provides for equality of parties within Petition No. 458 of of Kenya, 2010 since a marriage. However, section 7(1) of 2012 it only provides for the Sixth Schedule to the Constitution D.S Majanja J. payment of alimony provides a solution to the petitioner’s to wives grievance by entitling the court to read into the Act, words that would bring it in conformity with the Constitution. - In the circumstances, section 25 of the Matrimonial Causes Act which applies to the wife is now to be read as “spouse” to bring it in conformity with Article 27 and 45 of the Constitution and section 25 of the Act and shall be read with all the necessary alteration to make it gender neutral.
| January - April 2013 Issue 21 | January - April 2013 49 The Kenya Law Bench Bulletin
Paul Pkiach Anupa - When does retiring - The petitioner’s rights guaranteed under Articles 27, 28 The Judiciary through & another v Attorney one from public and 54 of the Constitution of Kenya, 2010, were violated the CRHC General & another service on medical by the Commissioner of Police retiring him on medical High Court, at grounds/public interest grounds under Regulation 30(c) of Chapter 20 of the Forces - In the case of Nairobi amount to violation Standing Order without taking into account the possibility Duncan Otieno Waga Petition No. 93 of of the person’s rights of reasonable accommodation. As a consequence of v Attorney General 2011 under the Constitution this failure to reasonably accommodate the petitioner, the claim arose D S Majanja J - How employers the Commissioner of Police violated section 15(6) of the during the tenure November 7, 2012 should avail necessary Persons with Disabilities Act by retiring the petitioner before of the repealed working conditions the prescribed retirement age. Constitution hence to accommodate - The right of access to justice articulated in Article 48 of the court could not persons with disabilities the Constitution includes infrastructure necessary to ensure adjudicate on it under at work places justice is available to all persons. It must necessarily entail the same principles physical access to court buildings and the personnel, as the current case. It information, process and procedures that relate to them was dismissed on this including access to information about the justice system. basis alone hence it The current physical structure of the Milimani Law courts is was not a conflicting such that it is a hindrance to justice seekers owing to the judgment. physical barriers that make it a herculean task for persons with disabilities to access the courts.
Supreme Court Whether an There is a lacuna in Article 140 of the Constitution as it Kenya Law Reform Advisory opinion No unsuccessful provides for disputes settlement only at final stages of Commission 2 of 2012. candidate in the first presidential election and not at earlier stages. With no round of presidential provision on the mode of resolution of disputes at the election under Article earlier stages, there would be no express right to seek 136 of the Constitution the Court’s intervention, for instance, in respect of the or any other person runner-up position. Such a dispute may be, on the facts, is entitled to petition one of merit and, therefore, one to be resolved judicially. the Supreme Court The urgency of the issue would remain the same as that to challenge the which attends dispute-settlement in relation to the position outcome of the of the President-elect; and accordingly, this would still be first round of the a contest on an issue of the Presidential election said election under Article 140 or any other provision of the Constitution.
Republic v. Whether the Industrial The failure by Parliament to provide for the quorum of the Kenya Law Reform Industrial Property Property Tribunal Tribunal has the potential of violating the rights to access Commission Tribunal and 2 can be said to be to justice and fair administrative action. For purposes of others legally constituted in clarity, the Act ought to be amended to include a provision JR. Misc. Case No the absence of one on the quorum of the Tribunal. LOK Dpt 208 Of 2011 or more of its five High Court of members as provided Kenya at Nairobi for under Section W. K. Korir J. 113(1) of the Industrial November 29, 2012 Property Act of 2001
50 Issue 21 | January - April 2013 The Kenya Law Bench Bulletin
Supreme Court of - Whether Article There was a lacuna in Article 140(1) of the Constitution, Kenya Law Reform Kenya 81(b) as read with in that it made no provision regarding the procedure to Commission Reference No. 2 of Articles 27(4), 27(6), be followed where after a presidential election, there is 2012 27(8), 96, 97, 98, no president-elect and a dispute emanates from the fact Mutunga, CJ; Tunoi, 177(1)(b), 116 and 125 that nobody is elected as President under Article 138(4), of the Constitution of and when this fact leads to fresh elections under Article Ojwang, Wanjala, the Republic of Kenya 138(5). LOK Dpt Ndungu SCJJ require progressive December 11, 2012 realization of the Reported by enforcement of the Michael M. Murungi one-third gender rule or requires the same to be implemented during the general elections scheduled for 4th March, 2013 or in stages through legislative, policy and other measures. - Whether an unsuccessful candidate in the first round of a Presidential election under Article 136 of the Constitution or any other person is entitled to petition the Supreme Court to challenge the outcome of the first round of the said election under Article 140 or any other provision of the Constitution. DIFFERENCES IN JUDICIAL REASONING
Peris Onduso whether future medical In Sosphinaf Company Limited & Another vs. Daniel Kenya Law Reform Omondi v Tectura expenses fall under Ng’ang’a Kanyi Civil Appeal No. 315 of 2001, the claim for Commission International Ltd & general damages or future medical treatment was part of general damages another [2012] eKLR special damages which did not have to be specifically pleaded. Civ Case No. 715 In Sheikh Omar Dahman T/A Malindi Bus vs. Denis Jones of 2002 Kisomo Civil Appeal No. 154 of 1993, the Court had held that the cost of future medical operation is special damages, which must be pleaded.
Methodist Church To what extent It is only in rare cases that an error in the judgment or Kenya Law Reform in Kenya & another can a judgment or order of a court can constitute a breach of human right Commission v Jeremiah Muku & order of a court be or fundamental freedoms. Ordinary errors made in the another [2012]eKLR challenged through course of adjudication by courts of law should be cured Court of Appeal at a constitutional by invoking the mechanism and procedures prescribed Nyeri application as by the ordinary law for correction of errors such as appeal E. M. Githinji, H. M. contravening a right or or review Okwengu & D. K. fundamental freedoms Maraga guaranteed by the July 5, 2012 former Constitution?
Whether a claim to title Conflicting Court of Appeal decisions on the matter, one Kenya Law Reform by adverse possession holding that a claim to title by adverse possession by Commission by way of a cross- way of a cross-claim is misconceived (Ndatho v. Itumo claim is misconceived & 2 Ors. (2002) 2 KLR 637) and the other recognizing as a or is a triable issue triable issue, and upholding, a counter-claim on adverse possession (Maweu v. Liu Ranching & Farming Cooperative Society Ltd. (1985) KLR 430, 439)
| January - April 2013 Issue 21 | January - April 2013 51 The Kenya Law Bench Bulletin
Study Tour by the Namibian Delegation: 2013
By Monica Achode May 20th 2013
n keeping with Iits position as the regional centre of excellence in law reporting and in providing access to public legal information, Kenya Law hosted a delegation from the Law Reform and Development Commission (LRDC) of Namibia. The study tour was planned for and carried out over a period of one month from 12th of th April to 10 May 2013. From left to right: Mr. Andrew Halonyere – a senior law reporter in the Law Reporting department; Ms. Victoria Weyulu – delegate from the LRDC; Mr. Martin Mbui – team leader of the ICT Department; Ms. Monica Achode – senior law reporter in the Research and Development department; Mr. Cornelius Lupao – team leader of the Law Reporting Department; Ms. Wmbui Kamau – team leader of Namibia (2013) the Laws of Kenya department; Mr. Pascal Oluoch – team leader of the Finance Department; Ms. Mutindi Mulwa – delegate from the LRDC; Mr. Christian Ateka – assistant law reporter in the Laws of Kenya department outside Kenya Law Offices at the end of the Study Tour. The LRDC’s functions include conducting reform proposals and legal The training covered the following research on all branches of the scholarship. The movement topics: law in Namibia and making began in 1992 with the creation · The business of running a recommendations on the reform of the Cornell Law School Legal Legal Information Institute and development of the law. Information Institute by Tom Bruce · The process of law reporting The LRDC intends to embark and Peter Martin. The name Legal · The maintenance of an e-laws on the establishment of Free Information Institute (and portal Access to Law Agency to be abbreviation ‘LII’) has been widely · Content management named Namibia Legal Resources adopted by other projects. A · Dealing with relevant and Information Institute (NamLII) country or region identifier usually stakeholders i.e (clients, legal hence their study tour. prefixes it. professionals)
The Free Access to Law Members of the Free Access to The delegates were attached Movement (FALM) is the umbrella Law movement subscribe to the to the various departments name for the collective of legal Declaration on Free Access to in order that they may get a information systems projects Law and it is under this umbrella practical approach to each of across many countries to that Kenya Law opened its doors the areas that they sought to provide free online access to to the LRDC. better understand. legal information such as case law, legislation, treaties, law
52 Issue 21 | January - April 2013 The Kenya Law Bench Bulletin
Legislative Update: Analysis of Recent Legislation
By Collins Kiptoo, Dudley Ochiel and Vivian Etyang (Legal Researchers), Laws of Kenya Department
Introduction governments and amongst Management Legislative authority of the county governments. The Act also Transition Act (No. 13 Republic of Kenya is derived establishes mechanisms for the of 2013) from the people. At the national resolution of inter-governmental Pursuant to section 15 of the Sixth level, this authority is vested in and disputes pursuant to Articles 6 and Schedule of the Constitution, exercised by the Parliament. This 189 of the Constitution. the County Governments Public is in accordance with provisions Finance Management Transition of Article 94 of the Constitution of Moreover, the Act gives effect Act provides for a framework Kenya. Below is a brief summation to Articles 187 and 200 of the for establishment and functions of legislation enacted July 2012 Constitution in respect of the of Transition county treasuries; to March 2013. These pieces of transfer of functions and powers transition county budget process; legislation have been grouped by one level of government transition revenue raising measures into various thematic categories. to another, including the and expenditures for county transfer of legislative powers governments and responsibilities A. Devolution from the national government of transition county accounting to the county governments. officers and receivers of revenue. i. County Governments The intergovernmental relations Act (No. 17 Of 2012) structures established by the Act v. Transition County The main objective of this Act include the National and County Allocation Of is to provide for all matters Government Co-ordinating Revenue Act, 2013 (No. 6 Of 2013) necessary or convenient to give Summit, the Intergovernmental The object and purpose of effect to Chapter Eleven of the Relations Technical Committee this Act is to provide for the Constitution pursuant to Article and the Council of County sharing of revenue raised 200. Section 3 defines vividly Governors. nationally among the county the objects and functions of governments, for the purpose of the Act. The functions of county iii. Transition to wages and administration costs governments, powers of county Devolved and any other expenses for the governments, membership of the Government Act (No. county executive and county county assembly, membership 1 Of 2012) assemblies. The Act also provides and roles of the county assembly This Act provides for a framework for the facilitation of the transfer and provisions relating to county for the transition to devolved of county allocations under the Act from the Consolidated Fund executive committee has been government pursuant to section to the relevant County Revenue outlined in this Act. 15 of the Sixth Schedule to the Constitution. The Act establishes Fund for the period commencing the Transition Authority (TA), which March to June, 2013. Respective ii. Intergovernmental county governments’ allocation has the primary mandate of Relations Act (No. 2 has been set out in Column B of Of 2012) facilitating and co-ordinating the the schedule to the Act. This is an Act of Parliament to transition to the devolved system establish a framework for of government. vi. National Government consultation and co-operation Coordination Act (No. between the national and county iv. County Governments 1 Of 2013) Public Finance This Act gives effect to Articles
| January - April 2013 Issue 21 | January - April 2013 53 The Kenya Law Bench Bulletin
131(1) (b) and 132 (3) (b) of for University Education, the the Constitution. It establishes iv. Legal Education Act University Funding Board and the administrative and institutional (No. 27 Of 2012) Kenya University and Colleges framework for co-ordination of This Act governs the regulation Central Placement Service Board. national government functions at and licensing of legal education The purpose of the Act is to providers. The Act also establishes the national and county levels of provide for the development governance. The key objectives the Council of Legal Education of university education and to of the Act are to provide for and Legal Education Appeals the effective co-ordination and Tribunal. The conduct and promote the advancement of administration of the national regulation of the business and knowledge through teaching, government functions prescribed affairs of the Council is provided scholarly research and scientific in the Constitution, this Act or any for in the First Schedule to the investigation. This piece of other written law and to provide Act. legislation repeals the following for the establishment of an Acts: The Universities Act, The administrative and institutional v. Teachers Service University of Nairobi Act, The framework at the national, Commission Act (No. Kenyatta University Act, The county and decentralized units 20 Of 2012) Moi University Act, The Jomo to ensure access to national This Act gives effect to Article Kenyatta University of Agriculture government services in all parts 237 of the Constitution which and Technology Act, The Egerton of the Republic. establishes the Teachers University, The Maseno University Service Commission and makes Act, The Masinde Muliro University B. Education further provisions regarding its of Science and Technology Act. composition, functions and i. Kenya National powers, the qualifications and ix. Kenya National Examinations Council procedure for appointments of Commission for Act (No. 29 Of 2012) members to the Commission. UNESCO Act (No. 5 Of The Act establishes the Kenya 2013) National Examination Council. It vi. Basic Education Act This legislation establishes the also provides for its constitution, (No. 24 Of 2013) Kenya National Commission for control and administration. The Act gives effect to Article 53 UNESCO which is a successor to of the Constitution by seeking to the Department of the Kenya ii. Kenya School of Government Act (No. provide free and compulsory basic National Commission for UNESCO 9 Of 2012) education. The Act also provides existing under the Ministry of This Act establishes the Kenya for accreditation, registration, Education immediately before the School of Government as a governance and management commencement of this Act. The successor to the Kenya Institute of institutions of basic education. primary duty of the commission is of Administration and the Kenya The Act further establishes the to ensure permanent presence Development Learning Centre. National Education Board, the of UNESCO in Kenya and also It also provides for the powers, Education Standards and Quality to involve UNESCO’s activities functions and administration Assurance Commission and the in the relevant line ministries, of the school. Section 6 of the County Education Board. departments, agencies, Act establishes the Council of the school which is mandated organizations and individuals among other functions to provide vii. Kenya Institute dealing in UNESCO’s areas of strategic advice and direction to of Curriculum competence. the school. Development Act (No. 4 Of 2013) C. Agriculture iii. Kenya School of Law The Act establishes the Act (No. 26 Of 2012) Kenya Institute of Curriculum i. Kenya Plant Health The Act provides for the Development and the governing Inspectorate Services establishment, powers and Council for the Institute. The Act (No. 54 Of 2012) functions of the Kenya School of main function of the institute is The Act establishes the Kenya Law. The objects and functions to advice the government on Plant Health Inspectorate Service of the school as provided under matters pertaining to curriculum as a regulatory body for the section 4 of the Act include but not development. The council is protection of plants, seeds and limited to: providing professional mandated to establish Academic plant varieties and agricultural legal training as an agent of Committee, course panels, produce. The Service is responsible the Government, provide an for supporting the administration Advocates’ Training Programme subject panels and research and enforcement of food safety pursuant to the Advocates Act, monitoring and evaluation panel ensure continuing professional so as to discharge its role and measures and also to establish development for all cadres of functions. service laboratories to monitor the the legal profession, provide quality and levels of toxic residues para-legal training and other viii. Universities Act (No. in agro-inputs, irrigation water, specialized training in the legal 42 Of 2012) plants soils and produce. The sector. This Act establishes the Commission service is mandated to administer
54 Issue 21 | January - April 2013 The Kenya Law Bench Bulletin
several other written laws. prevention, treatment and control Among others, the functions of of cancer in Kenya. The Act the Authority are to advise and ii. Agriculture, Fisheries establishes the National Cancer make recommendations to the and Food Authority Institute of Kenya, with the primary Cabinet Secretary on matters Act (No. 13 Of 2013) objective of advising the cabinet relating to road transport and The Act establishes the Agriculture, secretary on matters relating to safety, to implement policies Fisheries and Food Authority which the treatment and care of persons relating to road transport and shall be responsible for licensing with cancer and also to advise on safety and to administer the Traffic and charging of levies and the relative proprieties to be given Act, Chapter 403. breeder royalties on all scheduled to the implementation of specific crops on behalf of the national measures. vi. National Authority For government as prescribed The Campaign Against by the Fourth schedule of the ii. Civil Aviation Act (No. 21 Of Alcohol and Drug Abuse Constitution. 2013) Act (No. 14 Of 2012) This Act was enacted to provide for This Act creates an institutional iii. Crops Act (No. 16 Of the control, regulation and orderly framework for the control of 2013) development of civil aviation in alcohol and drug abuse. The The main objective of this Act is Kenya. The Act also establishes framework is meant to co- to provide for the growth and the Kenya Civil Aviation Authority ordinate efforts to mitigate development of agricultural whose function is to economically alcohol and drug abuse. The crops. The Act shall come into and efficiently plan, develop and National Authority established operation by notice in the Kenya manage, regulate and operate a under the Act succeeds the Gazette upon which the various safe civil aviation system in Kenya. National Campaign Against statutes relating to crops shall be Further, it repeals the Civil Aviation Drug Abuse Authority which was repealed. Act (Cap. 394). previously established under the State Corporations Act, Cap. 446. iv. Kenya Agricultural and Livestock iii. Kenya Law Reform Research Act (No. 19 Commission Act (No. 19 E. Security Of 2013) Of 2013) This Act establishes the This legislation provides for the x. Kenya Defence Agriculture, Fisheries and Food functions, powers, management Forces Act (No. 25 Of Authority which is mandated and administration of the Kenya 2012) in consultation with the county Law Reform Commission. This This Act gives effect to Article governments to administer the commission is the successor to the 241 of the Constitution, which establishes the Kenya Defence Crops Act and the Fisheries Act Law Reform Commission which Forces and provides for its in promoting best practices in, had been established by the Law and regulate, the production, functions, organization and Reform Commission Act Cap. 3. processing, marketing, administration in accordance grading, storage, collection, with the provisions of Article transportation and warehousing iv. Kenya Medical Supplies 239(6) of the Constitution. of agricultural and aquatic Authority Act (No. 20 of products excluding livestock 2013) The responsibility for the defence products as may be provided This Act establishes the Kenya and protection of the sovereignty for under the Crops Act, and the Medical Supplies Authority which is and territorial integrity of the Fisheries Act. a successor to the Kenya Medical Republic of Kenya is placed Supplies Agency established squarely on the Kenya Defence Forces by Article 241(3) (a) of the The objective of the Act is to under the State Corporations Act Constitution and reiterated by make provision for the respective Cap. 466. The management of roles of the national and county section 8 of the Act. In addition, the Authority is vested in a Board governments in agriculture The Defence Council established excluding livestock and related of Directors. by Article 241(5) of the matters in furtherance of the Constitution to is charged with relevant provisions of the Fourth v. National Transport And Safety the responsibility for the overall Schedule to the Constitution. Authority Act, (No. 33 Of policy, control and supervision of Further, this legislation repealed 2012) the Defence Forces. Agriculture Act, Suppression of This Act provides for the Noxious Weeds Act, and Grass establishment of the National xi. National Security Fires Act. Transport and Safety Authority Council Act (No.23 Of which shall have the overall 2012) This Act gives effect to Article D. Acts Establishing Various responsibility of regulating the Commissions/Authorities 240 of the Constitution, which road transport sector including establishes the National the inspection, registration and i. Cancer Prevention And Security Council and makes Control Act (No. 15 of licensing of motor vehicles further provision with respect 2012) and to provide for the powers to the functions of the National This Act provides for the and functions of the Authority. Security Council. The National
| January - April 2013 Issue 21 | January - April 2013 55 The Kenya Law Bench Bulletin
Security Council shall consist of consent from the Inspector- Act (No.46 Of 2012) President, Deputy President, the General or Director of Public This Act seeks to establish a Cabinet Secretary responsible Prosecutions to file an application regime of consumer protection for Defence, the Cabinet seeking an interception of law that provides comprehensive Secretary responsible for Foreign communications order of the consumer protection and Affairs, the Cabinet Secretary Court. appropriate legal recourse to responsible for Internal Security, aggrieved consumers. The main the Attorney- General, the Chief F. Health of Kenya Defence Forces, the purpose of this Act as set out in section 3(4), is to promote Director-General of the National i. Breast Milk Substitutes Intelligence Service and the (Regulations And and advance the social and Inspector-General of the National Control) Act (No. 34 economic welfare of consumers Police Service. In addition, it is Of 2012) in Kenya. This is to be achieved the grand strategic forum for The main objective of this legislation by establishing a legal framework formulation and integration is to provide for appropriate for the achievement and of Kenya’s domestic, foreign marketing and distribution of maintenance of a consumer and military policies relating to market that is fair, accessible, national security. breast milk substitutes, provide for safe and adequate nutrition efficient, sustainable and responsible for the benefit of xii. National Intelligence for infants through the promotion Service Act (No.28 Of of breastfeeding and proper use consumers generally; reducing 2012) of breast milk substitutes. The Act any disadvantages experienced This Act gives effect to Article mandates the Cabinet Secretary in accessing any supply of goods or 242(2) of the Constitution, responsible for matters relating services by consumers; promoting particularly and other relevant to public health to establish the fair and ethical business practices, provisions of the Constitution National Committee on Infant among others. which establishes the National and Young Child Feeding whose Intelligence Service and provides iii. Public Finance for its functions, organization and main function is to advise the Cabinet Secretary on the policy Management Act, administration in accordance (No. 18 Of 2012) to be adopted in relation to infant with the provisions of Article This Act provides for the effective 239(6) of the Constitution. and young child nutrition. management of public finances by the national and county The main function of the ii. Public Health Offices governments; the oversight National Intelligence Service is Act (No. 12 Of 2013) responsibility of Parliament and set out in section 242(2) (a) of The Act establishes the Public county assemblies; the different the Constitution and section 5 of Health Offices and Technicians responsibilities of government the National Intelligence Service Council, its powers and functions. entities and other bodies, and for Act as the responsibility for It also provides for the training, connected purposes. security intelligence and counter registration and licensing of public intelligence to enhance national health offices and public health The principal object of this Act security in accordance with the is to provide for the effective Constitution. technicians to regulate their practice. management of public finances xiii. Prevention of by the national government Terrorism Act (No. 30 and the county governments in Of 2012) G. Finance/Commerce accordance with the Constitution This Act establishes a legal and for the accountability framework to provide measures i. Public Private of public officers, given the for the detection and prevention Partnerships Act (No. responsibility of managing those of terrorist activities. It also creates 27 Of 2013) finances, to the public, through offences for the commission This is an Act to provide Parliament and the respective of terrorist acts and related for the participation of the county assemblies. offences, their investigation and private sector in the financing, trial. Part III of the Act creates construction, development, iv. Kenya Deposit offences for the commission of operation, or maintenance of Insurance Act (No. 10 terrorist acts, recruitment and infrastructure or development Of 2012) training of and the issuance of projects of the government The Act of Parliament’s response directions to a terrorist group. through concession or other to the challenges posed by contractual arrangements. It modern day operations of banks, Section 36 of the Act confers goes further to provide for the financial institutions or mortgage power to Chief Inspectors of Police establishment of institutions to financers. Those challenges call and officers above that rank to regulate, monitor and supervise for a strengthened supervisory obtain evidence of commission the implementation of project regime on deposit insurance of offences under this Act, by agreements on infrastructure or as well as stronger institutional intercepting communication development projects. The Public control. Therefore, the Act creates between suspected terrorists. Private Partnership Committee is the Kenya Deposit Insurance Such interception can only be established by this Act. Corporation to regulate the exercised upon obtaining written deposit insurance system, ii. Consumer Protection
56 Issue 21 | January - April 2013 The Kenya Law Bench Bulletin
receivership and liquidation connected purposes. of deposit taking institutions. The Corporation is vested with I. Elections This legislation establishes Registry autonomy to enhance corporate of Treaties which shall be a governance, efficiency and i. Publication Of department within the State management of the liquidation Electoral Opinion Department responsible for process and compliance with Polls Act (No. 39 Of matters relating to treaties. This international best practices. 2012) Act only applies to treaties which This Act is borne of the reality that were concluded by Kenya after v. Micro and Small the publication of the results of Enterprises Act (No. commencement of the Act being electoral opinion polls influences th 55 Of 2012) voters to vote in one way or the 14 December, 2012. The Act promotes, regulates other. As such, the Act regulates and catalyzes the development the manner of publication v. National Honours Act of micro and small enterprises of opinion polls and requires (No. 11 Of 2013) (SMEs).The Act institutes the sufficient public disclosure of This Act gives effect to Article 132(4) Micro and Small Enterprises relevant information connected (c) of the Constitution. To fulfill its Authority to regulate the sector to the opinion polls. object and functions, the Act and, in addition to that, the establishes the following: National office of the Registrar of Registrar ii. Petitions To Parliament and County Governments of Micro and Small Enterprises (Procedure) Act (No. Honours Advisory Committee; to register SMEs. Parliament in 22 Of 2012) Parliamentary Honours Advisory passing the law recognizes that The Act provides the procedure there was previously a legislative for petitioning Parliament Committee and Judiciary Honours or regulatory gap in the sector, pursuant to Article 119 of the Advisory Committee. though SMEs play a significant Constitution. This ensures public role in economic development participation in relation to the vi. Office Of The Director and employment creation. enactment of legislation and Of Public Prosecutions any other matter that may be (No. 2 Of 2013) vi. Partnerships Act (No. considered by Parliament. 26 Of 2012) The Act gives effect to Articles This Act clarifies the law on general iii. Assumption of The 157 and 158 of the Constitution. partnerships. The process leading Office of The President The Office of Director of Public to the enactment goes back Act (No. 21 Of 2012) Prosecutions having been to the 1992 when the Attorney The Act outlines the procedure established by the Constitution, General appointed a Taskforce and ceremony for the assumption this Act makes further to review the law relating to the Office of the President- provisions on the composition, to Companies, Investments, elect in accordance with administration, functions and Partnerships and Insolvency. The Article 141 of the Constitution. powers of the director. legislature in passing the law The provisions also apply, with took notice that a Partnership necessary modification, to the vii. Public Benefits does not generally have a legal Deputy President or the Speaker Organizations Act personality of its own but is of the National Assembly under (No. 18 Of 2013) merely a way of describing the Article 146 (2) of the Constitution. This legislation provides for the individual partners who make up establishment and operation the partnership. Conspicuously, the swearing of public benefit organizations. in of the President - elect is a Its objective is to provide for Consequently, unlike the case of public ceremony held in the their registration, establish an companies where a member of capital city in accordance with administrative and regulatory the company is to a large extent Article 141 of the Constitution. As framework within which public insulated from liabilities of the such the Committee established benefit organizations can company, in a partnership, each under the Act must publish in the conduct their affairs. partner is held responsible not Gazette, the date and place for just for the liabilities caused by the conduct of the swearing- his actions, but also for liabilities in ceremony. The date of the viii. Leadership And incurred by each partner. swearing in is a public holiday. Integrity Act (No.19 Partnerships have therefore Of 2012) proved difficult particularly in This Act establishes procedures view of the fact that under the J. Other Acts and mechanisms for the previous current Partnership Act effective administration of (Cap 29), as each partner was Chapter Six of the Constitution iv. Treaty Making And considered an agent of the other. on leadership and integrity. The Ratification Act (No. To aid the situation, Section 7 of primary purpose of this Act is set 45 Of 2012) the Act constitutes a Partnership out in section 3 as to ensure that The Act gives effect to Article as a legal entity capable of suing State officers respect the values, 2(6) of the Constitution and and being sued in its own name, principles and requirements its objective is to provide for owning property and perpetual of the Constitution, which the procedure for the making succession in some cases. include the national values and and ratification of treaties and
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principles provided for under General, the discharge of duties service and appoint personnel Article 10 of the Constitution; and the exercise of powers to hold such offices; promote the the fundamental rights and of the Attorney-General, the values and principles outlined fundamental freedoms provided appointment of State Counsel in Articles 10 and 232 of the for under Chapter Four of the to the Office and delegation of Constitution and ensure their Constitution; the responsibilities duties from the Attorney-General compliance in the public service; of leadership provided for under to the solicitor-General and State among others. Article 73 of the Constitution Counsel. and the principles governing xi. Prevention, Protection the conduct of State officers x. Public Service and Assistance to provided for under Article 75 of Commission Act Internally Displaced the Constitution. (No.13 Of 2012) Persons and Affected Communities Act, ix. Office Of The Attorney This Act gives effect to the Public (No. 56 Of 2012) General Act (No.49 of Service Commission established The Act gives effect to the Great 2012) under Article 233 of the Lakes Protocol on the Protection This Act provides for the Constitution, to make provisions and Assistance to Internally administration of the Office as to its functions, powers and Displaced Persons and the United of the Attorney-General administration; to provide a legal Nations Guiding Principles on established under Article 156 of framework for the identification, Internal Displacement and also the Constitution. Article 156 of qualifications and procedures provides for the protection and the Constitution establishes the for the appointment of the assistance to internally displaced Office of the Attorney-General to chairperson, members and persons. The Act furthers specific be the principal legal adviser to secretary of the Commission. aspects of Great Lakes Protocol the Government and to represent on the Protection and Assistance the national government in The functions and powers of to Internally Displaced Persons legal proceedings, other than the Public Service Commission that require action through criminal proceedings. This Act are provided for in Article 234 of domestic legislation. makes provision for the functions the Constitution as to establish and powers of the Attorney- and abolish offices in the public
“A soul that is kind and intends justice discovers more than any sophist” - Sophocles
58 Issue 21 | January - April 2013 The Kenya Law Bench Bulletin
LAUNCH OF THE LAWS OF KENYA REVISED EDITION 2012 F.A.Qs
By Laws of Kenya Department
members of staff led by a Chief supplement which captures the Executive/Editor. history of amendments.
2. What is contained in the Laws 5. When was the last time the of Kenya? Laws were revised and consolidated? The Laws of Kenya - Revised Edition 2012 contain the full text of The last exercise for the revision and Acts of Parliament (statutes) and consolidation was undertaken by regulations (subsidiary legislation) the Attorney General’s office in made under those Acts as they 1989. existed as at 31st of August, 2012. 6. Are these the official Laws of This edition is comprised of twenty- Kenya? Wambui Kamau, Team Leader, Laws of Kenya two volumes in which the Acts have been placed in alphabetical Yes. Through Legal Notice Number or the first time in twenty years order. Each Act commences on a 29 of 2009, the Attorney General FKenya Law has revised and new page and the running heads delegated to Kenya Law the consolidated all the Laws of at the top of the page indicate power of law revision conferred Kenya. the title heading of the Act, the by the Revision of the Laws chapter number as well as year Act, Cap.1. Kenya Law has launched of revision of the Laws. Kenya Law is the official publisher a revised, consolidated and of the Laws of Kenya as well updated edition of the Laws of 3. How can I access this product? as other forms of public legal Kenya (2012) in print, online and information and the exercise of on CD-ROM. The online edition is (a) Cost: the revision and consolidation of available free of charge on: While the online edition is provided the Laws was undertaken with www.kenyalaw.org free of charge, Kenya Law the authority and in collaboration will charge a nominal fee for with the Office of the Attorney 1. Who is Kenya Law? CD-ROM and print editions to General. recover the enormous cost of Kenya Law is an award-winning the law revision exercise and 7. How often will the Laws be service state corporation in the to sustain the cost of keeping updated? Judiciary, established under the content updated. the National Council for Law The online edition is updated Reporting Act, Cap.1A. (b) Accessibility: on a daily basis. At the time of To access the online edition go towww . the launch, the print edition was The mandate of Kenya Law is: kenyalaw.org - it is free of charge. updated as at 31st August, 2012, To acquire the CD-ROM and print while the CD-ROM edition was as - To monitor and report on edition contact Kenya Law. at 31st December, 2012. the development of Kenyan jurisprudence through the 4. What is Law Revision and 8. What technology has been publication of the Kenya Law Consolidation? used to publish the Laws Reports; online? - To revise, consolidate and publish Law Revision and Consolidation the Laws of Kenya; and is the editorial process of The online database of the Laws - To undertake such other related incorporating amendments of Kenya is based on Extensible publications and perform such and repeals to Laws passed by Markup Language(XML). XML other functions as may be Parliament. has emerged as an international conferred by law. standard and has designed This exercise is usually followed goals that emphasize openness, Kenya Law is lead by a Council by a release of revised and simplicity, generality and of Members chaired by the Chief consolidated laws in a print edition usability of information. XML Justice and has a secretariat with accompanied by a legislative also emphasizes technological
| January - April 2013 Issue 21 | January - April 2013 59 The Kenya Law Bench Bulletin
neutrality and is compatible profit organization dedicated to · Organizations that have the across the widest range of expanding the range of creative public mandate to publish communication media. works available for others to public legal information share and build on legally. The should not impose unfair As an institution that values open organization has released a restrictions of the use and access to information, XML was number of information labels re-use of that information by a natural choice for Kenya Law. (called licences) designed to other persons. enable the publishers and creators 9. What technology has been of other works to communicate By law, no person may claim used to publish the Laws of with clarity and simplicity what copyright to the text of the Laws Kenya on CD? copyright restrictions, if any, apply of Kenya. In that regard, while to their work. the text of the Laws of Kenya is Kenya Law has used Rocket Folio in the public domain, the design, Views for CD/DVD publishing. Kenya Law is an affiliate and structure, metadata and format It offers a high-performance partner of Creative Commons of the Laws as presented by information retrieval software and a member of the Creative Kenya Law is subject to a few tool that provides robust text- Commons-Kenya team. Kenya restrictions and it is licencesed searching within and across large Law is also a member of the under a Creative Commons collections of information. Free Access to Law Movement. Attribution-Non Commercial- In these two roles, Kenya Law ShareAlike 3.0 Unported Licenced The technology behind the embraces and champions the software makes massive volumes open sharing of information, of information easy to manage knowledge and creativity. and navigate and enable a user to quickly find the information needed regardless of the 13. What copyright restrictions complexity of the data. apply to the use of the Laws of Kenya? 10. What is unique about the online database? A t
The online edition of the Laws of Kenya is the first database of its kind in the world in the sophistication of the technology behind it, the scope of its content and the ease of navigation. The database has the unique Point-In-Time functionality. This feature enables a user to view the law as it was at a particular point in time.
11. Can I download the Laws? Kenya Law, we believe that: Yes, from the online edition. · Public legal information One can donwload individual Acts is part of the common and other pieces of legislation for heritage of humanity and free in different formats, including maximizing access to this PDF, XML and DOC. information promotes Justice and the Rule of Law; 12. What is Creative Commons · Public legal information and what is its association is common property and with Kenya Law? should be accessible to all;
Creative Commons (CC) is a non-
60 Issue 21 | January - April 2013 The Kenya Law Bench Bulletin
This means that: · Your fair dealing or fair use rights, or other You are free to: applicable copyright exceptions and limitations; · to Share — to copy, distribute · Kenya Law’s moral rights; and transmit the work · Rights other persons may have either in the · to Remix — to adapt the work work itself or in how the work is used, such as publicity or privacy rights. Under the following conditions: · For any reuse or distribution, you must make clear to others the license terms · Attribution — You must attribute the work of this work. to Kenya Law (but not in any way that suggests that they endorse you or your use For more information go to http://creativecommons. of the work). org/licenses/by-nc-sa/3.0/ · Noncommercial — You may not use the work for commercial purposes. 14. More Information on the law revision project. · Share Alike — If you alter, transform, or build upon the work, you may distribute the The consolidation, publishing and printing of the resulting work only under the same or similar Laws of Kenya was done by the members of staff license to this one. of the Laws of Kenya Department at Kenya Law under a project sponsored by the Financial and With the understanding that: Legal Sector Technical Assistance Project (FLSTAP), a government project co-funded through a grant from · Waiver — Any of the above conditions the United Kingdom Department for International can be waived if you get permission from Development (DFID) and a credit from the World Kenya Law. Bank, administered by the Ministry of Finance. · Public Domain — Where the work or any of Technical support for the project was provided by its elements is in the public domain under the Legislative Drafting Department in the Attorney applicable law, that status is in no way General’s Office, the Kenya Law Reform Commission, affected by the license. the Africa i-Parliament Action Plan of United Nations · Other Rights — In no way are any of the Department for Economic and Social Affairs (UN/ following rights affected by the license: DESA) and LexisNexis.
The Laws of Kenya Revised Edition 2012 by the numbers:
0 The cost of accessing the Laws of Kenya online.
1st The world’s most advanced, openly accessible and updated database of the full text of national legislation 1st The first laws database in the world to feature Point-In-Time functionality.
1 The number of clicks it takes to navigate from one Act to the other on the Laws of Kenya CD-ROM Edition.
5 seconds The time it takes to do a full-text search for a word or phrase across the entire collection in the Laws of Kenya CD-ROM Edition. 22 The number of print volumes forming one set of the Laws. 23 The number of the members of staff of Kenya Law who worked on the project. 451 The number of Acts contained in the Laws.
5, 040 The estimated number of extra working hours put in by the members of the Laws of Kenya department of Kenya Law working on the law revision and consolidation exercise. 27,222 The total number of pages contained in the Laws. 9,091,874 The total word-count of the Laws.
| January - April 2013 Issue 21 | January - April 2013 61 NATIONAL COUNCILFO R LAW REPORT ING A service state corporation in the Judiciary. Product Catalogue and Price list
oduct Status Cost Product Status Costs
1 Kenya Law Reports 1976 -1980 Available 6,000/= 28 Kenya Law Reports 2008 Available4,500/=
2 Kenya Law Reports 1981 Out of stock 29 Kenya Law Reports 2009 Available4,500/=
3 Kenya Law Reports 1982 Out of stock 30 Kenya Law Reports (Gender Based Violence) Available 4,500/=
4 Kenya Law Reports 1983 Out of stock 31 Laws of Kenya Grey Book Available7,200/=
5 Kenya Law Reports 1984 Out of stock 32 Land Law Volume Available 7,200/=
6 Kenya Law Reports 1985 Out of stock 33 Public Finance Volume Available 7,200/=
7 Kenya Law Reports 1986 Available 3,000/= 34 Family Law Volume Available 4,500/=
8 Kenya Law Reports 1987 Available 3,000/= 35 Commercial Law Vol. 1 Available 7,200/=
9 Kenya Law Reports 1988 Available 3,000/= 36 Commercial Law Vol. 2 Available 7,200/=
10 Kenya Law Reports 1989 Available 3,000/= 37 Laws of Kenya Land Law CD Available 1,500/= (featuring new Land Laws) 11 Kenya Law Reports 1990 Available3,000/= 38 Kenya Law Review 2007 Vol. 1 Available 3,000/= 12 Kenya Law Reports 1991 Available 3,000/= 39 Laws of Kenya Consolidated CD ROM Available1,500/= 13 Kenya Law Reports 1992 Available 3,000/= 40 Kenya Law Reports (Gender Based Violence) Available 4,500/= 14 Kenya Law Reports 1993 Available 3,000/= 41 Kenya Law Reports (Family & Gender) Available 4,500/= 15 Kenya Law Reports 1994 Available 3,000/= 42 Kenya Law Reports (Environment & Land) Vol. 1 Available3,000/= 16 Kenya Law Reports 2000 Available3,000/= 43 Kenya Law Reports (Election Petitions) Vol. 1 Available4,500/= 17 Kenya Law Reports 2001 Available 3,000/= 44 Kenya Law Reports (Election Petitions) Vol. 2 Available 4,500/= 18 Kenya Law Reports 2002 Vol. 1Available 3,000/= 45 Kenya Law Reports (Election Petitions) Vol. 3 Available 4,500/=
19 Kenya Law Reports 2002 Vol. 2Available 3,000/= 46 Kenya Law Review Journal 2008 - 2010 Vol. II Available4,500/= 20 Kenya Law Reports 2003 Available 3,000/= 47 Kenya Law Reports Consolidated Tables and Available 3,000/= 21 Kenya Law Reports 2004 Vol. 1Available 3,000/= Digest [1976-1986]
22 Kenya Law Reports 2004 Vol. 2 Available 3,000/= 48 KLR Monthly Available 500/=
23 Kenya Law Reports 2005 Vol. 1Available 3,000/= 49 Kenya Law Reports Weekly e-Newsletter Available Free by email subscription 24 Kenya Law Reports 2005 Vol. 2 Available3,000/= 50 Bench Bulletin Available Free 25 Kenya Law Reports 2006 Vol. 1 Available 3,000/= 51 www.kenyalaw.org Always available Free 26 Kenya Law Reports 2006 Vol. 2 Available 4,500/=
27 Kenya Law Reports 2007 Vol. 2 Available4,500/=
Milimani Commercial Courts, 4th Upper Hill Close, off Ngong Rd, P.O. Box 10443 - GPO 00100, Nairobi, Kenya www.kenyalaw.org Tel: (+254 020) 2712767, 2719231, 2627228, Mobile: 0718 799 464, 0736 863 309
62 Issue 21 | January - April 2013 The Kenya Law Bench Bulletin
The Doctrine of Judicial Review vis-à-vis The Principles of Good Governance in Public Private Partnerships: Aglimpse into the Public Private Partnerships Act, 2013. By Sikuta Wanjala, Laws of Kenya Department
Kenya Nuclear Electricity Board Standards Tribunal Order, 2012, the President and In exercising the powers conferred Commander-in-Chief of the Kenya by section 16A of the Standards Defence Forces appointed— Act, the Minister for Industrialization OCHILO AYACKO appointed— to be an Executive Chairman Benjamin Mwikya Musyoki, of the Kenya Nuclear Electricity Susan Wangeci Mwangi, Board, for a period of three (3) Julius Kolil, years. Irene Magut, to be members of the Standards Gazette Notice No. 206 Dated Tribunal, for a period of three 31st December, 2013 (3) years, with effect from 7th he Kenya Gazette is an September, 2012. The Kenya Forestry Research Tofficial publication of the Institute Government of the Republic of Kenya. It contains notices of new Gazette Notice No. 5 Dated 2nd In exercising the powers conferred legislation, notices required to be January, 2013 by section 15 (1) (f) of the published by law or policy as well Science and Technology Act, the as other announcements that Anti-Counterfeit Agency Minister for Forestry and Wildlife are published for general public In exercising the powers conferred appointed— information. It is published every by section 6 (1) of the Anti- Daniel Njiru Mugendi— week, usually on Friday, with Counterfeit Act, 2008, the Minister (Chairman) occasional releases of special for Industrialization re-appointed— Supinder Singh Soin (Dr.), or supplementary editions within ALLAN GEORGE NJOGU Caroline Achieng Oduor, the week. The following is a recap KAMAU Agnes Wakesho Mwang’ombe, of notable appointments made as the Chairman of the Board of Robinson Kiragu Ng’ethe, under the Kenya Gazette from Directors of the Anti-Counterfeit Kingiri Senelwa (Prof.), April to June, 2012. Agency, for a period of three to be members of the Kenya (3) years, with effect from 11th Forestry Research Institute Board A). State Corporations end February, 2013. of Management, for a period of Parastatal three (3) years. State corporations are by order Gazette Notice No. 192 Dated 7th established by the President and January, 2013 Gazette Notice No. 210 Dated 4th generally regulated by the State January, 2013 Corporations Act (Cap. 446). The Chuka University The President or the Minister under In exercising the powers conferred The Kenyatta National Hospital whose docket the particular body by section 38 of the Universities In exercising the powers conferred lies make various appointments Act, 2012, the President and by paragraph 2 (g) of the Kenyatta to the various state corporations, Commander-in-Chief of the Kenya National Hospital Order, 1987, parastatals and even commissions. Defence Forces appointed— the Minister for Medical Services State Advisory Committees are KABIRU KINYANJUI appointed— established under section 26 of to be Chancellor of Chuka Lawrence Oginga Omire, the Act and whose functions University, for a period of five (5) Ibrahim Mohamed Abdille, are mandated in section 27 years. Mary Wambui Mungai, to advise the president on the Jackson Koitumet Mpario, establishment, reorganization Gazette Notice No. 193 Dated Achola O. Pala, and dissolution of the state 21st December, 2013 to be members of the Board of corporations. the Kenyatta National Hospital, The Kenya Nuclear Electricity for a period of three (3) years, Gazette Notice No.4 Dated Board Order, 2012 with effect from the 28th January, 2nd January, 2013 2013. In exercising the powers conferred by section 7 (1) (a) of the
| January - April 2013 Issue 21 | January - April 2013 63 The Kenya Law Bench Bulletin
Gazette Notice No. 213 Dated by Article 233 of the Constitution Francis Ndegwa Muhoro, 27th December, 2013 of Kenya 2010, as read with Director of Criminal the First Schedule of the Public Investigations; The Konza Technopolis Service Commission Act, 2012, John Patrick Ochieng’ Owino Development Authority the President and Commander- (Eng.), Director, Kenya National In exercising the powers conferred in-Chief of the Kenya Defence Focal Point on Small Arms and by paragraph 5 (1) (e) of the Forces appointed— Light Weapons; Konza Technopolis Development MARGARET KOBIA (PROF.) with effect from 22nd January, Authority Order, 2012, the to be Chairperson of the Public 2013. Minister for Information and Service Commission for a single Communications appointed— term of six years, with effect from Emma Miloyo, 9th January, 2013. Gazette Notice No. 1080 Dated Haron Gekonye Nyakundi, 30th January, 2013 Reuben Mutiso (Dr.), Gazette Notice No. 465 Dated Rosemary Nduku Maundu, 15th January, 2013 The Kenya Seed Company to be members of the Board of the In exercising the powers conferred Konza Technopolis Development The Technical University Of Kenya by section 6 (1) (a) of the State Authority, for a period of three In exercising the powers conferred Corporations Act, the President (3) years, with effect from the 5th by section 38 of the Universities and Commander-in-Chief of December, 2012. Act, 2012, the President and the Kenya Defence Forces Commander-in-Chief of the Kenya appointed— Gazette Notice No. 214 Dated Defence Forces appointed— ZIPPORAH J. KITTONY 10th December, 2012 MANU CHANDARIA to be Chairperson of the Kenya to be Chancellor of the Technical Seed Company Board, for a The Kenya Film Commission University of Kenya, for a period of period of three (3) years, with five (5) years. effect from 8th January, 2013. In exercising the powers conferred by paragraph 3 (2) (f) of the Kenya Gazette Notice No. 1094 Dated Film Commission Order, 2005, Gazette Notice No. 801 Dated 25th January, 2013 the Minister for Information and 16th January, 2013 Communications appointed— Sacco Societies Regulatory Judy J. Bisem, Nzoia Sugar Company Authority (SASRA) Frank Muiruri, In exercising the powers conferred Eston Njeru Munyi, by section 6 (1) (e) of the State In exercising the powers conferred to be members of the Kenya Film Corporations Act, the Minister for by section 5 (a) of Sacco Commission Board, for a period Agriculture appointed— Societies Act, 2008, the Minister of three (3) years, with effect from ROSELINDER SIMIYU for Co-operative Development the 10th December, 2012. to be a member of the Board and Marketing revoked the of Nzoia Sugar Company, for a appointment of— Gazette Notice No. 459 Dated 9th period of three (3) years, with DANIEL MARUBE January, 2013 effect from the 2nd February, as a Director of the Sacco Societies 2013. Regulatory Authority (SASRA), with The Kenya National Examinations effect from 10th September, 2012. Council Gazette Notice No. 1079 Dated In exercising the powers conferred 24th January, 2013 Gazette Notice No. 1095 Dated by section 5 (1) of the Kenya 25th January, 2013 National Examinations Council The National Police Service Act, 2012, the President and The Kenya Sugar Board Commander-in-Chief of the Kenya In exercising the powers In exercising the powers conferred Defence Forces appointed— conferred by Article 245 (3) of by section 5 (1) and (3) of the KABIRU KINYANJUI (PROF.) the Constitution, as read with Sugar Act, 2001, the Minister for to be Chairman of the Kenya section 13 (6) and section 30 (6) Agriculture appointed— National Examinations Council, of the National Police Service SAULO BUSOLO for a period of four (4) years, with Act, 11A of 2011, the President to be a member of the Kenya effect from the 21st December, and Commander-in-Chief of the Sugar Board, for a period of three 2012. Defence Forces of the Republic (3) years, with effect from the 1st of Kenya, appointed— March, 2012. Gazette Notice No. 460 Dated Grace Kaindi, Deputy 9th January, 2013 Inspector-General, Kenya Police; Gazette Notice No. 1456 Dated Samuel Mwongera Arachi, 28th January, 2013 The Public Service Commission Deputy Inspector-General, In exercising the powers conferred Administration Police;
64 Issue 21 | January - April 2013 The Kenya Law Bench Bulletin
of the National Hospital Insurance Advocates Complaints Gazette Notice No. 1459 Fund (N.H.I.F.), for a period of Commission Dated 21st January, 2013 three (3) years, with effect from In exercising the powers the 15th January, 2013. conferred by section 53 (1) of the Advocates Act the President and The National Hospital Insurance Commander-in-Chief of the Kenya Fund Defence Forces appointed— In exercising the powers conferred BEAUTTAH SIGANGA by section 10 (1) of the National to be the Chairperson of Hospital Insurance Fund Act, the Advocates Complaints the Minister for Medical Services Commission, for a period of three appointed— (3) years, with effect from 1st SIMEON OLE KIRGOTTY January, 2013. to be the Chief Executive Officer
If you want to make peace with your enemy, you have to work with your
enemy. Then he becomes your partner. - Nelson Mandela
| January - April 2013 Issue 21 | January - April 2013 65 The Kenya Law Bench Bulletin
Digest of Recent Legal Supplements on Matters of General Public Importance By Ochiel J Dudley, Legal Researcher
This Article presents a brief summation of Legislative Supplements, published in the Kenya Gazette, on matters of general public importance. The outline covers the period between 15th October, 2012 and 8th March, 2013. On their part, the Supplements cover diverse legal matters – elections, devolution, wages, nuclear energy, sexual offences, registration of telecommunication subscribers, and remuneration of public officers. Newly elected Governors might immediately be interested in the devolutionary regulations covering the transfer of functions, assets and liabilities to County governments after the 4th March general elections. Disgruntled candidates may however be interested in the presidential, county and parliamentary petition rules.
Date of Publication Legislative Supplement Citation Preface Number
9th November, 2012 No 151/2012 Supreme Court Rules, 2012 The Rules promulgated (L.N. 123/2012) under Article 163(8) of the Constitution and Section 31 of the Supreme Court Act regulates the practice and procedure in proceedings before the Supreme Court.
9th November, 2012 No 161/2012 The Elections (Registration The regulations are issued of Voters) Regulations, 2012 under Section 109 of the Elections Act, 2011. These The Elections (Voter Education) rules regulate the electoral Regulations, 2012 process – voter registration, political party nominations, Elections (General) voter education, electronic Regulations, 2012 voting as well as tallying and announcement of results. (L.Ns. 126, 127, and 128/2012)
66 Issue 21 | January - April 2013 The Kenya Law Bench Bulletin
23rd November, 2012 No. 170/2012 Kenya Nuclear Electricity The Order establishes the Board Order, 2012. Kenya Nuclear Electricity (L.N. 131/2012) Board as a body with perpetual succession and power to sue under Section 3(1) of the State Corporations Act, Cap 446. The Board, whose central function is the development of nuclear electricity in Kenya, succeeds the Nuclear Electricity Project Committee under the Ministry of Energy. 23rd November, 2012 No. 170/2012 The Sexual Offences (Medical The rules are prescribed Treatment) Regulations, 2012 under section 35 (3) of the (L.N. 133/2012) Sexual Offences Act, 2006 and control the treatment of any victim, suspect, convict or witness of a sexual offence.
7th December, 2012 No. 186/2012 Rules of Procedure on The rules are made under Settlement of Disputes, 2012. Regulation 99 of the Elections (L.N. 139/2012) (General) Regulations 2012. They set out the procedure for resolution of electoral disputes, other than election petitions, arising before the declaration of election results.
11th January, 2013 No. 1/2013 The Kenya Information And The regulations made Communications (Registration of under Section 27 of the Subscribers of Telecommunication Kenya Information and Services) Regulations, 2012. Communications Act, (L.N. 1/2013) (Cap. 411A) to legalize compulsory registration of telecommunication services subscribers.
15th February, 2013 No. 6/2013 Salaries and Remuneration The regulations issued Commission (Remuneration under the section 26 of the and Benefits of State and Public Salaries and Remuneration Officers) Regulations, 2013. Commission Act, 2011 enable (L.N. 2/2013) the Commission to manage, review and harmonize remuneration and benefits of State and public officers.
15th February, 2013 No. 6/2013 Supreme Court (Presidential These crucial rules arise Election Petition) Rules, 2013. from Article 163(8) of the (L.N. 15/2013) Constitution and section 31 of the Supreme Court Act, 2011. They govern petitions challenging the election of the President –elect under Articles 136, 137, 138, 139 and 140 of the Constitution.
| January - April 2013 Issue 21 | January - April 2013 67 The Kenya Law Bench Bulletin
15th February, 2013 No. 6/2013 Transition to Devolved Government The legal notice is issued under Transferred Functions, 2013 section 23(1) of the Transition (L.N. 16/2013) to Devolved Government Act, 2012, by the Transition Authority. The Legal Notice identifies functions that may be transferred to county governments immediately after the 4th March, general elections. 22nd February, 2013 No. 7/2013 Nurses (Nursing Commodities) The regulations are issued by Regulations, 2012 the Nursing Council under (L.N. 17/2013) section 9 (1) (i) and 26 of the Nurses Act. The regulations control the manufacture, sell, import or export of nursing commodities to ensure high quality standards. 22nd February, 2013 No. 9/2013 Labour Institutions (Building The wage order made and Construction Industry) under section 46 of the (Wages) Order, 2012 Labour Institutions Act, 2007 (L.N. 20/2013) prescribes the minimum wage payable to an employee in the building and construction industry.
22nd February, 2013 No. 12/2013 Elections (Parliamentary and The Overriding Objective of County) Petition Rules, 2013. the rules is to facilitate the just, (L.N. 44/2013) expeditious, proportionate and affordable resolution of electoral disputes. The rules are issued under section 96 of the Elections Act, 2011. 22nd February, 2013 No. 13/2013 Transition to Devolved The rules originate from, Government (Transfer of Assets section 36 of the Transition and Liabilities) Regulations, 2013. to Devolved Government (L.N. 45/2013) Act, 2012. The rules govern the transfer of assets and liabilities from public bodies to County governments. Curiously, the rules forbid the transfer of a public asset or liability where the obligation to transfer arose during the transition period.
68 Issue 21 | January - April 2013 The Kenya Law Bench Bulletin
XML Markup
By Laila Linda Mbevi and Evelyn Anyokorit
implement publishing standards.
XML has tags that are not predefined and must be defined by the user or Developer. To transform documents into “machine readable” ones, every part that has a relevant meaning and role has to have a “name” (tag) that machines can read. These include concepts such as preamble, section, paragraph, annotation, part etc.
Introduction “machine readable” is called While working on XML, Kenya Law is mandated to publish “markup”. Markup is the act namespaces provide a method the Kenya Law Reports which of adding machine readable to avoid element name conflicts, contain the judicial opinions of annotation and labels to the e.g. XML LINKING – Xlink, XPointer the superior courts of record and fragments of a document in , XML Base,m XInclude, XSLT. which are the official law reports order to allow computer-based of the Republic of Kenya; to processing to be carried out, from revise, consolidate and publish publication to print to storage to XLink allows you to insert links into the official Laws of Kenya. technical analysis, etc. ). These XML documents. annotations and labels are called The Laws of Kenya department “XML tags”. XPointer allows the links to (LOK) carries out the function address into specific parts of an of revising, consolidating and XML document. publishing the official Laws of What is XML? Kenya. To further improve and XML is the Extensible Markup achieve this, the Department is Language XInclude is a mechanism for in the processes of migrating to merging XML documents using AKOMA-NTOSO. XML allows to identify your elements, attributes, and URI information in a more accurate, references. AKOMO NTOSO stands for flexible, and adaptable way Architecture for Knowledge because you can add your Oriented Management of own tags to support ones African Normative Texts using specific requirements. Example XSLT is the style sheet language Open Standads and Ontologies. consolidate and cross-reference for XML files. With XSLT you can Akoma Ntoso is an open standard legal information and to provide transform XML documents into meant to make the structure and the ability to access point-in-time other formats, like XHTML, word meaning of legal documents legislation, i.e. to get the status of etc. “machine readable”. the law as it was in on a particular date. In the past, InDesign publishing The following is an example of XML software application has been XML files can be created and tags:- the application used to edit and edited in an XML editor. An XML publish the Laws of Kenya by the editor is a markup language ask the Prime Minister
| January - April 2013 Issue 21 | January - April 2013 69 The Kenya Law Bench Bulletin
words, and punctuation) and · First Copy Reading Features and Benefits of XML that of editors (who decide and - Copy reading of · Deliver high-quality organize the final layout and a statute against product and service publication of the document). Government copy information - automate the and is done in soft delivery of multi-language All the marked-up legislation is copy. and multi-channel product deposited in the OpenKM. - Thorough check and and service information. accuracy to ensure Example; documents can What is OpenKM? that all content is contain any possible data OpenKM stands for Open correctly captured, type - from multimedia Knowledge Management. It is all amendments and data (image, sound, video) focused on creating an Open subsidiary legislation to active components Source Electronic Document are in place. (Java applets, ActiveX) Management System. OpenKM is a useful tool in processing · Formatting · Reduce production costs knowledge management - Statutes are formatted - provide single instances providing a more flexible and into in house style, of approved product cost effective alternative to other then printed out in and service information applications. PDF format. for reuse throughout the authoring process, National Council for Law · Second Copy Reading including translation Reporting (Kenya Law) currently - 2 nd copy reader uses Alfresco as its document confirms whether · Improve product and management system which has corrections marked service information less features as compared to out in 1st round of copy accuracy - reuse up- OpenKM. reading have been to-date engineering inputted. and operations data OpenKM is an open sourced - Further copy reading throughout the authoring document management system of the statute. process that provides a web interface - Formatting style is · Maintain consistency - for managing folders and files. scrutinized. use standardized rules for It includes a content repository. · Final Input content and stylesheets OpenKM system was developed - Corrections are done for formatting using Java technology and it on the formatting style works with most popular browsers. and content marked · Increase author out . productivity - create The folder system in the OpenKM - Statute is re-printed in reusable, XML or SGML is called Taxonomy. OpenKM not PDF format. component-based only stores files and categorizes content them in folders, but it also allows · Final Check you to store information about a - Proof-checking of Work of Editors file and do specific actions with statute to ensure Editors have two main tasks in the a file. content and format production process of Akoma style are correct. Ntoso documents: The full list of features are: - Where there are changes on a statute, · To identify and label (i.e., · Properties it is sent back to copy mark up) the fragments · Notes editors for correction of the original content · History then forwarded for according to their role · Preview final check. and structure; · Laws of Kenya (Custom - Approval of statute for · To provide additional Property Groups) uploading online. information about the document itself that is not Managing Workflows in OpenKm contained in the official An XML file starts with:- When the workflow is complete, text as created by the · Extraction Layout the file is marked initially asOnline original author. - Initiating the Markup Publishable and finally Print & CD process. Publishable. Akoma Ntoso makes an explicit - Starting of the and complete separation workflow. between the role of authors (who decide and write the actual content in terms of sentences,
70 Issue 21 | January - April 2013 The Kenya Law Bench Bulletin
We have Rebranded to Reflect Development, Innovation and Transformation
By Lydia Midecha
and market environments does. It is against this backdrop change, they find themselves that we have rebranded and with an organisation brand image unveiled a fresh look in line with that no longer echoes who they our new Strategic Plan and Vision are or what they do. Perhaps they 2030. We embarked on a strategic begun in a niche market, or with rebranding exercise in a bid to a very specific product, and built spur institutional transformation. their entire organisation identity The new brand highlights the our around it — and the organisation commitment to maintain world- now functions in a diverse, better class law reporting standards, or more different customer base. continuously improve on creativity What to do then? and innovation, adopt information communication technology At this point, the sure indication solutions and enhance customer s organisations grow and of this brand misalignment is the service delivery. Aexpand in various ways, continuous need to elucidate or product lines and bases expand clarify what the organisation really The exercise kicked off during the
Kenya Law COLUMNS CLOSE TOGETHER 1. Altruism - caring for one another THE USE OF OUR COUNTRY’S 2. Unity NAME SIGNIFIES THAT WE ARE: 3. Wellbeing 1. The official legal publisher 4. Teamwork 2. The leading legal publisher 5. Service to Society 3. Authoritative and Trusted
WHERE LEGAL INFORMATION IS PUBLIC KNOWLEDGE
STRONG FOUNDATION COLUMNS 1. Rule of Law as the foundation of a civilised society 1. Strength 2. Strength 2. Resilience 3. Reliability 3. Integrity 4. Quality THE CONTENT OF BOOKS ON A SHELF 5. Reliability OUR PRODUCTS 1. Knowledge of the Law 6. Independence 2. Our Products and Services
ASCENDING PILLARS OUR SLOGAN 1. Growth Our duty to make legal 2. Progress Information accessible, 3. Achievement understandable and 4. Continuos Improvement usable by the public BEAM OF FLIGHT / FLOURISH 1. Spark of Innovation 2. Knowledge of Law as the light of a Society 3. Creative Flare 4. Innovation across all Products and Services 5. Transparency and Accountability 6. Transforms columns to letter “ i ” for information technology
| January - April 2013 Issue 21 | January - April 2013 71 The Kenya Law Bench Bulletin
strategic planning review exercise product as computers, but as they name and graphic components, with where we rallied behind a expanded, their product base and aids to assuage and/or new vision, mission, values and became diversified. But then they correct misunderstandings about corporate slogan and with an did not require a change in their the direction of the organisation. internal launch of our new brand name, rather they simply dropped Both rebranding and repositioning name and look. the name ‘computers’ and shifted propositions provide exceptional the message to ‘think different’. and explicit benefits when Our new identity is represented They no longer positioned their applied appropriately. Clarifying in new logo and slogan – ‘Where brand as a ‘computer company’ our brand identity and market Legal Information Is Public but more as a cool digital lifestyle position allows latent customers Knowledge’. provider. It is the same with us. to place us in the right mental We have repositioned our brand “box” for easy and accurate Mr Michael Murungi, the CEO and to represent the essence of our reminiscence. This type of intuitive Editor, stated that the rebranding service to Kenyans – to not merely imprinting reduces customer exercise was more than just a be a provider of law reports and misperception, improves overall change of brand name and legal information but to provide the performance and positions logo. It entailed the changing of information in a way that makes it us for continued success. Our our mindset to embrace a new accessible, understandable and rebranding and repositioning will vision, mission and values and a usable. This is a transition from have our customers remembering renewed sense of obligation to providing information to providing and revisiting us more often. the Kenyan people and humanity knowledge. at large. Beyond the launch of our new Apart from reflecting our renewed brand ethos and image, we will Rebranding Versus Repositioning sense of mission and service, brand continue to roll our an information Not only have we rebranded, repositioning and rebranding and awareness campaign to but we have also repositioned serve the objective of better brand firmly imprint our new brand in the ourselves in the wider market clarity. Repositioning highlights an minds of the public. so as to make our identity well organisation’s emergent role and known and understood. We all redefines its new space in the remember Apple Inc. Apple marketplace. Rebranding speaks originally started off as a company to the visible fronting identity that had their original core of the organisation, usually the
72 Issue 21 | January - April 2013 The Kenya Law Bench Bulletin
By Emma Kinya Mwobobia.
aseBack is a ser- ed by another judge. Such tion loop in which judicial vice provided a judicial officer receives officers continually de- by Kenya Law an email alert along with velop and improve upon C to Judicial Of- the decision of the high- their understanding and ficers (Court of appeal, er court immediately that application of the princi- High Court Judges and decision is received by ples of law. Magistrates). CaseBack Kenya Law. alerts a judicial officer when his or her decision has been considered by The CaseBack service a court of higher juris- aims to contribute to the diction or where a case rule of law and the devel- is partly heard by one opment of jurisprudence judge and later conclud- by providing an informa-
| January - April 2013 Issue 21 | January - April 2013 73 The Kenya Law Bench Bulletin
Case Updates: A weekly digest of recent precedent-setting judicial opinions from the superior courts of record
By : Nelson Tunoi
he “Kenya Law Case Updates” Judicial opinions collected from The subscription to the service is Tis an exclusive weekly all the Court Stations country-wide easy and FREE. Once a person newsletter service provided by within the week are allocated has navigated to the Case the National Council for Law to Law Reporters for purposes Updates page, all they are Reporting (Kenya Law) to its of identifying and reporting required to do is key-in their subscribers alerting them of precedent setting cases. Judicial email address in a tab provided precedent setting cases from opinions that meet the threshold and they will receive an email the superior courts of record. set in the KLR Editorial Policy are prompting them to confirm their The Case Updates contain analyzed and reviewed in a subscription to the service. cases that cover substantive weekly Case Selection Forum, and procedural issues as well as and consequently published points of law of public interest. online.
74 Issue 21 | January - April 2013 The Kenya Law Bench Bulletin
- Feedback
w Kenya La
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Thank you for the case alert. This is the first time I am get- ting a feedback on a case I did and I am very grateful. Keep up the great work.
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| January - April 2013 Issue 21 | January - April 2013 75 The Kenya Law Bench Bulletin
“I wish u all a happy & prosperous 2013. Keep up the good work you are doing. Thank you.”
- Jane K. Ocharo
Thank you for the feed- back and update. You are doing a tremendous job. Kind regards.
From; Hon. Brenda Naswa Kituyi, Deputy Registrar, Murang'a High Court.
“Thank you so much guys for your updates. They really helped me because i was studying BUSINESS LAW. Big Ups.”
- George Mwangi
76 Issue 21 | January - April 2013 The Kenya Law Bench Bulletin
- Aston Muchela
“Thank you for the wonderful work you are doing in making justice accessible to all and sundry. Your reporting is quite helpful to Kenyans.”
“Thank you for the updates. Indeed a better way of administering justice and eliminating ignorance from the consumers of the same. I am proud to be part of this.”
- Amos Kenduiwo
| January - April 2013 Issue 21 | January - April 2013 77 The Kenya Law Bench Bulletin
When is the Cloud Not the Right Tactic? By Martin Mbui ICT Department.
When it’s a long-run With cloud you’re assuming risk financial penalty based on the provider’s maturity and long-term strategy, which One of the major benefits of may actually provide more cloud computing is cost. In many danger than the quality of the cases, cloud quickly provides code. functionality at per-user pricing that’s much easier to swallow R&D should be a key facet of every than a costly implementation. IT shop, but avoid placing critical However, like any make versus functions on a risky platform buy decision, there may come a without a good mitigation time when biting the bullet on an strategy. Even the largest software implementation up front makes vendors have been known to more sense than getting tied to rethink their strategy and cancel a monthly subscription that ends cloud-offerings with little notice. up costing more in the long run. s with every tool, there’s a When it’s more complex Atime and a purpose and the There’s no shame in enlisting Cloud is no exception. Here are purchasing or corporate finance A great selling point of Cloud some suggestions as to when to to help with this calculation, and computing is that it reduces avoid Cloud and SaaS. don’t forget to include intangible internal IT complexity. The Cloud costs as well. Cloud might give offers the ultimate “black box,” Cloud computing is the use you a first mover advantage making software, infrastructure, of computing resources that has some financial value, and data storage someone else’s (hardware and software) that just as maintaining a strategic problem in the best case. While are delivered as a service over a application in-house may provide this may be the case most of network (typically the Internet). a competitive advantage with an the time, the Cloud can often The name comes from the use associated financial benefit. introduce more complexity into of a cloud-shaped symbol as your IT environment. an abstraction for the complex When you’re the test infrastructure it contains in system dummy I’ve seen companies become diagrams. Cloud computing enamored with the concept entrusts remote services with Most companies are not of cloud, and attempt to put a user’s data, software and strangers to “experimental” anything and everything in computation. software offerings, even from the cloud, including software well-established vendors. The and services that simply aren’t With the excitement around cloud presents an interesting twist designed or ready for this Cloud computing, SaaS, and all its to the equation, as risky startup type of environment. Vendors variants, it’s easy to think that off- companies deliver offerings have diligently performed the premises computing is the answer designed from the ground up to gymnastics required to produce to every problem. In many cases, work in a cloud environment, while a convoluted, overpriced, and the Cloud lives up to its hype of established software companies massively complex solution, all providing targeted IT services struggle to port existing offerings in the name of “putting it in the at commodity pricing that can to the cloud. cloud.” quickly be scaled up or down depending on demand. A startup offering from an If you want to remove the costs unknown company may very of running infrastructure and However, there’s a time and a well be more technically stable buying software, there are scores place for every tool, and the than an enterprise standby, of vendors who will happily Cloud is no exception. Here are and established players have outsource whatever you need, some suggestions as to when to been known to pull or rethink and remove complexity from avoid Cloud and SaaS: cloud offerings with little notice your organization without adding to customers. A critical question unnecessarily complex layers when considering cloud services of abstraction. Most will even is the level of risk you’re assuming. finance this type of transaction,
78 Issue 21 | January - April 2013 The Kenya Law Bench Bulletin
allowing for cloud-like pricing for to fit every IT problem into a Cloud be wondering what I meant by the a traditional hosted infrastructure. or SaaS environment. While Cloud word SaaS at the beginning of my is changing the way we deploy analogy…to ease your troubles, Just as you’d be skeptical of a and manage IT, it’s still not the SaaS is a software delivery method carpenter who carried only a best solution for every possible that provides access to software hammer, purporting that it could problem. and its functions remotely as a solve every carpentry problem, web-based system. avoid falling into the trap of trying In conclusion, many readers may
’ve seen companies become enamored with the concept of cloud, and attempt to put anything and everything in the cloud, including software and services that simply aren’t designed or ready for this type of environment. Vendors have diligently performed Ithe gymnastics required to produce a convoluted, overpriced, and massively complex solution, all in the name of “putting it in the cloud.”
| January - April 2013 Issue 21 | January - April 2013 79 THE KENYA LAW REPORTS BENCH BULLETIN
Annual Staff Conference for 2012
By Mutindi Musuva Human Resource Department.
and initiatives in the and Mrs Florence Mwangangi Council and all staff who joined the Council on the were encouraged to auspicious occasion commended participate actively. the Editor and the management Among the initiatives of the Council for its good work proposed by staff were and encouraged the team to morning devotions, keep up the good work. quiz nights, mountain climbing, sporting activates, a karaoke Team leaders thereafter night and an in-house presented a citation for their drama club. respective nominated Team player of the year. Wambui Departmental Reports Kamau was nominated for followed thereafter the LOK Department, Eunice from each of the team Mwangi for HR and Admin leaders who outlined Department, Andrew Kiarie for the successes and Finance Department, Cornelius challenges for the Lupao for Editorial Department, year 2012. They further Kenneth Oduor for Research informed the team of and Development Department he Council’s Annual Staff the lessons learnt for and Patrick Wahome for ICT TConference and Prize Giving the same period and outlined Department. The winner of the for the Team Player of the year their plans for the year 2013. Team Player of the year 2012 was held on the afternoon of was Wambui Kamau of LOK February 15th 2013 at Ole Sereni Team members who had recently department, the first runners up Hotel. left the Council for the Judiciary was Cornelius Lupao of Editorial were invited to give a farewell Department and the Second Masters of ceremony for the day speech. These were Ms. Esther Runners up was Andrew Kiarie were Linda Awuor and Cornelius Nyaiyaki formerly the Deputy CEO for the Finance department. All Lupao. The Staff Conference and Snr. Assistant Editor appointed nominees received a plaque and begun with opening prayers by as Registrar of the Supreme Court, the winners received a trophy. Irene Wakio of the Law reporting Mrs. Anne Asugah, formerly The Editor informed the team the Department and entertainment Assistant Editor and Team Leader Team Leader of the year would was provided by Billian’s Music Laws of Kenya Department be announced in the next staff Family. appointed as Deputy Registrar meeting. of the Supreme Court, Michael Anne Mutie a Legal Officer Mayaka Formerly ICT Team Leader Mr. Michael Murungi the Editor from Seven Seas technologies who had taken up the position of and CEO gave his closing remarks delivered a motivational talk Deputy Director ICT, Andrew Kiarie and closed the Annual staff on Employee Happiness. She formerly Procurement Officer who Conference. shared with the team on the had taken up the deputy Director importance of happiness in the Procurement and John Karimi workplace and encouraged Graphics Designer appointed the Council to come up with a as Senior Graphics Designer in Happiness Committee which the Judiciary. Nicholas Okemwa would spearhead happiness formerly the Team Leader for initiatives. Ms. Mutie informed Research and development the group of the successes that Department sent his apologies. the same initiative had brought at her workplace, Seven Seas The outgoing team members Technologies, a leading IT firm were presented with gifts by the in the region. The CEO and management of the Council and management committed to Council members who graced support a happiness committee the occasion. Mrs. Flora Mutua
80 Issue 21 | January - April 2013 THE KENYA LAW REPORTS BENCH BULLETIN
Annual Staff Conference for 2012 Contd .....
1, 2, 3 Kenya Law Team follow closely the Training during the 2012 Annual Staff Conference
4
Kenya Law Team does a Team Building Drill in one of the Team Building Sessions
| January - April 2013 Issue 21 | January - April 2013 81 82 Issue 21 | January - April 2013 | January - April 2013 Issue 21 | January - April 2013 83 Issue 21 January - April 2013 84 | Issue15: April-June 2011 January - April 2013 Issue 21 January - April 2013 85 | Issue15:| April-June 2011 86 Issue 21 | January - April 2013 | January - April 2013 Issue 21 | January - April 2013 87 88 Issue 21 | January - April 2013 | January - April 2013 Issue 21 | January - April 2013 89 90 Issue 21 | January - April 2013 | January - April 2013 Issue 21 | January - April 2013 91 92 Issue 21 | January - April 2013 | January - April 2013 Issue 21 | January - April 2013 93 The Kenya Law Bench Bulletin
Kenya Law Touches a Child’s Heart.
By Lisper Njeru, Layout Assistant, Law Reporting Department.
surgery and thousands others get stadium. The organizers had made tested for heart defects. This was at the sure that people were kept hydrated Mater Heart Run, an event organized so we had a number of water points. and sponsored by the Mater Hospital and other organizations. Our greatest achievement was all members of the team completing On this day, team members met in the run with no one opting to pull town and walked up to the Nyayo out. The highlight of the event was National Stadium as a way of warming the certificates that participants were up. The fact that it was all for a good given and of course the individual cause gave us enough psyche so we did benefit of achieving fitness by every not mind the hills. member who participated cannot be At the stadium we joined other Kenyans gain said. inally, the day that the Kenya Law for further warm up. Here, we met Fteam was looking forward to was kids who had previously undergone Being a corporate that mingles with here. The weather was perfect. Cool corrective surgery and who were now the society, the National Council for and calm. For the very first time, with living normal lives. Their stories were Law Reporting is always ready to assist the great support of the management, quite moving and touching. After a whenever called upon as a way of staff members of the Kenya Law were word of prayer the run began from giving back to the society. participating in a major Corporate the stadium through Uhuru High Social Responsibility (CSR) activity that Way then up Haile Selassie and then We look forward to another opportunity would see us able to support hundreds Kenyatta Hospital hill. We would later so as we lend a hand and touch a soul. of needy kids get free corrective heart join Mbagathi way then back to the
Kenya Law Team Proudly displaying their Certificates after Participting in the Mater Heart Run, 2013 Edition at the Nyayo National Stadium in Nairobi.
94 Issue 21 | January - April 2013 The Kenya Law Bench Bulletin
Odinga & 5 others v Independent Electoral & Boundaries Commission & 4 others [2013] KLR- FeatureSCK Case
Petition Nos 5, 3 & 4 of 2013 (Consolidated) Supreme Court, at Nairobi WM Mutunga CJ, PK Tunoi, MK Ibrahim, JB Ojwang, SC Wanjala, NS Ndungu SCJJ April 16, 2013 Reported by Michael M. Murungi & Emma Kinya Mwobobia
Background to the Petition of the IEBC, Issack Hassan (the petitions agreed on four broad 2nd respondent), announced issues for determination in the On 4th March, 2013 the first that Uhuru Kenyatta (the 3rd three petitions: general election was held in respondent) had received Kenya. This was the country’s first 6,173,433 votes out of a total of 12, a) Whether the 3rd election to be held under the 338,667 (50.07% of all votes cast), respondent and new Constitution that had been while Raila Odinga (the main the 4th respondent promulgated in August 2010. petitioner) had received 5,340,546 were validly elected The election was conducted votes (43.31% of the votes cast). and declared as the by the Independent Electoral Pursuant to article 138(4) of the President-elect and and Boundaries Commission Constitution, Uhuru Kenyatta was Deputy President- (IEBC). Under article 138 (4) of the declared the President-elect. elect of the Republic Constitution it was provided that of Kenya; a candidate shall be declared Subsequent to this declaration, b) Whether the elected as President if the three petitions were filed in the Presidential election candidate receives more than Supreme Court. The first petition was conducted half of all the votes cast in the contested the inclusion of the in a free, fair, election and at least twenty five rejected votes in the final tally transparent and per cent of the votes cast in each which the petitioners alleged credible manner in of more than half of the counties. had a distorting effect on the compliance with percentage votes won by each the Constitution and During the tallying process by candidate. The second petition the Law; the IEBC, there was a failure of contested the manner in which the c) Whether in the electronic results transmission electoral process was conducted determining that system which left the IEBC no by the IEBC with regard to the a candidate has other option but to resort to the Presidential election. The third met the threshold manual tallying of results which petition challenged the legality stipulated in article resulted in an inability on the part of the IEBC’s declaration of the 138(4)(a) of the of the IEBC to declare results as 3rd respondent and 4th respondent Constitution, the and when they were available. as President-elect and Deputy term “all the votes President-elect respectively. The cast” includes In its computation of the total final petition which was filed by i. Only valid votes cast, IEBC had included the Raila Odinga and which was later votes, or rejected votes in the calculation of designated as the pilot petition in ii. Both valid the threshold-percentages in the the consolidation of the petitions and rejected tallying of the Presidential Election was based on the allegation votes; votes with the IEBC chairman that the electoral process was so d) What consequential declaring that the rejected votes fundamentally flawed, that it was declarations, orders would count towards the final impossible to ascertain whether and reliefs were tally and that percentages of the presidential results declared available to the all the votes tallied for each were lawful. petitioners? candidate would have to be updated to reflect the inclusion At a pre-trial conference held on On 30th March, 2013, the court of the rejected votes. 25th March, 2013 and presided over delivered its findings on these by the Chief Justice, counsel for all issues and the reasons for its On 9th March 2013, the Chairman the parties in the consolidated decisions were delivered on 16th
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April, 2013. on a balance of probability does not purport to extend the or proof beyond reasonable Supreme Court’s jurisdiction Election Law – Presidential Election doubt - where evidential burden beyond the bounds set out in – validity of Presidential Election keeps shifting depending on the the Constitution. The Supreme – election petition challenging circumstances – threshold to be Court will only grant orders the validity of the election of the met by a petitioner in an electoral specific to the Presidential President and Deputy President cause election. – grounds that the President – Jurisdiction – Supreme Court of 3. According to article 140 of elect and deputy President-elect Kenya - original and exclusive the Constitution, it is clear that had not obtained the basic vote jurisdiction – special jurisdiction of expedition of the presidential threshold to be validly elected – the Supreme Court to hear and election disputes is of the allegation of various irregularities determine Presidential Election essence. As the electoral that would affect the credibility Petition – jurisdiction not boundless process had led to the of the Presidential Election – as it is limited in time and scope declaration of a winner who whether the irregularities were so – where it only relates to legal, could not have assumed office grave as to render the election factual and evidentiary questions pending the determination of void - Constitution of Kenya, 2010, relevant to the determination the petition, the protracted articles 10,138,140 of the validity of Presidential holding on of a president-elect, Election Law – Presidential Election Election – political question – role as well as a retiring President, – vote tallying - rejected votes – of the court in a fundamentally would have presented a whether the term “all the votes political-cum-constitutional state of anticipation and cast” includes only valid votes process – principles that guide uncertainty, which would not or both valid or rejected votes the court in its attempt to resolve have served the public interest. – whether rejected votes should the electoral question - whether 4. Where a party alleges non- be included in the tally of all the the Supreme Court has jurisdiction conformity with the electoral votes cast - claim by the petitioner to preside over the Presidential law, the petitioner must not only that the rejected votes should be Election Petition – Constitution of prove that there had been non- excluded from the presidential Kenya, 2010, articles 140,163(3) compliance with the law, but election tally and order a re-tally (a), Supreme Court Act, (Act No that such failure of compliance of the votes cast – grounds that 7 of 2011). had not affected the validity the rejected votes were marked of the elections. This emerged ballot papers that had failed Held: from a long-standing common to comply with the approved 1. The Supreme Court’s jurisdiction law approach in respect of standards in casting of votes in a presidential election is both alleged irregularity in the acts during elections – whether the original and exclusive. No court of public bodies. Therefore rejected votes should have been other than the Supreme Court the petitioner must have set included in the final tally of the has the jurisdiction to hear and out his petition by raising firm Presidential Election – Constitution determine disputes relating to and credible evidence of the of Kenya, 2010 article 138 (4)(a), an election for the office of public authority’s departures Elections (General) Regulations, the President. This jurisdiction, from the prescriptions of the 2012 regulation 77 however, is not boundless in law. Election Law – Presidential Election scope as it is circumscribed in 5. An electoral cause is – vote tallying - re-tallying of extent and in time. Limited in established much in the same presidential votes – allegations extent, in that it relates only to way as a civil cause where of discrepancies in some polling an inquiry into the legal, factual the legal burden rests on the stations – where Forms 34 & 36 and evidentiary questions petitioner, but depending on which a returning officer uses relevant to the determination the effectiveness with which to declare presidential election of the validity or invalidity of a the petitioner discharges results in a polling station and a presidential election. the burden, the evidential constituency/county respectively, 2. The Court must take care burden could keep shifting. reflected discrepancies in 5 out of not to usurp the jurisdiction of Ultimately, it is upon the court 22 polling stations with respect to the lower courts in electoral to determine whether a firm numbers of votes cast – whether disputes. The annulment of a and unanswered case has the discrepancies were substantial presidential election will not been made. so as to affect the credibility of the necessarily vitiate the entire 6. The threshold of proof should electoral process general election and need not in principle have been above Evidence – burden of proof – occasion a constitutional crisis, the balance of probability standard of proof - burden and as the authority to declare a though not as high as beyond standard of proof in an electoral presidential election invalid is reasonable doubt save that cause – party on whom the granted by the Constitution it would not have affected burden of proof lies – the standard itself. The petitioner is required the normal standards where to which the burden is to be to present a specific, concise criminal charges linked to an discharged – whether proof is and focused claim, which election were in question. In the
96 Issue 21 | January - April 2013 The Kenya Law Bench Bulletin
case of data specific electoral fair and efficient disposal did not satisfy the requirements requirements (such as the of the petition. The pre-trial under the law, it could not have threshold specified in Article conference enables the court, been added in determining 138(4) of the Constitution for an upon hearing the parties and if the election. The progressive outright win in the presidential need be, on its motion to make character of the Constitution, election), the party that bears appropriate orders and give and the interpretation of the the legal burden of proof directions for ensuring the fair provision of article 138(4) of the must discharge it beyond any determination of the dispute. Constitution which provides reasonable doubt. 10. The evidence on record that a candidate shall be 7. As a basic principle, it portrayed that the tallying declared elected as president should not be for the court was indeed conducted in if the candidate receives more to determine who comes to accordance with the law than half of all votes cast in the occupy the presidential office, and the relocation of the election and at least twenty- save that the Supreme Court, political party agents had not five per cent of the votes cast as the ultimate judicial forum, undermined the credibility of in each of more than half of entrusted under the Supreme the tallying nor provided a the counties, referred only to Court Act, 2011 (Act No 7 basis for annulling the outcome valid votes cast, and did not of 2011) with the obligation of the presidential election. include ballot papers, or votes to assert the supremacy of 11. The voter registration process cast but were later rejected the Constitution and the was essentially transparent, for non-compliance with the sovereignty of the people of accurate and verifiable and terms of the governing law. Kenya must safeguard the the voter register compiled 15. IEBC was entitled to resort to electoral process and ensure from this process served to the use of the manual tallying that individuals accede to facilitate the conduct of free, system as the Constitution power in the presidential fair and transparent elections. and the electoral laws had office in compliance with The explanations given on the specifically given the IEBC the law regarding elections. discrepancies in the published the discretion to either work The Supreme Court must registers were sound and in with a full electronic system or hold in reserve the authority, accordance with the laws. a manual system. The Court legitimacy and readiness to 12. The Court declined to make recognized that due to the pronounce on the validity of orders or grant reliefs sought inherent failure of the electronic the occupancy of that office, by the petitioner, which would systems and the fact that the if there is any major breach of have occasioned conflicts manual tallying had not been the electoral law, as provided between its jurisdiction and faulted as being erroneous, the in the Constitution and the that of other lower courts computation could not have governing law. especially as regarded other been challenged. Therefore 8. The special circumstances sets of election, which had the IEBC had no option after in the presidential election proceeded on the same Voter the transmission technology petition required an insightful Register. failed but to revert to the judicial approach and there 13. The conduct of the manual electoral system. may have been unlimited presidential election was not 16. The applicable law had number of ways in which perfect, even though the entrusted the discretion to such an approach would election had been of the IEBC on the application of have guided the Court. The greatest interest to the Kenyan such technology as may be fundamental one was the people who had voluntarily found appropriate. Since fidelity to the terms of the voted. Although there were such technology has not yet Constitution and of such other many irregularities in the data achieved a level of reliability, law that objectively reflected and information capture it cannot as yet be considered the intent and purpose of the during the registration process, a permanent or irreversible Constitution which represented they were not so substantial foundation for the conduct of the special and historic as to affect the credibility of the electoral process. compact among the people the electoral process and 17. It was clear that a fresh and had expressly declared besides, no credible evidence election under article 140 that all powers of governance had been adduced to show (3) of the Constitution would emanated from the people that such irregularities were have been triggered by the and were to serve the people. premeditated and introduced invalidation of the election of 9. The purpose of the pre-trial by the 1st respondent, for the the declared President-elect conference was set out in purpose of causing prejudice by the Supreme Court following rule 10 of the Supreme Court to any particular candidate. a successful petition against (Presidential Election Petition) 14. In regard to rejected votes such election. Such a fresh Rules, 2013. It is a preparatory being added in computing election would be built on the forum used to lay the ground the final results, once a ballot foundations of the invalidated rules for the expeditious, paper which had been cast election and could only have
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involved candidates who had have participated in the fresh were validly elected and participated in the original election. declared as the President election. There would therefore 19. There was no evidence to and Deputy President elect have been no basis for a fresh prove that the candidate by the 2nd respondent in the nomination of candidates for declared as the President-elect Presidential Elections. the resultant electoral contest. had not obtained the basic 22. Rejected votes should not 18. According to the law, the vote threshold and therefore have been included by the fresh election would have this justified his being declared 2nd respondent in calculating been confined to the petitioner the validly elected President and determining the final and the President-elect while of Kenya. tallies in favour of each of the all the remaining candidates 20. The Presidential Election presidential candidates. who had not contested the was conducted in a free, election of the President-elect fair, transparent and credible Petition disallowed. Presidential would be assumed to have manner in compliance with the election results as declared by either conceded defeat or provisions of the Constitution IEBC upheld. acquiesced in the results as and all the relevant provisions declared by the IEBC and of the law. Each party to the petition was to such candidates could not 21. The 3rd and 4th respondents bear their costs.
Summary of the Pre-Trial Matters
Presidential petitions consolidated for expeditious disposal Raila Odinga v Independent Electoral & Boundaries Commission & 3 Others The Supreme Court of Kenya at Nairobi Petition Nos. 5, 3 & 4 of 2013 (Consolidated) W.M. Mutunga, CJ and P.K. Tunoi, M.K. Ibrahim, J.B. Ojwang, S.C. Wanjala & N.S. Ndungu SCJJ. March 25, 2013
The issue before the Court was of the Presidential Election. The three Presidential Petitions as one whether the Presidential Petitions Court found that time was of the petition for expeditious disposal could have been consolidated essence in the disposal of the and determination of the several in so far as the petitions were in petitions which were a matter of complex matters in the petitions. respect of the same respondents great public interest and therefore and with regard to the validity ordered the consolidation of the
Court orders Scrutiny of Presidential Votes in Contested Polling Stations Kuria & 5 Others v Hassan & 3 Others Supreme Court of Kenya at Nairobi Petitions No 3, 4 and 5 of 2013 W.M. Mutunga, CJ and P.K. Tunoi, M.K. Ibrahim, J.B. Ojwang, S.C. Wanjala & N.S. Ndungu SCJJ. March 25, 2013
The Supreme Court ordered a valid votes cast and the number from 22 polling stations using Forms scrutiny of all the Forms 34 and of rejected votes as indicated 34, 36 and the principal register. 36 from the 33400 polling stations on each form and comparing The aim of the re-tallying was to used by the IEBC in tallying the the number of registered voters establish whether the number of Presidential votes in order to indicated in the Form 34 and the votes cast in each of those 22 establish the accuracy of the number of registered voters on the polling stations exceeded the total tallies of the Presidential principal register. number of registered voters as votes, establishing the number of The Supreme Court also ordered a indicated in the principal register. registered voters, the number of re-tallying of the Presidential votes
98 Issue 21 | January - April 2013 The Kenya Law Bench Bulletin
Substance and time constraints in filing further evidence in a Presidential Election Petition Raila Odinga & 5 Others v Independent Electoral Boundaries Commission & 3 Others Supreme Court of Kenya at Nairobi Petition No. 5, 3 & 4 of 2013 W. M. Mutunga, CJ and P. K. Tunoi, M. K. Ibrahim, J. B. Ojwang, S.C. Wanjala & N. S. Njoki SCJJ. March 26, 2013
The petitioner had filed a filing of the affidavit in reply on of a response and further that Presidential Election Petition to grounds that it was inordinately additional facts and evidence which the respondents in the lengthy as it was approximately tended to introduce new matters matter responded to by filing 900 pages and that it was that would have changed the their respective replying affidavits. impossible for the respondents character and nature of the Subsequently, the petitioner to respond within a day which petition. filed what he referred to as the was the time that remained The Court therefore ordered ‘petitioner’s affidavit in reply’ before the hearing of the Petition the affidavit in reply by the and served the respondents commenced. petitioner, annexures and all with the exception of a few who The Court found that the affidavit other accompanying affidavits complained of lack of service. was so detailed that the remaining to be expunged from the Court However, several parties in the time before the trial was not records as they were filed out of matter raised objections to the reasonably adequate for the filing the prescribed time by the law.
Entitlement to be Enjoined as a Party to a Presidential Election Petition Isaac Aluoch Polo Aluochier v Independent Electoral and Boundaries Commission & 19 others Supreme Court of Kenya Civil Application No. 2 of 2013 W. M. Mutunga, CJ and P.K. Tunoi, M. K. Ibrahim, J.B. Ojwang, S.C. Wanjala & N.S. Ndungu SCJJ. March 26, 2013
The applicant made an had not addressed the question to have adequately ventilated. application to be enjoined in of entitlement to be enjoined as a Further the applicant’s case the presidential election petition petitioner in respect of the existing appeared more distinct by its proceedings. The application Presidential Election Petition but academic element than by the was disallowed as there was no had devoted his attention to object of securing the ‘righting’ practicability or sincerity in the important issues of constitutional of an electoral wrong. applicants claim. The applicant principle which he was seeking
Procedure in Presidential Election Petition strictly timebound Raila Odinga v Independent Elections and Boundaries Commission & 3 others Supreme Court of Kenya at Nairobi Petition No. 5 of 2013 W.M. Mutunga, CJ and P.K Tunoi, M.K. Ibrahim, J.B. Ojwang, S.C. Wanjala & N.S. Ndungu, SCJJ. March 26, 2013
The petitioner had filed an day window period afforded by Petition. application seeking orders for the the Constitution following the The application was dismissed court to direct the respondents declaration of the results to fully as the orders sought by the to produce further documents in prepare their pleadings. Likewise, applicant could not have been court within twenty – four hours of the respondents must have utilized complied with within the strict the court making the orders. the three days afforded to them to constitutional timelines provided The court found that the Petitioners mount a comprehensive response without jeopardizing the hearing ought to have utilized the seven to all the allegations made in the of the Presidential Petition.
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Procedure for taking out a ‘Notice to Produce’ document in a Presidential Election Petition Gladwell Wathoni Otieno & another v Ahmed Issack Hassan & 3 others Petition No 4 of 2013 Supreme Court of Kenya at Nairobi W.M. Mutunga, CJ and P.K. Tunoi, M.K. Ibrahim, J.B. Ojwang, S.C. Wanjala & N.S. Ndungu SCJJ. March 27, 2013
The issue before the Court was being filed on the date of the pre- To file the same on the date of the whether an applicant could have trial conference of the Presidential Pre-trial conference did not show taken out a Notice to Produce Election Petition. The Court held commitment and amounted to document in a presidential that the Petitioner ought to have an abuse of the court process. The election petition under the Civil filed the Notice to produce shortly application was dismissed. Procedure Rules and whether the after filing the Petition or at the application was time barred for latest after close of the pleadings.
Considerations for Admission as Amicus Curiae in a Presidential Election Petition Kuria & 5 Others v Hassan & 3 Others Supreme Court of Kenya Petition No.s 3, 4 and 5 of 2013 W. M. Mutunga, CJ and P.K Tunoi, M. K. Ibrahim, J. B. Ojwang, S.C. Wanjala & N. S. Ndungu SCJJ.
Two applications were made was by the Law Society of Kenya presented a condition prejudicial before the Supreme Court (LSK). The Court held that it to either the scope of the court’s seeking for the admission to the would have been improper to authority or the best interests of status of amicus curiae in the have excluded the Attorney- the parties to the several petitions. proceedings of the Presidential General from the role of amicus The court however disallowed Election Petition that was before curiae in the Presidential Election LSK’s application as it found that the court. The first application Petition proceedings and that the position of LSK in the petition was by the Attorney General admitting the Attorney-General as partisan in the Presidential while the second application to such a role would not have election Petition.
Bias and Partisanship a bar to be admitted as an Amicus Curiae in a Presidential Election Petition Odinga & 2 Others v Independent Electoral and Boundaries Commission & 3 Others Supreme Court of Kenya Petitions No’s 3, 4 and 5 of 2013 W.M. Mutunga, CJ. And P.K. Tunoi, M.K. Ibrahim, J.B. Jwang, S.C. Wanjala & N.S. Ndungu SCJJ. March 26, 2013
Katiba Institute (applicant) made had great and singular expertise the parties or where the applicant an application seeking admission in constitutional law. The Court through previous conduct had to the status of amicus curiae in found that the adversarial nature appeared to be partisan on an the Presidential Election Petition of the Presidential Election Petition issue before the court, the court proceedings at the Supreme was different from that of an had to consider such an objection Court. The applicant submitted advisory opinion hearing by the seriously. The Court disallowed the that the Institution had been court to which the Institute had application as it was convinced admitted to the status of amicus previously enjoyed audience. of the perception of bias and curiae in the past by the courts Where in adversarial proceedings partisanship with regard to the and further that the Institute parties had alleged a proposed applicant in the Presidential carried out research on matters of applicant for amicus curiae was Election Petition. interpreting the Constitution and biased or hostile to one or more of
100 Issue 21 | January - April 2013 The Kenya Law Bench Bulletin
The Presidential Election Petition: The Mwananchi Friendly Version This plain language analysis has been prepared by the National Council for Law Reporting for better public understanding of the decision.
Raila Odinga & 5 others v Independent Electoral & Boundaries Commission & 3 others [2013] eKLR Supreme Court of Kenya WM Mutunga CJ & PK Tunoi, MK Ibrahim, JB Ojwang, SC Wanjala, NS Ndungu SCJJ March 30, 2013 & April 16, 2013 Editor: Michael M. Murungi. Law Reporters: Monica Achode, Emma Kinya, Teddy Musiga
What is an election petition? Court in this case stated that an inquire into and decide on matters An election petition is the formal electoral cause is established that are not within its powers – procedure of challenging the much in the same way as an particularly matters relating to process or the result of an electoral ordinary suit between individuals parliamentary, governor and contest in court. It is an application (a civil cause) where the legal county elections, which by law to an election court challenging burden rests on the petitioner, but, are the subject of other courts. the validity of the process, the depending on the effectiveness The Court therefore observed that outcome or any aspect of an with which he discharges this the annulment of a Presidential election. It may be filed by a burden, the evidential burden election would not necessarily candidate or indeed any person keeps shifting. Ultimately, it falls to invalidate the entire general who wishes to challenge any the court to determine whether election and the annulment of aspect of an electoral process. a firm and unanswered case has a Presidential election need not been made. occasion a constitutional crisis, In the Constitution of Kenya as the authority to declare a 2010, electoral posts refer to What is a presidential election Presidential election invalid is presidential, parliamentary, petition? granted by the Constitution itself. governor (gubernatorial) or A presidential election petition is county elections and includes a the formal process of challenging Conversely, the Court stated that by-election. the process, the outcome or a petition in an election petition any aspect of the election of a is therefore required to present An election petition is not an President in accordance with a specific, concise and focused ordinary legal dispute between Articles 136, 139 (1) (b) and 146 (2) claim which does not purport individuals. Though it may involve (b) of the Constitution of Kenya, to extend the Supreme Court’s a few parties, is treated as a 2010. jurisdiction beyond the bounds set contest in which the interests out in the Constitution as the Court and rights of the voters are Which court can hear a will only grant orders specific to concerned and quite apart from presidential election petition? the Presidential election. the laws governing other kinds By virtue of Article 163 (3) of of legal disputes, special laws of the Constitution of Kenya, 2010, procedure and substance apply jurisdiction (the power to hear Who were the parties to this to election petitions. and determine) a presidential presidential election petition? election petition is vested in the A total of three petitions Election petitions challenging Supreme Court. This jurisdiction challenging the election of the any aspect of the election of a of the Supreme Court is both president were filed by different president are filed and tried by exclusive, meaning that no other parties on different dates. All three the Supreme Court (Article 163 court has the power to hear were consolidated and heard (3) of the Constitution). On the such a dispute, and original, together. other hand, elections petitions meaning that the dispute is filed challenging Parliamentary and in the Supreme Court in the first The parties to the first petition County elections are heard by the instance as opposed to appellate (petition no. 3/2013) were Mr. High Court (Article 165 (3) (a) of jurisdiction, where a court would Moses Kiarie Kuria, Mr. Denis Njue the Constitution) and the Resident hear a dispute on appeal from Itumbi and Ms. Florence Jemimah Magistrate’s court (Section 75 of another court. Sergon as the petitioners and Mr. the Elections Act) respectively. Ahmed Isaac Hassan, the Chair Did the decision of the Supreme of the Independent Electoral and Regarding the duty of giving Court in this petition affect Boundaries Commission (IEBC), evidence (burden of proof) and the election of parliamentary, and the Independent Electoral the degree to which the petitioner governor and county candidates? and Boundaries Commission as is required to prove his case (the In its decision, the Supreme Court the respondents. standard of proof), the Supreme appreciated the need for it to not
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The parties to the second petition raises issues that have a striking (petition no. 4/2013) were Ms. similarity to the dispute in Kenya. Under the Supreme Court Gladwell Wathoni Otieno and In Ghana, the New Patriotic (Presidential Election Petition) Mr. Zahid Rajan as the petitioners Party (NPP) challenged the 2013, rules 6, a petition challenging and Mr. Isaac Hassan, Mr. Uhuru validity and credibility of the the election of the President-elect Kenyatta, Mr. William Ruto, the results declared by the Electoral was to be filed in Court within president-elect and deputy Commission in favour of the seven days after the date of the president-elect respectively, as National Democratic Congress declaration of the results of the the respondents (NDC) arguing that the process presidential election. of verification of results by political The parties to the third petition parties was not transparent and In one of the rulings delivered (petition no. 5/2013) were Mr. that there were discrepancies by the Court in the course of Raila Amolo Odinga, one of the between the total number of the hearing of the petition, the presidential candidates, as the votes cast for presidential and Court set out the following as petitioner and the Independent parliamentary elections. the milestones and timelines to Electoral and Boundaries be observed within the 14-day Commission, Mr. Ahmed Isaac period: Hassan, Mr. Uhuru Muigai Kenyatta Why was this presidential election · Presidential election and Mr. William Samoei Ruto as petition decided within such a petition to be filed the respondents. short time frame? within seven days after Article 140 of the Constitution the declaration of the The Court designated this third decreed this time frame. Article presidential election and petition to be the pilot/main 140 (1) and (2) of the Constitution the Supreme Court to hear petition provides as follows: the petition within fourteen · A person may file a Petition days after filing of the How was this presidential election in the Supreme Court to petition. The fourteen days petition different from previous challenge the election of begin running immediately presidential election petitions? the President-elect within after filing the petition. Firstly, this was the first general seven days after the date · Petitioner should serve election under the Constitution of the declaration of the the respondent within of Kenya, 2010. In that regard results of the presidential three days after filing the therefore, this election petition was election. petition. unique as it was filed under a new · Within fourteen days after · Respondents to file their constitutional and legal regime, the filing of petition, under response within three days and the first election petition to clause (1), the Supreme after filing of the petition. be filed, heard and decided by Court shall hear and · Pre-trial conference to be the Supreme Court established in determine the petition held nine days after filing the new constitution. and its decision shall be of the petition. final. · The Court is also allocated Secondly, this may have been the three days to familiarize first election petition to be heard On the basis of this provision of itself with the pleadings and determined on its own merit. the Constitution, and on the before scheduling the pre- Previous petitions challenging basis of the powers conferred trial conference. the election of a president have upon it by article (163)(8) of the · The hearing and been almost exclusively decided Constitution which mandated the determination of the on technicalities of law and Supreme Court to make rules for petition must happen procedure – such as the failure the exercise of its jurisdiction; and within 14 days of filing it. to serve the court papers on the further on the basis of section 31 respondent in time. regarding the rules of the Supreme The Court also observed that Court Act, the Court made and whereas the electoral process Previously, all parliamentary and published The Supreme Court had led to the declaration of a presidential election petitions (Presidential Election Petition) winner, the president-elect could were filed in the High Court with Rules 2013. These Rules were not assume office pending the parties having the right to appeal meant to operationalize Article determination of the petition. to the Court of appeal. 140 of the Constitution. “The protracted holding-on of a president-elect, as well as a retiring Incidentally, there is a similar As the Court itself noted, the 14 president, would have presented petition before the Supreme days period within which the a state of anticipation and Court in Ghana in which the Court must hear and determine uncertainty, which would not serve petitioner is challenging the an election petition was to start public interest. The expeditious integrity of the elections in running immediately a party resolution of this dispute was December 2012. The Ghanaian filed a petition. This timeline was therefore all-important”. case before the Supreme Court constitutional and not negotiable.
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In the run-up to the final decision, judgment containing the reasons validity, propriety and fair the Court made some rulings? for the decision would be issued play under the Constitution What were these about? two weeks later, and this was and the law, remained The Court had dismissed two done on April 16, 2013. in charge in regulating applications in rulings made such precise role as the during the pre-trial conference. The Chief Justice stated that Attorney General may One of these was for an order of the decision would be made play if admitted as amicus production of certain documents; available to the public in booklet curiae. the other was in respect of a published by the National Council · Admitting the Attorney Notice to Produce a marked voter for Law Reporting while the General to such a role register found at the numerous Judicial Training Institute would would not have presented polling stations across the country. disseminate it through public any prejudice to either The Court also made an order to forums. the scope of the court’s exclude from the proceedings authority or the best a further affidavit filed by Raila What Was The Role of the Attorney interests of the parties. Odinga. The Court’s decision was General as Amicus Curiae? · It would have been based on its finding that the further The office of the Attorney General improper to exclude the affidavit was a disguised attempt (AG) is established under Article Attorney General from to introduce new material well 156 of the Constitution of Kenya, the role of amicus curiae after the filing of the petition, 2010. Article 156(4) established in the petition. which would have been contrary the AG as the principal advisor to the time-bound and disciplined to the Government and gives the Why were the proceedings trial process required under the AG the authority to represent the broadcast live on TV unlike Constitution. national government in court or previous petitions or other cases? in any other legal proceedings to Other than certain proceedings Why did the Supreme Court give which the national government that are required by law to be the findings first and then gave is a party, other than criminal conducted with certain restrictions the reasons for its findings on a proceedings. Article 156(5) gives on publicity, such as proceedings later date? the AG the power, with the involving children, it is the law It is normal practice for courts, permission of the court, authority and the practice to have all especially when dealing with to appear as amicus curiae court proceedings conducted in matters on which an immediate (a legal Latin term meaning open court. However, courts are decision on the findings is essential, a friend of the court) in any empowered to enforce certain to give its findings first and to civil proceedings to which the restrictions on public and media reserve a later date for giving the Government is not a party. access to proceedings in order reasoning that led to the findings. to ensure safety, security and the The reasoning behind the joining orderly conduct of court business. The Supreme Court (Presidential of the petition by the Attorney Election Petition) Rules, 2013 Rule General as amicus curiae was The unprecedented live media 23 sub rule (1) allows the Supreme spelt out by the Supreme Court as: coverage of this election petition Court upon the determination of · As the Chief Officer of satisfied a compelling public a petition at the close of a hearing the State Law Office interest in the proceedings and to give its decision but reserve he was the custodian also set a new standard in the its reasons for the decision to a of the legal instruments openness and transparency of later date. Sub rule (2) states that of the Executive Arm of the hearings of the country’s where the Court reserves reasons Government and the highest judicial body. for its decision under sub-rule (1), recognized advisor of the the Court shall give a summary of state in matters of public What were the main issues raised the decision and the period within interest. in the petition which it shall give the reasons. · His office was the main The first petition contested the player in the performance inclusion of rejected votes in the After hearing the arguments of the Executive’s role vis-à- final tally which, it was argued, from both sides, the court had vis the operationalization had a distorting effect on the deliberated over the petition and of the Constitution. percentage votes won by each reached a unanimous decision on · The Constitution had candidate. all the issues that had been set for expressly provided that determination. The unanimous in certain instances, The second petition contested findings of the Court were read in the Attorney General the manner in which the electoral open court by Dr. Willy Mutunga, may obtain the Court’s process was conducted by IEBC, the Chief Justice and President permission to appear as with regard to the presidential of the Court, on the 30th of March amicus curiae. election. On the overall, it was 2013. At that time, the Chief · The Court, which was the argued that the election was not Justice stated that the detailed custodian of the rules of conducted in accordance with
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the Constitution, the Elections whether a firm and the decisions of other Courts, and Act, 2011 and the applicable unanswered case has made the following observations: Regulations. been made. · The threshold of proof Neither the Constitution nor The third petition challenged the should, in principle, be the Elections Act, 2011 defines legality of IEBC’s declaration of above the balance of the term “rejected votes”. The Uhuru Kenyatta and William Ruto probability, though not Elections (General) Regulations, as President-elect and Deputy as high as beyond- 2012, while providing for the President-elect respectively. reasonable-doubt – save “spoilt ballot paper” and the that this would not affect “disputed vote”, does not define In the consolidated suit it was the normal standards the term “rejected vote. alleged that the electoral process where criminal charges was so fundamentally flawed linked to an election, The interpretation section of the that it was impossible to ascertain are in question. In the Elections Act states that ‘ballot whether the presidential results case of data-specific paper’ “means a paper used declared were lawful. electoral requirements to record the choice made by (such as the threshold a voter and shall include an Who bears the duty of giving specified in Article 138(4) electronic version of a ballot evidence and to what degree is of the Constitution, for paper or its equivalent for the petitioner is required to prove an outright win in the purposes of electronic voting”. his case? Presidential election), the party bearing the legal When the expression ‘rejected In law, the duty of giving evidence burden of proof must ballot paper’ is considered is known as the burden of proof, discharge it beyond any alongside the term ‘spoilt whereas the degree of to which reasonable doubt. ballot paper’, then by virtue of the claim is required to be proved · There is a long-standing regulation 71 of the Elections is known as the standard of proof. common law approach (General) Regulations, 2012, this in respect of alleged would be a ballot paper which The general rule of law is that irregularity in the acts of has been dealt with by the voter in criminal cases, except in public bodies that all acts in such a manner it cannot be certain well-defined exceptions, are presumed to have conveniently used as a ballot the burden of proof is on the been done rightly and paper. The regulation provides prosecution, and the standard of regularly. Where a party that such a ballot paper is to proof is proof beyond reasonable alleges non-conformity be surrendered to the presiding doubt. In ordinary cases between with the electoral law, officer and a new one issued in individuals or persons (civil cases) the petitioner must not its place, and the spoilt paper the burden of proof is usually on only prove that there has is to be cancelled. Therefore, it the person who files the claim and been non-compliance was clear that in law, a ‘spoilt the standard of proof is proof on with the law, but that such ballot paper’ will not find its way a balance of probabilities. Proof failure of compliance did into a ballot box and so it does on a balance of probabilities is affect the validity of the not count as a vote. regarded as being comparatively elections. It is on that basis less in degree to proof beyond that the respondent bears Different countries refer to votes reasonable doubt. the burden of proving the cast by different terms, and contrary. So, the petitioner assign differing consequences In this case, the Supreme Court must set out by raising firm to the contrasting categories considered the special nature of and credible evidence of votes. In Ghana, Cyprus an election petition and made of the public authority’s and Portugal, the winner in an the following observations on the departures from the election is determined only by burden of proof and standard of prescriptions of the law. the valid votes cast. Under the proof in such cases: Constitution of Seychelles, the · An electoral dispute is One of the controversial issues broad term “votes cast”, just as established much in the in the election was whether in in Kenya, has been adopted. same way as a civil cause calculating the total amount The most striking example of where the legal burden of votes, the IEBC should have a departure from this line of rests on the petitioner, included ‘rejected votes’. How reasoning is in the Constitution but, depending on the did the Court decide on this issue? of Croatia, which provides that effectiveness with which “the President shall be elected he or she discharges this, Indeed, this was one of the by a majority of all electors who the evidential burden contested issues and in its decision, voted”, thus in the tallying of keeps shifting. Ultimately, the Court looked at the wording votes, invalid votes are taken into of course, it falls to the of the Constitution, the Elections account. Court to determine Act and its regulations as well as
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The Regulations made by IEBC votes, so as to ascertain that one have no provision for “rejected or the other candidate attained What was the decision of the Court votes”, though they provide for the threshold of 50% + 1 – and with regard to the accuracy and “rejected ballot papers”, “spoilt so such a candidate should be credibility of voter register? ballot papers”, and “disputed declared the outright winner votes”. It is clear that “spoilt ballot of the Presidential election, On this issue, the Court observed papers” are those which are not and there should be no run-off that it was to be careful not to placed in the ballot box, but are election? make orders that would bring a cancelled and replaced where conflict between its jurisdiction necessary, by the presiding In answering this question, the and that of other Courts – such officer at the polling station. Court arrived at an interpretation as the High Court and the of the term ‘votes cast’ in Article magistrate’s courts which had This differs from the “rejected 138(4) of the Constitution as the jurisdiction to hear electoral ballot papers” which, although referring only to valid votes cast, disputes for other positions other placed in the ballot-box, and not including ballot papers than the presidency, all of which are subsequently declared or votes cast but which are later used the same voter register. The invalid, on account of certain rejected for non-compliance Supreme Court would therefore factors specified in the election with the law. The Court arrived only inquire into any allegations regulations – such as fraud, at this interpretation after of voter-registration malpractices, duplicity of marking, and related considering: where such were said to affect the shortfalls. · The mandate validity of a Presidential election. of the Judiciary No law and no Regulation brings to interpret the Ultimately, the Court found that out any distinction between Constitution in only the Principal Register of Voters “vote” and “ballot paper”, even a manner that was used. The Principal Register is though both the Elections Act ‘contributes a combination of several parts and its regulations have used to good prepared to cater for diverse these terms interchangeably. governance’ groups of electors. However, the From this, the court drew the [Article 259(1)(d)] Principal Register of voters has conclusion that neither the · The duty to three components namely; the legislature, nor IEBC, had interpret the Biometric Voter Register, Special attached any significance Constitution in a register and the Green book, to the possibility of differing manner promotes otherwise known as the Primary meanings; which led the Court its purposes Reference Book, which is done to the conclusion that a ballot and principles, by hand. paper marked and inserted into advances the the ballot-box, has consistently rule of law and The court found no major been perceived as a vote; thus, the Bill of Rights anomalies between the number the ballot paper marked and and permits the of registered voters and the total inserted into the ballot-box will be development of tally in the declaration of the either a valid vote or a rejected the law [Article presidential election results made vote. 259]; and by IEBC. The anomalies noted · The progressive were not substantial enough Since, in principle, the properly character of the to affect the credibility of the marked ballot paper, or the vote, Constitution. electoral process, and besides, counts in favour of the intended no credible evidence was candidate, this is the valid vote; adduced to show that such but the non-compliant ballot What did the court find on the irregularities were premeditated paper, or vote, will not count in tallying of the votes? and introduced by IEBC for the the tally of any candidate; it is not The Court found that the tallying purpose of causing prejudice to only rejected, but is invalid, and of votes at the National Tallying any particular candidate. confers no electoral advantage Centre was done according to upon any candidate. In that the law, and the relocation of The court concluded that the sense, the rejected vote is void. political party agents did not voter registration process was, undermine the credibility of the on the whole, transparent, At this point, the Court posed to tallying, nor provide a good basis accurate, and verifiable; and itself the all-important question: for annulling the outcome of the the voter register compiled from why should such a vote, or ballot presidential election. The Court this process did serve to facilitate paper which is incapable of found that there was no evidence the conduct of free, fair and conferring upon any candidate to support the allegations of transparent elections. a numerical advantage, be manipulation and violation of the made the basis of computing law on the part of the IEBC with percentage accumulations of regard to the tallying of votes.
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What is the Special Register of original election. In Voters? What was the final determination that case, there will The special register is created of the Court? be no basis for a fresh to provide for persons whose On the basis of these findings, the nomination of candidates features could not be captured Court had ruled that: for the resultant electoral by the Biometric Voter Registration · Uhuru Kenyatta and William contest. (BVR) device. Specifically, Ruto had been validly elected · However, where the it is designed for persons with and declared as President- candidates, or a disabilities. The special register is Elect and Deputy President- candidate who took part aimed at ensuring that citizens Elect respectively; in the original election, of all abilities are included in the · The presidential election had dies or abandons the register. been conducted in a free, electoral contest before fair, transparent and credible the scheduled date: What did the Court find with manner in compliance with then the provisions of regard to the IEBC’s use of an the constitution and the law; Article 138(1)(b) would electronic system for the tallying · Rejected votes ought not become applicable, and and transmission of results and to have been included in fresh nominations would its later decision to resort to a calculating the final tallies in follow. manual tallying system? favour of each presidential · The answer to the question The Court stated that the IEBC candidate; whether the “fresh was entitled to resort to the use · The Court had no jurisdiction election” contemplated of the manual tallying system as to declare a recomputation of under Article 140(3) bear the constitution and the electoral percentages by the Chairman the same meaning as laws specifically gave IEBC the of the IEBC; the one contemplated discretion to either work with a · Each party involved in the under Article 138(5) full electronic system or manual election petition would meet and (7) depends on the system. The court recognised its own costs. nature of the petition that due to the inherent failing that invalidated the of the electronic systems and What would have happened original election. If the the fact that the manual system if the Court had found that the petitioner was only one of had not been faulted as being presidential election was invalid? the candidates, and who erroneous, the computation could had taken the second not be challenged. The Court Indeed, the Supreme Court had position in vote-tally to observed that after the failure of occasion to give its opinion on this the President-elect, then the electronic results transmission issue, upon a question framed for the “fresh election” will, system, there was no option left it by the Attorney-General: “Does in law, be confined to for the IEBC but to revert to the the fresh election anticipated by the petitioner and the manual electoral system. Article 140(3) of the Constitution President-elect. All the mean an entirely new remaining candidates What did the Court say about the Presidential election (including who did not contest the procurement of the technology the nomination process), or does election of the President- by the IEBC? [it] mean a similar election as elect, will be assumed to The Court was concerned that the that anticipated under Article have either conceded failure of two technologies, namely 138(5) and (7) – with the same defeat, or acquiesced the Electronic Voter Identification candidates as in the earlier poll?” in the results as declared (EVID) and the Results Transmission by IEBC; and such System (RTS), may have arisen On this, the Court made the candidates may not “from the misunderstandings and following observations: participate in the “fresh squabbles among IEBC members · Clearly, a fresh election election.” during the procurement process under Article 140(3) · As this was the situation – squabbles which occasioned is triggered by the in this case, if Court the failure to assess the integrity invalidation of the were to invalidate of the technologies in good time”. election of the declared the election of Uhuru The Court further observed that President-elect, by Kenyatta and William it was “likely” that the process of the Supreme Court, Ruto, only Raila Odinga acquiring the technologies “was following a successful would participate as a marked by competing interests petition against such contestant in the “fresh involving impropriety, or even election. Since such a election” against the criminality” and it recommended fresh election is based President-elect and the that this matter be entrusted to on the invalidation of candidate who received the relevant State agency, for the election, it can only the most votes in the further investigation and possible involve candidates fresh election would be prosecution of suspects. who participated in the declared elected as
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President. the declared President- election candidates · In a case where a elect whose election had in the original election petition challenging the been annulled. would be entitled to President-elect is filed by · In a case where the participate in the “fresh more than one candidate election of a declared election” – and no fresh who had participated in President-elect is nominations would be the original election and annulled following the required. the petition succeeded, petition of a person who the only candidates in the was not a candidate in www.kenyalaw.org - where legal fresh election would be the original election, then information is public knowledge the petitioners as well as each of the Presidential-
| January - April 2013 Issue 21 | January - April 2013 107 The Kenya Law Bench Bulletin
Scope of the Supreme Court’s Jurisdiction In Determination of Presidential Election Petitions
Isaac Aluoch Polo Aluochier v Independent Electoral and Boundaries Commission & 19 Others Supreme Court at Nairobi Petition No. 2 of 2013 M.K. Ibrahim & J.B. Ojwang’, SCJJ. May 3, 2013 Reported by Emma Kinya Mwobobia
The Petitioner had filed the Issues candidature - whether Supreme petition 27 days before 1. Whether the Supreme Court had jurisdiction to hear the the March 4, 2013 General Court had jurisdiction to petition which was filed before the Elections where he contested hear and determine the General Elections – Constitution of the validity of the nominations petition challenging the Kenya, 2010 Article 140,163 and approvals made by the validity of the nominations Electoral Law-Presidential Election Independent Electoral and and approvals made Boundaries Commission (IEBC) – jurisdiction of the Supreme Court by the Independent – scope of the Supreme Court’s in respect of the candidature Electoral and Boundaries for the Office of the President. jurisdiction in presidential election Commission (IEBC) petitions - constitutional provision He contested the actions of in respect of the the sponsoring Political Parties providing for the filing of a petition candidaturefor the office challenging the nominations in their initial nominations of of the President. candidates who would at the and approvals in respect of time have been classified as 2. Whether the Supreme candidature for the office of the State Officers under Article 260 Court’s exercise of President – requirement for a of the Constitution of Kenya, its exclusive original presidential election petition to 2010. jurisdiction in the case be filed after the declaration of of Presidential election the election results – where the A preliminary objection was petitioner had filed the petition raised by the respondents on the matters was limited by time in respect of Articles twenty seven days before the grounds that the Supreme Court General Elections and therefore lacked jurisdiction to entertain 163 (3)(a) and 140 of the Constitution before declarations of the the petition and further that election results - whether Supreme the Constitution of Kenya, 2010 3. Whether the petitioner had Court had jurisdiction to hear the under Article 88(4)(e) conferred prematurely invoked the petition – whether the jurisdiction exclusive responsibility for settling Supreme Court’s exclusive extends to disputes arising in of nomination disputes upon the original jurisdiction the run-up to the election or it IEBC and thus the nominations of can only be exercised after the Presidential election candidates Jurisdiction-Supreme Court – announcement of the election was insulated from the Supreme Presidential Election Petition – result - Constitution of Kenya, 2010 Court’s jurisdiction and from the jurisdiction of the court to hear Article 140 jurisdiction of any other courts. and determine Presidential Election Petitions – constitutional Words & Phrases-definition – In light of the contending positions provision providing for the meaning of the phrase exclusive at the preliminary stage, the filing of a petition challenging jurisdiction – definition according urgency of attending to the the election of a President in to the dictionary – Black’s Law process of the General Elections the Supreme Court – where Dictionary, 8th ed, 2004 and of the limited amount of time the petitioner challenged the available to the court, a ruling Article 163(3)(a) of the Constitution nominations and approval made of Kenya, 2010 provides that:- was first rendered and the reasons by the Independent Electoral delivered at a later date on May and Electoral Commission (IEBC) The Supreme Court has exclusive 3, 2013. in respect of the presidential jurisdiction to hear and determine
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disputes relating to the elections provided such and unexceptional to the office of the President ground shall not be application. frivolous, vexatious arising under Article 140. or scandalous. 5. The court’s exclusive Article 140(1) of the Constitution The petitioner’s grievance original jurisdiction provides that:- had therefore been covered the matters in provided for save that the gravamen of the A person may file a petition in the he had to seek it after petitioner’s grievance. the declaration of the Supreme Court to challenge the The law had defined the election results. He did election of the president-elect time of the declaration not clearly render in court of presidential election within seven days after the date the cause for pursuing results as the operative of the declaration of the results of the requisite redress at a moment in the exercise of premature stage. the Presidential election. that jurisdiction. Therefore, the span of the court’s Held: 3. Article 163(8) of the jurisdiction occasioned no Constitution required the injustice to the petitioner 1. The Supreme Court Court to gazette rules who was allowed under (Presidential Election for the exercise of its the Supreme Court Petition) Rules, 2013 had jurisdiction and the same (Presidential Election specifically provided that had been duly made Petition) Rules, 2013 to a presidential election and they provided for the raise and canvass each petition was to be filed lodging of the Presidential of his current grievances. only after the declaration Election grievances. of the outcome of the However, the petitioner elections. At that stage, as presented as an excuse 6. The Black’s Law had been provided in rule from compliance with the Dictionary defined 12, a variety of pleas could Rules, an earlier Supreme exclusive jurisdiction to be made including those Court Advisory Opinion No. mean a court’s power that had been raised by 2 of 2012 which had broad to adjudicate an action the petitioner. indications of situations in or class of actions to the which a grievance may exclusion of all other have been expressed in courts. 2. Rule 12 of the Supreme regard to elections. Court Rules provides for the grounds upon which 7. The exercise of the a petition may be filed 4. The petitioner’s election original jurisdiction was which includes: between the broader to be attended with principles in the Advisory considerations of the a. the validity of Opinion and the formal public interest, justice and the conduct of rules of the Supreme Court constitutional integrity a presidential was in departure from and the court’s decision election; the legal principle and ought to have served the cause of upholding the b. the validity of the defeated his cause at purpose and intent of the qualification of a the preliminary stage. Constitution. president-elect; Whereas the prescribed Rules of the Supreme Court c. the commission made by virtue of the 8. The Supreme Court of an election Constitution constituted a therefore lacked offence as directly operative code in jurisdiction to entertain provided under specific terms, the Advisory the petition in the Part VI of the Opinion was not similarly circumstances. Elections Act; structured, and largely bore a broad principle, Preliminary Objection upheld. d. the validity of imbued with elements the nomination of ethos and spirit. It was of a presidential therefore not tenable for candidate; or a party to elect between the two bodies of law e. any other ground as a basis for lodging a that the court claim. The prescribed deems sufficient Rules were for immediate
| January - April 2013 Issue 21 | January - April 2013 109 The Kenya Law Bench Bulletin
Supreme Court sets out the Principles Governing Certification of Matters of Law of General Public Importance
Hermanus Phillippus Steyn v Giovanni Gnecchi-Ruscone Application No. 4 of 2102 Supreme Court of Kenya P.K. Tunoi, M.K. Ibrahim, J.B. Ojwang, S.C. Wanjala, N.S. Ndungu, SCJJ. May 23, 2013 Reported by Emma Kinya Mwobobia
This was an application for review constituted a category – what amounts to a matter of of the decision of the Court of of matters of general public importance – criteria to Appeal dismissing the applicant’s importance in the process be considered – whether the Notice of Motion which sought of litigation application had merit leave of the Court to appeal to the Supreme Court in respect Jurisdiction – concurrent Words and Phrases of matters of general public jurisdiction – jurisdiction of the Meaning of “concurrent importance. The applicant sought Court of Appeal and the Supreme jurisdiction” the Supreme Court to set aside the Court in granting leave to appeal Meaning of matters of decision of the Court of Appeal to the Supreme Court – concurrent “general public importance” and issue an order allowing the original jurisdiction - where the application for leave to appeal. applicant had to first apply for Article 163(5) of the Constitution leave in the Court of Appeal – of Kenya, 2010 Issues whether the Court of Appeal A certification by the Whether the Constitution and the Supreme Court had i. Court of Appeal under of Kenya, 2010 had concurrent jurisdiction – whether conferred concurrent the matter raised an issue of res clause (4) (b) may be jurisdiction both to the judicata due to the concurrent reviewed by the Supreme Court of Appeal and jurisdiction – Constitution of Kenya, Court, and either affirmed, the Supreme Court in 2010 article 163(4)(b) varied or overturned. certification of matters that were of great public Jurisdiction – jurisdiction of importance the Supreme Court – review Section 19(b) of the Supreme Whether the application – jurisdiction of the Supreme ii. Court Act, provides: was incompetent due Court to review a decision of the The Supreme Court shall to the omission of citing Court of Appeal with respect hear and determine appeals Article 163(5) of the certification of a matter for from the Court of A p p e a l Constitution which was appeal to the Supreme Court – or any other court or tribunal the enabling clause that where the Court of Appeal had against any decision made in gave the applicant locus dismissed an application for leave proceedings, only to the extent standi for review in the to file an appeal to the Supreme Supreme Court Court – constitutional provision that-- iii. Whether the applicant for review by the Supreme Court (b) the decision was invoking the original in respect of matters of general is not a refusal to grant jurisdiction of the Supreme public importance in an intended leave to appeal to the Court in the application appeal – whether the application Court of Appeal thus occasioning a case had merit – Constitution of Kenya, Held: of res judicata 2010 article 163(4)(b),(5);Supreme 1. This being an application iv. Whether the jurisdiction Court Act section 19(b) for leave to appeal of the Supreme Court against a decision of with regard to review Civil Practice and Procedure – the Court of Appeal, it only lay where a matter leave – leave to appeal – leave would have been good had been certified as to apply to the Supreme Court practice to originate the being of general public on a matter of general public application in the Court importance importance - application for of Appeal which was v. What amounts to leave to appeal against the better placed to certify matters of general public decision of the Court of Appeal whether a matter of public importance? Did the case to the Supreme Court with respect importance was involved. raise issues of general to a matter of general public It was the Court of Appeal public importance? importance – requirement for which had all along been vi. Whether a substantial leave to be sought in the Court of seized of the matter on miscarriage of justice Appeal for certification for appeal appeal and had the could have occurred in the Supreme Court – criteria advantage of assessing unless the appeal was to be considered by the Court the facts and legal heard of Appeal in the certification of arguments placed and vii. Whether brokers and a matter that would merit an advanced before it by the Commission agents appeal to the Supreme Court parties. Accordingly, that
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Court would be afforded 5. When an applicant had Supreme Court Act and the first opportunity to first proceeded to the under the Supreme Court express an opinion as to Court of Appeal as in Rules was for matters whether an appeal would this case and then to where one had already lie to the Supreme Court or the Supreme Court, one been granted leave to not. If the applicant was could not invoke the appeal and one was dissatisfied with the Court original jurisdiction so as now approaching the of Appeal’s decision in this to warrant a question of Supreme Court in relation regard, it was at liberty res judicata. Hence, on to the substantive matter to seek review of that this consideration, the of appeal from the Court decision by the Supreme applicant was properly of Appeal. Hence, in the Court as provided for before the Court. instant case, the applicant by Article 163(5) of the 6. The relevant provision had rightly sought review Constitution. of the Constitution was and not appeal. 2. In the interest of justice, Article 163(5) which 9. In interpreting the the Court did not interpret had provided that a review competence procedural provisions as certification by the Court of the Supreme Court, being cast in stone. The of Appeal under clause the mandate had to Court was alive to the (4) (b) of the Constitution be harmonized with the principles to be adhered could be reviewed by Constitution. One of the to in the interpretation the Supreme Court and fundamental rights under of the Constitution as either affirmed, varied the Constitution was stipulated in Article 259. or overturned. The access to justice for all Consequently, the failure Constitution did not allude and non-discrimination. to cite Article 163(5) as a to appealing the decision Consequently, all litigants basis for the proceedings but provided for review. were to be accorded with respect to jurisdiction 7. A Proper reading of Section equal right of access of the Supreme Court 19 (b) of the Supreme to the court and either to review a decision on Court Act showed that party could approach the certification of a matter the section had nothing Supreme Court for review for appeal to the Supreme to do with Article 163 (5) of under article 163(5) of the Court was not fatal to the the Constitution. It did not Constitution where a party applicant’s cause. deal with refusal to certify could seek a review of 3. Concurrent jurisdiction was a case as one involving a the decision of the Court jurisdiction which could matter of general public of Appeal granting leave have been exercised importance but dealt with or denying leave. Hence, simultaneously by more refusal to grant leave to certification under Article than one court over the appeal to the Court of 163(5) should have been same subject matter and Appeal. The implication broadly read as alluding to within the same territory, was that the envisaged certification by the Court giving a litigant the right refusal to grant leave must that a matter of public to choose the court in have emanated from a importance was involved w h i c h t o fi l e t h e a c t i o n . lower court such as the or was not involved. The High Court or tribunal. applicant was therefore 4. The Supreme Court had 8. The Supreme Court Act rightly before the Court concurrent jurisdiction and the Rules had not despite seeking a review and when one opted to provided for appeals with where there was no leave exercise their right under respect to a case where granted by the Court of either of the entities with the Court of Appeal had Appeal. jurisdiction, one could pronounced itself on a 10. Not all matters in the not again go before matter for grant of leave Court of Appeal could the other entity with the to appeal to the Supreme be appealed to the same subject matter. Court. The legal framework Supreme Court. There That was the reasoning provided for was that of were only two instances in behind the principle of review. Consequently, which one could appeal res judicata in civil matters where one had applied to the Supreme Court when choosing the court to the Court of Appeal under Article 163(4) of the (forum) in which to institute for leave to appeal to the Constitution viz:- a matter. It was also the Supreme Court and the reasoning held sacrosanct party was not satisfied by a. As of right in any in criminal matters under the decision of the Court case involving the inter- the doctrine of double of Appeal, no appeal pretation or application jeopardy (especially with could lie. The only course of this Constitution; and reference to international was for the party to apply crimes like genocide, for review of the matter b. In any other case piracy and war crimes in the Supreme Court. in which the Supreme where all nations have The appeals procedure Court or the Court of jurisdiction. provided for by the Appeal certifies that a matter of general public
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importance is involved, subject Court’s scope for dispensing re- peal before the Supreme Court. to clause (5). dress or the mode of discharge 15. Miscarriage of justice of duty by public officers. was a grossly unfair outcome in 11. The exact image of a 14. The governing principles a judicial proceeding such as matter of general public impor- that a matter before court mer- when a defendant was con- tance could vary in different ited certification as one of gen- victed despite lack of evidence situations save that there would eral public importance were: on an essential element of the be broad guiding principles to i. for a case to be certi- crime and was also termed as ascertain the stature of a par- fied as one involving a matter a failure of justice. It was more ticular case. Besides, the com- of general public importance, consistent with the failings in parative judicial experience indi- the intending appellant ought the judicial process of a rather cated that the criteria of varying to have satisfied the Court that glaring nature and in the thresh- shades had been adopted in the issue to be canvassed on old trial stages rather than with different jurisdictions. The gen- appeal was one the determina- the adjudication of complex eral phraseology in the laws of tion of which transcended the questions of law at tertiary level most jurisdictions was a point circumstances of the particular Courts. of law of general public impor- case and had a significant bear- 16. If the Supreme Court tance. However, Article 163(4) ing on the public interest; were to certify the case as war- (b) of the Constitution referred ii. where the matter in ranting a further appeal, the to a matter of general public im- respect of which certification main issue for determination in portance as a basis for invoking was sought raised a point of law, the substantive appeal would the Supreme Court’s appellate the intending appellant ought to have been whether the ap- jurisdiction. The Kenyan phrase- have demonstrated that such a plicant was paid the said sum ology reposed in the Supreme point was a substantial one, the pleaded through the efforts of Court in principle, a broader dis- determination of which would the respondent or not. There cretion which certainly encapsu- have a significant bearing on was no substantial question of lated the point of law of general the public interest; law that would have arisen for public importance. iii. such question or ques- determination on appeal to the 12. The Constitution under tions of law must have arisen in Court. No such question of law Article 163 (4)(b) contemplated the lower courts and must have arose for determination either that a matter of general pub- been the subject of judicial de- at the High Court or Court of lic importance warranting the termination; Appeal. At stake in the main exercise of the appellate juris- iv. where the application for appeal therefore, would have diction would be a matter of certification had been occa- been the findings of fact by the law or fact provided only that sioned by a state of uncertainty two lower superior courts. There- its impacts and consequences in the law arising from contradic- fore, such a determination of were substantial, broad-based tory precedents, the Supreme fact in contests between parties and transcending the litigation Court could either resolve the could not have been a basis for interests of the parties and bear- uncertainty as it may determine, granting certification for an ap- ing upon the public interest. As or refer the matter to the Court peal before the Supreme Court. the categories constituting the of Appeal for its determination; 17. The nature of the com- public interest were not closed, v. Mere apprehension of mission agreement in the instant the burden fell on the intending miscarriage of justice in a mat- case and the dispute that arose appellant to demonstrate that ter most apt for resolution in the could not have affected all the matter in question carried lower superior courts was not a business people in Kenya includ- specific elements of real public proper basis for granting cer- ing all agents and investors. The interest and concern. tification for an appeal to the applicant had therefore not 13. A matter of general pub- Supreme Court. The matter to demonstrated to the Court’s lic interest could take different be certified for a final appeal in satisfaction the existence of spe- forms for instance, an environ- the Supreme Court ought to fall cific elements of general public mental phenomenon involving within the terms of Article 163 (4) importance which he attributed the quality of air or water which (b) of the Constitution; to the case. may not affect all people, yet it vi. the intending applicant affected an identifiable section had an obligation to identify Per M.K. Ibrahim & J.B. Ojwang of the population, a statement and concisely set out the spe- SCJJ (Dissenting) of law which may affect a con- cific elements of general public 18. The intending appellant siderable number of people in importance which he or she at- had lodged before the court a their commercial practice or in tributed to the matter for which matter of general public impor- their enjoyment of fundamental certification was sought; tance and consequently, the or contractual rights or a hold- vii. determinations of fact in Supreme Court should have ing on law which may affect contests between parties were entertained his appeal. the proper functioning of public not by themselves, a basis for 19. The respondent’s position institutions of governance or the granting certification for an ap- was not focused on the detailed
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elements of the motion but was Not only would considerable should have been settled as a instead more concerned with numbers of litigants be affected, matter of law regarding catego- the issue of general policy in but the proper conduct of ries of business persons namely administration of justice and in administration of justice and the brokers and commission agents the discharge of the Supreme workings of the judicial organs likely to grow in numbers over Court’s functions. Such an ap- would be touched by the lines time and who ought in principle proach sidestepped the burden of principle which the Court had to be regarded as legitimate of the applicant’s case. the occasion to lay out. actors within the economy. That 20. Although this was a 22. The following factors was a public outlook that was dispute of immediate relevance were inclusive of the matters focused on a matter of public only to the parties, the course considered as being of general interest and involving the judicial of judicial resolution would have public importance: process as an avenue of fulfill- established the legal principles (i) issues of law of repeated ment of the Bill of Rights as a of general application in future occurrence in the general safeguard for social justice and cases. course of litigation; the realization of the potential of 21. The case being a dispute (ii) questions of law that were, all human beings. regarding commercial trans- as a fact or as appears from 24. The question that was actions, a sector of the most the very nature of things, set to brought forward by the appli- active relationships in a growing affect considerable numbers of cant was certainly one of gener- economy such as that of Kenya, persons in general or of litigants; al public importance both when a fact of which the Court takes (iii) questions of law that are des- perceived as a matter of law judicial notice, it was reasonable tined to continually engage the and when viewed as a factual to be expected that such legal workings of the judicial organs; matter of individual initiatives in principles as would emerge from (iv) questions bearing on the the fields of commerce and the the adjudication of the intended proper conduct of the adminis- economy. appeal, would in time have a tration of justice. significant recurrence in the inci- 23. The question in the Application dismissed. Costs to dence of a dispute settlement. intended appeal was one that the respondent
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Inherent power of the Supreme Court to grant interlocutory orders pending appeal
Board of Governors, Moi High School, Kabarak & another v Daniel Toroitich Arap Moi Petition 6 & 7 of 2013 Supreme Court of Kenya M.K. Ibrahim & J. B. Ojwang, SCJJ. May 8, 2013 Reported by Emma Kinya Mwobobia
Issues of decree arising from the Court follow upon the granting of Appeal pending appeal in the of an order ought to 1. Whether the Supreme be weighed. If overall, Supreme Court – where Supreme Court had jurisdiction to and with due regard to hear and determine an Court in its discretion may consider the divergent interests application for stay of the convinience of interlocutory and considerations of orders within the context of an convenience affecting execution of a decree the parties, it appeared appeal from the Court of Appeal arising from a judgment that the advantages of the Court of Appeal, - whether the Supreme Court outweighed the pending an appeal could exercise its inherent powers disadvantages, the to grant the interlocutory orders Court would grant the application. 2. Subsequently, whether – whether the application had the application to the merit Supreme Court for stay of 3. The Supreme Court, in Section 21(2) of the Supreme execution orders was an exercise of its discretion, Court Act, 2011 provides, could consider the abuse of the court process convenience of In any proceedings, the Supreme interlocutory orders Jurisdiction-jurisdiction of the Court may make any ancilliary or within the context of the Supreme Court – inherent interlocutory orders including any appeal itself. Interlocutory relief may have been jurisdiction of the Supreme Court orders as to costs that it thinks fit apposite by ensuring – claim by the applicant that to award. that the appeal was the Supreme Court lacked the not rendered nugatory jurisdiction to hear and determine Rule 3(5) of the Supreme Court and it not only served Rules, 2012 provides, an application for stay of the cause of fairness in dispute settlement, but execution of a decree of arising Nothing in these rules shall be also ensured that the from a judgment of the Court deemed to limit or otherwise ultimate decision of the of Appeal - provision that the affect the inherent powers of the Court had the intended constitutional authority. inherent powers of the Court to court to make such orders or give make such orders or to give such such directions may be necessary diections as may be necessary for the ends of justice or to prevent 4. It was not apparent in for the ends of justice are not abuse of the process of the court. light of section 21(2) of limited – whether the Supreme the Supreme Court Act, 2011 that the Supreme Held: Court’s jurisdiction was exclusively Court’s jurisdiction was limited to adjudicating the main 1. An appeal is a proceeding limited to adjudicating dispute on appeal and precluded undertaken to have a exclusively on the main from determining an interlocutory decision re-considered dispute on appeal and precluded from exercising application pending appeal by a higher authority especially the submission all the attendant powers Supreme Court Act 2012 sections of a lower court’s or which alone, would have 21(2) – Supreme Court Rules, rule agency’s decision to a ensured the execution rule 3(5) higher court for review of the judgment and and possible reversal. decree of the Court. The empowerment of Civil Practice and Procedure- the Supreme Court to interlocutory applications – 2. The advantages and make any ancillary or application for stay of execution disadvantages likely to interlocutory orders was
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entirely consistent with the 7. The inherent powers of the the subject-matter of draftsperson’s intention Supreme Court enshrined an appeal, the Court’s to consolidate and under rule 3(5) of the capability to arrive at a safeguard the Supreme Supreme Court Rules, just decision on the merits Court’s mandate to 2012 were not substantive of the appeal, would dispense justice in all powers as would be have been substantially matters before it. foundations to the new diminished. Both the lines of litigation as in the Constitution and the case of jurisdiction or Supreme Court Act had 5. The High Court and the some source of cause of granted the Supreme Court of Appeal were action. Inherent powers Court the appellate not the only courts who were endowments to jurisdiction and within that could have granted the Court such as would jurisdiction, the parties orders of stay of execution have enabled it to remain were at liberty to seek of a decree. Therefore, standing as a constitutional interlocutory relief in a the Supreme Court by authority and to ensure its proper case. granting such orders was internal mechanisms were not in departure from the functional. It included principle enunciated in such powers as would 11. In the case of the Kenya Peter Oduor Ngoge v have enabled the court Section of the International Francis Ole Kaparo S.C to regulate its internal Commission of Jurists v. Pet. No. 2 of 2012 where it conduct, to safeguard itself Attorney-General and was held that the Supreme against contemptuous or 2 others, Sup. Ct. Crim. Court as the ultimate disruptive intrusions from App. No. 1 of 2012, the judicial agency ought to elsewhere and to ensure concept of abuse of the exercise its powers strictly that its mode of discharge court process had no fixed within the jurisdictional of duty was conscionable, meaning but had to do limits prescribed and also fair and just. with the motives behind ought to safeguard the the guilty party’s actions autonomous exercise of and with a perceived the respective jurisdictions 8. Inherent powers were attempt to manoeuvre of the other courts and not capable of donating the Court’s jurisdction in a tribunals. jurisdiction since manner incompatible with jurisdiction was a critical the goals of justice. That threshhold in the tenability concept was not evident 6. The grant of interlocutory of a cause of action and in the instant case. relief did not encroach must have emerged from on the jurisdiction of the Constitution or the the Court of Appeal. statute law or from a rule 12. A breach of the Interlocutory applications created on the basis of constitutional provision in the nature of injunctions statute law. under Article 159(2) and stay of execution (d) that justice shall be were made within the administered without substantive matter of the 9. The Supreme Court’s undue regard to appeal. Therefore, the jurisdiction in respect of procedural technicalities Court had jurisdiction to interlocutory orders such would have resulted if the hear and determine such as stay of execution orders Court were to hold that interlocutory applications emanated directly from t only had jurisdiction to with special regard to the the statute law and the grant stay of the orders of circumstances of each rules and also rested on the execution after disposing case. Where necessary, rational principle that the of the 1st respondent’s the court could have appellate power of review application calling exercised its discretion and possible reversal of for a finding that the and declined to grant the substantive judgment appeal did not raise a interlocutory relief if appealed against was matter of general public the same would have destined to be lost unless importance. imperiled the ultimate a requisite interlocutory function of the Court order was made. Preliminary Objection disallowed. to render justice in Costs in the cause. accordance with the Constitution and the 10. If interlocutory applications ordinary law. were excluded as a necessary step to preserve
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The Kenya Section of the International Commission of Jurists v The AG and 2 Others Criminal appeal no. 1 of 2012 Supreme court of Kenya at Nairobi W.M. Mutunga, CJ; J.B. Ojwang, SCJ Reported By Njeri Githang’a Kamau
Issues the Supreme Court as of right Appeal – except where the Court 1. Scope of the Supreme of Appeal’s refusal Attorney General-role of the Court’s appellate of leave has been Jurisdiction in an Attorney-General under the reversed by the appeal to resolve the Constitution of Kenya 2010-where Supreme Court; constitutional question the AG was excluded from as to the appearance of Criminal Proceedings-meaning b. in matters of the Attorney-General- in of criminal proceedings- whether interpretation or application of the “criminal Proceedings” the relationship between the Kenyan judicial system and the Constitution, an appeal will be 2. Role of the Attorney- International Criminal Court; entertained by the General in the main the applicability in Kenya of Supreme Court as cause before the Court international customary law; of right; of Appeal-where the core the law relating to the immunity question had to do with: of serving Heads of State; the c. the issue for the relationship between functioning of the Rome Statute interpretation or the Kenyan judicial system within national jurisdictions application of the Constitution and the International were issues amounting coming on appeal Criminal Court; the to criminal proceedings to the Supreme applicability in Kenya of Court, is not to international customary Civil Practice and Procedure- be a collateral question, only law; the law relating to the abuse of the process of minimally related immunity of serving Heads the Court-meaning of to the substantive of State; the functioning of cause pending the Rome Statute within Words and Phrases in the Court of Appeal, and if it is national jurisdictions. “Criminal proceeding”A such, then leave proceeding instituted to of the Court of 3. Concept of “abuse of the determine a person’s guilt or Appeal is required process of the Court” innocence or to set a convicted – unless the Supreme Court person’s punishment; a criminal Jurisdiction -appellate has reversed the jurisdiction of the Supreme hearing or trial.” refusal to grant leave by the Court Court- circumstances where Held: of Appeal; the appellate jurisdiction can be invoked-appeal on an 1. The Supreme Court’s jurisdiction and scope had interlocutory order from the d. Subject to been defined in various the foregoing court of appeal-duty of the case laws and the effect principles, an Supreme Court to settle the law was; appeal to the on uncertain jural questions- Supreme Court a. appeals to the whether the appearance of the is not limited by Supreme Court, the mere fact of Attorney-General in “criminal in general, require the issue being Proceedings” was a constitutional grant of leave preliminary or question justifying an appeal to by the Court of interlocutory.
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develop rich jurisprudence 2011 (UR.179/2011)” 2. Section 3 of the Supreme as provided for. The Court Act (Act No. 7 of law-making chain, goes 9. The questions in the appeal 2011) assigned to the back to the Subordinate pending in the Court of Court the mandate to Courts, which constitute Appeal were matters of “assert the supremacy the “grassroots” entry- primary relevance to the of the Constitution” – a point into the varied mandate of the State task which required that intellectual dimensions of Law Office, which is led the court prescribe the law that guide the process by the Attorney-General; ultimate meanings and of construction of legal and it followed that no directions of all law that ideas. litigation in such matters gives effect to the terms of could take place in which the Constitution. By s.3(b) 5. The Supreme Court, to the Attorney-General is of the Supreme Court best situate itself so as to not intimately involved. Act, it was the Court’s address the complexity responsibility to “provide of the construction of authoritative and law, must safeguard the 10. There was no legitimate impartial interpretation of proper jurisdiction of the issue of interpretation the Constitution”; and by Courts below it. or application of the s.3(c) it was the Supreme Constitution, regarding Court’s mandate to settle the role of the Attorney- the law on uncertain jural 6. In the common law General in the questions and to “develop tradition and in the proceedings before the rich jurisprudence that general practice of Court of Appeal, which respects Kenya’s history countries sharing historical merited an appeal to the and traditions and linkages with Great Britain, Supreme Court. The issue facilitates its social, such as the United States, raised before the Court of economic and political the Attorney-General is Appeal and was sought growth.” recognized as “the chief to be brought to the law officer of a state” Supreme Court, squarely fell within the category 3. The entry into the sphere of a collateral case – a of emerging jurisprudence 7. The meaning of “criminal matter not appealable is located at the High proceeding”, the save with the leave and Court, which bears original category of mandate certificate of the Court jurisdiction to interpret which Article 156(4) of Appeal. There being the Constitution and (b) excludes from the no such certificate, and which has an appellate Attorney-General’s remit, there not having been a jurisdiction from lower is much more restricted reference, leading to a Courts that address the than the counsel for the differing position taken in basic scenarios of fact appellant urged it to be. the Supreme Court, it was that spawn issues of jural a typical case in which no character. Such early stage appellate jurisdiction lay in of the pronouncement 8. A criminal proceeding was the Supreme Court. on critical ideas of law is defined as a proceeding also to be found in the instituted to determine a special Courts having person’s guilt or innocence 11. The concept of “abuse of the same jurisdiction as or to set a convicted the process of the Court” the High Court – such as person’s punishment; a bears no fixed meaning, those on employment criminal hearing or trial. but has to do with the and labour relations; The foregoing signification motives behind the guilty and on environment of “criminal proceeding” party’s actions; and with and land [Article 162(2)] was not reflected in a perceived attempt to Constitution of Kenya the mere intituling of manoeuvre the Court’s 2010. the original High Court jurisdiction in a manner case as “Miscellaneous incompatible with the Criminal Application No. goals of justice. appears 4. The Supreme Court all 685 of 2010”; when that so hopeless that it plainly by itself, and without the matter came up before and obviously discloses benefit of the works of the Court of Appeal, it no reasonable cause of such other Courts, would was re-intituled as “Civil action and is so weak as be insufficiently resourced Application No. Nai. 275 of to be beyond redemption and empowered to
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pending in the Court The appellant by lodging 12. The appellant’s counsel of Appeal. That did not the appeal had laid before had canvassed his case in amount to an abuse of the Court an opportunity a manner that steers clear the process of the Court to further consolidate the of the emerging principle as the Supreme Court was jurisprudential gains in the that no collateral case in the process of clarifying earlier decisions. should seek to introduce its appellate jurisdiction, Appeal Dismissed a “constitutional point”, through interpretation of which does not form a statute law in the context vital aspect of the cause of varying case-scenarios.
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Supreme Court Cases Rules Of Recusal in the Supreme Court Vis-À-Vis Other Superior Courts
Jabir Singh Rai & 3 Others v Tarlochan Singh Rai & 4 others [2013] eKLR Petition No. 4 of 2012 Supreme Court of Kenya P.K. Tunoi, M.K. Ibrahim, J.B. Ojwang, S. Wanjala, N.S. Ndungu, S.C.JJ February 6, 2013 Reported by Emma Kinya Mwobobia
Issues: which therefore should justify the the matter was the proper 1. Whether a Judge, as recusal from the Supreme court test of whether or not the a matter of personal Bench presiding over the matter non-participation of the conviction, or of ethical – quorum - composition of the judicial officer was called considerations, can Supreme Court membership – for. The objective view in recuse him/herself from requirement for a quorum of at the recusal of a judicial the decision making in a least 5 judges to preside over a officer is that collegiate Bench. hearing – principle of necessity – requirement for the applicability a. justice as between 2. Whether the principles of of the principle of necessity in the parties be recusal of a single judge circumstances where a quorum uncompromised; Bench or other superior has to be formed to ensure that b. the due process courts applies in an there will be no failure of justice of law be realized identical manner to the due to the Bench being below and be seen to collegiate Bench Judge. the quorum set by the Constitution have had its role – whether in such circumstances and lastly, 3. How does the Supreme the judge should disqualify himself Court guide itself on the – whether the principles of recusal c. the profile of issue of recusal by its of a judge in the superior court the rule of law members, in light of its were applicable in the Supreme in the matter in unique position in relation Court given the quorum required question be seen to the integrity of the to preside over a hearing. to have remained Constitution, as spelt out uncompromised. in the Supreme Court Act, Held: 2011? 2. By Article 163 (2) of the 1. According to the Constitution, the Supreme Judicial Officer – judge – definition in the Black’s Court membership disqualification of a judge of the Law dictionary, it was comprises of seven Supreme Court – application of evident that the judges and it is properly a judge of the Supreme Court circumstances calling constituted for hearings to disqualify himself from the for recusal for a judge only when it has a quorum presiding bench – grounds that are by no means cast in of five judges. However, the judge had disqualified himself stone. The perception of the Supreme Court took in previous proceedings of the fairness of conviction of judicial notice that it same case in the Court of Appeal moral authority to hear
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had had a vacancy of Supreme Court judge 7. The Supreme Court’s one member for a year will not sit at a hearing concept as it stands in and also that half of the of an appeal against a the Constitution and as a current membership were judgment given in a case symbol of ultimate juristic previously in service in previously heard before authority imports a varying other superior courts and that judge is subject to the set of rules of recusal in thus having the possibility terms of the Constitution. It relation to the practice in of having heard matters is on this basis that the court other superior courts. which could very well qualified this section of the have come up before Act to mean that any 8. The court must also the Supreme Court. application made under consider the impact that Recusal in such a case it stands to be determined the failure of the judge to could therefore create in accordance with the disqualify himself will have a quorum deficit which judicially established on the public concerning renders it impossible for practices of recusal and their perception of the the Supreme Court to subject to the Supreme process of administration perform its prescribed Court’s integrity and of justice. functionalities. obligations under the 9. In circumstances where Constitution of Kenya. 3. The possibility of having all the members of the a quorum deficit in the 6. Even as the court takes only tribunal competent Supreme Court would be cognizance of the merits to determine a matter are contrary to public policy of the individual judge’s subject to disqualification, and would be highly personal convictions and they may be allowed to detrimental to the public of ethical matters, it is sit and determine the interest, especially given inclined in favour of a matter under the doctrine the fact that the novel choice which begins with of necessity to avoid a democratic undertaking the judge’s commitment miscarriage of justice. This of the new Constitution to the protection of the common law principle was squarely anchored Constitution as the basis will however only apply firstly on the superior of the oath of office. in very exceptional courts and secondly on The shifting scenarios circumstances which are the Supreme Court as of personal inclination required to be very clear. the ultimate device of should, in principle, be 10. The total number of the safeguard. harmonized with the Supreme Court Judges incomparable public Kenya should at any given 4. The recusal principle with interest of upholding regard to the Supreme time be seven but the the Constitution and the minimum number of judges Court must therefore be immense public interest invoked for good cause required preside over a which it bears for the matter in the Supreme and it is not to be invoked people whose sovereignty without weighing the Court is five. This means is declared in Article that the Constitution has merits of such invocation 1(1) of the Constitution. against the constitutional given an allowance of Therefore, a recusal of two judges who may be burdens of the court and a judge of the Supreme the public interest. away for whatever reason Court is a matter for the including illness or death. 5. The constitutional provision consideration of the Therefore, if one of the under section 8(2) of the collegiate Bench whose remaining five is required Supreme Court Act which decision is to set the to disqualify him/herself, it is to the effect that a matter to rest. is arguable that out of
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1. necessity the judge would sparingly and cautiously same case which would have to sit to ensure that allow disqualification in in effect paralyze the there will be no failure of order to ensure that the court and therefore the justice due to the Bench court is not at any time administration of justice being below the quorum incapacitated due to lack will not be as expeditious set by the Constitution. of quorum. Indeed, the as envisioned in the court should consider the Constitution. 2. It is therefore of utmost high likelihood that several importance that the judges judges may be required to Petition dismissed. of the Supreme Court recuse themselves in the
Leave From the Court of Appeal Required to appeal to the Supreme Court Koinange Investment & Development Ltd V Robert Nelson Ngethe [2013] eKLR Civil Application No 1 Of 2012 Supreme Court of Kenya at Nairobi P. K. Tunoi, SCJ. January 30, 2013 Reported By Njeri Githang’a Kamau
Issue: decision of the Court of Appeal of importance is involved; 1. Whether the Ag. Registrar Kenya-whether the Registrar had and if the applicant of the Supreme Court exceeded her powers should be dissatisfied with its decision in that regard, acted properly where Held: during the mention of an would be at liberty to seek application for purposes 1. Nowhere in the orders a review under Article 163 of fixing a hearing date of the court had it been (5) of the Constitution of she directed a party to stated that the Supreme Kenya 2010. first seek leave from the Court would hear the 3. The Registrar cannot usurp Court of Appeal before application for appeal the powers of the Court the Supreme Court could against the decision of and cannot disregard hear an application the Court of Appeal. The express orders of the to appeal against the orders made were merely Court. In the instance decision of the Court of directory and could be before the court, the Ag. Appeal of Kenya. enforced by the Ag. Registrar could not be Registrar. Civil Practice and Procedure vilified or condemned for -leave to appeal-powers of 2. An application for leave, stating the obvious and the registrar of the court-an as a matter of good the correct position in law. application for review of the orders practice, should originate Application dismissed. of the Ag. Registrar Supreme Court in the Court of Appeal, ordering the applicant to seek which would be better leave from the Court of Appeal placed to certify whether a to lodge an appeal against the matter is of general public
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Appellate Jurisdiction of the Supreme Court Kenya Section of the International Commission of Jurists v The AG and 2 others [2012] eKLR Criminal Appeal No. 1 of 2012 Supreme Court of Kenya at Nairobi W.M. Mutunga, CJ. & J.B. Ojwang, SCJ. November 15, 2012 Reported By Njeri Githang’a Kamau
Issues: question justifying an appeal to grant of leave 1. Scope of the Supreme the Supreme Court as of right by the Court of Court’s appellate Appeal – except Attorney General-role of the where the Court Jurisdiction in an Attorney-General under the appeal to resolve the of Appeal’s refusal Constitution of Kenya 2010-where of leave had been constitutional question the AG was excluded from as to the appearance of reversed by the Criminal Proceedings-meaning Supreme Court; the Attorney-General- in of criminal proceedings- whether “Criminal Proceedings” the relationship between the b. in matters of 2. Role of the Attorney- Kenyan judicial system and the interpretation or General in the main International Criminal Court; application of the cause before the Court the applicability in Kenya of Constitution, an of Appeal-where the core international customary law; appeal will be question had to do with: the law relating to the immunity entertained by the the relationship between of serving Heads of State; the Supreme Court as the Kenyan judicial system functioning of the Rome Statute of right; within national jurisdictions were and the International c. the issue for Criminal Court; the issues amounting to criminal proceedings interpretation or applicability in Kenya of application of international customary Civil Practice and Procedure- the Constitution law; the law relating to the abuse of the process of coming on appeal immunity of serving Heads the Court-meaning of to the Supreme of State; the functioning of Court, is not to the Rome Statute within Words and Phrases: “Criminal be a collateral national jurisdictions. proceeding” A proceeding question, only 3. Concept of “abuse of the instituted to determine a person’s minimally related process of the Court” guilt or innocence or to set a to the substantive convicted person’s punishment; cause pending Jurisdiction -appellate a criminal hearing or trial.” in the Court of jurisdiction of the Supreme Appeal, and if it is Court- circumstances where Held: such, then leave the appellate jurisdiction can 1. The Supreme Court’s of the Court of be invoked-appeal on an jurisdiction and scope had Appeal was interlocutory order from the been defined in various required – unless court of appeal-duty of the case laws and the effect the Supreme Court Supreme Court to settle the law was; had reversed the on uncertain jural questions- refusal to grant whether the appearance of the a. appeals to the leave by the Court Attorney-General in “criminal Supreme Court, of Appeal; Proceedings” was a constitutional in general, require
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d. Subject to fact that spawned 7. The meaning of “criminal the foregoing issues of jural character. proceeding”, the principles, an Such early stage of the category of mandate appeal to the pronouncement on which Article 156(4) Supreme Court critical ideas of law was (b) excluded from the was not limited also to be found in the Attorney-General’s remit, by the mere fact special Courts having was much more restricted of the issue being the same jurisdiction as than the counsel for the preliminary or the High Court – such as appellant urged it to be. interlocutory. those on employment and labour relations; 8. A criminal proceeding was 2. Section 3 of the Supreme and on environment defined as a proceeding Court Act (Act No. 7 of and land [Article 162(2)] instituted to determine a 2011) assigned to the Constitution of Kenya person’s guilt or innocence Court the mandate to 2010. or to set a convicted “assert the supremacy person’s punishment; a of the Constitution” – 4. The Supreme Court all criminal hearing or trial. a task which required by itself, and without the The foregoing signification that the court prescribe benefit of the works of of “criminal proceeding” the ultimate meanings such other Courts, would was not reflected in and directions of all law be insufficiently resourced the mere instituting of that gave effect to the and empowered to the original High Court terms of the Constitution. develop rich jurisprudence case as “Miscellaneous By section 3 (b) of the as provided for. The law- Criminal Application No. Supreme Court Act, it was making chain, went back 685 of 2010”; when that the Court’s responsibility to to the Subordinate Courts, matter came up before “provide authoritative and which constituted the the Court of Appeal, it impartial interpretation of “grassroots” entry-point was re-instituted as “Civil the Constitution”; and into the varied intellectual Application No. Nai. 275 of by section 3 (c) it was dimensions of law that 2011 (UR.179/2011)” the Supreme Court’s guided the process of mandate to settle the construction of legal 9. The questions in the appeal law on uncertain jural ideas. pending in the Court of questions and to “develop Appeal were matters of rich jurisprudence that 5. The Supreme Court, to primary relevance to the respected Kenya’s best situate itself so as to mandate of the State history and traditions address the complexity Law Office, which was led and facilitated its social, of the construction of by the Attorney-General; economic and political law, must safeguard the and it followed that no growth.” proper jurisdiction of the litigation in such matters Courts below it. could take place in which 3. The entry into the sphere the Attorney-General was of emerging jurisprudence 6. In the common law not intimately involved. was located at the High tradition and in the Court, which bears original general practice of 10. There was no legitimate jurisdiction to interpret countries sharing historical issue of interpretation the Constitution and linkages with Great Britain, or application of the which has an appellate such as the United States, Constitution, regarding jurisdiction from lower the Attorney-General is the role of the Attorney- Courts that addressed recognized as “the chief General in the the basic scenarios of law officer of a state” proceedings before the
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Court of Appeal, which the process of the Court” introduce a “constitutional merited an appeal to the bears no fixed meaning, point”, which did not form Supreme Court. The issue but had to do with the a vital aspect of the cause raised before the Court of motives behind the guilty pending in the Court of Appeal and was sought party’s actions; and with Appeal. That did not to be brought to the a perceived attempt to amount to an abuse of Supreme Court, squarely maneuver the Court’s the process of the Court fell within the category jurisdiction in a manner as the Supreme Court was of a collateral case – a incompatible with the in the process of clarifying matter not appealable goals of justice. appeared its appellate jurisdiction, save with the leave and so hopeless that it plainly through interpretation of certificate of the Court and obviously disclosed statute law in the context of Appeal. There being no reasonable cause of varying case-scenarios. no such certificate, and of action and was so The appellant by lodging there not having been a weak as to be beyond the appeal had laid before reference, leading to a redemption the Court an opportunity differing position taken in to further consolidate the the Supreme Court, it was 12. The appellant’s counsel jurisprudential gains in the a typical case in which no had canvassed his case earlier decisions. appellate jurisdiction lay in in a manner that steered the Supreme Court. clear of the emerging Appeal Dismissed principle that no collateral 11. The concept of “abuse of case should seek to
124 Issue 21 | January - April 2013 The Kenya Law Bench Bulletin
Supreme Court’s Jurisdiction Under Section 14 1(B) of the Supreme Court Act, 2011 Menginya Salim Murgani V Kenya Revenue Authority [2012] eKLR Petition No. 6 Of 2012 Supreme Court of Kenya at Nairobi P.K. Tunoi & M.K. Ibrahim, SCJJ July 5, 2012 By Njeri Githang’a
Case History:(Being a Petition that had to be resolved at the by the Vetting Board. for Review of the Judgment and outset –validity of the petition- The Vetting Board was Order of the Court of Appeal of Supreme Court Act 2011, section an Independent Tribunal Kenya (Omolo, Waki & Nyamu 14 1(b). and it had to be allowed JJA) in the Civil Appeal No. 108 of Issue: to conduct its functions/ 2009 delivered on 16th July 2010, duties without being arising from the judgment and 1. Whether the Supreme interfered with unless the decree of the High Court of Kenya court could set aside the matter was expressly or at Nairobi, Ojwang J, delivered on decision of the Court of directly brought to the 22nd September 2008) Appeal in Civil Appeal courts subject of course to No. 108 of 2009 where the question of jurisdiction. Civil Practice and Procedure – the judgment and order petition to the Supreme Court for to be set aside had been 2. The provisions of the review of judgment and order delivered by 2 judges Constitution and of the Court of Appeal- where who had been removed principles of natural justice the judgment and orders to be from office pursuant to required that there be no reviewed had been made by the Vetting of Judges and interference or fetter of the 3 Court of Appeal Judges 2 of Magistrates Act, 2011 and rights of the two Judges in whom had been suspended from the judgment had been respect of the pending office pursuant to the Vetting the basis of their removal. review proceedings under of Judges and Magistrates Act, the Vetting Act. 2011 –where the judges had Held: Further proceeding in the Petition made an application for review to await the conclusion of Review and the Board was yet to make 1. It was imperative that process before the Vetting Board or pronounce its decisions –where there was no pre-emption in respect of the two Judges the implications of the pending or prejudice of the fair applications for Review before and just consideration of the Vetting Board was a matter the Review application
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COURT OF APPEAL
CASES High Court’s Power of Review in the Delimitation of Boundaries Ex Chief Peter Odoyo Ogada & 9 Others v Independent Electoral & Boundaries Commission & 14 Others
Court of Appeal at Nairobi Civil Appeal No. 307 of 2012
M. K. Koome, J. W. Mwera, D. K. Musinga, W. Ouko & J. Mohammed, JJA
April 19, 2013
Reported by Teddy Musiga Issues with the decision of the IEBC for purposes of that election. can challenge such a decision i. What are the elements in by way of Judicial Revie in the (5) The boundaries of each the exercise of the High delimitation of boundaries. constituency shall be such court power of review? Article 89 of the Constitution of that the number of inhabitants ii. What is the scope of the High Kenya, 2010, provides that: in the constituency is, as nearly as possible, equal to Court’s power of review is as “89. (1) There shall be the population quota, but the contemplated in Article 89 two hundred and ninety number of inhabitants of a of the Constitution? constituencies for the purposes constituency may be greater iii. Whether the High court’s of the election of the members or lesser than the population of the National Assembly quota in the manner mentioned power of review can be used provided for in Article 97 (1) in clause (6) to take account of to substitute the decisions of (a). – other constitutional organs? (a) geographical iv. What is the proper (2) The Independent Electoral features and urban centres; and Boundaries Commission (b) community of interest, procedure to move the shall review the names and historical, economic and High Court in the exercise of boundaries of constituencies cultural ties; and (c) means of the power of review? at intervals of not less than communication. v. What are the applicable eight years, and not more than twelve years, but any (6) The number of inhabitants timeframes to institute such review shall be completed at of a constituency or ward may matters? least twelve months before a be greater or lesser than the vi. In the event, the High Court general election of members population quota by a margin found fault in the decision of Parliament. of not more than – of IEBC, what would have (3) The Commission shall (a) forty per cent for cities been the appropriate review the number, names and sparsely populated areas; remedy and directive? and boundaries of wards and periodically. Civil Procedure & Practice - (b) thirty per cent for the Review – High Court’s power of (4) If a general election is to be other areas. review - held within twelve months after Judicial Review – Prerogative the completion of a review (7) In reviewing constituency orders – certiorari - mandamus – by the Commission, the new and ward boundaries the whether an applicant dissatisfied boundaries shall not take effect Commission shall –
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(a) consult all interested omission or default should be be sought in judicial review parties, and demonstrated to have been proceedings. 6. Article 89 (2) of (b) progressively work incorporated in that decision, the constitution provides that towards ensuring that the or that an extraneous issue if any review of boundaries number of inhabitants of was considered which ought ought to be done, that ought each constituency and ward not to have been considered. to be done some 12 months is, as nearly as possible, equal 2. Article 89 of the constitution before the elections. If such to the population quota. does not yield or point to an exercise takes place in authority or jurisdiction of the less than 12 months before (8) If necessary, the Commission High court, while exercising the next election, then the shall alter the names and the power of review under result of the exercise does boundaries of constituencies, that article to substitute the not impact on that decision. and the number, names and decision of the IEBC with its Accordingly, the decision of boundaries of wards. own. the High court in the matter Held: 3. The constitution expressly of the two constituencies and exclusively confers the was not according to the (9) Subject to clauses (1), (2), powers to delimit boundaries intendment of Article 89(10) (3) and (4), the names and to the IEBC just like the High of the Constitution and is details of the boundaries of court has been given powers therefore set aside. In doing constituencies and wards under Article 165, except that so, does not mean that the determined by the Commission the High court has also been two constituencies resume shall be published in the given the power to review a their gazetted names of Suba Gazette and shall come into decision of IEBC. That power North and Suba South in the effect on the dissolution of is limited to prayers in an March 4th elections as such a Parliament first following the application under Article move is practically impossible. publication. 89(10) where the applicants 7. In the event the court found can demonstrate that indeed fault with the nanimg of the (10) A person may apply a fault featured in the manner two constituencies, which to the High Court for review of IEBC went about delimiting it did not, it should have a decision of the Commission electoral boundaries. The directed the IEBC to do the made under this Article. High court therefore erred in exercise afresh. This enhances supplanting the decision of respect for each others areas (11) An application for the the IEBC with its own opinion. of operation and particularly review of a decision made 4. Article 89 of the Constitution where the areas have under this Article shall be does not give the High court been “delimited” by law. It filed within thirty days of the room to put its own decision is good practise intended publication of the decision in on delimitation of electoral to foster public confidence the Gazette and shall be heard boundaries in place of that and trust to let each organ and determined within made by IEBC. It can only find perform its mandate. But this three months of the date on fault with it and order a fresh performance should only be which it is filed. exercise. within the limits of the law, 5. The time, resources, expertise good faith and integrity. (12) For the purposes required to carry out of this Article “population delimitation exercise is within Appeal allowed setting aside quota” means t h e n u m b e r the constitutional mandate of the judgment of the High court obtained by dividing the the IEBC and IEBC alone. renaming the constituencies number of inhabitants of 6. Where a person is dissatisfied from Suba North to Mbita Kenya by the number with a decision of IEBC under Constituency and Suba South to of constituencies or wards, Article 89 and desires for a Suba constituency. as applicable, into w h i c h review, the person need Kenya is divided under this not go by way of judicial LAW REFORM ISSUE Article.” review procedure under The court proposed that perhaps Order 53 Civil Procedure it is time ORDER 53 Civil Procedure Held: Rules. He or she does not Rules was expanded regarding 1. Per the Oxford Concise English have to file a civil suit either. the scope of reliefs to be sought dictionary, the court noted One needs to file a petition under it. that review means a retrospect or application invoking the or survey of the past; revision or powers under Article 89 (100 reconsideration; or a second of the Constitution. By doing view. It is also a survey, or to so, a party may even pray look back on, reconsider or for a declaration or direction revise or to view again. In order of the court directed to any to review a decision, an error, party or thing which cannot
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Circumstances in which an intended appeal to the Supreme Court would be Certified as a matter of general public importance Koinange Investment & Development Ltd v Robert Nelson Ngethe Civil Application No. Sup 15 of 2012 (UR 9/2012) Court of Appeal at Nairobi R.N. Nambuye, W. Ouko, & J. Mohammed, JJA March 8, 2013 Reported by Beryl A. Ikamari
Issue: 163(4) of the Constitution fashion. It was never 1. Whether an alleged of Kenya, 2010, the words intended to be a regular breach of the right to be “leave of the court” Court of Appeal against heard and the risk of loss and “certification by the all and sundry orders of property valued at Kshs. court” bear the same passed by the Court of 1 billion, can amount to a legal meaning; the Appeal. matter of general public certification by the court 4. The party alleging that importance, allowing for which constitutes leave. an intended appeal an appeal from the Court In the circumstances, raises a matter of general of Appeal to the Supreme the certification would public importance Court, pursuant to Article constitute leave to appeal must demonstrate 163(4) of the Constitution to the Supreme Court of the existence of that of Kenya, 2010. Kenya. importance by identifying 2. The requirement for and formulating, in the Constitutional Law-Jurisdiction- certification under Article application, the matter of the jurisdiction of the Supreme 163(4)(b) is a genuine public importance relied Court of Kenya-the lodging filtering process to ensure upon. of appeals from the Court of that only appeals with 5. The nature of the Appeal to the Supreme Court-the elements of general applicant’s claim (a Court of Appeal’s certification public importance reach sale contract), and the that a matter of general public the Supreme Court. manner in which the importance is involved, in an It is cardinal issues of ex parte judgment was intended appeal to the Supreme law or of jurisprudential obtained, indicate that Court-whether an alleged breach moment, whose the intended appeal of the right to be heard and the risk importance transcends to the Supreme Court of loss of property valued at Kshs. 1 the circumstances of does not raise a matter of billion is a matter of general public a particular case that public importance. importance, concerning which have been certified to Application dismissed. the Court of Appeal should grant be of general public ] certification-the Constitution of importance. Kenya, 2010, Article 163(4). 3. The jurisdiction of the Held: Supreme Court must not 1. For purposes of Article be invoked in a routine Issues:
128 Issue 21 | January - April 2013 The Kenya Law Bench Bulletin
An Unsigned Judgment is a Nullity Paulina Amana v. Republic [2013] eKLR Criminal Appeal No.604 of 2010 Court of Appeal at Eldoret J. W. Onyango, W. Karanja & M. K. Koome, JJA. January 30, 2013 Reported by Lynette A. Jakakimba
i. Whether a criminal appeal Plea taking-own plea of guilty- posed to the accused heard by two judges of unequivocal plea- requirement by the court explaining the High Court was valid that the accused's own words to the consequences, and if one of the Judges failed be recorded during plea taking- a reply by the accused to sign the judgment. need for caution in taking plea recorded as an answer. ii. Whether the High Court Held 4. The plea of guilty that judges erred by failing to 1. The Judgment was not was recorded in respect re-consider whether the signed by one of the two of the appellant was plea of guilty as recorded High Court judges who not unequivocal as the against the appellant for heard the appeal and is appellant’s own words an offence that carried therefore a nullity. were not recorded. a death sentence was 2. In determining whether 5. Considering the appellant unequivocal. a criminal matter should had served over 13 years iii. Whether the judgment be referred for retrial, it in prison, a retrial would should be set aside and is important to revisit the not serve the ends of the matter be referred for background and the justice. retrial by the High Court circumstances of the Appeal allowed and conviction before a different Bench. particular case, especially quashed. the period served in prison Criminal Practice and Procedure- by the appellant since Judgment-validity of unsigned conviction. rates before the property passed judgment-whether an unsigned 3. A record of an unequivocal to the purchaser – whether the judgment is valid plea should show question chargor was obligated to pay
Effect of the Implied terms under the Registered Land Act Savings and Loan Kenya Ltd v Mayfair Holdings Limited Civil Appeal No. 152 of 2006 Court of Appeal at Kisumu A. Visram, H. Okwengu & D. Maraga, JJ.A November 28, 2012 Reported by Emma Kinya Mwobobia
Issues: rates up to the time of the 4. When is a chargor’s sale of the immovable right of redemption over 1. What was the object of the property? the charged property construction of a written extinguished? agreement or contract? 3. What was the meaning which clause 13 of the Conveyancing Law - power of sale 2. Who between the contract conveyed to – statutory power of sale under the purchaser and the seller a reasonable person RLA – rights of a purchaser under (selling under a statutory having all the background a statutory power of sale – where power of sale was liable information? there were accrued land rent and to pay the land rent and
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the accrued land rent and rates the appellant exercising charged property passed before the property passed to the its statutory power of sale to the respondent when it purchaser under the Registered Land was declared a purchaser Mortgages and charges-equity of Act Chapter 300 Laws of at the auction and a valid redemption - circumstances when Kenya (RLA). It had further contract concluded. The equity of redemption of the chargor set out the conditions that respondent was therefore is extinguished–where land subject would apply to the sale. only obligated to meet of a charge is registered in the Therefore, the intention of outgoings relating to the exercise of power of sale in case the parties should have period after the sale. of default – when does a chargor been construed with loose its right of redemption and reference to the object and 7. Under section 69 (1) (b) what are his obligations before the the terms of the agreement. and (j) of the RLA, there property passes to the purchaser are implied terms that are 3. The literal interpretation of imposed on all charges Clause 13 of the Agreement states Clause 13 of the Agreement under the Act which entitle as follows: clearly established that the the Chargee to recover any ‘’The purchaser shall be intention of the parties was land rent/outgoings it pays liable for payments of all to place an obligation on over the security as a result land rent, rates and other the appellant to pay the of the Chargor’s default outgoings and entitled to land rent and rates that had as part of the principal the receipt of all (if any ) accrued before the date amount due to it. This was rent or other incomings as of the auction. Equally, the also expressly provided at and from the date of appellant was entitled to under Clause 6 (1) and 8 the auction and (subject any rent or income from of the charge between as hereinafter provided) the party until the date of the appellant and the and the same shall be the auction. chargor. It would therefore apportioned between the be unreasonable for the 4. The parole evidence parties as at the date and appellant to insist that the rule applied in respect of the amount found so due respondent meets land interpretation of Clause by or as the case may be to rates relating to a period 13 of the Agreement the purchaser shall be paid before the auction sale because the clause was with or deducted from the while the appellant has a not ambiguous and its balance of the purchase legal right under the charge interpretation in its ordinary price on the completion to recover the same from sense did not result in date PROVIDED THAT no the proceeds of the sale. absurdity, create some claim may be made by inconsistency with the rest 8. It was clear from the the purchaser against the of the agreement or lead Agreement and the vendor which relate to the to an unreasonable result. circumstances of the sale period after the auction.” that it was the intention 5. The charged property in Held: of the parties that the this case was registered respondent was entitled to 1. The general rule is that under the RLA. Section deduct the land rent and the intention of the parties 72 (1) of the RLA provides rates that had accrued to an agreement should that a Chargor’s right prior to the auction sale be ascertained from the of redemption over the from the balance of the document as it is deemed charged property is purchase price. that what the parties extinguished when the intended is what was stated property is sold by the Appeal dismissed. in the agreement. chargee in exercise of its statutory power of sale. 2. The agreement clearly Issues: indicated that the auction 6. The equitable and sale was as a result of beneficial interest in the
130 Issue 21 | January - April 2013 The Kenya Law Bench Bulletin
Court of Appeal sets the procedure for certification of a matter to be heard by the Supreme Court of Kenya Hermanus Phillipus Steyn v. Giovanni Gnecchi-Ruscone eKLR [2012] Civil Application No. Sup 4 of 2012 (Ur 3/2012) Court of Appeal at Nairobi Githinji, Onyango Otieno & Koome, JJ.A. November 6, 2012 Reported by Sylvie Nyamunga
1. Procedure for making regulating the manner in questions of law of great an application for a which an application for public importance or to certificate that a matter certification should be point of law of exceptional or matters of general filed and handled, the public importance or to a public importance is reason being that until the matter of great general or are involved in the creation of the Supreme public importance. It intended appeal to the Court by the Constitution merely refers to a matter. Supreme Court against of Kenya, 2010 the Court of The Article does not also the judgment and orders Appeal was hierarchically distinguish between of the Court of Appeal the highest judicial organ. criminal and civil matters. Although the expression 2. Constitutional test to be 2. Until rules are made to ‘a matter of general applied when considering specifically prescribe a public importance’ certification of a matter different procedure for used in the Article is making an application 3. What constitutes a ex facie susceptible of for certification to the liberal interpretation as matter of general public Court of Appeal, such importance opposed to restrictive an application should interpretation, the true be made by a notice meaning of the phrase Criminal Practice and Procedure of motion supported by will ultimately depend on - procedure for application for one or more affidavits the construction that the certification from the Court of in accordance with the Supreme Court will give to Appeal that a matter can be practice of the Court. the phraseology. heard in the Supreme Court-when is a matter of general public 3. The Constitutional test is 5. The requirement for importance-what constitutes that a matter of general certification by both the a matter of general public public importance must Court of Appeal and importance- constitutional test be involved in the case. the Supreme Court is a to be applied in determination- When considering this genuine filtering process to Article 163(4) (b) of the Constitution test, care should be taken ensure that only appeals of Kenya, 2010- Section 16(3) of to ensure that the Court with elements of general the Supreme Court Act 2011 does not apply any other public importance reach test which is not expressly the Supreme Court. Held: provided. The test to be 1. The Supreme Court Rules, applied is not universal. It 6. The importance of the 2011 are silent on whether may vary from jurisdiction matter must be public in or not an application for to jurisdiction. nature and must transcend the circumstances of the certification should first 4. Article 163(4) (b) of the be made in the Court of particular case so as to Constitution of Kenya, have a more general Appeal. Currently, there 2010 does not refer are no rules of procedure significance. Where the to questions of law or matter involves a point of
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law, the applicant must argument or discussions cases. That principle also demonstrate that there is at the hearing. There binds this Court when uncertainty as to the point should exist between considering applications of law and that it is for the the parties a matter in for certification. Thus, until common good that such actual controversy for such time that the Supreme law should be clarified so consideration of the Court determines that as to enable the courts to Supreme Court as a it has no jurisdiction to administer that law, not living issue and not a entertain interlocutory only in the case at hand, hypothetical case. appeals, if at all; the Court but also in such cases in of Appeal should grant a future . It is not enough 8. Section 16(3) of the certificate to appeal to to show that a difficult Supreme Court Act 2011 the Supreme Court from question of law arose. It lays down a principle of interlocutory rulings of the must be an important law, in essence, that the Court of Appeal, only in question of law. Supreme Court should exceptional cases. not entertain interlocutory 7. The matter sought to be appeals which have The court declined to grant a certified must arise from no final effect on the certificate and dismissed the determination of the substantive dispute application with costs to the Court of Appeal in the between the parties respondent. case and not out of the except in exceptional Issues:
Joinder of Issues Denmus Oigoro Oonge v. Njuca Consolidated Ltd Civil Appeal No. 310 Of 2006 Court Of Appeal at Kisumu Omolo, Onyango Otieno & Maraga JJ.A October 10, 2012 Reported by Njeri Githang’a Kamau
Issue: Procedure Rules (1) provides that:- Appellant having not filed a reply to defence, there 1. Whether the failure to “…any allegation of fact made was clearly a joinder of file a reply to defence by a party in his pleading shall be issues with the effect that implies that the plaintiff deemed to be admitted by the the Appellant denied admits the negligence opposite party unless it is traversed the negligence alleged alleged against him in a by that party in his pleading or against him in the defence defence. a joinder of issue under rule 10 just as the Respondent operates as a denial of it.” Civil Practice and Procedure denied the negligence -pleadings- joinder of issues – Rule 10(1) of that Order which is alleged against him failure of a plaintiff to file a reply to also referred to provides that:- in the plaint. The High a defence - whether the failure to Court therefore erred in file a reply to defence implies that “If there is no reply to defence, deeming the Appellant the plaintiff admits the negligence there is a joinder of issue on that as having admitted the alleged against him in a defence- defence.” allegations of negligence in the defence against Civil Procedure Rules, order 6 Rule Held: 9 (1) him. 1. In the light of Order 6 Appeal allowed. Order 6 Rule 9 (1) of the Civil Rules 9(1) and 10(1), the
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Contract of Employment Relations not subject to Judicial Review Staff, Disciplinary Committee of Maseno university & 2 others v R & Another Civil Appeal No. 182 of 2004 Court of Appeal at Kisumu Visram, Nambuye & Okwengu , JJ.A October 10, 2012 Reported by Emma Kinya Mwobobia
1. Whether there was a “In our opinion the well 1. Orders of judicial review recognizable public law settled rule that a breach are orders used by the wrong committed by the of contract of personal court in its supervisory appellants such as would service cannot be jurisdiction to review the justify the intervention redressed by the equitable lawfulness of an act or of the court by way of remedies of injunction decision in relation to the judicial review? and specific performance exercise of a public act remains good law. The or duty. 2. Whether a contract of comparatively few cases employment could give in which declarations were 2. The contract of the public any rights made and injunctions employment between over contractual matters were granted to restrain the respondent and involving public bodies? a breach of contract Maseno University was a of personal services are contractual relationship 3. Whether the breach or governed by private threatened breach of exceptions to the general run of the common law. In law. While it is true that the lecturer’s contract of the public has a general employment could justify our opinion the common law rule that damages are interest in the University the grant of judicial review being run properly, that orders by the High Court? the generally accepted remedy for redressing interest does not give Judicial Review -jurisdiction breaches of contracts the public any rights of a judicial review court – of personal service is over contractual matters judicial review orders issued in too firmly established to involving the university a claim based on a contract be overthrown by side and other parties. of employment – whether wind. While we note 3. Despite the fact that the contractual matters involving the emerging changed respondent was a senior public bodies was a public right attitudes and remedial citizen and senior lecturer subject to public law to warrant changes they are bringing who had dedicated his the jurisdiction of the judicial about, we cannot help service to the public by review court - whether breach feeling that the common imparting knowledge of the lecturer’s contract of law and the doctrine of to the citizens of Kenya, employment could have justified equity which Section 3 it did not make the the grant of the judial review of the Judicature Act contractual relationship orders by the High Court. obliges us to apply is between the respondent the established and well Civil Appeal No.20 of 1994 Erick and the applicant which known common law. It is was governed by terms D. J. Makokha & others versus on the faith of this that the Lawrence Sagini & others and conditions agreed transactions are entered by the parties a matter of In a unanimous judgment, a five into.” public duty or governed judge bench of this court had this Held: by public law. to say: 4. The breach or
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threatened breach of the an appropriate action under the supervisory respondent’s contract of justifying the granting of jurisdiction of the court. employment was a matter orders of judicial review. of contractual relationship Appeal allowed. Judgment set between the respondent 5. The High Court had erred aside. and the appellants, in granting the orders governed by private of judicial review as the law. It was therefore not respondent did not have Issues: a public law right capable
Whether the Supreme Court has Retrospective Jurisdiction over Court of Appeal Matters Prior to the promulgation of the Constitution of Kenya, 2010 Greenfield Investment Limited v. Baber Alibhai Mawji Civil Application No. Sup 5 of 2012 (UR 4/ 2012) Court of Appeal at Nairobi W. Karanja, P. O. Kiage & K. M’inoti, JJA. March 8, 2013 Reported by Andrew Halonyere & Cynthia Liavule
Issues: importance is involved the commencement of 1. Whether Article 163 (4) subject to clause (5) the Constitution. (b) of the Constitution of Held: 3. It was unthinkable that the Kenya 2010 conferred 1. The Supreme Court’s birth of the Constitution of appellate jurisdiction upon jurisdiction under Kenya 2010 order with new the Supreme Court before Article 163 (4) (b) of the expanded rights should be the commencement of Constitution of Kenya,2010 treated as an opportunity the Constitution. must necessarily and by to go back into the mist definition be exercised of time and revive old Constitutional Law – Jurisdiction more as an exception legal disputes no matter - appellate jurisdiction of the rather than as a matter how unsatisfactorily in the Supreme Court - leave to appeal of course, it could not eyes of the aggrieved from the Court of Appeal to the have been the intention they might have been Supreme Court – whether the of the framers of the concluded. Constitution conferred appellate Constitution that appeal 4. The Supreme Court was jurisdiction upon the Supreme to the apex court be one bereft of jurisdiction to Court before its formation – to be lightly and generally entertain the appeal for Constitution of Kenya, 2010 ,Article invoked. The historical which the Court of Appeal 163 (4) (b) finality of the Court of certificate was sought. The Appeal in matters of law is Court of Appeal could not Constitution of Kenya, 2010 retained and maintained grant the said certificate Article 163(4) (b) provides, save for a limited number for to do so would be (4)Appeals shall lie from of cases and subject to tantamount to attempting the Court of Appeal to the certification. to grant the Supreme Supreme Court Court a jurisdiction it does (b) In any other case 2. Article 163 (4) (b) was not possess and that in which the Supreme forward looking and did would be an act of futility. Court or the Court of not confer appellate Application dismissed. Appeal, certifies that a jurisdiction upon the matter of general public Supreme Court before
134 Issue 21 | January - April 2013 The Kenya Law Bench Bulletin
High CourtCompilation Cases by Nelson K. Tunoi, Advocate
Land Set out for public use cannot be alienated Adan Abdirahani Hassan 2 Others v Registrar of Titles, Ministry of Lands & 2 others Petition No 7 of 2012 High Court at Malindi Constitutional & Human Rights Division O. A. Angote, J March 15, 2013
Reported by Andrew Halonyere & Cynthia Liavule
1. Whether the rights and freedoms – right to fair and is carried out in accordance Commissioner of Lands hearing – revocation of land title with the Constitution and the could alienate land without notice – whether such relevant pieces of legislation. which had been set aside revocation was an affront to the for public purpose. Petitioner's right to a fair hearing Held:
2. Whether the failure by Land Law – alienation of land 1. Article 40 of the the Commissioner of – alienation of public land - Constitution of Kenya Lands to inform and hear respondents’ duty to prove the 2010, just like section the petitioners before the public purpose that the suit 75 of the repealed revocation of title was an property was reserved for to Constitution protects the affront to the Petitioners warrant the revocation of the right to own property. The right to a fair hearing. Petitioners title - Whether the Article should however Commissioner of Lands could be read together with 3. Whether the petitioners’ alienate land which had been the provisions of Article right to property set aside for public purpose – 40 (6) which excludes under Article 40 of the Constitution of Kenya 2010, Article the protection of Constitution of Kenya 40(3) – repealed Constitution property which has been 2010 had been violated section 75 – Government Land found to have been by the respondents. Act (repealed) - Registration of unlawfully acquired. Titles Act, (Cap 281) (repealed) That requirement Registered Land Act, (Cap 300) recognizes the fact that Constitutional law – fundamental (repealed). the Constitution protects rights and freedoms – right to certain values such as property – duty of a petitioner human rights, social justice and integrity to show that property was Article 40(3) of the Constitution of legally acquired when invoking amongst others. These Kenya, 2010 and Section 75 of the national values require the Constitutional right to own repealed Constitution protects property. that before one can a person from deprivation of be protected by the property by the state unless Constitution, he must the deprivation is for a public show that he has followed Constitutional Law – fundamental purpose or in the public interest
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the due process in already been set aside for property was reserved acquiring that which he public purpose. for a public purpose, wants to be protected. 4. Any alienation of land which view they were reserved for public entitled to hold, being 2. It was the Respondents’ purpose and issuance of a the custodians of public duty to place before the title for the same, whether land, the Petitioners had court evidence showing under the Registration legitimate expectation in the public purpose that of Titles Act (Cap 281) the proprietorship of the the suit property was or the Registered Land property and they should reserved for to warrant Act, (Cap 300) was null have been accorded the revocation of the and void ab initio. Such a hearing before any Petitioners title by the a title did not exist in administrative action Respondents. In the the first place because could be taken in respect absence of any response the land belonged to to the suit property. by the Respondents, the Public and was not the court cannot make available for alienation. 6. The failure by the a determination on The cancellation of such Respondents to inform whether the property a “title,” which was not and hear the Petitioners was ever reserved for a title as known in law before the revocation of public purpose and because it should not the title vide a Gazette consequently the title have been issued in the Notice Number 1557 was to be left to stand as first place, would have and the failure by the it is. been an administrative Respondents to inform exercise by the the Petitioners the public 3. The Commissioner of Lands purpose for which the suit or his subordinates, while Commissioner of Lands or the Registrar of Titles property was reserved alienating Government for thus necessitating the land, could only do to rectify the mistake or misrepresentation that administrative action so over unalienated that was taken vide the Government land as was made by the same office. Gazette Notice No. 1557 defined in the Constitution was an affront to the and under the repealed 5. Even if the Respondents Petitioner's right to a fair Government Lands Act. held the view that hearing. The Commissioner of the Petitioners had no Lands or his subordinates right to own the suit Petition allowed, decision of the st nd could not purport to property because the 1 and 2 respondent quashed. alienate land which had Issue:
136 Issue 21 | January - April 2013 The Kenya Law Bench Bulletin
High Court lacks jurisdiction to bar manual tallying of the Presidential Ballots
The African Centre for Open Governance (AFRICOG) v Ahmed Issack Hassan & another High Court of Kenya at Nairobi Constitutional and Human Rights Division Petition No. 152 of 2013 I. Lenaola, D.S. Majanja, W. Korir JJ. March 8, 2013 Reported by Emma Kinya Mwobobia
1. Whether the High Court President arising under Article 140 before it, the moment it had jurisdiction to stop which provided for the manner in holds the opinion that it the manual tallying of the which questions as to the validity was without jurisdiction. presidential ballots. of presidential elections would be 2. The import of Article handled. 165(3) and Article 140 of the Constitution was The petitioner, a non-governmental Jurisdiction – jurisdiction of that where jurisdiction organization working in the area the High Court in determining was exclusively donated of Democracy, transparency, matters on presidential elections – by the Constitution to and open governance in Kenya limitation of High Court jurisdiction the Supreme Court, filed a petition challenging the - constitutional provision of the High Court could manual tallying of the presidential Supreme Court having original not have invoked its ballots without verification with jurisdiction to hear and determine jurisdiction under Article the actual Constituency based disputes relating to elections 165(3)(d)(ii) to enquire results in the relevant submitted to the office of the president whether anything done forms. The petitioner inter-alia – petitioner seeking orders to under the authority of sought orders for the High Court stop the manual tallying of the the Constitution was to stop the manual tallying of presidential ballots - where the inconsistent with or in the presidential ballots and in matter involved the process contravention of the the event that the respondents leading to the declaration of a Constitution. would have announced the successful presidential candidate presidential results by the hearing – whether the High Court had 3. According to the case in of the application, an order jurisdiction to stop the manual the Principle of Gender restraining the respondents from vote tallying of presidential Representation in the gazetting the results until hearing elections - validity of the petition National Assembly and the and determination of the petition – Constitution of Kenya, 2010 Senate, Advisory Opinion herein. Articles 165, 163 and 140 Application No. 2 of 2012 The jurisdiction of the High Court (2012) eKLR, there was no is provided for under Article Held: reason for the court to 165(3),(5) of the Constitution of 1. Jurisdiction was everything have presumed that the Kenya, 2010 and further limited and without it, the court framers of the Constitution to various instances including had no power to make had intended that the matters reserved for the exclusive one step. Where a court Supreme Court should jurisdiction of the Supreme Court had no jurisdiction there have exercised original under the Constitution. The would have been no jurisdiction only in respect Constitution had also vested basis for a continuation of a specific element, exclusive original jurisdiction to of proceedings pending namely, disputes arising the Supreme Court to hear and other evidence and a after the election while determine disputes relating to court of law downs its tools excluding those disputes elections to the office of the in respect of the matter which might have arisen
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1. during the conduct of declaration of a successful petition however urgent the election. The High presidential candidate. or important it may have Court has therefore no The presidential election been to the parties or the jurisdiction over any matter was not a single event but public. in which the Constitution a process that flowed from had reserved for the nominations to election 3. The issues raised in the exclusive jurisdiction of petitions subsequent to the petition however, were not the Supreme Court. declaration of presidential idle and should therefore election results. The High be pursued in the right 2. The petition contained Court could therefore forum. matters that involved the not have appropriated Petition dismissed. process leading to the jurisdiction to entertain the
Trust Land can be used for establishment of Settlement Schemes where the local inhabitants give consent Chengo Katana Koi vs. Protus Evans Masinde ELC Civil Suit No. 102 of 2009 High Court of Kenya At Malindi O. A. Angote, J. March 8, 2013. Reported by Emma Kinya Mwobobia and Victor L. Andande.
Issues: schemes in the public domain had established a prima facie 1. Whether a settlement Land Law – settlement schemes case to warrant the grant of scheme could have – creation of settlement schemes injunction in the circumstances been created on Trust – provision of the Land Act Land without consent of on settlement programmes - Held: local inhabitants. validity of a title deed under the 1. The applicant had not 2. Whether the title deed settlement schemes – where established a prima facie could have entitled the the applicant had acquired the case to warrant grant of applicant to the land land by purchase through the an injunction because he allocated to him under Ministry of Lands and Settlement had not given evidence to the settlement scheme – provision that the National Land show how the settlement by the Ministry of Lands Commission to reserve public land scheme had been and Settlement to the for establishment of settlement created. He had also exclusion of all other schemes – whether settlement failed to show whether people. schemes could be created by the inhabitants of the area purchase of private land - Land were consulted before Land – trust land - need for Act, No. 6 of 2012. the land was adjudicated consulting local inhabitants before and allocated. creating settlement schemes Civil practice and procedure – 2. Since there had been on trust land – indefeasibility of injunction – temporary injunction confusion as to how title granted under settlement – application by the applicant settlement schemes schemes on trust land - claim by to restrain the respondent from supposed to settle the the respondent that the trust land trespassing on his land – claim landless people were could only pass to beneficiaries by the respondent that the land created, the framers of of the trust land or to members was trust land and therefore could the Land Act, No. 6 of of that clan – whether trust land only pass to beneficiaries or clan 2012 came up with the could be set apart for settlement members - whether the applicant provisions stipulating that
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the settlement schemes Act had provided for the African Customary Law. were supposed to be establishment of a body 6. The only way in which created by the National corporate known as a Trust Land could have Land Commission and Settlement Fund Trustees been legally removed how and who was entitled and established the from the communal to the land in those Agricultural Settlement ownership of the people schemes. Fund which was vested was through adjudication 3. According to the Land in the Settlement Fund and registration or setting Act, No. 6 of 2012, Trustees. The Settlement apart. Adjudication and settlement programmes Fund Trustees, using the registration removed the were to include provisions fund, could purchase any particular lands from the on access to land land for resale. Therefore, purview of the community by squatters, persons the settlement schemes ownership and placed displaced by natural could have been created them under individual causes, development either by purchase of ownership. Setting apart projects, conversation, private land or by utilizing removed the Trust Land internal conflicts or such public land. from the dominion of other causes that could 5. Trust Land was not public community ownership lead to movement and land because it was vested and placed them under displacements. The Act in the local communities the dominion of public had provided that the of the areas in which they ownership. National Land Commission were situated. Under both 7. Since a title deed was an was to reserve public land the Constitution of Kenya, end product, where there for the establishment of 2010 and the previous were competing interests settlement programmes Constitutions, Trust Land over the same land, it was and where the public was neither owned by not enough for one to land was not available, the Government nor by state that he held a title purchase private land the County Councils. The deed which was absolute subject to the Public County Councils simply and indefeasible. One Procurement and Disposal held the title in such had to show the processes Act. lands on behalf of the that were followed in the 4. Prior to the enactment of local inhabitants of the acquisition of the title the Land Act, No. 12 of area. Such Trust Land if deed so as to entitle him 2012, there was no law not adjudicated and not or her to the land to the codifying the creation registered, belonged to exclusion of the other of settlement schemes the local people, groups, claimants. though many schemes families and individuals in Application dismissed. were established in the the area in accordance Issue: country. The Agriculture with the applicable 1. Whether the Environmental
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Importance of an Environmental Impact Assessment in Environmental Matters in Enhancing Sustainable Development Kwanza Estates Ltd v. Kenya Wildlife Services HCC. NO. 133 OF 2012 High Court of Kenya at Malindi O. A. Angote J. March 8, 2013 Reported by Emma Kinya Mwobobia & Obura Michael
Impact Assessment with a project- whether there was legal framework that (EIA) in environmental public participation before the governs the protection matters was a mandatory construction of the public toilets- of the Environmentin requirement essential in Constitution of Kenya, 2010 Articles the Environment decision making. 42, 69, 70; The Environmental Management & 2. Whether the construction Management and Co-ordination Co-ordination Act of public toilets next Act (EMCA), 1999 section 3. (EMCA)1999. to a beach resort Held: 4. The Essential Principle of without conducting an 1. There was no document Public participation while Environmental Impact to show an Environmental clearly with the sustainable Assessment was a Impact Assessment Report Management of the contravention of the was ever prepared before Environment was also principles of sustainable the construction of the provided for in Article 69(10 development. public toilet or whether the (d) of the Constitution. National Environmental Public Participation was Civil practice and procedure- Management Authority one of the principles injunction- temporary injunction- (NEMA) had licensed the that informed the application to restrain the construction of the said requirement that before defendant from continuing with public toilet. one financed and the construction of public toilets 2. The Environmental commenced the carrying next to beach resort-grounds that Management and Co- out of any undertaking the defendants were causing ordination Act, 1999 specified in the second environmental degradation- (EMCA) had provided schedule of the EMCA, claim by the defendants that they novel provisions for he had to apply to the had all the necessary authority the implementation of National Environmental to utilize the grounds - proof of the general principles Management Authority for - factors the court considers in by stipulating that in an Environmental Impact such circumstance s-whether exercising the jurisdiction Assessment Report. the plaintiffs established a prima conferred upon the 5. Environment Impact facie case with a probability of court under Section 3 Assessment (EIA) was a tool success – whether the injunctive of the Act, the court that helped those involved orders could be granted in the would be guided by the in decision making circumstances principles of sustainable concerning development Land and Environment- development such programs or projects to Environmental Impact Assessment- as public participation make their decisions need for an Environmental amongst others. based on knowledge of Impact Assessment report for a 3. The protection of the the likely impacts that proposed project- sustainable environment for the would be caused on the development- principles of benefit of the present environment. Where the sustainable development- public and future generations impacts were negative participation- need to seek public is supposed to be done and likely to result in participation before continuing in a structured and the significant harm, decision
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makers would be able not in keeping with its a maximum of sixty days to decide what kind surrounding and change for submissions of oral or of mitigating measures in land use. written comments. EIA should be taken to 7. The importance of public process gave the plaintiff eliminate or minimize the participation in decision a voice on issues that harm. making in environmental would bear directly on 6. The projects that were matters was highlighted by their health and welfare potentially subject to the requirement that EIA and entitlement to a clean EIA were specified in the study report be published and healthy environment. second schedule of EMCA for two successive weeks Injunction granted. and they included an in the Gazette and in a activity out of character newspaper circulating in with its surrounding, the area of the project Issues: any structure of a scale and the public to be given 1. Whether the right to
Grant of Representation must be done in person In the Matter of the Estate of Miriam Njoki Gachuhi (Deceased) Cause No. 1878 of 2005 High Court of Kenya at Nairobi W. M. Musyoka, J. March 7, 2013 Reported by Teddy Musiga
Issues: apply on behalf of another and for it. Appointment of 1. Whether a person who pray that the other be appointed administrators cannot be does not intend to be an administrator imposed. administrator to an estate Held: 3. Where persons who have can apply on behalf of 1. A grant of representation priority in obtaining a another and pray that is made in personam. It grant fail to apply for it, the other be appointed is specific to the person the procedure is to require administrator. appointed. It is not that person with priority transferable to another to show cause why the Probate & Administration – Grant person and cannot grant should not be issued of representation – application therefore be transferred to another person if they for grant of representation from one person to fail to apply for it within a - substitution of grant of another. specified period. representation - Whether a person 2. Grant of representation Application dismissed. who does not intend to be an should only be made to administrator to an estate can persons who have applied
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Right to institute court proceedings on fundamental Rights and Freedom not limited to Citizens Ali Wario Guyo v. Attorney General & 3 others [2013] eKLR Petition No. 511 of 2011 High Court at Nairobi Constitutional and Human Rights Division Isaac Lenaola, J. March 1, 2013 Reported by Nelson K. Tunoi & Beatrice Manyal
institute constitutional petitions on fundamental standard laws and the use of 2. A petitioner is duty bound rights and freedoms was sub-standard procedure contrary to clearly and specifically limited to citizens. to the spirit of the Constitution- plead his case with some 2. Whether the General whether the Doctrine of Necessity degree of clarity and Elections scheduled to be would demand a postponement demonstrate the specific held on 4th of March 2013 of the General Elections-whether rights he is apprehensive could be postponed to a the petitioner’s rights were are under threat and suitable date based on violated-Constitution of Kenya, provide factual basis for the Principle of Necessity. 2010, Article 38, 101, 136 (1), 159, those apprehensions. It 3. Whether the Petitioner’s 165, 177 (a) and 180 (1) is not enough to make rights under Article 38 of Constitutional Law-fundamental bare allegations or the Constitution could rights and freedoms-enforcement statements regarding a be properly realized of rights-whether the right to violation or threatened and achieved upon enforce the Bill of Rights through violation of his right to vote postponement of the court proceedings is limited to as provided by Article General Elections. citizens-where the petitioner was 38 of the Constitution of 4. Whether the High Court alleged not to be a Kenyan Kenya, 2010. No material could issue a declaration citizen-whether the petition had was before court to directing the IEBC and merit-Constitution of Kenya, 2010, demonstrate a violation all other necessary state Article 22 of the petitioner’s rights as organs to set up proper provided by Article 38 of mechanisms to ensure that Held: the Constitution of Kenya, the next general elections 1. Under the provisions 2010. was duly postponed to a of Article 22 of the 3. Any postponement of date to be declared by Constitution of Kenya, the General Elections the Court. 2010, any person, whether a citizen or not, has the date would have to be undertaken within the Constitutional law-fundamental right to institute court confines of the law and rights and freedoms-political proceedings where a right in particular under the rights-petitioner seeking the or fundamental freedom provisions of Chapter postponement of the General in the Bill of Rights has been Sixteen of the Constitution Elections based on the doctrine violated or is threatened. on amendment of the of necessity-grounds that the The right of access to Constitution. The High mechanisms in place were information under Article Court while exercising its substandard and that the “rush” to 35 of the Constitution of authority to interpret the conducting the general elections Kenya, 2010, is the only Constitution as stipulates would result in passing of sub- right limited to citizens of Kenya. by Article 165 (3) (b), has to be governed by the
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provisions of Article 159 Article 2 (3). Opinion No. 2 of 2012. (2) (d) of the Constitution which mandates the High Court to protect and 6. With respect to election 9. Parliament had promote the purpose preparedness, the enacted legislation to and principles of the 3rd respondent (IEBC) satisfy the provisions Constitution. had demonstrated its and implementation readiness to discharge its of Article 81 of the 4. The “Doctrine of constitutional mandate Constitution (Electoral Necessity” which by putting in place System and Processes). demands that an act necessary mechanisms Parliament enacted which would otherwise to conduct the General and IEBC commenced be illegal becomes Elections. There was no the implementation of legal if it is done bona material evidence before The Elections (Kenya fide under the stress of Court to demonstrate Citizens Residing outside necessity, is inapplicable that the whole Kenya) (Registration and in the circumstances of preparation process was Voting) Regulations, 2012 the case. It can never “rushed” thus resulting which provide for the be true that necessity into malpractices and progressive realization of would make that which denied the petitioner’s diaspora voting, first in is unlawful, lawful if it right to fair administrative Eastern Africa countries violates or threatens action. and then to other the Constitution. The countries in the world, Constitution having as envisaged under provided when the 1st 7. The right to vote by Article 82(1) (e) of the General Elections would citizens living in diaspora Constitution. be held and the same had already been having been settled by determined by the High both the High Court and Court where IEBC was 10. There was no curtailment the Court of Appeal, ordered to ensure that of the Petitioner’s or any the postponement of the people in diaspora other citizen’s right to vote the General Elections will vote in subsequent and the postponement could not be done elections after the first of the General Election without offending the general election. would serve no lawful Constitution itself. purpose. The Petitioner had not demonstrated 8. With regard to the to the High Court any 5. The provisions of Article implementation of Article evidence that it was in 2 (3) clearly states that, 27(8) of the Constitution the wider public good “the validity or legality which requires that not to hold elections as of this Constitution is not the State shall take scheduled. subject to challenge by or legislative and other before any court or other measures to implement state organ.” It would the principle that not Petition dismissed; each party to be unconstitutional for more than two-thirds of bear its own costs. the High Court to order members of elective or postponement of the appointive bodies shall General Elections in be of the same gender, a manner that would the Supreme Court has Issues: amount to a sabotage of rendered a decision in 1. Who is a full time state the Constitution in view of that regard vide Advisory
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Whether Members of Parliament were eligible to engage in other gainful employment Samuel Muigai Nganga v Minister for Justice, National Cohesion & Constitutional Affairs & Another High Court of Kenya at Nairobi Constitutional and human Rights Division Petition No. 354 of 2012 Isaac Lenaola, J. March 1, 2013 Reported by Emma Kinya Mwobobia
officer? be read as a whole – provision section 26(2) of the that full time state officers could Leadership and integrity 2. What constitutes not engage in other gainful Act as work that a person gainful employment employment – whether the could pursue and perform for the purposes of Members of Parliament were full for money or other form Article 77(1) of the time state officers and therefore of compensation or Constitution? not allowed to engage in gainful remuneration which was 3. Whether Members employment – Constitution of inherently incompatible of parliament and Kenya, 2010 Articles 260, 80, 73, 77 with the responsibilities of Members of the the state office or which County Assembly Article 77(1) Constitution of Kenya, resulted in the impairment could be said to be 2010 provides that: of the judgment of (1) full time state officers. A full time state officer the state officer in the shall not participate in any execution of the functions 4. Whether the petition other gainful employment. of the state office or results had raised issues in a conflict of interest in capable of being Held: terms of section 16 of the resolved by a court 1. Article 260 of the Act. of law under the Constitution of Kenya, doctrine of justiciabilty 2010 had defined what 4. The import of Article 77(1) given that there was a state office meant and and Article 250(5) of the no known claim. further defined a state Constitution was that not officer as a person holding all persons defined as state The petitioner in this case was any of the offices that had officers were expected to interested in the interpretation been outlined under the work on a full time basis. of Article 77 of the Constitution, meaning of state office. 2010 in relation to whether One such person was 5. There was no law, save Members of Parliament or the Member of Parliament the Standing Orders of County Assembly were full time and Member of County parliament that regulated state officers. This was because Assembly. when Members of he aspired to vie for a political Parliament should be office in the future and therefore 2. Article 77 of Chapter Six engaged in parliamentary approached the court to settle of the Constitution had business. Article 126(1) of the issues he raised in his petition provided for the restriction the Constitution provides before he ventured into politics. on activities of state that a sitting of either Statutes – interpretation of statutes officers where a full time house may be held at – interpretation of constitutional state officer should not any place within Kenya provisions – interpretation of who participate in any other and may commence at amounts to a full time state officer gainful employment. any time that the House appoints. and what amounts to gainful 3. Gainful employment was employment - constitution to clearly defined under 6. Standing Orders were
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creatures of a Parliament the justifiability doctrine controversy and not in a in a bid to regulate expressed fundamental hypothetical or academic its business and the limits on judicial power in situation. The petition had Constitution had donated order to ensure that courts only raised a hypothetical to it the power to create did not intrude into areas situation which the court hours for its sittings. committed to the other could not frame as a real They were provided for branches of government. issue for resolution. under Article 124 of the This was based on the Constitution where each fundamental doctrine 9. Parliament and County house of Parliament could of separation of powers Assemblies must regulate establish committees and and its application to the its own procedures make Standing Orders for instant case. including the times the orderly conduct of when their business is its proceedings including 8. There was no controversy conducted. Court must the proceedings of its raised in the petition for respect separation of committees. the court to resolve and powers and should not under Article 165(3)(a) purport to direct the 7. According to the case of the Constitution, the Legislature on how it in Trusted Society of High Court could only should run its affairs. human Rights Alliance v invoke its mandate to Attorney General & Others interpret the Constitution Petition dismissed. petition no. 229 of 2012, if there was a real issue in Issues:
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Whether a ruling as opposed to an order or Decree may be reviewed Jan Bolden Nielsen v Herman Philipus Steyn a.k.a Hermannus Phillipus Steyn & 2 Others Civil Case No. 332 of 2010 The High Court at Nairobi (Commercial and Admiralty Division) A. Mabeya J March 1, 2013 Reported by Beryl A. Ikamari
1. Whether the remedy of 30, 2012. On the said March 30, this Act, may apply for a review review was available 2012, an injunction was issued to of judgment to the court which where an order had not preserve the plaintiff’s proprietary passed the decree or made the been extracted from a rights and rights of occupancy order, and the court may make ruling, concerning which over property known as Oldonyo such order thereon as it thinks fit.” review was sought; and, Laro, title No. Narok/Nguruman/ 2. Whether the grant of Kamorora/1. However, the 3rd Civil Procedure Rules, 2010, Order prayers embodying some Defendant sought relief in the form 45 Rule 1: - degree of contradiction of a variation of the injunction to “(1) Any person considering and the grant of reliefs delimit the extent of the plaintiff’s himself aggrieved— extending beyond what proprietary rights and rights of (a) by a decree or order from the parties have sought occupation to a smaller area of which an appeal is allowed, but from the court, were Oldonyo Laro and not the whole from which no appeal has been matters falling within the parcel of land. preferred; or purview of review and While stating that it would not (b) by a decree or order from were not issues to be vary the orders of March 30, which no appeal is hereby determined via an appeal 2012, a contradiction arose in allowed, the court’s ruling, as the effect and who from the discovery Civil Practice and Procedure- of the orders issued by it was to of new and important matter review-whether the remedy of vary the earlier orders. The court or evidence which, after the review is only available where also issued a proviso in paragraph exercise of due diligence, was not either a decree or order has been 47 of its ruling, which embodied within his knowledge or could not extracted from a judgment or injunctive relief issued in favour be produced by him at the time ruling of the court-whether a ruling of the plaintiff, without any of when the decree was passed or from which no order has been the parties having sought such the order made, or on account of extracted can be the subject of relief or having been heard as to some mistake or error apparent review proceedings-the nature the merits in favour of granting on the face of the record, or for of matters that may properly be the relief. While a review of both any other sufficient reason, desires brought for review as opposed the proviso and contradictory to obtain a review of the decree to matters that are the proper statements was sought, no order or order, may apply for a review subject of an appeal-the Civil was extracted from the ruling. of judgment to the court which Procedure Act, 2010, Section 80 passed the decree or made and the Civil Procedure Rules, The Civil Procedure Act, 2010, the order without unreasonable 2010, Order 45 Rule 1 Section 80:- delay.” “80. Any person who considers Held:- In this case, the court was asked himself aggrieved - 1. Section 80 of the Civil to review its own ruling which it (a) by a decree or order from Procedure Act, 2010 issued on December 10, 2012. which an appeal is allowed by and Order 45(1) of the The ruling was made pursuant to this Act, but from which no appeal Civil Procedure Rules, the 3rd Defendant’s application has been preferred; or 2010 allow a court in an seeking a variation of the orders (b) by a decree or order from appropriate application of Odunga J issued on March which no appeal is allowed by to review a judgment or
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ruling. the orders of trial Court existing rights of the parties 2. Concerning the remedy of March 30, 2012 were without such parties being of review, what is to not varied, there arises called upon to address be reviewed is the a contradiction, in the the court on the matter. judgment or ruling from ruling dated December 5. The inconsistency which the decree or 10, 2012, amounting to an between the court’s order is extracted, and error on the face of the intention to protect the 3rd concerning which the record. Defendant’s constitutional applicant finds that there is 4. The proviso contained right of ownership of the reason to seek review. The in paragraph 47 of the suit property and the extraction and exhibition ruling of December 10, proviso in paragraph 47 of a decree or order in an 2012, concerns orders of the ruling was an error application for review is which none of the parties that is subject to review. but only a procedural step sought from the court The proviso given by the which enables the court and the parties were court in paragraph 47 of to identify the particular not heard on the merits the ruling of December decision in question and pertaining to the grant 10, 2012 was made in error the aggrieved party. of the orders. Although a and it is an issue subject to 3. In granting prayers whose court has discretion to give review and not one that effect was to vary the an injunction on certain may only be determined orders of the trial Court terms, such terms should on appeal. of March 30, 2012, but at not extend to affect the Application allowed the same time stating that – application for an order of
Whether Media Publications meets the threshold of matters of Judicial Notice Fredrick ChegeWambui v. Independent Electoral and Boundaries Commission. Misc. Application No. 67 of 2013 High Court of Kenya at Nairobi February 28, 2013 G. V. Odunga, J. Reported by Emma Kinya & Victor Andande
Issues: Commission to accept from The should take judicial notice of. 1. Whether the court National Alliance Party (TNA) a could take judicial National Assembly Nominees list Evidence - judicial notice – notice of the names on which did not include his name as matters which constitute judicial a party’s nomination the first nominee since the youth notice - media publication – list published in the were placed first under among where applicant relied on media media. the twelve nominated members publication containing the list 2. Whether an order of by the parliamentary political of the political party nominees certiorari could be parties. He further sought an order for various posts in the National issued where the of mandamus to compel the Assembly – claim by the applicant applicant relied on Independent Electoral Boundaries that the party list had been a website page as Commission (IEBC) to only accept published by the media and a decision that he from the National Alliance (TNA) a the matter had become of sought to be quashed list of National Assembly nominees general notoriety – whether court by the court. that includes his name as the could take judicial notice of the The applicant was seeking an first nominee of the National publication in the media – Section order of Certiorari to bring to court Assembly. He was however relying 60 Evidence Act. and quash the decision of the on lists published in the media Independent Electoral Boundaries which he submitted that the court Judicial review – certiorari
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certiorari to quash the decision was to stretch the matters in question in court or of the Independent Electoral which ought to have been account to the satisfaction Boundaries Commission (IEBC) judicially noticed too far. of the court the inability to to accept the nominees list from do so. A photocopy of a The National Alliance Party (TNA) 3. A party who sought judicial website page exhibited which did not include the name notice to be taken of a in the matter did not of the applicant – claim by the matter had the burden of meet the threshold of a applicant that the nominees list convincing the judge : decision but may have, if ought to start with the youth since it accurately amounted to a) That the matter was so the youth were provided for as a decision. Thus, there was notorious as not to have been first on the list of political party no decision to be quashed the subject of dispute among nominees representing special in the circumstances. reasonable men. interest 8. The law required a b) That the matter was capable demand by the applicant Judicial Review – mandamus of immediate accurate for action and refusal as a – application for an order demonstration by resort to prerequisite to the granting of mandamus to compel the readily accessible sources of of an order of mandamus. Independent Electoral Boundaries indisputable accuracy. Exceptions to the general Commission (IEBC) to only accept rule may be available but a list of the political party nominees 4. The common cause of it is upon the applicant to list to the National Assembly that business must first have satisfy the court that in the included the applicants name been proved or admitted circumstances of the case from The National Alliance (TNA) and thereafter the court the exception applies. – considerations by court in may presume that it had 9. The applicant had to granting an order of mandamus been followed in particular demand for the nominee – requirement for a demand for cases. list and not request for it the list by the applicant from the because in the absence 5. Newspaper reports could respondent before seeking the of the material upon not be taken to have been order – whether the applicant which the court could so notorious with respect to had furnished the requirements for apply the exceptions to the truth of their contents. seeking an order of mandamus the general rule, it was 6. Order 53 rule 7(1) of the Held: not possible to dispense Civil Procedure Rules 1. Section 60 of the Evidence with the requirement for had provided that in the Act had provided for the demand in light of case of an application for matters which the court the denial by the party an order of certiorari to could take judicial notice. that it had submitted its remove any proceedings These were inter alia all list of nominees to the for the purpose of being written laws, proceedings respondent. quashed, the applicant of parliament, general 10. The mere fact that the should not question the course of nature, all matters youth was provided for as validity of any order, of general or local notoriety first in the Constitutional warrant, commitment and all other matters of Provision of representation conviction, inquisition or which it is directed by any of special interests in the record, unless before the written law to take judicial National Assembly did not hearing of the motion he notice among others. give priority to the youth had lodged a copy verified over other representatives by affidavit with the registrar 2. Whereas the fact that a of special interests or accounts for his failure to media house had published otherwise the drafters of do so to the satisfaction of an article may have been the Constitution would the High Court. of general notoriety, to have expressly stated so. stretch that to include the 7. A party who sought to Petition dismissed. authenticity of the report quash a decision ought to Issues: have exhibited the decision
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A Party Can be enjoined as an Interested Party in revision proceedings Royal Media Services Limited v Director of Public Prosecutions & another [2013] eKLR Miscellaneous Criminal Application No. 43 of 2013 High Court of Kenya at Nairobi L. A. Achode, J. February 27, 2013 Reported by Nelson K. Tunoi & Beatrice Manyal
1. Whether the 75), sections:- a court conducting a Communications 362(1) The High Court may criminal case. Commission of Kenya call for and examine the (CCK) which was the record of any criminal 2. Revision proceedings complainant in the proceedings before any are not stand alone matter before the subordinate court for the proceedings, they arise subordinate court purpose of satisfying itself out of already existing ought to be enjoined as to the correctness, proceedings. The revision as an interested legality or propriety of any application arose from a party in the revision finding, sentence or order miscellaneous application proceedings in the recorded or passed, and before a lower court that High Court. as to the regularity of any sought search warrants proceedings of any such to enable investigation 2. Whether CCK could Subordinate Court. into alleged criminal acts. be granted leave to 365(1) No party has a Therefore no criminal respond to pleadings right to be heard either proceedings had been already filed by the personally or by an instituted yet and as such, respondent if the advocate before the High there was no complainant application was Court when exercising its or prosecutor. Had such successful. powers of revision: proceedings been instituted, the intended Provided that the court interested party would Criminal Practice and may, when exercising have been required Procedure-revision-parties in those powers, hear any to approach the court revision proceedings-whether a party either personally through the prosecutor. complainant could seek to be or by an advocate, and enjoined as an “interested party” nothing in this section shall 3. The intended interested in revision proceedings-where affect section 364 (2). party was not seeking the Communication Commission Held: to be enjoined as a of Kenya (CCK) sought to be 1. In criminal cases there prosecutor. An interested enjoined as an “interested party” in are only two parties who party is a party who has a revision proceedings before the are recognized in law, a stake in the matters High Court-whether proceedings the State/Republic and being considered while before the subordinate court the accused person(s). the prosecutor represents were criminal proceedings- Ordinarily in all matters the state in criminal whether CCK could respond pertaining to criminal proceedings. to the respond to pleadings proceedings, the Director 4. The Criminal Procedure already filed by the respondent of Public Prosecutions if the application was successful- Code is an “an Act of represents the state and Parliament to make Criminal Procedure Code (cap the complainant. Hence, 75) Sections 362 & 365 provision for the the complainant has no procedure to be followed right of audience before Criminal Procedure Code (cap in criminal cases.” A
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narrow consideration of Kenya Information and 7. The inclusion of the CCK the issue for determination Communications Act and as an interested party would limit the court to the it stated that it wished would not obscure the existence of criminal cases to provide material interests of justice in the in applying the law. The assistance to the court matter and it would be Code makes provision for having been involved in in furtherance of justice processes precursor to the the matters that were now since the CCK was also the commencement of the before court. authorized body charged criminal proceedings as is with administering the the case in the said section 6. No ill intention had been Kenya Information and 118, sections 89 and 90 of demonstrated in seeking Communications Act. the Kenya Information to enjoin the CCK as an and Communications Act, interested party in the Application allowed, CCK to Cap 411A. matter. The inclusion of the respond to the filed pleadings intended interested party within 7 days and serve the 5. The role of the intended would serve the interests applicant and the respondent interested party arose of justice and would not (DPP). out of its authority as the in any way prejudice the body charged with the applicant. implementation of the
Disciplinary Committee Proceedings Under the Advocates Act are Not Criminal Proceedings Daniel Ndungu V Director of Public Prosecutions & another High Court at Nairobi Petition No 69 of 2012 I. Lenaola, J. February 27, 2013 Reported by Andrew Halonyere & Cynthia Liavule
Issues: provides, Committee and existence 1. Whether the Advocates (2) Every accused person of an on-going criminal Disciplinary Committee has the right to a fair trial, trial on the same proceedings were judicial which includes the right facts – whether in the proceedings. (o) not to be tried for an circumstances the plea offence in respect of an of autrefois acquit was 2. Whether a conviction by act or omission for which applicable -validity of the the Advocates Disciplinary the accused person has application – Constitution Committee could bar a previously been either of Kenya 2010 Article 50(2) criminal trial based on acquitted or convicted; (0) – Advocates Act (Cap the same facts without 16) section 80 an infringement of the Constitutional Law – constitutional protection fundamental rights and enshrined under Article freedom – right to fair 50(2)(0). trial – right not to be tried for the same offence twice –- plea of autrefois Constitution of Kenya, acquit on the ground 2010. Article 50 (2) (o) of a conviction by the Advocates Disciplinary
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Held: the word, “convict” at properly applicable at 1. Proceedings before the the end of its proceedings the Criminal Court and Disciplinary Committee could not criminalize the therefore the doctrine related to professional actions of the Respondent of autrefois acquit, was misconduct, which in those proceedings. not applicable to the expression included Petitioner’s situation. disgraceful or 2. The standard of proof dishonourable conduct was higher in criminal 4. The invocation of Article incompatible with the proceedings, beyond 50 of the Constitution status of an advocate. reasonable doubt which was in vain. The criminal Criminal prosecutions on was not the same standard trial was on-going and the other hand related as in the Advocates there was no complaint to the determination of Disciplinary Committee. that the Petitioner was not receiving a fair trial. the guilt or innocence 3. There was no crime of a person charged Further, proceedings that the Petitioner was for disciplining of with crime. Proceedings charged with before the before the Committee advocates for professional Disciplinary Committee misconduct could could not therefore by and he was not there any shade of doubt be not be termed an as an accused person. unconstitutional act. termed a criminal trial The terms “crime & and the mere choice of accused person” were Petition dismissed.
Enforcement of Proprietary Rights Vis A Vis Consumer Rights East Africa Breweries Ltd. v Attorney General & 2 others Petition No. 84 Of 2011 High Court at Nairobi Isaac Lenaola J February 27, 2013 Reported by Phoebe Ida Ayaya and Derrick Nzioka
Issue: health message amounted to 25. Despite any other 1. Whether the implementation an infringement of his proprietary provision in this Constitution, of Section 32 of the Alcoholic right as provided for under Article the following rights and Drinks and Control Act was 40 of the Constitution. fundamental freedoms shall unconstitutional and in not be limited – contravention of the rights Constitutional Law – Fundamental enshrined under Article 40 of Rights and Freedom Limitation of (a) freedom from torture the Constitution. Rights – Protection of property and cruel, inhuman or rights – Consumer rights – degrading treatment or Enforcement of proprietary rights punishment; The Petitioner filed a petition vis a vis consumer rights – Where seeking a declaration that Section consumers’ rights outweigh 32 of the Alcoholic Drinks Control manufacturers’ property rights – (b) freedom from slavery or Act, 2010 is unconstitutional, Section 32 of the Alcoholic Drinks servitude; void and unenforceable to the and Control Act – Articles 25, 40 extent of its unconstitutionality. & 46 of the Constitution of Kenya, (c) the right to a fair trial; and He was of the opinion that the 2010 provision requiring manufacturers Constitution of Kenya, (d) the right to an order of of alcoholic products to label 30% 2010 Article 25 of their products with a warning habeas corpus.
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Constitution of Kenya, the grounds specified or Held: 2010 Article 40 contemplated in Article 1. The right to property as 27 (4). provided for by Article 40 of 40. (1) Subject to Article the Constitution of Kenya, 65, every person has the Constitution of Kenya, 2010 was not absolute. Though right, either individually or in 2010 Article 46 it prohibited Parliament from association with others, to enacting a law that permitted acquire and own property – 46. (1) Consumers have the right – the State or any other person to arbitrarily deprive a person (a) of any description; and property of any description, it (a) to goods and services of was not one of the rights not reasonable quality; (b) in any part of Kenya. to be limited by Article 25 of the Constitution. (2) Parliament shall not enact (b) to the information a law that permits the State or any necessary for them to 2. It had to be read in tandem person – gain full benefit from with the provisions of Article goods and services; 46 of the Constitution of Kenya, 2010 that provided (a) to arbitrarily deprive a for consumer rights. The health person of property of (c) to the protection of label as provided for by Section any description or of their health, safety, and 32 of the Alcoholic Drinks any interest in, or right economic interests; and Control Act was important over, any property of any as it enabled the consumers description; or (d) to compensation for to have information of the loss or injury arising from products and the effect such (b) to limit, or in any way defects in goods or products would have on their restrict the enjoyment of services." health. any right under this Article on the basis of any of Petition dismissed.
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Court Rules on Restrictions to Packaging and Quantities of Alcoholic Beverages Elle Kenya Limited & 9 Others v The Attorney General & 3 Others Petition No. 320 of 2011 High Court of Kenya at Nairobi Constitutional And Human Rights Division I.Lenaola,J. February 27, 2013 Reported by Lynette A. Jakakimba
Issues: extent that Section 31(2) predatory trade practices– i. Whether Section 31(2) (a) (b) of the Alcoholic Drinks packaging of alcoholic of the Alcoholic Drinks Control Act violated the beverages-whether banning Control Act, 2010 that Petitioners’ fundamental the use of Polyethylene banned the packaging right to equal treatment Terephthalate(PET) bottles as the of alcoholic drinks in in the economic spheres means of packaging alcoholic containers of less than as guaranteed by Article drinks in exclusive preference to 250ml was in contravention 27(3) of the Constitution of glass bottles amounts to promotion of the provisions of Section Kenya,2010. of unfair and predatory trade 91A of the Customs and v. Whether Section 31(2) practice-Constitution of Kenya, Excise Act which allowed (b) of the Alcoholic 2010, Article 27(6); Alcoholic Drinks packaging in containers Drinks Control Act that Control Act, 2010 section 31(2) of not less than 200ml. restricted the usage (a),(b); Customs and Excise Act ii. Whether Section 31(2)(b) of glass bottles in the (Cap 472) section 91A; Finance of the Alcoholic Drinks packaging of alcoholic Act 2010 section 3 Control Act that banned beverages amounted to the use of Polyethylene discriminatory legislation Statutes–interpretation of statutes– Terephthalate(PET) bottles and was unconstitutional implied amendment of a Section as the means of packaging as it violated Article 27(6) of an Act–conflict between the alcoholic drinks in of the Constitution of provisions of a recent statute exclusive preference to Kenya. and a later statute-whether the glass bottles amounted vi. Whether the coming into coming into force of section 3 of to promotion of unfair and force of section 3 of the the Finance Act, 2010 impliedly predatory trade practices Finance Act 2010 impliedly repealed section 31(2)(a) of the and is in contravention of repealed section 31(2)(a) Alcoholic Drinks Control Act, 2010 the Competition Act. of the Alcoholic Drinks iii. Whether Section 31(2)(b) Control Act, 2010. Held: of the Alcoholic Drinks 1. The Customs and Excise Control Act violated the Constitutional Law-fundamental (Amendment) Act, 2013 Petitioners’ fundamental rights and freedoms-right to failed to state the minimum right to equality before equality-whether banning of capacity of packaging the law and the equal Polyethylene Terephthalate(PET) beverages. Section 31 of protection of the law as bottles as the means of the Alcoholic Drinks Control guaranteed by Article packaging alcoholic drinks in Act retains it at no less than 27(1) of the Constitution exclusive preference to glass 250 ml, the Customs and of Kenya, 2010 and right to bottles amounts to discriminatory Excise Act retains it as 200ml property as guaranteed legislation and is unconstitutional- pursuant to the Finance Act, by Article 40 of the Constitution of Kenya, 2010, 2010 as amended. Constitution of Kenya, Articles 21 (1),(3),27 (6),40 2010 . 2. The question as to whether iv. Whether or not to the Competition Law-unfair and discrimination in a legal
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provision is fair or unfair operation on 22nd November, Excise Act as amended by hence illegal is to be weighed 2010 upon gazettement, Section 3 of the Finance Act, against the rationality test. however the Finance 2010. The Finance Act carried The aim of the inequality Act,2010 that amended the day by reason of it having should be aimed to achieve section 91 A of the Customs been enacted subsequent to a certain legitimate and Excise Act was assented the Alcoholic Drinks Control government objective and to on 21st December, 2010 Act. Therefore, the provisions for public good. There was . According to section 1 of of the Alcoholic Drinks Control a legitimate government the Act, the provision was to Act are invalid and cannot purpose that the restrictions apply retrospectively to 11th continue to apply in view of on alcoholic drinks set to June of that year. the subsequent amendment achieve, thus the Petitioners’ to section 91A of the Customs contention that the section 4. Although the Finance Act, and Excise Act. was discriminatory hence 2010 had indicated 11th June unconstitutional in as far 2010 as the date of operation, 6. That by the implied repeal of as it limits its application to the fact remained that it was section 31(2)(a) of Alcoholic manufacturers of chang’aa enacted subsequent to the Drinks Control Act, section and other distilled alcoholic Alcoholic Drinks Control Act 91A of the Customs and drinks to the exception of in December 2010. Excise Act was the applicable law in as far as the capacity other beverage products 5. Section 31(2)(a) of Alcoholic was thereby rejected. of packaging of alcoholic Drinks Control Act remained drinks is concerned. 3. The Alcoholic Drinks Control invalid by virtue of it being Act was enacted in the impliedly repealed by section Petition allowed. year 2010 and came into 91A of the Customs and
Inconsistency of Electoral Laws: Call For the use of Transparent Ballot Boxes as Opposed to Fairly Transparent Ballot Boxes John Harrison Kinyanjui v The Independent Electoral and Boundaries Commission & 4 Others Constitutional Petition No 555 OF 2012 In The High Court of Kenya at Nairobi Constitutional and Judicial Review Division I. Lenaola, J. February 26, 2013 Reported by Emma Kinya Mwobobia & Obura Michael
Issues: 1. Whether Regulation 61 2. Whether the High Court had 3. Whether IEBC had (2)(a)of the Elections jurisdiction to determine breached Article 232(1) (General) Regulations the qualification and & (2) of the Constitution by 2012 which provided for disqualification of a procuring Biometric Voter the use of fairly transparent candidate before the Registration (BVR) kits or translucent ballot boxes, Independent Electoral contrary to procurement was in contravention of and Boundaries law and failing to subject section 2 of the Election Commission (IEBC) heard the BVR kits to pre- Act, 2011 which provided the matter. shipment inspection & for the use of transparent certification by Kenya ballot boxes and therefore Bureau of Standards to unconstitutional. guarantee fitness.
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Constitutional Law-petition- not stated specifically contradiction with Section fundamental rights and freedoms- that ballot boxes ought 2 of the Elections Act and rights to free, fair, transparent, to be transparent. This retain the language of secure, verifiable, accountable requirement emanated the Act that ballot boxes and a simple election- general from the provisions of ought to be transparent. principles for the electoral system- the Election Act, 2011 legislation on elections - claim which was enacted 4. The IEBC had the exclusive that the right would be infringed pursuant to the provisions mandate of determining by the use of fairly transparent of Article 82(1)(d) of the the qualification and or translucent ballot boxes, as Constitution. disqualification of a opposed to transparent ballot candidate and therefore boxes as provided for by the 2. There was no breach a party had to follow the Election Act- whether the petition of the provisions of the procedure provided by was valid in the circumstances law regarding the use of the law before it could - Constitution of Kenya, 2010 transparent ballot boxes resort to a court of law. Article 82, 232(1); Regulation as defined by section 2 of the Elections Act, vis-à-vis 5. No complaint had been 61(2)(a) of the Elections(General) made regarding the Regulations 2012; section 2 of the the Regulation 61(2)(a) of the Elections(General) independence of IEBC in Election Act, 2011 procuring the BVR kits and Statutes- interpretation of statutes regulations in that the petitioner had failed to therefore the court had - contradiction between the no jurisdiction to deal with Election Regulations & the prove whether the IEBC had procured translucent hypothetical and abstract Election Act- where the Elections issues. Regulations provided for the use ballot boxes instead of of fairly transparent or translucent transparent ones. 6. The court took judicial ballot boxes but the Election Act 3. Regulation 61(2) of the notice of the fact that provided for the use of transparent Elections (General) the voter registration ballot boxes- whether there was Regulations was process had long been an inconsistency in the wording inconsistent with section concluded and the IEBC of the statutes – whether the 2 of the Election Act in was preparing for the petition was valid - Interpretation that the Act had created elections which were less and General Provisions (Cap 2) a certain condition of than one week away. It Section 31(b) the ballot boxes but the was trite law that the court Regulations had created could not injunct that Held: a different condition. which had already taken 1. The Constitution of Kenya, Therefore IEBC had to place. 2010 had provided for a revisit Regulation 61(2) Application dismissed. free, fair and transparent and rectify the obvious election. However it had
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Jurisdiction of the Retirement Benefits Appeals TribunalVis A Vis Jurisdiction of the High Court The Trustees, Teleposta Pension Scheme v Mackenzie M. Mogere&The Retirement Benefits Authority Civil Appeal Number 141 of 2012 In the High Court of Kenya at Nairobi D.S Onyancha J. February 26, 2013 Reported by Emma Kinya Mwobobia &Obura Michael
Issue: or awards of officials or endowed with appellate 1. Whether the High Court institutions forming the jurisdiction equivalent to had jurisdiction to Retirement Benefits that of the High Court in determine an appeal from Authority. all matters appealed to the Retirement Benefits it under Section 46 of the Appeals Tribunal. 2. The Retirement Benefits Act. Authority Act endowed Jurisdiction - Appellate jurisdiction the Tribunal with powers, 5. The decisions or rulings - High Court’s appellate not only of the subordinate made by the various jurisdiction- High Court’s appellate courts to summon officials or institutions jurisdiction on a decree from witnesses, take evidence, forming the management the Retirement Benefits Appeals but in addition, gave it of the Retirement Benefits Tribunal- mandate of the tribunal- powers to order for costs Authority were regarded tribunal’s jurisdiction to determine on the High Court scales. as decrees equivalent to appeals from institutions forming Therefore the Tribunal decrees of a subordinate the Retirement benefits Authority- issued orders for costs but court exercising original whether the tribunal had the it was for the High Court to jurisdiction. Parliament same jurisdiction as the High issue a certificate for costs had aligned the Tribunal’s Court- whether High Court could ordered by the Tribunal consequential actions determine appeals from the under Section 51 of the such as those of assessing tribunal - Constitution of Kenya, Act. costs and executing the 2010, Article 169(2)d, sections 3, certificate of costs, to 3. Section 52 of the Act be a jurisdiction of the 46(1), 47(1), 48, 49, 51, 52 of the empowered the Chief Retirement Benefits Authority Act High Court in consonance Justice to make rules to with the jurisdiction of the govern the making of Tribunal. Held: appeals from decisions of 1. Unlike similar tribunals the officials and institutions Application for dismissal of the formed under various of the Retirement Benefits appeal allowed with costs. Acts of Parliament, the Authority to the Tribunal. Retirement Benefits The provision was clear Appeals Tribunal (Tribunal) that decisions appealed did not determine original against from those officials disputes, which were first or institutions, to the Tribunal determined by various were to be regarded as a officials or institutions decree of a subordinate forming the Retirement court exercising original Benefits Authority. jurisdiction. Instead the Tribunal was established to only 4. The Tribunal established determine appeals arising under section 3 of the Act from the determinations was an Appeals Tribunal
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Court cannot nominate a candidate for a party or determine which candidate should be on the nomination List Dr. Billy Elias Nyonje v. National Alliance Party of Kenya&2 others [2013] eKLR JR Miscellaneous Application No. 61 of 2013 High Court of Kenya at Nairobi Constitutional and Judicial Review Division Isaac Lenaola, J. February 25, 2013 Reported by Nelson K. Tunoi & Beatrice Manyal
Issues: replace it with the applicant’s the IEBC and the manner 1. Whether the High Court in the parliamentary position of of preparation of the list could quash the decision Luanda constituency-whether the contemplated by that delivered by Independent High Court could prohibit IEBC from Section is a matter within Electoral and Boundaries gazetting any other candidate on the exclusive jurisdiction of Commission (IEBC) the 1st respondent’s TNA party the political party. Dispute Resolution ticket to vie for the Parliamentary 2. Under Article 88 (4) (b) Committee dismissing the seat for Luanda Constituency- of the Constitution the Applicant’s complaint to validity of application IEBC has the mandate to the Committee seeking to Election law-nomination of resolve any disputes arising be declared the National candidates for Political Parties- from the nomination Alliance Party (TNA) whether the High Court could process. It is only after parliamentary candidate. nominate a candidate for a party IEBC mechanism has 2. Whether the High Court or determine which candidate been exhausted that a could substitute the names should be on the nomination list- party may approach the of the Interested Party Elections Act, 2011, Sections 13(1) High Court to challenge from the list submitted and (2) the process and only on to IEBC and replace it matters of procedure and with the applicant’s in the Section 13 (1) and (2) of the not the merit of each parliamentary position of Elections Act which stipulate that; dispute. The Applicant Luanda constituency. 13(1) A political invoked the jurisdiction of 3. Whether the court could party shall nominate its the IEBC and in that regard prohibit IEBC from issuing candidate for an election the Dispute Resolution and or gazetting any under this Act at least Committee rendered its other candidate on the 1st forty five days before a decision. The High Court Respondent’s TNA party general election under cannot review the merit ticket to vie for Member this Act in accordance of that decision unless of Parliament for Luanda with its constitution and the applicant alleges that Constituency. nomination rules. the decision was made Judicial review-certiorari, (2)A political party shall not without or in excess of mandamus and prohibition- change the candidate jurisdiction or rules of application to quash the decision nominated after the natural justice. of the IEBC Dispute Resolution nomination of that person Petition dismissed, each party to Committee dismissing the has been received by the bear its own costs. applicant’s complaint seeking to commission. be declared TNA’s candidate for Held: Luanda Constituency-whether 1. Section 13 of the the High Court could substitute Elections Act does not the names of the Interested Party permit the re-opening from the list submitted to IEBC and of the list forwarded to
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Provision for payment of court fees in Public Interest Litigation Cases John Wekesa Khaoya v Attorney General Petition No.60 Of 2012 High Court at Bungoma F. Gikonyo J February 25, 2013 Reported by Phoebe Ida Ayaya & Derrick Nzioka
Issues: (4) The absence of rules of approaching the Court for 1. Whether court fees should contemplated in clause (3) does exemption from paying fees have been paid for an not limit the right of any person to on public interest litigation application brought under the commence court proceedings under Article 22 of the provisions of Article 22 of the under this Article, and to have the Constitution. Constitution of Kenya 2010. matter heard and determined by a court. 4. The appropriate procedure Constitutional Law – Public interest for public litigation was litigation – payment of court fees however similar to that of – procedure for approaching Held: pauper litigation under Order the court for exemption from 1. All constitutional applications 33 & Order 44 of the Civil paying fees on public interest were and should have been Procedure Rules. Under that litigation – High Court Practice governed by the Constitution procedure, the court decided and Procedure Rules, 2006 – of Kenya High Court Practice whether it would allow the Order 33 & Order 44 of the Civil and Procedure Rules, 2006 request depending on the Procedure Rules – Article 22 of the made under Section 84(6) of nature of the case and the Constitution of Kenya, 2010. the Constitution, except with reasons the Applicant would Constitution of Kenya, necessary modifications, until have given for the exemption. 2010 Article 22 the Chief Justice made the rules contemplated under 5. Before the rules contemplated 22. (2) In addition to a Article 22 (3). under Article 22(3) of the person acting in their own Constitution of Kenya, 2010 interest, court proceedings 2. Fees were payable on were made by the Chief under clause (1) may be constitutional petitions and Justice to provide for the instituted by – exemption from paying fees criteria on which no fee may should have been obtained be charged on public interest (a)… as provided under the law proceedings, the acceptable and through the procedure procedure was that the outlined therein. The courts Petitioner should have applied (b)… should have however readily to court to be exempted from exercised its discretion paying court fee. (c) a person acting in the judiciously in accordance public interest; with the Constitution and Application allowed. no deserving public interest (d)… litigation should have been denied the advantage of being filed or conducted free of costs or court fee. (3) The Chief Justice shall make rules providing 3. However neither the for the court proceedings Constitution nor the existing referred to in this Article … rules provided for the manner
158 Issue 21 | January - April 2013 The Kenya Law Bench Bulletin
The Nature of the Constitutional Right to Bail Republic v Lucy Njeri Waweru & 3 others Criminal Case No. 6 of 2013 High Court of Kenya at Nairobi (Criminal Division) F.N. Muchemi, J. February 21, 2013 By Beryl A. Ikamari
Issue:- the Criminal Procedure Code, the accused if 1. The circumstances under Cap 75, Section 123(1). released on bond; which bail would be f) In case of illness available for persons Held:- of the accused, charged with capital 1. Bail is an accused person’s the nature and offences constitutional right. severity of the However, the right to bail illness; and, The Constitution of Kenya, 2010, is not absolute and may g) Whether the under Article 49(1)(h) provides be denied where the state accused persons that an arrested person has the has compelling reasons have a fixed right to be released on bond or for the refusal of bail. The abode within the bail, or reasonable conditions grant of bail is therefore jurisdiction of the pending a charge or trial unless left to the discretion of court. there are compelling reasons the court. 4. The prosecution against the release of such a 2. Bail is available at the established that the four person. discretion of the court accused persons were The Criminal Procedure Code, even where the accused likely to interfere, influence Cap 75, under Section 123(1) is to is charged with an offence and intimidate the key the effect that persons charged for which the death witnesses and were also with murder, treason, robbery with sentence is applicable. at risk of harm from close violence, and any related offence 3. In considering whether family members of the where the death sentence applies the court would grant deceased if bail was are not entitled to bail. bail, the established granted. principles applicable are Application dismissed. Constitutional Law-Fundamental the following: Issue: Rights and Freedom - the rights a) Whether the 1. Whether the remedy of arrested persons-the right accused persons of rectification, sought to bail-circumstances under were likely to turn pursuant to Section 74 which bail would be granted in up for trial should of the Law of Succession capital offences-the effect of they be granted Act, (Cap. 160 of the the constitutional right to bail on bail; Laws of Kenya,) and Rule statutory provisions concerning b) Whether the 43(1) of the Probate and bail, especially as concerns accused persons Administration Rules was offences for which the death were likely to available to rectify a sentence is applicable-the right interfere with certificate of confirmed to bail in circumstances where witnesses; grant to include a partial the accused person is likely to c) The nature of the (one quarter) interest interfere with witnesses and risks charges; in property which was harm from the close relatives of d) The severity of the held by the deceased the decease-the Constitution of sentence; and was the subject of Kenya, 2010, Article 49(1)(h) and e) The security of a sale wherein a transfer
| January - April 2013 Issue 21 | January - April 2013 159 The Kenya Law Bench Bulletin
Succession: Scope & Extent of the remedy of rectification of a Confirmed Grant In Re Estate of Hasalon Mwangi Kahero (Deceased) Succession Cause No. 261 of 2008 High Court of Kenya at Nairobi W.M. Musyoka, J. February 21, 2013 Reported by B. A. Ikamari
is yet to be effected and Law of Succession rectify a grant was registered in favour of a Act and Rule 43(1) limited to these purchaser. of the Probate three situations or and Administration circumstances. Succession Law- confirmed Rules permitted 2. Where the full name grants-rectification of confirmed rectification of of a person or a grants-availability of the remedy grants in three full description of of rectification under Section 74 clearly defined a thing or property of the Law of Succession Act, cases:- was omitted, such (Cap. 160 of the Laws of Kenya) a) errors in a situation would and Rule 43(1) of the Probate names and not amount to the and Administration Rules-Whether descriptions error or mistake the remedy of rectification was of persons or envisaged in available for purposes of inclusion things; Section 74 of the of property which was partially b) errors as Law of Succession owned by the deceased but was to time or Act and Rule 43 of the subject of a sale agreement place of the Probate and for which a transfer is yet to be death of the Administration Rules. effected and registered due deceased; 3. The omission of the to the death of the deceased- c) in cases of a property was a Whether rectification would be limited grant, matter that does an available remedy under the the purpose not fall under the circumstances for which purview of Section Held:- such limited 74 of the Law of 1. The provisions of is made; Succession Act. Section 74 of the The power to Application dismissed.
160 Issue 21 | January - April 2013 The Kenya Law Bench Bulletin
Third Parties cannot enforce compensation against a tortfeasor Midocean Limited v. Kenya Ports Authority Civil case No. 14 of 2012 High Court at Mombasa R. M. Mwongo, J. February 19, 2013 Reported by Teddy Musiga
Issues pleadings – striking out – whether It can only stand where 1. Whether death of a person a suit disclosing no reasonable there is a breach of gives rise to a civil liability cause of action should be struck contract or statutory duty. under common law out 3. This claim was grounded 2. Whether an employer can Order 2 Rule 15(a) of the Civil wholly on negligence and sue a third party on the Procedure Rules provided that – the particulars thereof basis of injuries to or death “15 (1) At any stage of proceedings did not create a cause of of her employee the court may order to be struck action known to law. 3. Whether a suit disclosing out or amended any pleading on 4. Section 12 of the Kenya no reasonable cause of the ground that - Ports Authority merely action should be struck a) it discloses no reasonable gives powers and did out. cause of action or defence in not impose any statutory law....” obligation. No relationship Tort – Negligence – claim for Held: could be shown between damages in respect of amounts 1. Under common law, there the ship owners and the paid and costs incurred by the is no liability for injury defendant and even by plaintiff to the family of the caused by death to any way of amendment of deceased – when death of a other person other than the pleadings; the suit still human cannot be complained the deceased. did not create a cause of of as an injury in the tort of action known to law. negligence - Whether death of a 2. A person aggrieved by an person gives rise to a civil liability injury is not at common law entitled to the claims The plaint struck out and suit under common law dismissed. Civil Practice and Procedure – made in those respects.
High Court has no Jurisdiction to determine suitability of candidates to vie For Presidential Election International Centre for Policy & Conflict & 5 Others v Attorney General & 4 others High Court at Nairobi Petition No 552 of 2012 M Msagha, L Kimaru, H A Omondi, P Nyamweya, GK Kimondo JJ February 15, 2013 Reported by Andrew Halonyere
of President and Deputy or disqualification of a Issues: President respectively. person who had been duly nominated to contest 1. Whether the 3rd and 2. Whether the High Court the position of President 4th Respondents were had jurisdiction to of the Republic of Kenya. qualified to offer their determine matters relating candidature for the office to the qualification 3. Whether the nomination
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of 3rd and 4th Respondent Boundaries Commission could of Articles 163 and 165, of to contest the offices be restrained from accepting the the Constitution the High of president and vice nominations of the respondents Court’s jurisdiction in the president respectively – Constitution of Kenya, 2010 matter had been limited to was in violation of the Articles 163 and 165 – Chapter six interpreting the provisions Constitution on account of of the Constitution of Kenya 2010 of the Constitution in the International Criminal respect of the provisions Court charges under the Held: of Chapter Six which dealt Rome Statute. 1. Any question relating with eligibility and integrity to the qualification issues. 4. Whether the ICC and or disqualification of a the Kenyan courts could person who had been 3. Where there were simultaneously adjudicate duly nominated to contest sufficient and adequate over the same matter. the position of President mechanisms to deal with a specific issue or dispute 5. Whether the Independent of the Republic of Kenya could only be determined by other designated Election and Boundaries constitutional organs, Commission could be by the Supreme Court. That included the the jurisdiction of the restrained from accepting court should not have rd determination of the the nominations of the 3 , been invoked until such 4th and 5th respondents question whether such a person met the test of mechanisms have been 6. Whether the courts’ could integrity under chapter exhausted. The mandate exercise sovereign power six of the Constitution in of IEBC and other statutory on behalf of the people relation to Presidential bodies in dealing with of Kenya. elections. Those two the issues of eligibility questions could not have and integrity had not Constitutional law – jurisdiction of been determined or been exhausted by the High Court – presidential election considered by the High Petitioners before invoking - whether the High Court has Court outside the context the jurisdiction of the High jurisdiction to determine matters of the elections that were Court. relating to presidential elections. th due to be held on 4 4. In interpreting the Constitutional law – integrity March, 2013. provisions of Chapter Six of state officers - integrity and of the Constitution, the eligibility of a candidate seeking 2. The High Court lacked courts had to not only give state office - duty of a party jurisdiction to deal with a a holistic and purposive to exhaust other available question relating to the interpretation to mechanisms dealing with issues election of a president. the chapter, but an of eligibility and integrity before That was not to say that the interpretation that invoking the jurisdiction of the High Court was divested would enhance good High Court – limitation of the High of jurisdiction to inquire governance, the Court’s jurisdiction in interpreting into matters of integrity observance of the rule of eligibility and integrity issues - relating to elective and law and human rights. whether the nomination of 3rd appointive public office. and 4th Respondent to contest The only caveat was 5. The purpose of Chapter the offices of president and vice that the matter was so six was to set higher president respectively was in intertwined to the issue of standards of integrity for violation of the Constitution on presidential elections in persons seeking to serve rd and 4th account of the International relation to the 3 as state officers. Integrity Respondents. Therefore Criminal Court charges - whether is the firm adherence to in light of the provisions the Independent Election and moral and ethical values in
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one’s behaviour. Integrity the Political Parties Act trial against the 3rd and was therefore not only 2011. These Acts provide 4th Respondents. The end about an individual’s own mechanisms under which result however, could not perception, correctness inquiry may be made be presumed, neither was or appropriateness of concerning the integrity there sufficient evidence their conduct, but also of the person who aspires that at the end of it all, had a fundamental to public office. a conviction might have social and public quality been arrived at. to it. Since the society 7. By virtue of the principle expected certain of complementarity under 9. Article 1 of the Constitution values to be upheld, the Article 1 of the Rome of Kenya places all integrity provisions of the Statute, the ICC and the sovereign power on the Constitution demanded Kenyan courts could not people of Kenya which that those aspiring for simultaneously adjudicate shall be exercised only State office had to be over the same matter. in accordance with beyond reproach. Upon confirmation of the the Constitution. It shall charges against both the not be, and can never 6. An inquiry into the integrity 3rd and 4th Respondents, be the role of the High of a candidate for State only the ICC could bar Court to exercise that office whether appointed them and it could not, power on behalf of the or elected, was an essential because the Rome Statute people of Kenya. That requirement for the had no such provision. right must remain their enforcement of Chapter best possession in a Six of the Constitution. The 8. It had neither been democratic society and nature and procedures alleged, nor had any is inalienable. of such inquiry was for evidence been placed Parliament to decide by before the High Court that 10. The nomination of the rd th way of legislation enacted the 3 and 4 Respondents Respondents to contest for pursuant to Article 80 of the had been subjected to elective office had been Constitution. The relevant any trial by any local completed. Therefore, legislation in this respect court or the ICC that had the prayer to bar the includes the Leadership led to imprisonment for IEBC from accepting their and Integrity Act 2012, the more than 6 months. The nomination had been Ethics and Anti-Corruption confirmation of charges overtaken by events. at the ICC might have Commission Act 2011, the Petition dismissed. IEBC Act 2011, the Public formed the basis for Officer Ethics Act 2003 and commencement of the
| January - April 2013 Issue 21 | January - April 2013 163 The Kenya Law Bench Bulletin
Court determines validity of Notice of Change in interest rate by Bank through the newspaper Christopher Ndolo Mutuku& another vs. CFC Stanbic Bank Limited Civil Case No. 74 of 2011 High Court of Kenya at Nairobi Commercial & Admiralty Division A. Mabeya, J. February 15, 2013 Reported by Emma Kinya & Victor Andande
Issues: – bank contract - due notice a borrower was to put him 1. Which document was – duration of notice – duration on notice of the intended applicable to the of new notice - retrospectivity increase or decrease in plaintiffs’ loan facility – retrospective application liability. With the usual between the General of the altered interest rate penal consequence that Terms and Conditions of retrospectively – where Charge followed default in making the Application form of Instrument provided for change in an adequate repayment the Loan facility (GTC) and interest rate to be effective from on the stipulated time, the Charge Instrument? the first day of the month next media publication would 2. Which document was to after notification – what amounts not have given a borrower be relied on where there to due notice – whether the adequate, convenient was conflict in provisions altered interest rate could have and effective notice to on the rate of interest? applied retrospectively. be able to carry out his 3. Whether publication in the obligations under the newspaper of notice of A dispute arose between the Charge document to change of interest rates parties arising from a loan facility adjust the repayment on by the bank amounted to advanced by the defendants time. sufficient notice. bank, to the plaintiffs who were 3. Since the Bank could 4. Whether the alteration of customers. It was contended that render a Statement of the interest rates accruing the plaintiffs fell into arrears which Account on monthly from a bank loan without necessitated the defendant to basis to all its customers, due notice being served exercise its statutory power of it would likewise have personally to the plaintiff sale to recover the outstanding made commercial sense was in breach of the amount. However, the plaintiff if the Bank notified its express provisions of the claimed that the bank had borrowers individually of Charge Instrument. habitually altered the rate of changes in the interest 5. Whether notice of the interest without duly informing rates that would increase change of the interest the plaintiffs thus breaching the the borrower’s liability or rates was applicable contract. burden as and when they retrospectively in the Held: arose. circumstances. 1. Where the lender opted to 4. Any publication in the Contract – terms of a contract – use the media as a form of newspapers of the change bank contract - notice – notice communication, it ought in the rate of interest was of change in interest rate – to have expressly stated so not in accordance with mode of conveying notice of in the security instrument. the contract between the change in interest rate – where Thus the publication in parties and did not affect Charge document provided for the newspaper of the the rate of interest on the notice to be effected through change in interest rate facility. personal service - validity of notice was in contravention of 5. Whilst a Letter of offer published in the newspaper. the Charge instrument. could have incorporated Contract – terms of a contract 2. The purpose of the notice to
164 Issue 21 | January - April 2013 The Kenya Law Bench Bulletin
the General Terms same, they were aware of had been signed by both and Conditions (GTC) the provisions of the earlier parties whereas the Letter of a lender, once a documents. of Offer had been signed subsequent document 7. Whilst the Defendant had by the defendant only. of contract such as a the right to vary its rate Therefore, the interest rate Charge was executed, of interest, notice of such would have been as per it was expected that all variation should have the Charge document terms and conditions been given to the Plaintiffs until there was service of contained in the Letter in terms of the Charge change of interest rate. of offer or such GTC were Instrument. Thus, since the 9. The bank letter that expressly incorporated GTC had not provided for purported to apply the or they automatically the mode of giving notice, change in the interest merged with the Charge. the only way notice of rate retrospectively was 6. Where a conflict arose change of interest could contrary to the Charge between the terms and have been effected was instrument which required conditions in the letter of as provided for in the that such change would offer and the Charge, the Charge Instrument. have been effective from provisions of the Charge 8. Since there was variance the first day of the month were to prevail because in the rate of interest next after notification. the Charge document provided for by the letter was the later in time and of offer and the Charge, it was assumed that when the Charge document the parties executed the would prevail because it
| January - April 2013 Issue 21 | January - April 2013 165 The Kenya Law Bench Bulletin
Court cannot substitute the decision of the IEBC concerning validity of nomination of a Political Party’s Candidate Republic v. Independent Electoral & Boundaries Commission & 2 others ex parte Ibrahim Hussein Washenga Misc. Civil Application (J.R.) No. 8 of 2013 High Court of Kenya at Mombasa E. M. Muriithi, J. February 15, 2013 Reported by Lynette A. Jakakimba
Issues: Held: 4. The leave of court is a i. Whether an application 1. Article 159 of the prerequisite to making a for leave to apply for Constitution of Kenya, substantive application orders for Judicial Review 2010 provided that the for judicial review with is competent without a Courts shall do justice a view to filtering out Statement filed as required without undue regard to frivolous applications and by the provisions of order procedural technicalities. the grant or refusal of 53 rule 1 (2) of the Civil Pursuant to this a court leave involves an exercise Procedure Rules; can exercise discretion of judicial discretion and ii. Whether the court has and permit an Applicant the test to be applied is jurisdiction to deal with upon the grant of leave to whether the Applicant has the application for judicial apply for orders of Judicial an arguable case. review based on matters Review to file a Statement 5. The prayer for mandamus of nomination of a political which has been omitted to compel the IEBC to party’s candidate whose and to serve the same admit the certificate resolution is conferred with the Notice of Motion of nomination of the to another tribunal by in accordance with Civil Applicant is not legally virtue of Articles 88 of the Procedure Rules. available as the High Court Constitution and section 2. The jurisdiction of would only determine the 74 of the Elections Act. settlement for electoral legality of the process Civil Practice and Procedure- disputes including disputes and not the merit of the judicial review-requirement for relating or arising from decision, and it therefore application for judicial review- nominations lie with the cannot determine who statement of facts-whether an IEBC in terms of Article of the two competing application for leave to apply 88 of the Constitution. candidates was lawfully for orders for judicial review is However, that jurisdiction nominated that being the competent without a statement- does not bar the court’s constitutional mandate of Constitution of Kenya,2010 Article supervisory jurisdiction the IEBC, under Article 88 88,159,165-Civil Procedure Rules under Article 165 (6) of the (4) (e) of the Constitution. Order 53 Rule 1 (2),4 Constitution because the 6. The grant of leave Electoral Law-nominations- IEBC Committee which to file judicial review political party’s nomination list- determined these disputes proceedings as well as whether the court has jurisdiction is a body subordinate to the ultimate grant of to deal with the application for the High Court. the orders of certiorari, judicial review based on matters 3. The High Court may review mandamus and of nomination of candidates the decision of the IEBC for prohibition is discretionary. whose resolution is conferred to breach of the principle The court is entitled to take another tribunal-Elections Act of fair hearing, however into account the nature of Section 74 it cannot substitute its the process against which decision as to who is judicial review is sought to validly nominated. be initiated.
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7. If in the current application conduct of elections in the judicial review leave was granted to concerned constituency. proceedings was denied commence judicial The balance between as the Applicant did not review proceedings, the individual interest and also have an arguable entire process of hearing public interest tilted in case. the substantive Notice of favour of the latter and Leave to commence judicial Motion would affect the leave to commence proceeding declined
Court nullifies IEBC decision to substitute the nomination of a Candidate Charles John Otete v. Independent Electoral & Boundaries Commission & Johannes Boy Okoba Petition No. 90 of 2013 High Court of Kenya at Nairobi Constitutional and Judicial Review Division E. K. O. Ogola, J. February 13, 2013 Reported by Lynette A. Jakakimba
Issues: amended by IEBC-Constitution of cannot be amended and 1. Whether the Independent Kenya, 2010 Article 50 is final. However, where Electoral & Boundaries Electoral Laws-party’s nomination IEBC purports to hear a Commission (IEBC) had list-whether list of political party’s dispute, all parties to be the mandate to substitute nominees can be amended after affected by its decision the nomination of a submission to IEBC-Elections Act must be notified of the candidate in favour of Section 13 (2), (3) proceedings and given a another candidate. chance to state their part. Held: 2. Whether IEBC’s 1. The evidence before 4. The decision taken by cancellation of a court showed beyond a the IEBC to delete the candidate’s nomination shadow of a doubt that name of the Petitioner certificate without giving the Petitioner was the and replace it with that of nd them a fair hearing is nominee of the Orange the 2 Respondent was a unconstitutional. Democratic Movement reckless and unlawful act which had no basis and 3. Whether the petitioner’s (ODM). violated the constitutional right to fair hearing had 2. Articles 50 of the rights of the Petitioner. been violated by IEBC’s Constitution guaranteed determination of the a person’s right to a 5. The IEBC could purport to decision in absence of fair hearing. Thus if the be a political party. It had the Petitioner. nomination of a political no mandate to nominate the candidates on behalf 4. Whether the list of political party’s candidate is to of political parties. party’s nominees to IEBC be challenged, the rules of natural justice demand can be amended under 6. The decision by the IEBC that the candidate ought the Elections Act section to cancel the nomination to be informed of the 13(2) and (3). certificate of the Petitioner hearing and be given a was an unconstitutional Constitutional Law - fundamental chance to be heard. act made in bad faith and rights and freedoms – right accentuated by malice to fair hearing –cancellation 3. Section 13 (2) and (3) of and even without giving of nomination without giving the Elections Act, provided notice to the Petitioner. a fair hearing-whether list of that the list supplied to the IEBC by Political Parties political party’s nominees can be Petition allowed.
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Validity of Transcripts Vis-À-Vis Abstract Degree as an Electoral Requirement Mable Muruli v The Independent Electoral & Boundaries Commission Petition No. 93 of 2013 Constitutional and Judicial Review Division E. K. O. Ogola, J. February 13, 2013 Reported by Teddy Musiga
Issues: London for which she was yet to Held: 1. Whether the failure pick but had transcripts. 1. The petitioner was a to have an abstract Election Law – Qualification for Degree holder within the degree certificate bars a electoral position – requirements meaning of Section 22(2) candidate from contesting under Sec 22(2) for nomination of the Elections Act No. 24. a gubernatorial position. as a candidate for President, Deputy President, County 2. A certificate was merely 2. Whether a person who has Governor or Deputy County a confirmation of what is successfully undergone a Governor – whether the petitioner already in existence. The process leading to the hadcomplied with the law thereby petitioner had successfully acquisition of a degree is being enlisted for the candidature undergone a process qualified under Sec. 22(2) of Governorship of Kakamega leading to the acquisition of the Elections Act even County. of the qualification when no physical degree Section 22(2) of the required under the has been conferred. Elections Act No. 24 Elections Act and the provides that - “(22) Constitution. That process Judicial Review – Judicial Review had been recognized Orders – Mandatory Injunction - (2) Notwithstanding subsection (1)(b), a person by Commission for application seeking mandatory Higher Education and orders to compel the respondent may be nominated as a candidate for election the respondent had no to accept the applicant’s option but to admit the nomination papers and to issue as President, Deputy President, county petitioner to the relevant her with clearance certificate for candidacy. her to contest Kakamega County Governor or deputy Governor – petitioner’s claim that county Governor only if Petition allowed. the respondents had failed to the person is a holder of recognize that she is a holder of a degree from a university a degree from the City College of recognized in Kenya.”
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Rights of a Juvenile offender who is of unsound mind Republic v J. W. K. Criminal Case No. 57 of 2009 High Court of Kenya at Bungoma F. Gikonyo, J. February 12, 2013 Compiled by Dorcas Onam Mac’Andere & Emma Kinya M.
Issues: to take plea – determination minor. The rights of the 1. Which was the appropriate of whether the offender child calls the Constitution legal process to undertake understands the nature of the into play, particularly in dealing with a juvenile plea or proceedings – where the Article 53 and other offender who suffered a offender is incapable of making implementing statutes disease of the mind and his defence – distinction between to wit, the Children Act therefore incapable of procedures under section 162 and and the International pleading, understanding 167 of the Criminal Procedure instruments on the rights proceedings or making his Code - whether the offender is fit of the child. defence? to stand trial – what would be the appropriate procedure to adopt 2. The court will keep the 2. What was the in the circumstances – section 53, requirement of the right distinguishing factor for 162 and 167 of the Civil Procedure of every child not to be the court in dealing with Code. detained at the back of persons of unsound mind Constitutional Law - Rights of a its mind and will accord under section 162 and 167 child – rights of a child of unsound it due significance when of the Criminal Procedure mind - where the juvenile offender making the final decision. Code (CPC). Which was suffered a disease of the mind 3. When a court is informed the applicable section in which was developmental in the circumstances? of the unsound mental nature – duty of court to consider condition of an offender, it 3. In light of section 53 of the best interests of the child in should carry out an inquiry the CPC, what was the the circumstances – whether under section 162(1) of the best legal process to detaining the offender would Criminal Procedure Code adopt in cases where the have been appropriate in the to establish whether the disease of the mind of circumstances. offender is of unsound the juvenile offender was mind and consequently developmental in nature Section 53 Criminal Procedure incapable of pleading, and had no prospects of Code understanding the subsiding? (1) Every child has the right – proceedings and making (f) not to be detained, his defence. This is done 4. What does the Constitution except as a measure of last by calling for thorough provide as being the best resort,…...... medical examination of course to take particularly (2)A child’s best interest is of the offender. where the offender so paramount importance in every suffering is a minor? matter concerning the child. 4. Where in a criminal proceeding the question Held: of unsoundness of mind Criminal Practice and procedure 1. The fact that the offender of the offender is in issue, – unsound mind – juvenile was a minor made it the applicable law is offender – where the offender imperative on the court to section 162 of the CPC, suffered a disease of the mind consider and be guided and section 167 of CPC – consideration by the court by the best interest of the will not therefore apply. on the fitness of the offender
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But in both sections, it is 8. The essence of Section 7 of the proceedings of the the prosecution to begin the Sixth Schedule of the juvenile offender ad and prove fitness of the Constitution, 2010, is that infinitum. offender to stand trial. courts should interpret and apply provisions of existing 11. The current scientific 5. The application of the law such as the CPC and medical knowledge procedure provided in deliberately by reading in is and will certainly be section 167 and section necessary qualifications, advanced, but none 162 of the CPC should be modifications or alterations offered evidence of dictated by the different as to give effect to the any prospects that the situations that obtain in objects, purposes and condition the juvenile every case. The procedure values of the Constitution. offender was suffering provided in those sections from would be reversed should enable the court 9. The duty of the court was or become better. Thus to apply its mind properly to reconcile the statutes in the absence of such in this case where it has with the Constitution and evidence it would be found that the juvenile Bill of Rights, and avoid inappropriate to give any offender was suffering setting the Constitution hope that the trial could from a mental condition against the legislature resume in the future. that makes him incapable or international treaties of making his defence. It that are relevant to the 12. To place a person is only in very clear cases subject matter of the suffering from such a where unsoundness of case. This is an approach condition, and more so the mind is not an issue, that is permitted by the a juvenile, under a cloud that the court should feel Constitution itself and a of criminal proceedings constrained to strictly practice that has gained ad infinitum would be a apply section 167. approval in almost all great prejudice to known jurisdictions. human qualities, the right 6. For section 167 of CPC to to fair trial and rights of apply, the prosecution 10. According to section 162 a child, and largely, it must prove that the of the CPC, the trial should would be a disparage of juvenile offender was have been suspended, the Constitution. In the sane only that he did and perhaps indefinitely absence of such medical not understand the commit the juvenile and scientific hope of proceedings. However, offender to the care of a the condition becoming the prosecution found person who would be able better, suspending the trial the offender incapable of to prevent the juvenile was not the appropriate making his defence. offender from harming self path. or somebody else and for 7. In all cases where one is his attendance in court. 13. The provisions of Article suffering from a disease However, it was apparent 53 and 159 of the of the mind, the proper from the medical Constitution weighed approach was to look evidence offered that the heavily in this case, and at the overall effect of condition he was suffering the appropriate path the incapacitation by from(Moderate Mental would be to discharge the disease of the mind retardation) was unlikely the juvenile offender, who to see if it rendered to improve in the future was in need of care, and the person incapable and it would therefore be should be committed to of understanding the against the Constitution a person or institution to charge, and to make his and a violation of the take care of him, prevent defence. rights of a child to keep him from injuring self or
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somebody else. Children Officer which offender as guaranteed would assist the court to under the Constitution 14. It was in the best interest identify a proper person and the circumstances of of the juvenile offender or institution to carry out the case. for the court to have the the exercise. The decision advantage of a report was informed by the The probation officer and or from the office of the interest of the juvenile children officer to submit reports Probation Officer and in 14 days. Notice of Hearing by Short Message (SMS) is sufficient service to a Party in a nomination Dispute Sam Rateng Okoth Kotiende v IEBC High Court at Kisumu Miscellaneous Application No. 10 of 2013 H. K. Chemitei, J. February 12, 2013 Reported by Andrew Halonyere & Cynthia Liavule
Issues: High Court not to interfere with the have to follow strict court 1. Whether service of a exercise of any power or discretion procedure and could hearing notice by short conferred on an independent obtain information and message (sms) was sufficient body – Political Parties Act section proceed in anyway it for purposes of party 16 (1) (b) thought best. The applicant nomination dispute to be Article 88(4)(k) of the Constitution of could therefore not argue heard by the Independent Kenya, 2010 The Article mandates that he was not allowed a Electoral & Boundaries the Independent Electoral and chance to be heard. Commission (IEBC). Boundaries Commission to monitor 3. Section 16 (1) (b) of the 2. Whether the High Court the compliance with legislation Political Parties Act provided would on a judicial review required relating to nomination of that a political party which application interfere with candidates by parties. had been fully registered the exercise of any power Held: under the Act had to be or discretion conferred on 1. The Independent a body corporate with the IEBC. Boundaries Electoral perpetual succession and 3. Whether the applicant by Commission (IEBC) a common seal and had to suing the political party exercised its discretion be capable, in its own name officials was in violation of within its timely schedule of suing and being sued. the Political Parties Act. and it was satisfied with Therefore the applicant by the short message service. suing the parties officials Civil Practice and Procedure – The High Court could not went against the said pleadings – service of process come back and ask the Act and the error was – hearing notice – hearing notice commission why it exercised fundamental which could served through short message (SMS) its discretion the way it did. not be cured by Article 159 – whether service was sufficient If it did so then it would be of the Constitution. for purposes of party nomination usurping the power of an 4. The applicant was duly dispute – whether it was in breach appellate jurisdiction. served via short message of Rules of natural justice. 2. The hearing notice to to attend commission by Civil practice and procedure – the applicant via short the process server but he pleadings – whether the applicants message (SMS) was choose not do. Therefore by suing political parties officials enough considering the the rules of natural justice went against the political Parties time restriction to determine were not breached by the Act. nomination disputes before (IEBC). Judicial review – certiorari - it. The commission did not application for certiorari - duty of the Application dismissed.
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The Jurisdiction of the High Court in Employment Disputes Under Section 17(6) of the Arbitration Act, 1995 Invesco Assurance Company Ltd v Charles Muturi Mwangi Civil Case No. 358 of 2012 High Court at Nairobi (Commercial & Admiralty Division) A. Mabeya J February 11, 2013 Reported by Beryl A. Ikamari
Issue:- the courts contemplated in Article other courts such as the 1. Whether the High Court has 162 (2).” Industrial Court, the proper jurisdiction to determine court concerning appeals an appeal against an Civil Practice and Procedure- on arbitration decisions arbitrator’s decision, in jurisdiction-the jurisdiction of pertaining to employment an employment dispute, the High Court to hear appeals disputes is the Industrial pursuant to Section 17 (6) against the decisions of arbitrators Court. of the Arbitration Act, No. in employment disputes-The effect 2. When the appeal from the 4 of 1995. of constitutional provisions on the arbitrator’s decision was stipulations of the Arbitration Act, preferred to the High Court, The Arbitration Act, No. 4 of 1995, No. 4 of 1995-the Arbitration Act, the Industrial Court had in Section 17(6) states, “Where No. 4 of 1995, Section 17(6) and not been operationalized. the arbitral tribunal rules as a the Constitution of Kenya, 2010, The practice of the preliminary question that it has Article 165(5) and Article 162(2). High Court has been jurisdiction, any party aggrieved that matters pending by such ruling may apply to the Held:- in court before Article High Court, within 30 days after 1. Pursuant to Section 17(6) 162(2) of the Constitution having received notice of that of the Arbitration Act, was operationalized by ruling, to decide the matter.” 1995, the court with Parliament (by way of jurisdiction on appeals the enactment of the The Constitution of Kenya, 2010, from an arbitrator is the necessary laws and under Article 165(5) provides; High Court. However, as creation of the subject “(5) The High Court shall not have the Constitution of Kenya, courts), get transferred jurisdiction in respect of matters— 2010, limits the High Court’s to the appropriate courts (a) reserved for the exclusive jurisdiction, particularly once those courts are jurisdiction of the Supreme Court under Article 165(5), as operationalized. under this Constitution; or concerns matters falling Appeal transferred to the Industrial (b) falling within the jurisdiction of within the jurisdiction of Court.
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Court declines to declare the Leadership and Integrity Act Unconstitutional Commission for the Implementation of the Constitution & 2 others v. Parliament of Kenya & 3 others Petition No. 454 of 2012 High Court of Kenya at Nairobi Constitutional and Human Rights Division D. S. Majanja, J. February 7, 2013 Reported by Victor Andande & Obura Michael
Issue: should ensure that grounds of discretion in how 1. Whether the Leadership known in law have been it achieves the object and Integrity Act, No. 19 clearly established. Failure of public participation. of 2012 is unconstitutional. to provide a ‘one stop- How this is effected will shop’ of all the procedures vary from case to case Constitutional Law-petition- and mechanisms in but it must be clear that leadership and integrity- one Act cannot in itself a reasonable level of constitutionality of the Leadership be sufficient ground to participation has been and Integrity Act–claims that invalidate a statute. afforded to the public. the Act does not meet the Thus the Leadership and 4. The petitioners did not constitutional threshold for failure Integrity Act was not demonstrate to the to provide for procedure and unconstitutional to that court how the National mechanisms of implementing extent. Assembly had failed Chapter 6 of the Constitution to achieve public 2. -public participation -what It is not for the court to participation within the amounts to public participation dictate to Parliament constitutional parameters in a legislative process-whether what it should or should taking into account the the Act meets the constitutional not pass as that is the sole process from the time threshold-Article 80 of the prerogative of Parliament. the bill was initiated up Constitution of Kenya, 2010 The court can only deal to its enactment. Thus the with the legislative results Leadership and Integrity Held: of Parliament. Act No. 19 of 2012 was not 3. The National Assembly unconstitutional for want 1. In declaring a statute has a broad measure of public participation. unconstitutional the court Petition dismissed.
Duty of the court during plea taking where facts in the Charge Sheet do not disclose an offence Judy Nkirote v. Republic [2013] e KLR Criminal Appeal No. 48 of 2010 High Court at Meru Lesiit, J. February 7, 2013 Reported by Cornelius Lupao & Mercy Ombima
Issue: Criminal practice and Procedure whose statement of facts do - charge sheet – particulars of a not disclose a criminal offence - 1. Can an accused person charge sheet -where particulars Criminal Procedure Code section plead to facts which do of a charge sheet led by the 89(5). not disclose a criminal prosecution did not support the offence? offence charged - procedure Criminal Practice and Procedure- for pleading to a charge sheet Plea-manner of putting facts of
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charge to the accused person- prosecution and before will not also be able to duty of the trial court to the the accused person is explain the facts to the accused person where the required to plead to accused if no facts are led particulars of the facts do not those facts the court has by the prosecution. disclose the offence charged- a judicial role to play of Criminal Procedure Code section considering the facts 2. In the instant case after 89(5). stated by the prosecution the charge was explained and determining whether to the Appellant the Criminal Procedure Code, Section those facts as read prosecution did not give 89(5) disclose the offence any facts but stated charged, and whether “facts as per the charge Where the magistrate the facts also support the sheet”. At that juncture is of the opinion that offence charged. If the what the trial magistrate a complaint or formal particulars of the facts ought to have done was charge made or presented led by the prosecution do to enter a plea of not under this section does not not support the offence guilty and set down the disclose an offence, the charged or where they do case for hearing in order magistrate shall make an not disclose the offence to give the prosecution order refusing to admit charged, the court an opportunity to call the complaint or formal should reject the charge evidence out of which the charge and shall record under section 89(5) of facts of the case would his reasons for the order. the Criminal Procedure be derived. A conviction Code. A court cannot could not and cannot Held: exercise that discretion result out of a plea to a charge alone where no 1. At the time the statements if no facts are led by the facts are led. of facts are read by the prosecution. The court
Courts’ Perpetual Obligation to Protect Children Rights even where they are not party to the proceedings Jotham Simiyu Wasike & Another v Jackson Ongeri & 7Others Civil Appeal No. 69 of 2012 High Court of Kenya At Bungoma F. Gikonyo, J. February 6, 2013 Compiled by Dorcas Onam Mac’Andere & Emma Kinya
Issues: 3. Whether the rights of proceedings f o r t h e i r 1. Whether the applicants the children at the rights to have been were entitled to either a Orphanage were affected vindicated by court. relief of stay of execution by the dispute on the or a temporary injunction registration and approval pending appeal in the of the Orphanage by Constitutional Law – children circumstances. the National Children’s rights – rights of a child under the Council. Constitution - duty of the court 2. Whether pendency to protect the rights of Children – before or determination 4. Whether the children at court’s obligation to protect the of an application for stay the Orphanage whose rights of a child at all costs where by the trial court was a bar rights were affected they have become an issue – to an application for stay should have been enjoinment of the child as a party to an appellate court. joined as parties to the in a proceeding where the
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child rights are in issue – whether rather establishes an 5. The Constitution, the it is necessary to join the children entirely different remedy Children Act, international whose rights are being affected of a temporary injunction. treaties and agreements as parties to the proceedings Therefore other than stay are very clear on the in order for their rights to be of execution, the court rights of a child and how vindicated by the court. could grant a temporary these rights should be injunction pending the protected by a court of Civil Practice and Procedure- - hearing of an appeal. law. Accordingly, the stay – stay of execution – stay This enlarges the prospect court is under a perpetual of execution pending appeal of the court to issue obligation to protect – claim that unless an order of intermediate measures the rights of a child as a stay is granted the appeal will be which are necessary to matter of preference, and rendered nugatory – conditions for protect a right, or the suit it does not matter at what grant of stay of execution – effect property, or prevent a stage of the proceeding of an order for stay of execution violation or breach of law. the rights of a child have – whether the appellant’s were become threatened. entitled to an order of stay in the 3. The Constitution provides circumstances – Civil Procedure for an injunction as 6. The children in the Rules Order 42 Rule 6. one of the reliefs that Orphanage need not Held: could be granted in a have been joined as 1. Order 42 Rule 6(1) of the constitutional application parties in the proceedings Civil Procedure Rules under Article 22(3) of the for their rights to be allows the Applicant to file Constitution in order to vindicated by the court. an application of stay to prevent a violation of a Once the plight of a child the appellate court even right or infringement of the is raised before a court if a similar application had Constitution. of law, it should be dealt with conclusively and been previously rejected 4. A stay of execution under by the court appealed objectively. These powers Order 42 Rule 6(1) is of the court are not derived from. There is no any forward looking. It cannot statutory restriction on the from the parties in the suit, undo events which have but from the Constitution, discretion of the appellate already taken place. court in entertaining statutes and international Similarly, a temporary treaties on children which and determining such injunction would not application for stay. are jus cogens and seek also be an appropriate to enforce peremptory 2. Order 42 Rule 6(6) of the remedy in respect of norms in international law. Civil Procedure Rules does the Appellants who are not remove the conditions already out of the suit Status report on the Orphanage imposed by Rule 6(2) but premises. to be filed within 21days.
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Petitioners to seek review to the Political Parties Tribunal on discovery of new evidence Philemon Donny Opar v Orange Democratic Movement & 2 Others Petition No. 49 of 2013 High Court of Kenya at Nairobi Constitutional and Judicial Review Division D. S. Majanja, W. Korir & G. V. Odunga February 5, 2013 Reported by Lynette A. Jakakimba
Issues: to political party- whether 3. The law was that where there 1. Whether the 1st respondent a political party can issue a was a clear procedure for (the party) had the nomination certificate to person re-dress of any particular power to withhold the who is a member of another party grievance prescribed by nomination certificate of –whether commission of election the Constitution or an Act of the Petitioner, if he had offences ought to be dealt with parliament that procedure been duly nominated. by the criminal court- Political should have been strictly 2. Whether the 1st Respondent Parties Act Section 41(2) followed. had breached the Political Practice & Procedure- application Parties Act by issuing the for review to political parties 4. The issues of the commission 2 nd respondent with a tribunal- discovery of new of election offences ought nomination certificate evidence after dispute is to have been dealt by despite the 2nd respondent determine by political parties the criminal court as the being a member of tribunal- whether a petitioner current Court was not sitting another party. in light of new evidence could as a criminal court in the 3. Whether the current apply for review to the Political present proceedings, and petition was a duplication Parties Tribunal- Political Parties such allegations were better of the earlier proceedings Act section 41(2) ventilated in a different forum before the Political Parties and if proved the petitioner Tribunal. Held: would have appropriate remedies. 4. Whether the Petitioner in 1. The petitioner failed to prove light of new evidence of the double membership of the Petition disallowed. double membership of 2nd respondent and having the 2nd Respondent could discovered new evidence apply for review to the ought to have gone back Political Parties Tribunal for review hence the matter under section 41(2) of the before the Court was in the Political Parties Act. nature of an appeal.
5. Whether the issue of commission of election 2. The contention that the offences ought to be dealt petitioner on discovery of with in a Criminal Court further evidence was at liberty and not a Constitutional to go back before the Tribunal Court. had not been seriously contested. Accordingly there Electoral Laws-whether a party was an alternative procedure can withhold nomination and remedy available to him. certificate of a duly nominated candidate-double membership
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Right to be heard for Parties to an electoral dispute Eric Okongo Omogeni v The Independent Electoral & Boundaries Commission & 2 others Miscellaneous Civil Application No. 40 of 2013 Constitutional and Human Rights Division D.S. Majanja, W. Korir & G. V. Odunga, JJ. February 5, 2013 Reported by Teddy Musiga
Issues: 38(c) of the Constitution. competing claims must i. Whether disputants to Article 47 of the Constitution receive due consideration, an electoral process states that - “(1)Every each party must be invited should be afforded equal person has a right to with a view to affording an opportunity to be heard administrative action that equal opportunity to be before an administrative is expeditious, efficient, heard. tribunal. lawful, reasonable abd procedurally fair. 2. A party should be notified ii. Whether the failure to (2)If a right or fundamental of an administrative notify the petitioner freedom of a person has process before an order of the existence of an been or is likely to be can be made to the administrative process adversely affected by prejudice of their rights. prejudices the petitioner’s administrative action, the rights as envisaged 3. Obviously, the person has the right to Independent Electoral under Article 38(c) of the be given reasons for the Constitution. and Boundaries action.” Committee prejudiced Administrative Law – Judicial Article 50 of the the petitioner’s rights as Review Orders – Certiorari – Constitution states that - enshrined under Article petitioner to quash a decision “(1)Every person has a 38(c) of the Constitution made contrary to rules of natural right to have any dispute which provides that every justice – claim by the petitioner that can be resolved by citizen has a right, without that he was condemned the application of law unreasonable restrictions unheard - whether disputants to decided in a fair and to be a candidate for an electoral process should be public hearing before a public office, or office afforded an equal opportunity to court or, if appropriate within a political party be heard before an administrative another independent of which the citizen is a tribunal. and impartial tribunal or member and, if elected, Constitutional Law – fundamental body.” to hold office. rights and freedoms – right to fair trial – Whether the failure to notify Petition allowed. the petitioner of the administrative Held: process prejudiced the petitioner’s 1. Where there is a dispute rights as envisaged under Article between two or more parties, each of the
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Failure to appoint Land Commissioners undermines the value of good governance Amoni Thomas Amfry &Another v Minister for Lands &10 others Attorney General Petition No 6 of 2013 High Court at Nairobi Constitutional & Human Rights Division D.S. Majanja, J. February 4, 2013 Reported by Andrew Halonyere & Cynthia Liavule
Issues: Kenya, 2010 - The Article makes regulations and procedure i. Whether the court should provisions as to the composition, of appointment of Land issue an order directing the appointment and terms of office Commissioners. The High President to appoint the of Commissions established under Court had also declined Chairperson and Members the Constitution .Requirements for to intervene to stop the of the National Land appointment have to be made in process of appointments in Commission established accordance with relevant national a Previous Petition. Therefore under Article 67 of the legislation nothing interposes the Constitution in accordance obligation of the President with the provisions of the Article 62(2) of the Constitution of to act in accordance with National Land Commission Kenya, 2010-The Article provides the law. The proper remedy Act, 2012 (Act No. 5 of for the administration of public land is to direct the President to 2012). act in accordance with the ii. Whether a litigant who Held: Constitution and the law. has brought proceedings 1. The process of appointment 3. In matters concerning to advance a legitimate of the chairperson and public interest litigation, a public interest should be commissioners of the litigant who has brought deterred from adopting a National Land Commission proceedings to advance course that is beneficial to set out in the first schedule a legitimate public interest the public for fear of costs of the Constitution of and contributed to a proper being imposed. Kenya 2010 is imperative understanding of the law in and no cause has been question without private Constitutional Law – constitutional shown why it could not be gain should not be deterred office - appointment of Land implemented to give effect from adopting a course that Commissioners – - whether failure to the provisions of Article is beneficial to the public for by the president to complete the 67 and 250(2). Failure to fear of costs being imposed. appointments undermines the value complete the appointment Costs should therefore not of good governance of the chairperson and be imposed on a party who Constitutional Law - Public interest members of the Commission has brought a case against litigation - courts not to impose costs undermines the value of the state but lost. Equally, on a party who has brought a public good governance in that there is no reason why the interest case against the state but the institution intended state should not be ordered lost -Constitution of Kenya 2010, to govern land law and to pay costs to a successful Article 62(2) prepare land policy remains litigant. in limbo for an indeterminate President directed to appoint the Article 67 of the Constitution of period. Chairperson and members of the Kenya 2010-The Article makes 2. The President needed to National Land Commission within provision for the establishment of the act in accordance with seven days from date of judgment. National Land Commission. the law since the National 2nd Respondent (Attorney General) Assembly had done its part to bear the costs. Article 250(2) of the Constitution of in accordance with the
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Circumstances under which a person can file a Constitutional Petition on behalf of another Joshua Karianjahi Waiganjo vs. the Attorney General & others Petition No. 42 of 2013 High Court of Kenya at Nairobi Constitutional and Human Rights Division D.S. Majanja, J. February 4, 2013 Reported by: Njeri Githanga & Victor Andande
Issue: violated -Constitution of Kenya expands the scope i. Whether an advocate 2010, Article 22. of locus standi, it is can petition on behalf of contemplated that a an individual whose rights Held: petition can only be have been violated 1. For a person to brought on behalf of petition on behalf of those who cannot act Constitutional Law -bill of rights another whose rights in their own name. -petition for enforcement of bill have been violated, 3. Since the petitioner of rights -locus standi –scope of there must be a did not demonstrate locus standi under Article 22 of nexus between the that the client could the Constitution of Kenya 2010- petitioner and the not bring a petition advocate petitioning on behalf person whose rights in his own name, of client - whether an advocate have been infringed. he lacked the locus could petition on behalf of a 2. Although Article 22 standi. person whose rights had been of the Constitution Petition dismissed.
Litigants have right of audience outside of Court hours Royal Media Services Ltd. v Attorney General and 2 others Petition No. 59 of 2013 High Court at Nairobi D.S. Majanja, J. February 3, 2013 Reported by Phoebe Ida Ayaya & Derrick Nzioka
Issues: under Article 48 of the Constitution hearing of urgent matters 1. Whether a party has right of of Kenya, 2010 on weekends and public audience in court outside holidays where necessary.” court hours. Held: 1. There is no rule of law or Application allowed. 2. Whether a party is entitled to procedure that prohibits ex-parte mandatory orders. Courts from conducting Constitutional Law – bill of rights – business on weekends and fundamental rights and freedoms in light of the provisions of – enforcement of fundamental Article 48 of the Constitution rights and freedoms – right to access of Kenya, 2010 the court will to justice –limitation of the right to seek to do justice. access to justice outside of court 2. (Obiter, as per D. Majanja hours– whether limitation of this J.) ”Perhaps it is time for right amounts to violation thereof of the Chief Justice to issue fundamental rights and freedoms Practice Direction for the
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When a defective charge sheet is not a bar to prosecution Abdirahman Ali Ano v Republic Criminal Appeal No. 6 of 2011 High Court of Kenya at Garissa F.N. Muchemi & S.N. Mutuku, JJ. January 30, 2013 Reported by B. A. Ikamari
Issues: under the circumstances-the for the offence, if these 1. Whether the charge effect of the court’s duty to sections of the law are as drawn was fatally do substantial justice without separate. defective for failing undue regard to technicalities 2. As the court was required to quote the section on the formalities concerning the to do substantive justice defining the offence drawing of a charge sheet without undue regard to and only quoting the Criminal Law-doctrine of recent technicalities, in analyzing penalty section, of the possession-the circumstances the charge as drawn, offence of robbery which allow for the application of due regard ought to be with violence contrary the doctrine of recent possession- paid to the question as to to Section 296(2) of the application of the doctrine an whether the charge brings Penal Code, (Cap. 63 item such as a motor cycle, out all the ingredients of of the Laws of Kenya); which was found approximately the offence and whether 5 months after it was stolen- the appellant has been 2. Whether the evidence whether the duration 5 months prejudiced. adduced disclosed may be considered “recent,” 3. A charge brought the offence of robbery for purposes of the doctrine of pursuant to section 296 (2) with violence contrary recent possession in the case of the Penal Code, (Cap. to Section 296(2) of of goods such as motor cycles 63 of the Laws of Kenya,) the Penal Code; which require identification discloses an offence if it 3. Whether the document (logbook)-whether brings out the following doctrine of recent the circumstances, where ingredients as concerns possession applied to an accused person claimed the robbery/ stealing of circumstances where ownership of motorcycle under an item: - a motor cycle was repair, allow for the application of • The offender is armed found approximately the doctrine of recent possession. with any dangerous 5 months after it was Constitutional Law-constitutional or offensive weapon stolen; and, rights and freedoms-the right to or instrument, or life-the nature of justified limitations • The offender is in 4. Whether the death on the right to life-whether the company with one sentence was imposition of the death sentence or more other person unlawful. on the offence of robbery with or persons; or violence was unconstitutional • If, at or immediately Criminal Practice and Procedure- (Article 26 and Article 24 of the before or immediately charge sheet-formalities Constitution of Kenya, 2010) after the time of the concerning the drawing of a robbery, he wounds, charge sheet-the effect of failing Held: beats, strikes or uses to quote the statutory provision 1. A properly drawn charge any personal violence which defines the offence should include the section to any person. charged but quoting stipulations of the statute which 4. The particulars of the which provide for a penalty for defines the offence as charge meet the criteria the offence-whether the accused read with the section concerning disclosure person would suffer prejudice providing for a penalty of an offence as the
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particulars specify that an explanation as to how to the extent authorized the appellant, was with he came by the motor by the Constitution or any another person, was cycle. In the absence of other written law. Section armed with panga and a any explanation from the 296 (2) of the Penal Code, knife, and used personal appellant how he came (Cap. 63 of the Laws of violence. Therefore, the by the motor cycle it was Kenya,) which prescribe charge is not defective. safe to draw an inference, death as the sentence 5. The appellant was not under the doctrine of to impose where one is prejudiced on account of recent possession, that convicted of robbery with the manner in which the the appellant was one of violence is one of the charge was drawn. the robbers who stole the limitations to the right to 6. A motor cycle is not a type motor cycle. life. The death sentence is of item that can easily 7. Article 26 (1) and 26 (3) of harsh but mandatory. move from one person to the Constitution of Kenya, 8. The appellant was another and five months 2010, provide for the right correctly sentenced by is recent for an item such to life and stipulate that no the trial court. as a motor cycle. The one should be deprived Appeal dismissed. appellant did not offer of life intentionally except
Effect of a transitional provision of the Constitution to preserve the Advisory Role of the Interim Independent Boundaries Review Commission (IIBRC) in delimitation of boundaries Mohamed Abdille & 16 Others v Attorney General & 7 Others Constitutional and human Rights Division Petition No. 82 of 2011 As Consolidated with Petition No. 74 of 2010, 199 of 2011, 5 of 2012, 58 of 2012 & 101 of 2012 I. Lenaola, M. Ngugi & C. W. Githua, JJ. January 30, 2013 Reported by Emma Kinya Mwobobia & Obura Michael
Issues: reference material in the subdivided the constituencies 1. Whether the High Court first review process was discriminatively, arbitrarily and had jurisdiction to unconstitutional. unconstitutionally – allegation determine the matter 4. Whether the IEBC which that the respondents had failed involving the delimitation was constituted in 2010, to comply with its constitutional of wards as was carried acted within the law in mandate of reviewing the out by the Independent delimiting boundaries boundaries including adherence and Electoral Boundaries on the basis of the 2009 to the population quota – whether Commission (IEBC). census population results. the sub-division by IIBRC was 2. Whether the Interim unconstitutional in that it did not Independent Boundaries meet the criteria set out under Review Commission Constitutional Law – petition – Article 89 of the Constitution. (IIBRC) had the electoral and administrative Jurisdiction – jurisdiction of the mandate to delimit the boundaries – petition seeking High Court – jurisdiction of the High constituencies under additional constituencies – Court in determining the issues on the Constitution given it petitioner’s claim that the delimitation and demarcation of derived its mandate from respondents had failed to observe boundaries by the IIEBC – right of the previous Constitution. the basic principle of delimitation any person to apply to the High 3. Whether reliance on the of constituencies as provided Court for review of a decision Ligale report as a primary for in the constitution and had made by the IIEBC
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under the Constitution – Whether the Constitution of Kenya, the terms of the first review the High Court had jurisdiction 2010 gives a person a not being the delimitation in determining the issues on right to apply for relief in contemplated by Article delimitation of boundaries in the respect of the decision 89 was governed by the circumstances – Article 89 & 165 of the electoral body in sixth Schedule and the of the Constitution of Kenya, 2010 matters of delimitation. IEBC Act. This however, does not 4. According to the material Section 2(1)of the Fifth Schedule defer or oust in any way before court, the IEBC used to the IEBC Act provides that the the jurisdiction of the High the 2009 Kenya Population Commission shall, in addressing Court which is specifically and housing Census the issues arising out of the first donated under Article 165 Report which was issued in review – and therefore the High August 2010 in which the (a) Use as its primary Court has jurisdiction to Kenya National Bureau of reference material, entertain the consolidated Statistics had determined the report of the petitions which must the population. Therefore former Boundaries be determined on their the population of Kenya Commission on the first merits. for purposes of the First review as adopted by Review under Article 89 the National Assembly; 2. The IIBRC was established was that provided in the and under section 41B of 2009 population and (b) Use as its secondary the former Constitution housing Census Report reference material which set out its mandate. issued on August 2010 the report of the However, IIBRC was and which it is contested Parliamentary preserved by section is what the IIEBC used. Committee on 27 of the Sixth Schedule 5. The IIEBC acted in the report of the under the Transitional accordance with the law former Boundaries and Consequential and Constitution in relying Commission on the Provisions. The effect of on the figures provided first review.” the transitional provisions by a statutory body Section 2(2)(b) (iii) of the Fifth was that the advisory mandated to conduct Schedule to the IEBC Act, role which the IIBRC the census. Therefore the provides that Subject to the was to perform under population figures used Constitution, addressing issues section 41C of the former by the IEBC were legally of new constituencies falling Constitution was carried recognized as containing outside the population quota as over to the Constitution enumerated figures in provided for by Article 89(6) of by the Sixth Schedule. accordance with the the Constitution, but at the same It would therefore be section 2(b)(ii) and (iii) of time ensure that such a process untenable to entertain a the Fifth Schedule of the shall-Be subject to the use of proposition that suggests IEBC Act. enumerated national census that there would be a 6. Neither was the use of the figures and not projected figures. vacuum in the operation Ligale Report as the primary of the law or discharge of source of reference nor Held: government duties. the provisions of the 1. Article 89(10) of the 3. The terms of the first review IEBC Act that provides Constitution gives a not being the delimitation for the use of the report person a right to apply to strictly contemplated as a primary reference the High Court for a review by Article 89 of the unconstitutional. In any of a decision made by the constitution was governed case, the word ‘reference’ IIEBC under Article 89 and by the Sixth Schedule and did not mean that IEBC further Article 89(11) of the IEBC Act. Therefore was bound by the content
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or that it must necessarily in a fair manner across Therefore, the petitioner adopt the contents of the country to give could not succeed in those materials. Therefore, effect to the right of fair their claim for creation of the provisions of the representation to every additional constituencies. national legislation did Kenyan citizen. The 8. The delimitation process not compromise the creation of additional was a periodical exercise independence of the constituencies by the IEBC that was subject to IEBC in the delimitation was also constrained by review from time to time exercise. the provisions of section as encapsulated under 7. There were only 290 27 of the sixth schedule Article 89(1)(2) and constituencies were to the Constitution which (3) of the Constitution available for delimitation protects constituencies which included good across the country and that fall below the governance. they had been distributed population quota. Petition dismissed.
Limitation of High Court’s Jurisdiction by an Act of Parliament Jimmy Mutinda v Independent Electoral and Boundaries Commission & 2 others ex parte Shaileshkumarnata Verbai Patel Miscellaneous Civil Applications Nos. 2 & 11 of 2013 (Consolidated) High Court at Nairobi G. V. Odunga, J. January 30, 2013 Reported by Nelson K. Tunoi & Beatrice Manyal
Issues: Act-whether the High Court’s provisions of this Part, any 1. Whether the High Court’s jurisdiction under Article 165 of candidate who claims to jurisdiction under Article the Constitution could be limited have suffered or to risk 165 could be limited and/ and/or restricted by an Act of suffering, loss or damage or restricted by an Act Parliament-effect of the purported due to the breach of of Parliament. {Whether limitation and/or restriction of the a duty imposed on a in the present case the Court’s jurisdiction-whether the procuring entity by this Court’s jurisdiction has High Court had jurisdiction to Act or the regulations, been limited and/or entertain the issues in dispute- may seek administrative restricted in respect of whether the application had review as in such manner the issues in dispute.} merit-Public Procurement and as may be prescribed. 2. What was the effect of Disposal Act, Sections 93, 94, 95, the purported limitation 96, 97, 98, 99 and 100 (2) The following matters and/or restriction of the shall not be subject to the Court’s jurisdiction. Public Procurement and Disposal review under subsection 3. Whether the Court has Act: (1) jurisdiction to entertain the Section 3: (a) the choice of issues in dispute. 3. (1) In this Act, unless the a procurement context otherwise requires procedure Civil Practice and Procedure- - pursuant to Part IV; preliminary objection grounds, “candidate” means a (b) …; inter alia, that the High Court person who has submitted (c) where a lacked jurisdiction to entertain a tender to a procuring contract is signed an application by virtue of entity; in accordance to the provisions of the Public Section 93 (2) (a) & (c):- section 68; Procurement and Disposal 93. (1) Subject to the
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Section 99: reconciliation, mediation, dispute determined by the 99. The right to request a review arbitration and traditional Review Board. Whereas under this Part is in addition to dispute resolution the review route does any other legal remedy a person mechanisms in exercising not necessarily lock out may have. judicial authority Therefore other available remedies, courts and tribunals the review route being Held: cannot be said to be a route provided under 1. Where there is an promoting alternative the relevant Act ought alternative remedy dispute resolution to be adhered to unless provided by an Act of mechanisms when they circumstances militate Parliament, which remedy readily entertain disputes against that route. is effective and applicable which ought to be 9. Whereas the existence of to the dispute before the resolved in other legal the alternative remedy Court, the Court ought to forums. and procedure may ensure that that dispute is 6. Although the court’s not necessarily oust the resolved in accordance jurisdiction under Article jurisdiction of the Court, with the relevant statute. 165 can be limited and/ it is perfectly entitled to 2. Where an obligation is or restricted by an Act of take into account the created by statute and a Parliament, any provision existence of such a specific remedy is given purporting to limit the remedy and its efficacy by that statute, the person jurisdiction of the High in deciding whether or not seeking the remedy is Court must itself derive to entertain the dispute deprived of any other its validity from the and may decline to do means of enforcement. Constitution and must so not only on the ground 3. Ouster clauses are do so expressly and not of want of jurisdiction effective as long as they by implication unless the but also in order to avoid are not unconstitutional, implication is necessary the abuse of its process consistent with the for the carrying into effect where the process is being main objectives of the the provisions of the Act. invoked to achieve some Act and pass the test 7. The mere fact that an collateral purpose not of reasonableness and Act uses the word “may” recognized by the law as proportionality. However, rather than “shall” does genuine. If abuse of the where an ouster clause not necessarily connote court process is shown to leaves an aggrieved party that the requirement is not have happened, it would with no effective remedy mandatory. The intention be wrong to allow the or at all, such ouster clause of the legislature has to misuse of that process will be struck down as be examined before a to continue. There is the being unreasonable. determination is made as inherent jurisdiction of 4. It is not only the Constitution to whether the procedure every court of justice to that can limit or confer is mandatory or merely prevent an abuse of its jurisdiction of the court but directory. process and its duty to that any other law may by 8. The interpretation that intervene and stop the express provision confer or section 99 of the Public proceedings, or put an limit that jurisdiction. Procurement and Disposal end to it. 5. By virtue of Article 159 Act accords the right 10. A strict reading of (2)(c) of the Constitution to request a review in section 93(1) of the the court is obligated addition to any other legal Public Procurement and to promote models of remedy a party may have Disposal Act locks out alternative dispute defeats the whole purpose the ex parte applicants resolution such as of having a procurement from the purview of the
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review by the Board on hearing before a court when challenged claim grounds that they were or another independent that the Court has no not candidates as defined and impartial tribunal is jurisdiction knowing very under section 3 of the achieved. well that at that stage the Act and hence cannot 13. Where there is a aggrieved party would invoke the jurisdiction of lacuna with respect to not be able to obtain any the Board under section enforcement of remedies remedy from the Review 93 for the resolution of their provided under the Board. Therefore, the disputes. Constitution or an Act Court’s jurisdiction is not 11. By virtue of section 93 of Parliament through limited and/or restricted (2)(a) and (c) of the the procedure provided by the Public Procurement Public Procurement under an Act of Parliament and Disposal Act. and Disposal Act, the ex an aggrieved party is left 15. The law is a living thing and parte applicants were with no alternative but a court would be evading locked from disputing the to invoke the jurisdiction its responsibility were it to decision of the IEBC due of the Court and the say, assuming that there to lack of locus standi and Court is perfectly within be no existing recognised further on the ground that its rights to investigate the remedy covering the facts their disputes did not fall allegations. To fail to do of a particular case, “Why within the jurisdiction of so would be to engender then, this must be an end the Review Board. and abet an injustice and to it”. The law may be 12. Where a remedy provided a court of justice has no thought to have failed if under the Act is made jurisdiction to do injustice. it cannot offer a remedy illusory with the result that it 14. To allow the preliminary for the deliberate acts of is practically a mirage, the objection based on one person which causes Court will not shun from its jurisdiction was likely damage to the property constitutional mandate to to render the ex parte of another. The law must, ensure that the provisions applicants remediless of necessity, adapt itself; of Article 50(1) are and would lead to a it cannot lay still. It must attained with respect to situation where in order adapt to the changing ensuring that a person’s to avoid transparency in social conditions. right to have any dispute procurement procedures Preliminary objections dismissed that can be resolved by the Procurement Entities with costs to the ex parte the application of law would simply award applicants. decided in a fair and public tenders clandestinely and
The legal position regarding an error, ommission or irregularity apparent on the face of the record Alphaxad Genya v Republic Criminal Appeal No. 262 of 2012 High Court at Kisii R. N. Sitati, J. January 30, 2013 Reported by Phoebe Ida Ayaya & Derrick Nzioka
Issue: Criminal Law – review – application or irregularity on the face of the 1. Whether an error, omission or for review of orders of court record occasioned a failure of irregularity on the face of the – error, omission or irregularity justice – whether an error, omission record can occasion a failure apparent on the face of the or irregularity on the face of the of justice. record –whether an error, omission record is curable – whether
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there was an error, omission or charge, proclamation, should have been raised irregularity on the face of the order, judgment or other at an earlier stage in the record to warrant an automatic proceedings before proceedings.” revision or review – Criminal or during the trial or Held: Procedure Code Section 382 in any inquiry or other 1. An error, omission or Criminal Procedure Code proceedings under this irregularity in the order Section 382, “Subject code, unless the error, and ruling did not give rise to the provisions omission or irregularity has to an automatic revision/ hereinabove contained, occasioned a failure of review in favour of the no finding, sentence or justice. applicant. order passed by a court Provided that in 2. of competent jurisdiction determining whether The court however shall be reversed or altered the error, omission or corrected the error on appeal or revision irregularity has occasioned apparent on the record on account of an error, a failure of justice the by making adjustments omission or irregularity court shall have regard to the paragraphs of in the complaint, to the question whether the ruling which had summons, warrant, the objection could and irregularities. Application dismissed.
Dual Citizens are not entitled to contest for elective office Donald Kisaka Mwawasi v Attorney General Petition No 12 of 2013 High Court at Nairobi Constitutional & Human Rights Division DS Majanja J January 28, 2013 Reported by Cynthia Liavule & Andrew Halonyere
Issues: are entitled to contest for elective Constitution and this 1. Whether a person who office – whether provision of Act” That means that holds dual citizenship one part of the constitution can prospective candidates is qualified under the violate another part – Constitution must in the first place be Constitution of Kenya 2010 of Kenya 2010 Article 78(2), 260 qualified under law to to contest for elective be elected to the posts office. Held: for which they wish to 2. Whether the notice 1. Article 78(2) which contest. A person who issued by IEBC in relation prohibits a state officer is a dual citizen cannot to qualification of dual from holding dual qualify to be Member of citizens not being able to citizenship, disqualifies a Parliament in view of the stand for elections, was prospective candidate wall erected by Article 78. ultra vires or illegal. from consideration for 2. The IEBC is the body 3. Whether the definition of nomination. Section 22(1) responsible for conducting State officer or State office of the Elections Act, No. and supervising elections under Article 260 violates 24 of 2011 is categorical and is mandated by law the petitioner’s right under that a person can only to regulate the conduct of Article 10 and 38. be nominated as a nominations by Parties and candidate for an election carry out voter education, Constitutional law – fundamental if the person inter alia, “(a) it is entitled to spell out the rights and freedom – dual is qualified to be elected fact of disqualification in citizenship – whether dual citizens to that office under the the notice it issued. In the
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circumstances the notice be read as a whole the Constitution is not issued, in so far as it relates and the provisions of subject to challenge by to qualification of dual Article 99 are neither or before any court, a citizens not being able to exclusive nor exhaustive constitutional provision stand for elections, is not as to the qualification cannot be challenged as ultra vires or illegal. and disqualifications being ‘invalid’ or ‘illegal’ 3. The definition of State of candidates for or unconstitutional for officer under Article 260 is Parliamentary elections. violating other rights under exhaustive and there is no 5. The provision of one part the same Constitution. need to look outside the of the Constitution cannot Constitution for another violate another. Article Petition dismissed. meaning. 2(3) clearly stipulates that 4. The Constitution must the validity or legality of
Committal to Civil Jail contravenes the Right to Economic, Social and Cultural development Rachael Mwikali Mwandia v Ken Maweu Kasinga Miscellaneous Civil Case No. 378 of 2000 High Court at Nairobi Milimani Commercial & Admiralty Division E.K.O. Ogola January 28, 2013 Reported by Emma Kinya Mwobobia
Issues: Civil Practice and Procedure jail which should be a last result 1. Whether the suit to – Execution of a judgment - – whether the court had flouted execute judgment and limitation of time – limitation of the Constitution and Article 11 of recover interests after a time in execution of a judgment the united Nations International 12 years was actionable – where the Limitations of Actions Covenant on Civil and Political under the Limitation of Act prescribes a maximum of 12 Right by commiting the judgment Actions Act years for execution of a judgment debtor to civil jail – Article 2(6) and a maximum of 6 years from Constitution of Kenya, 2012, Article 2. Whether the court had the date of judgment for recovery 11 of the International Covenant contravened Article 2 (6) of interests accrued - whether on Civil and Political Rights. of the Constitution and the suit was actionable under the Article 11 of the United circumstances. section 4 (4) of the Limitation of Nations International International Law – application Actions Act Cap 22 Laws of Kenya Covenant on Civil of international law – status provides that no action may be and Political Right by of international law in Kenya brought on a judgment after 12 committing a debtor to under the Constitution – right to years from the date on which civil jail. economic, social and cultural judgment was delivered and that interest may not be recovered 3. Whether there were development - committal to civil after expiration of six years. other avenues that are jail – where a judgement debtor available for recovery of had defaulted on payment of debt from a judgement his debts and was committed debtor other than to civil jail – consideration by committal to civil jail. court of other avenues of debt recovery before resulting to civil
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Held: the Constitution of Kenya, against the ICCPR which 1. The plaintiff’s claim for International treaties and guarantees parties basic execution of judgment conventions that Kenya freedoms of movement was not time barred has ratified are imported and of pursuing economic since the defendant was as part of the sources of social and cultural arrested before the lapse Kenyan Law. Thus, the development. of 12 years. However, the provision of Article 11 of the interest recoverable in International Covenant 3. The Plaintiff had other the judgment was time on Civil and Political Rights options of execution to barred and hence could (ICCPR) which Kenya explore like attaching the not have been recovered has ratified is part of the defendant’s property. as the prescribed 6 years Kenyan Law. Therefore, Therefore, committal to had lapsed. enforcing a civil debt civil jail should have been through imprisonment was the very last option. 2. By virtue of section 2 (6) of
Whether Judicial Review remedies extend to recommendations by statutory bodies Republic v. Commission of Administrative Justice & another ex parte John Ndirangu Kariuki [2013] eKLR Judicial Review Application No. 452 of 2012 High Court of Kenya at Nairobi G .V Odunga, J. January 28, 2013 Reported by Beryl A. Ikamari
Issue: review orders from court to quash recommendations and the 1. Whether a remedy of recommendations by the first second respondent was judicial review can extend respondent, the Commission not under any obligation to recommendations by of Administrative Justice to to act upon them since the statutory bodies. the second respondent, the second respondent was Independent Electoral and expected to undertake its Judicial Review- certiorari Boundaries Commission that the Constitutional and statutory and prohibition– application applicant be barred from running mandate independently for certiorari and prohibition for elective public office. and without any directions orders to remove and quash from any person. Without recommendations by the Held: the second respondent Commission of Administrative 1. Where a Commission making admitting them as part of Justice to the Independent recommendations arrives at the material upon which Electoral and Boundaries such a decision after an it would determine the ex Commission directing the inquiry has been made in parte applicant’s eligibility, applicant be disqualified from which the recommendation the first respondent’s running for public office and is final in nature that would views remained just that – prohibition orders against amount to a determination recommendations. Independent Electoral and for the purposes of judicial Boundaries Commission from review. Application dismissed acting on the recommendations- 2. whether judicial review remedies The recommendations of extend to recommendations. the first respondent did not amount to a determination The applicant sought judicial for the purposes of judicial review. They were simply
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Article 159(2)(D) of the Constitution not a panacea for incompetent proceedings China Sichuan Corporation for International Techno-economic Co-operative (SIETCO) vs. Kigwe Complex Limited Civil Case No. 464 of 2012 High Court at Nairobi Milimani Commercial & Admiralty Division J. B.Havelock, J. January 24, 2013 Reported by Emma Kinya Mwobobia
Issues: defendant enters appearance the time when the party 1. Whether the application – whether the application for entered appearance to for the proceedings to the proceedings to be referred the suit brought against it. be referred to arbitration to arbitration during the trial 2. Article 159(2) (d) of the was time barred. was time barred – Article 6(1) Constitution could not be 2. Whether a general Arbitration Act relied upon in the face provision of the Constitutional law- Constitutional of a specific provision constitution could provisions – provision by the in section 6 (1) of the cushion one on a matter Constitution that justice shall Arbitration Act which had of technicality where be administered without a mandatory provision for there was a specific undue regard to procedural filing an application for statutory provision. technicalities – whether such a arbitration proceedings 3. Whether Article 159(2) provision can be relied on in the at the time of entering (d) of the Constitution face of a mandatory provision appearance. was a panacea under a statute – Article 159 (2) 3. The application failed to for incomptetent (d) Constitution of Kenya, 2010 uphold the mandatory proceedings. provision of sec 6 of the Held: Arbitration Act. It was Civil Law- Arbitration- stay – stay of 1. It was mandatory ipso facto defective and legal proceedings – application that when filing an could not have been for stay of legal proceedings application for stay of cured by Article 159 (2) of for a matter to be referred to legal proceedings for the Constitution. arbitration – mandatory provision a matter to be referred Application dismissed with costs under the Arbitration Act to file to arbitration, the same to the plaintiff. for arbitration at the time the must have been filed at
Court restrains government from barring registration of refugees in urban centres Kituo Cha Sheria v Attorney General Petition No. 19 of 2013 Constitution and Human Rights Division of Kenya D.S. Majanja J. January 23, 2013 Reported by Emma Kinya Mwobobia
Issue: stopping the reception, and refugees would be 1. Whether a conservatory registration and close registered and hosted in order could have been down of all registration refugee camps. granted where the centers in urban areas with Government of Kenya immediate effect and that Constitutional Law – petition – had issued a press release instead all asylum seekers Conservatory orders – petition
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seeking conservatory orders - International Law – application of Constitution refugees are application to restrain the international law - protection of vulnerable persons, the Government of Kenya from refugees – international obligation petitioner has an arguable stopping the reception, registration of the Kenyan government case before court. and shut down of all registration with respect to protection of centers in the urban areas with refugees – where refugees qualify 2. In order to secure a immediate effect - where the as vulnerable persons under hearing of the grievances, Government had ordered all the Constitution – whether the a conservatory order asylum seekers and refugees application had merit. prohibiting any state to be registered and hosted in officer from implementing the designate refugee camps in Held: the decision evidenced Kakuma and Dadaab – whether 1. In view of the international through the press release a conservatory order could be obligations Kenya has with was granted pending issued under the circumstances. respect to refugees and further orders of the court. the fact that under our Application granted.
Right to Citizenship Hersi Hassan Gutale & another v Attorney General & another Petition No 50 of 2011 High Court at Nairobi D.S. Majanja, J January 21, 2013 Reported by Andrew Halonyere & Cynthia Liavule
Issues: new generation identity cards – only be denied by an Act whether such failure amounted of Parliament that satisfies to violation of Constitutional right the criteria referred to in 1. Whether the decision by – circumstances under which the Article 24. the Registrar of Persons court can interfere with the duty declining to issue Kenyans of the Registrar of Persons Article 24 deals with of Somali origin, who were limitation of fundamental holders of old generation rights and freedoms and identity cards, with new Civil Practice and P provides that fundamental generation Identity cards rocedure – res-judicata – whether rights and freedoms may should be reconsidered the orders sought in the present only be limited by a law of in view of Article 12 & 14 suit were among the orders that general application and of the Constitution. were sought in the suit that was only to the extent that the heard and dismissed by the same limitation is reasonable court – Constitution of Kenya and justifiable in an open 2. Whether the suit was 2010 Article 12, 24 - Registration and democratic society res-judicata in light of of Persons Act (Cap 107) based on human dignity, an earlier High Court equality and freedom. judgment raising the Held: same issues.
Article 12 entitles every 1. Citizenship of any Constitutional law – fundamental citizen to a Kenyan person is a very serious rights and freedoms' – right passport and any matter and that is why to citizenship – failure to issue document of registration the provisions of Article Kenyans of Somali origin with and this document may 24 are applied to any
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Act that is enacted to exercising such authority 3. Though the High Court take away any person’s the Registrar had to act dealt in the previous right to citizenship. The in accordance with the proceedings with the citizenship of a natural law bearing in mind issue of legality of the born citizen cannot be the provisions of the screening process, it taken away or privileges Constitution particularly specifically declined to or benefits of citizenship the fundamental rights deal with the petitioners’ taken away by refusal and freedoms of the citizenship. Therefore the to provide documents of petitioners which entitled issue of the petitioners’ identification. the petitioners to fair citizenship was not res- administrative action judicata. guaranteed under 2. The duty to carry out Article 47. It was not for Petitioners’ application for new appropriate inquiries and the Court to substitute generation identity cards to to hear the petitioners itself as the Registrar be considered by the Principal was a duty cast upon unless the decision of the Registrar of Persons within 45 days the Registrar by the Registrar contravened Registration of Persons the Constitution and the Act (Cap 107). In law.
Exclusion of prisoners from voter registration exercise a violation of their fundamental Rights Kituo Cha Sheria v. Independent Electoral and Boundaries Commission & 2 others [2013] eKLR Petition no. 574 of 2012 High Court at Nairobi Constitutional and Human Rights Division D.S. Majanja, J. January 21, 2013 Reported by Nelson Tunoi & Beatrice Manyal
Issues: exercise amounted to a violation representatives in the 1. Whether prisoners have of rights by the respondents- National and County the right to vote under whether the respondent could be governments who the Constitution? compelled to register the prisoners exercise delegated 2. Whether this right has as voters in the General Elections- authority of the people in been violated by the whether the 1st respondent had accordance with Article respondents? the obligation to facilitate the 2. It is beyond argument registration of prisoners as voters then that the right to vote Constitutional law-fundamental as a matter of right-whether the is fundamental to our rights and freedoms-right to vote- petition had merit-Constitution of system of government. exclusion of prisoners from the Kenya, 2010 Articles 10, 23, 35, 38 2. The Constitution, with its voter registration process-petition (3) (a) (b), 51, 82 (1) (e), 83 emphasis on the peoples’ seeking, inter alia, declaration sovereignty, the values that prisoners in Kenya possess the Held: on rule of law, equity, inalienable right to be registered 1. The Constitution as the inclusiveness, equality, as voters and consequently vote- supreme law is founded human rights as well as the whether prisoners had the right on the sovereignty of the right to vote guaranteed to vote under the Constitution- people of Kenya. This under Article 38 and the whether the exclusion of the sovereignty is exercised qualification of voters prisoners from the voter registration through voting for provided under Article 83
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does not exclude prisoners and they do not have of prisoners like other from being registered to access to information, citizens as mandated of vote and consequently documentation, it under Article 88 (4) (a) voting in an election. electronic media and and the facilitation of the 3. Apart from merely means to voluntarily realization of the right to guaranteeing the right, register as voters like other vote of all eligible inmates. the Constitution places free citizens. 10. (Obiter, as per Majanja, upon the State and its 6. The duty to facilitate J.) “The uncontested agencies the positive voting means that the evidence demonstrates responsibility to ensure that IEBC must co-ordinate that this petition would all the people of Kenya with other institutions to have been unnecessary and particularly those ensure that the right to had the IEBC answered who are marginalised or vote is realized at least the correspondence vulnerable are able to within the context of what from the petitioner and exercise this fundamental can be realized within the interested party. In an era right. That responsibility realm of prisons. where the Constitution is not a passive duty but 7. Unlike the right of citizens obliges public institutions an active one imposed in the diaspora, whose to be accountable and by the Constitution and right to vote is to be transparent, it is important particularly the Bill of Rights realized progressively, the that public institutions on the State and all its right for prisoners to vote respond to queries raised instrumentalities. Thus the is one that is immediate by civic minded citizens. breach of the prisoners’ and the State and its I would hasten to add right to vote entailed agencies must comply that the right of access to failing by the respondents with the obligations that information guaranteed to take positive steps to require that this right be under Article 35 underpins facilitate, promote and realized. Such obligation the values in Article 10(c) fulfil that right. includes the duty to of “good governance, 4. Article 51 of the Constitution promote, protect and integrity, transparency neither limits the rights and fulfil the right to vote. The and accountability.” fundamental freedoms of respondents violated the prisoners, which include rights of persons in prisons Petition allowed. Court directed the right to register as a by failing to facilitate and the IEBC to facilitate, in voter and to vote, nor promote their rights. conjunction with the prison and does it diminish in any way 8. The obligation of the other government institutions, the the responsibilities of the Court is to give effect to exercise of the right of prisoner IEBC to prisoners. the rights contained in who had already registered to 5. Article 83 (3) imposes on the Bill of Rights and the vote to do so in the general the IIEBC a duty to take fact that giving effect elections. The 1st respondent to positive or affirmative to these rights may be bear the petitioner’s costs and steps to ensure that inconvenient cannot one-half of the interested party’s the right to vote by all override constitutional costs. Kenyans is realized. There imperatives. mere fact of providing 9. The Independent registration centres for Electoral and Boundaries prisoners cannot be Commission must take adequate to “facilitate necessary administrative the right to vote. ” arrangements even after Prisoners are vulnerable the General Elections persons in society to ensure registration
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Duty of I.E.B.C. to regulate campaign material during the election period jeffers Miruka & 2 others (on behalf of Renacti) v. Independent Electoral and Boundaries Commission & 2 others [2013] eKLR Petition No. 9 of 2013 High Court of Kenya at Nairobi Constitutional and Human Rights Division D.S. Majanja, J. January 21, 2013 Reported by Nelson K. Tunoi & Beatrice Manyal
Issues: regulations and guidelines on the elections to subscribe to 1. Whether the court could management of election posters the Code of Conduct. issue a conservatory order before and after the general Under Regulation 5(j) (ix) restraining the I.E.B.C from elections whether the petition of the Code of Conduct, receiving nominations had merit-Constitution of Kenya, political parties and from candidates and 2010, Articles 42, 43, 47, 69, 73 referendum committees political parties and and 88 are obliged to remove further conducting the Election Law-duties and all banners, placards and General Elections on 4th responsibilities of the IEBC-duty of posters erected during the March 2013 on failure the IEBC to regulate campaign election period. Further, to formulate regulations, material-election code of Regulation 7 provides guidelines, and/or conduct-whether the petitioners that where the Code appropriate notices on could implicate the IEBC for of Conduct is infringed, the issue of campaign failure to put in place guidelines the Independent posters. and regulations for places, Electoral and Boundaries manner and period within which Commission (“IEBC”) may 2. Whether the IEBC had an candidates and political parties give specific orders to obligation to promulgate may exhibit posters and other enforce the provisions of specific rules that provide campaign material-Elections the Code. Furthermore, for the enforcement and Act (Act No. 24 of 2011) sections any person who has realization of the right 67, 69, 107, 110; Election Act subscribed and violated to a clean and safe (Regulations) Regulations 5 and 7 the Code of Conduct environment (protected commits an offence. under Article 42) and in Held: compliance with the State 1. Although the petition 3. Where a statute or obligations under Article raised important issues of legislation has provided 69 of the Constitution of environmental law and a means of enforcement Kenya, 2010. their intersection with the the procedure should generally be used. In so far Constitutional Law-fundamental election, the issue had to be resolved within the as the matter concerned rights and freedoms-right to clean the Code of Conduct, and healthy environment-petition context of the Elections Act (Act No. 24 of 2011) it was proper for the seeking, inter alia, declaration petitioner to invoke the that the respondents conduct and Code of Conduct nd Schedule to necessary procedure. The amount to a clear contravention under the 2 the Elections Act. petitioners had written of the statutory and international two letters of complaint acknowledged principles on 2. Section 110 of the to the IEBC and there was protection and conservation Elections Act requires no evidence before the of the environment-whether a every political party that Court that those letters conservatory order would issue is eligible to nominate had been acted upon by against IEBC for failing to formulate candidates contest the IEBC.
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4. Sections 67 and 69 of the the Court cannot issue their responsibilities. Elections Act, 2011 creates conservatory orders to 7. specific offences. It is for stop a constitutionally There was need to the petitioner to lodge mandated election balance the public’s right specific complaints with process that is subject to to a clean environment the relevant authorities specific timelines to enable which can be dealt with and the authorities to deal the IEBC promulgate the in the context of rules, with them in accordance necessary regulations. and the rights to a free with the law. Under the and fair election. In 6. provisions of section 107 The making of rules and the circumstances, the of the Elections Act, the standards recommended balance tilts in favour IEBC has the power to or suggested is a process of the election process prosecute offences under that involves other which must proceed to its nd the Act in line with Article bodies like the 2 and conclusion. rd 157(12). 3 respondents and other institutions and Petition dismissed with no costs; 5. Rule-making in the context it was proper for the the IEBC should deal with of an election cycle is a Court to defer to these the complaints raised by the continuous process and institutions to carry out petitioner in accordance with the established procedures.
Scope of the Right to Legal Representation in criminal matters John Swaka v Director of Public Prosecutions & 2 others [2013] eKLR Petition No. 318 of 2011 High Court at Nairobi M. Ngugi, J. January 18, 2013 Reported by Nelson K. Tunoi & Beatrice Manyal
Issues: v. Republic [2011] eKLR to the Director of Public 1. Whether failure by the have legal representation Prosecutions (DPP) not State to provide the benefit provided immediately with to carry out any further of legal representation no legislative or institutional prosecutions pending to persons charged with framework in place. establishment of the legal the offence of robbery representation scheme. 3. Whether the death with violence amounts to penalty imposed on those Constitutional Law-fundamental violation of rights. {Right convicted on robbery with rights and freedoms-right to legal to legal representation- At violence charge is justified representation-whether the right what point does such right in light of international to legal representation was to be blends and becomes a and regional treaties and accorded immediately after the violation of the right for decisions on the issue. promulgation of the Constitution- any trial to be conducted whether failure by the State without the accused 4. Whether the High Court to provide the benefit of legal being provided with legal could direct the transfer representation to persons charged representation by the of all robbery with violence with the offence of robbery with State?} matters from subordinate violence amounts to violation courts to the High Court 2. Whether it was the intention of rights-where there were no where indigent persons had of Article 50 (2) (h) of the mechanisms in place to address no legal representation. Constitution, as interpreted the issue of legal representation by the Court of Appeal in 5. Whether the High Court in criminal matters-whether the David Njoroge Macharia has jurisdiction to order petition had merit-Constitution of
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Kenya, 2010, Articles 10, 21 (1), 50 [2011] eKLR expanded the to provide for the (2) (h), 73 & 252; African Charter on constitutional requirement that circumstances under Human and Peoples Rights, Article legal representation be provided which the death penalty 7 (1) (c) at state expense in cases where should be imposed in cases Constitutional law-fundamental ‘substantial injustice might of robbery with violence. rights and freedoms-right to otherwise result’ to include all 3. life-whether the death penalty situations where an accused Article 50 (2) (h) of the imposed on persons convicted on person is charged with an offence Constitution is in accord robbery with violence charge was whose penalty is death. with the State’s obligation justified in light of international and under Article 14 (3) (d) of regional treaties and decisions- Held: the ICCPR and Article 7 (1) Constitution of Kenya, 2010, Articles 1. While international (c) of the ACHPR, and its 26 (3), 50 (2) (h); International covenants such as Article implementation will bring Covenant on Civil and Political 6(1) of the International the State in accord with its Rights, Articles 6 (1), 14 (3); Covenant on Civil and international and regional Jurisdiction-transfer of cases- Political Rights (ICCPR) obligations. whether the High Court had encourage States to do 4. Although there is a jurisdiction to order transfer all away with the death recognition of the duty robbery with violence cases from penalty, or to reserve on the State and of the subordinate courts to the High the penalty for the most need to provide legal Court where indigent persons had serious crimes, the people representation to accused no legal representation-whether of Kenya at Article 26(3) of persons in order to avoid the High Court would be usurping the Constitution still permit substantial injustice, there the powers of the Legislature by the death penalty. The is nothing that indicates granting orders for transfer of cases death penalty has been that the intention is to in the circumstances-Constitution provided in the Penal have such representation of Kenya, 2010, Article 157 (10); Code for the offence of immediately, or that all Criminal Procedure Code (cap 75) robbery with violence, and trials carried out without sections 7 (1), 69 & 78; Magistrates this provision accords with such representation after Courts Act (cap 10) section 4 the provisions of Article the Court of Appeal’s 26(3). ruling in David Njoroge Article 50 (2) (h) of the Constitution: 2. Macharia v. Republic, 50. (2) Every accused The law making authority is vested in the National Crim. App. No. 497 of 2007 person has the right to a are automatically a nullity. fair trial, which includes Assembly by virtue of the right- Article 94 (1) of the 5. Despite the expansion (h) to have Constitution. Therefore the by the Court of Appeal an advocate courts cannot assume the regarding the issue of assigned to the authority of the National legal representation, accused person Assembly and order that it recognized the by the State and the death penalty in implications thereof and at State expense, if robbery with violence cases consequently the need substantial injustice should be imposed only to make major policy and would otherwise in circumstances where legislative changes, and to result, and to be death has resulted from make financial resources informed of this the acts of an accused. It available in order to put into right promptly; remains the constitutional effect the constitutional mandate and province of requirement that accused The Court of Appeal in David the National Assembly to persons be availed legal Njoroge Macharia v. Republic make such amendments representation in situations to the law as is necessary
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where “substantial enable the DPP carry out criminal justice system in injustice” would result if his constitutional mandate Kenya. Such guarantees the accused person was without interference from must also be considered undefended, and for any person or organ, in view of the need to those charged with the unless there was clear balance the interests of offences that carry the evidence of violation of the accused, those of the death penalty. a party’s rights under the victims, and the greater Constitution or violation of societal interests. 6. Directing that robbery the Constitution itself. There 11. with violence cases be were no circumstances Regarding the State heard in the High Court presented before the court action on the right to legal would require a change that would entitle it to bar representation, it is clear in the law to provide that all prosecution of robbery that necessary steps have that offence be tried in the with violence cases. If such already been undertaken High Court. Furthermore, an order was to be made, to put in place measures the court would be it would be in individual required to provide legal usurping the power of cases on the basis of representation as required the legislature and thus very clear and cogent under the provisions of acting unconstitutionally evidence that ‘substantial Article 50 (2) (h) of the by purporting to direct that injustice’ would result, and Constitution. These include such trials be conducted cannot be made as a the drafting of a Legal Aid in the High Court, since blanket order in respect of Policy and Bill, and the this would be effectively all cases of robbery with rolling out of pilot projects removing the jurisdiction violence. in various parts of the from the Magistrates’ country for the provision Courts and vesting it in the 9. Taking into account the of legal representation to High Court, and only the practical implications to indigent Kenyans. Legislature can do this. the public interest and 12. the rights of the members The basis for the demand 7. The High Court can only of the group themselves, by the petitioner to the try cases in which the law stopping the DPP from State for information on confers jurisdiction upon carrying out prosecutions all the persons currently it, and there is no doubt until legal representation charged with the offence about where jurisdiction has been provided would of robbery with violence, for trial of robbery with not only be contrary to and for compensation of violence cases lies. The the societal interests in each of them at the rate law has provided very seeing those who have of Kshs 400 per day - after clearly with regard to committed crimes brought the delivery of the Court of the jurisdiction of the to trial, but would also lead Appeal ruling - is unclear. Magistrates’ Courts to try to violations of the rights If it is predicated on the the offence, and as long of the accused persons argument that the State as the Magistrates Courts themselves. has failed to implement the conduct trials within the constitutional requirement parameters established 10. The constitutional with regard to legal under the law, there would guarantees to citizens, representation, then that be no basis for interfering including those in relation claim has no basis. with their mandate. to the right to trial, must be 13. read and interpreted in a (Obiter, as per M. Mumbi, 8. The intention behind the realistic manner, bearing J.) “I must commend the provision of Article 157 (10) in mind the context and petitioner for taking up this of the Constitution was to circumstances of the matter which is of great
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public interest. It brings to requisite resources, to in place to identify and the fore the need to start provide indigent persons avail legal representation making the constitutional charged with the offence to those cases of indigent guarantees to accused of robbery with violence persons where, as the persons a reality, and with legal representation. Constitution states, the state must move with In the interim, the substantial injustice would expedition to complete respondents, with civil otherwise result for lack of what it needs to do to put society organizations such legal representation.” in place a legislative and as that represented by institutional framework, the petitioner, must use Petition dismissed with no order as including availing the the pilot project already to costs.
The Role of the Commission on the Implementation of the Constitution (CIC) in the enactment of legislation for the implementation of the Constitution of Kenya, 2010 Commission for the Implementation of Constitution v Attorney General & another Petition No 145 of 2011 High Court at Nairobi Constitutional & Human Rights Division January 18, 2013 M. Ngugi, J. Reported by Cynthia Liavule & Andrew Halonyere
Issues: consequential provisions – practicable, to enable Parliament 1. Whether the Commission claim that Commission on the to enact the legislation within the on the Implementation Implementation of the Constitution period specified. of the Constitution should had not been given an opportunity have been given a further to consider content of Bills prior Section 14(1) of Sixth Schedule 30 days to consider the to their publication - role of CIC to the Constitution- The laws two Bills severed from in the enactment of legislation contemplated in section 2 the Public Financial for the implementation of the (3) (b) and section 15 of the Management Bill-(the Constitution – whether urgency Schedule may be enacted only Contingencies Fund & in enacting legislation could oust after the Commission on the County Emergency Funds constitutional provisions – whether Implementation of the Constitution Act, 2011 and the National petition was moot considering and, if it has been established, Government Loans that the subject statutes had the Commission on Revenue Guarantee Act 2011). been enacted - Constitution of Allocation, have been consulted 2. Whether urgency in Kenya 2010 Articles 261(4) and and any recommendations of enacting legislation could Section 14 of the Sixth schedule the Commissions have been be a legitimate reason to to the Constitution considered by Parliament oust clear constitutional Section 14(2) of Sixth Schedule to provisions. Article 261(4) of the the Constitution - The Commissions 3. Whether the petition was Constitution,2010 - For the shall be given at least thirty days moot considering that the purposes of clause (1), the to consider legislation under subject statutes had been Attorney-General, in consultation subsection (1). enacted. with the Commission for the Implementation of the Held: Constitutional Law - legislation Constitution, shall prepare the 1. It was not the primary for the implementation of the relevant Bills for tabling before intention of the framers of constitution - transitional and Parliament, as soon as reasonably the Constitution to simply
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allow the CIC one month opportunity to consider must look long and hard as a matter of form prior the content of subject Bills at established principles to the enactment of the prior to their publication. and sort out the enduring statutes. The intention The Public Financial values of society. was to enable greater Management Bill had 4. The subject statutes were interrogation of the been forwarded to the repealed by Section 208 legislation pertaining to CIC by a letter from the of the Public Finance devolved government office of the Deputy Prime Management Act, No. in view of their centrality Minister. At the time the 18 of 2012. The Act was and the possibility of decision to sever the assented to on 24th July, controversies arising Bills was made CIC had 2012 and its provisions, from their content and been in possession of save for those touching implementation. It is not the merged Bill for two on county government the period of 30 days months. came into operation in and of itself that was 3. The urgency in enacting on 27th August, 2012. important, what was legislation, to meet certain The petition therefore, critical was substantive time limitations cannot be and the prayers sought consultation and ensuring a legitimate reason to therein, were superfluous that the petitioner had oust clear constitutional or overtaken by events sufficient time to consider provisions. Courts must long before they were and make its input to the not act on expediency. brought before the court. legislation. Everything must be done Petition dismissed. 2. The CIC had had an constitutionally. Courts
Press Freedom: CCK’s Media Regulatory role meets the test of the New Constitution Royal Media Services Ltd v Attorney General & 2 others [2013] eKLR High Court at Nairobi Constitutional and Human Rights Division Justice D.S. Majanja January 18, 2013 Reported by Michael M. Murungi
Issues: legislation contemplated constitutional rights to 1. Whereas article 34 of the by the new Constitution? freedom of the press, Constitution of Kenya, 2010 2. Was the Commission to the ownership of provided for parliament the regulatory authority property and the right to to enact legislation contemplated under fair administrative action to establish a body to Article 34 of the under articles 34, 40 and regulate the media, was Constitution? 47 of the Constitution? the Communications 3. Did a notice issued to Commission of Kenya, the petitioner by the Constitutional law – interpretation which had been previously Commission notifying of the Constitution – interpretation established under the it that certain of its promoting the purposes and Kenya Information and frequencies were being values of the Constitution and Communications Act of operated without a good governance – where a 1998, entitled to continue license and that the new constitution provides for the to perform that regulatory frequencies were liable enactment of a law to establish function when parliament to being surrendered a body to regulate the media had not passed the violate the broadcaster’s – Communications Commission
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of Kenya a statutory body framers of the Constitution body is extinguished leaving exercising regulatory functions intended that over time, the airwaves unregulated before the Constitution was this framework would be would undermine the promulgated - whether the transformed by legislative constitutional objectives of Commission could continue to Acts to accord with the good governance. exercise those functions before Constitution. It was for this 4. It followed that the the body contemplated under reason that Article 261(1) Kenya Information and the constitution is established and the Fifth Schedule to Communications Act, 1998 in law – whether to construe the Constitution required and all the regulations made the Constitution as having parliament to enact the under it remained in force extinguished the Commission and legislation contemplated subject to the Constitution to leave a regulatory vacuum under Article 34 within and the transitional provisions. would undermine the principles three years from the date 5. The Communications and objectives of the Constitution of the promulgation of the Commission of Kenya was - Constitution of Kenya, 2010 Constitution. established by legislation Articles 34, 259(1), Fifth Schedule, 2. Under section 7(1) of the which was then in force Sixth Schedule section 7(1) Sixth Schedule to the and was empowered Constitution, all law in force to licence and regulate Constitutional Law – constitutional immediately before the date postal, information and rights - press freedom – freedom of the promulgation of the communication services as of the media - notice by media Constitution of Kenya, 2010 contemplated under Article regulator to a broadcaster continued to be in force and 34 of the Constitution until the to surrender broadcasting would be construed with the body contemplated under frequencies it was said be adaptations necessary to Article 34(5) was established. operating without a license – bring it into conformity with 6. The action of the Commission whether the notice was in the Constitution. against Royal Media Services violation of the broadcaster’s 3. Moreover, Article 259(1) of was in the nature of a notice right to freedom of the media, the Constitution was to be to show cause why regulatory the right to ownership of property interpreted in a manner that action should not be taken in the frequencies and the right promoted its purposes, values against it and it did not to fair administrative action – and principles; advanced amount to a contravention Constitution of Kenya Articles 34, the rule of law, human rights of any of the petitioner’s rights 40 and 47 and fundamental freedoms; under Articles 34, 40 and 47 of permitted the development the Constitution. Held: of the law and contributed 1. The Constitution of Kenya 2010 to good governance. For the Petition dismissed. was superimposed on an Court to permit a situation existing legal framework. The where a legally constituted
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Family Planning – Duty of Care in Medical Practice E. R. O. v Board of Trustees, Family Planning Association of Kenya [2013] eKLR Civil Case No. 788 of 2000 High Court at Nairobi H. P. G. Waweru, J. January 18, 2013 Reported by Nelson K. Tunoi & Beatrice Manyal
Issues: are under a direct duty of was already pregnant and 1. Whether the defendant care to those admitted that the conception was owed a duty of care to the as patients to the hospital. so recent (only a few days) plaintiff where the plaintiff Hospital authorities are liable that it could not have been had undergone a tubal for breach of duty by its detected by the test then ligation procedure at the members of staff and it is available to and affordable defendant’s medical facility. trite law that a medical by the plaintiff. It was not on practitioner owes a duty of account of any negligence 2. Whether the defendant was care to his patients to take of the defendant that negligent in carrying out the all due care, caution and the pregnancy was not tubal ligation procedure on diligence in the treatment. detected by the urine test the plaintiff. performed upon the Plaintiff.
2. The defendant was under a 3. Whether the plaintiff was duty of care to the plaintiff. 5. Based on the medical entitled to damages The plaintiff had relied evidence adduced, the sought for the tubal ligation on the expert opinion of procedure was successfully procedure performed on her the defendant’s officers, performed on the plaintiff by the defendant. especially considering - both fallopian tubes were that she was semi-illiterate completely blocked - and Tort-negligence-medical negligence- to choose bilateral tubal there was no possible whether the defendant owed a ligation as a permanent way the plaintiff could duty of care to the plaintiff-where solution to her predicament have conceived after the the defendant performed tubal as she did not want to have procedure. ligation on the plaintiff-whether more children. the defendants were negligent- 6. The defendant should act whether the plaintiff was entitled to 3. Before the defendant in accordance with the the damages sought performed the bilateral ordinary standard of care tubal litigation upon the while executing its duties in Note: Tubal ligation is considered Plaintiff, they performed all offering to the public the a permanent method necessary and pre-requisite particular medical service, in of sterilization and birth control. tests upon her to ensure this instance family planning Held: that the procedure was services. The defendant appropriate for her. One of would only have been in 1. Authorities who own hospitals those tests was to determine breach of its duty to the are in law under the self-same if she was pregnant, in which plaintiff if its conduct fell duty as the humblest doctor. case the procedure would short of the professional Whenever they accept a not have been appropriate standard expected under patient for treatment, they for her at the time. The test the circumstances. must use reasonable care for pregnancy was negative. and skill to cure him of his Application dismissed with no ailment. It is established that 4. By a stroke of fate the plaintiff costs. those conducting a hospital
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When e-mails published to members of staff are defamatory Robert Thoronjo Karani vs Jeremy Miriti Bundi Civil case No. 105 of 2011 High Court of Kenya at Nairobi H. P. G. Waweru, J. January 18, 2013 Reported by Teddy Musiga
Issues: plaintiff need not prove 3. Taking into account that 1. Whether an email actual damage to his the defamatory email was published to members of character and reputation circulated only to a very staff can be construed as to be entitled to damages. small number of persons defamatory. within the organization Tort – Defamation – Libel - claim 2. Since the plaintiff where they all worked for damages in respect of an produced no evidence and that the defamatory email published and copied to of any tangible damage words were not published members of staff who need not he may have suffered, to the world at large. to have been copied therein – for instance to his career compensatory damages and or other prospects, he is Compensatory damages are aggravated damages. nevertheless entitled to awarded at Ksh. 300,000/= and compensatory damages aggravated damages awarded Held: for the harm to his at Ksh. 150,000/= upon the basis 1. The defamatory words character and reputation that the defendant was actuated as pleaded and proved on account of the libel by malice to write and publish amounted to libel. Libel is and also to assuage him the defamatory email by dint of actionable per se i.e the for his hurt feelings. copying people who need not to have been copied in the email.
The original Jurisdiction of the High Court Vis-À-Vis the Water Appeals Board Kirigiti Thathi-ini Mugumo Water Co. Ltd v. Kiambu Water and Sewerage Company Limited Civil case No. 500 of 2012 High Court of Kenya at Nairobi G V Odunga, J. January 18, 2013 Reported by Njeri Githanga & Victor Andande
Issues: guidance to a subordinate the disputes mentioned therein 1. Whether the jurisdiction court. -whether the original jurisdiction vested in the High Court 4. Whether a preliminary of the high court can be limited - under the Constitution objection can be raised Constitution of Kenya 2010, Article can be limited. in regard to exercise of 165- Water Act, Section 85 2. Whether section 85 of judicial discretion. the Water Act excludes Section 85 of the Water jurisdiction of the High Constitutional law-jurisdiction– Act provides as follows: Court from hearing the limitation of jurisdiction-where (1) An appeal shall lie disputes mentioned disputes under the Water Act to the Water Appeals therein. are vested in the water appeals Board at the suit of any 3. Whether the Chairman board- whether section 85 of the person having a right or of a board such as Water Water Act excludes jurisdiction proprietary interest which Appeals Board can issue of the High Court from hearing is directly affected by
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a decision or order of sectors within their scope. transferred to the Water the Authority, the Minister Thus, though the high Appeals Board within 30 or the Regulatory Board court has jurisdiction to days from the date when concerning a permit or entertain such matters, it the gazette notice was licence under this Act, may restrain from doing so issued acted ultra vires as and the Board shall hear until the body vested with he had no jurisdiction to and determine any such such powers has been direct the High Court on appeal. moved. how to deal with a matter pending before it. (2) In addition, the 4) Alternative dispute resolu- 7) Statutory provisions Board shall have such tion processes are com- tending to oust the jurisdiction to hear and plementary to the judicial jurisdiction of the Court determine disputes, and process and by virtue of should be construed shall have such other Article 159(2) (c) of the strictly and narrowly. powers and functions, Constitution of Kenya, A provision ousting the as may be conferred or 2010, the Court is obli- ordinary jurisdiction of the imposed on it by or under gated to promote these Court must be construed this or any other Act. modes of alternative dis- strictly meaning that, pute resolution and that if such a provision is Held: it is not inconsistent with reasonably capable of 1) The High Court no longer Articles 22 and 23 to insist having two meanings, has original and unlimited that statutory processes that meaning shall be jurisdiction in all matters as be followed particularly taken which preserves the it used to have under the where such processes are ordinary jurisdiction of the old Constitution. for the specific purpose of Court. 2) The jurisdiction of the realising, promoting and 8) The Chairman of the High Court can only be protecting certain rights. Water Appeals Board in limited as provided by 5) Despite Section 85 of purporting to supervise or on authority of the the Water Act providing the Magistrate’s Courts Constitution itself. Any for a dispute resolution was acting ultra vires. Un- provision purporting mechanism in regard der Article 165(6) of the to limit the jurisdiction to disputes mentioned Constitution only the High of the high court must therein, to read into that Court that has the super- derive its validity from provision the exclusion of visory jurisdiction over the the constitution. This must the jurisdiction of the High subordinate courts and be expressly and not by Court to entertain such over any person, body implication unless the disputes would amount to or authority exercising a implication is necessary the abdication by the High judicial or quasi-judicial for the carrying into effect Court of its Constitutional function, other than a the provisions of the Act. mandate. superior court. 3) Parliament has powers to 6) The Chairman of Water 9) To restrict the extent to legislate on the manner Appeals Board by issuing which the High Court in which certain disputes a Gazette Notice stating ought to entertain dis- may be determined that all disputes under the putes which ought to be as a way of promoting Water Act, 2002 be filed dealt with by the Water specialization by such in and determined by Appeals Board, without bodies. This is because the Water Appeals Board any legislative provision certain bodies are better and that disputes already that mandatorily requires placed to arbitrate filed in the High Court and that the said disputes be between parties in given Magistrates’ Courts be referred to the said Tribu-
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nal it is an exercise of dis- dispute in question. objection seeking exercise cretion on the part of the of judicial discretion can- 10) A preliminary objection Court based on the facts not be sustained. cannot be raised if any and circumstances such fact has to be ascertained Preliminary objection dis- as the nature of the orders or if what is sought is the missed sought and whether the exercise of judicial discre- Water Appeals Board has tion.Thus, a preliminary the powers to resolve the
Members of the National Assembly to pay tax on all income Rev Dr Timothy Njoya & 17 Others v Attorney General & 218 others Petition No 137 of 2011 High Court at Nairobi M Warsame, J. January 17, 2013 Reported by Andrew Halonyere &Cynthia Liavule
Issues: 5. Whether the executive arm Articles 40,27,201,Sixth Schedule 1. What happens when there of Government has powers section 10, National Assembly is a direct and clear conflict to exempt any state officer and Remuneration Act section 5 between the transitional from payment of tax. (Cap 5). and consequential provisions, and the 6. Whether the High Court Constitution of Kenya, 2010:- substantive provisions of has jurisdiction to assess Article 210(1) -There shall the Constitution? the amount of tax that is be no imposition, waiver or payable by anyone. variation of tax or licensing 2. Whether the National fee except by legislation Assembly as it has been saved under Section 10 of Constitutional Law – public finance - taxation - taxation of income – Article 210(3) – No law the Sixth Schedule to the may exclude or authorize Constitution of Kenya, 2010 where the Constitution makes provision that no class of state exclusion of a state officer implies that its members from payment of tax would be exempted from officers would be exempt from paying taxes - whether members paying taxes on their Article 262 -Gives effect allowances. of parliament were under an obligation to pay taxes – whether to the Transitional and 3. Whether there is a legitimate the executive arm of Goverment Consequential provisions expectation by virtue of the could exempt the members of set out in the Sixth Schedule existence of the National parliament from paying taxes to the Constitution. The Assembly Remuneration – whether the High Court had Article also preserves Act (Cap 5) and section 6 jurisdiction to determine the certain rights of Members of the Sixth Schedule to the amount of taxes that any person of the National Assembly Constitution. could pay. as presently constituted Statutes - interpretation of statutes until the expiry of their 4. Whether the taxation of – interpretation of constitutional term allowances of members of provisions – Constitution to be parliament would amount read as an integrated whole – Article 230 - Review of to a violation of their right where there is a conflict between salaries of State Officers to to property as envisaged substantive provisions and be the exclusive duty of the under Article 40 of the transitional clauses – whether the Salaries and Remuneration Constitution of Kenya 2010. substantive clauses should prevail Commission – Constitution of Kenya, 2010
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National Assembly Remuneration 3. The National Assembly of the National Assembly Act section 5 (Cap 5) – provides Remuneration Act have a right not to pay that All allowances payable would continue to be taxes on their allowances, under the Act shall be exempt in force with regard to exemption from taxation from income tax notwithstanding the remuneration of the is a privilege, and not a the provisions of any other written members of the National right. law relating to income tax. Assembly. That legislation was enacted before 6. There was no legitimate Held: the promulgation of the expectation that Constitution of Kenya 2010. Members of the National 1. The transitional provisions The Act however, had to Assembly would have contained in the Sixth by virtue of section 7 of been exempted from Schedule to the the Sixth Schedule to the payment of taxes. Constitution of Kenya, Constitution, be brought 2010 are intended to assist into conformity with the in the transition into the Constitution. As a result, 7. The right to property new order, but are limited any legislation made by under the Constitution in time and in operation parliament or agreement encompasses the right and are to remain in force that was made in violation to acquire and own for the period provided of the provisions of the any property, such as in order to achieve the Constitution was void. land, goods, intellectual aspirations of Kenyans property, money or in moving into the new 4. Nothing in the negotiable instruments. order. These transitional substantive provisions The right to property provisions are as much a of the Constitution, nor does not encompass the part of the Constitution in the Transitional and right to be paid tax-free and as much an expression Consequential provisions allowances for members of the sovereign will of the in the Sixth Schedule of the National Assembly people as the main body suggested that any class or for any sector of the of the Constitution. of state officers would society. have been exempted from paying taxes on any 2. The Constitution must be 8. Article 210 has no exclusion part of their income. Had read as an integrated or exemption in matters of the intention been to whole, and that where taxation. Deviations were exempt any state officers there is a conflict between subject to judicial scrutiny. from the obligation of substantive provision and Any deviations must not payment of tax, then transitional provisions, then be such as to deprive that would have been the substantive provisions citizens of fair, transparent expressly stated. of the Constitution would and effective tax regimes prevail. The role of the which are applicable to transitional clauses in the 5. Article 210 of the all in equal measure Constitution is to ensure a Constitution provides that smooth shift from the old where it is envisaged that 9. Taxation is a civil duty, and to the new order, while the there will be a waiver or under the Constitution, all role of the Constitution is to exemption from taxation, State Officers are under address and correct past then it must be legislated an obligation to pay tax. injustices, and ensures and must also be reported Due to the supremacy of that the citizens’ rights are to the Auditor General. the Constitution, and the protected in the future. Therefore it is not possible fact that the Constitution to claim that Members
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binds all persons, as well Remuneration Commission did, it was an act done in as the state, there can be was established. The court violation or contravention no agreement that can therefore did not have the of the clear provisions exempt any State Officer jurisdiction to determine of the Constitution, from the payment of tax. the amount of taxes that notwithstanding the any person could pay. consequences of The court was also not in the contravention. 10. By virtue of section 3 (2) a position to determine Equally, parliament or of the Sixth Schedule the manner in which the parliamentarians were to the Constitution, the National Assembly should not entitled to accept an members of the National allocate public money. unlawful advancement of Assembly were entitled to monies belonging to the set their own terms and citizens of Kenya. benefits. That entitlement 11. The executive could was however extinguished not donate an illegal or Petition allowed. once the Salaries and unlawful benefit and if it Disposal of attached property illegal New Nyanza Wholesalers v Muhammed Rizaka & Ahmed Mohammed Ali [2013] eKLR Civil Suit No. 7 of 2012 High Court of Kenya at Bungoma F. Gikonyo, J. January 15, 2013 Reported by Dorcas Onam Mac’Andere & Nelson K. Tunoi
Issues: Held: 3. Where there is a decree 1. Whether 1. A property that has been against the judgment-debtor, property under proclaimed and seized in the law frowns upon any proclamation in execution of a decree, in sale or transfer of property the execution of law, is the property of the by the judgment-debtor in a decree can be law. As long as it remains circumstances which tend disposed of to a entangled in attachment, to be a conspiracy to defeat third party by the it is not available for sale by the course of justice, to wit, judgment-debtor. the judgment-debtor or any prevent the judgment-holder other person except by the from enforcing the decree of 2. Whether process of sale under the Civil the court. registration by Procedure Act and Rules, and 4. Registrar of the Auctioneers Act. Such The law has designed motor vehicles property under attachment, various safe mechanisms, warrants absolute only becomes available to such as Mareva Injunctions, ownership? the judgment-debtor either; Preservation Orders, Conservatory Orders, Restraint Civil Practice and Procedure-sale a) by an order of the Orders, Seizure Orders, of property under attachment court on application or Production Orders, Anton by judgment debtor-sale and by consent of parties; or Piller Orders etc, in order to transfer of property in order to b) upon payment of prevent unlawful actions by defeat execution of decree- the decretal sum by the the judgment debtor which Civil Procedure Act, and Rules; judgment-debtor. would dissipate property in Auctioneers Act 2. Any such sale of the subject order to deny the judgment- Ownership of motor vehicle- motor vehicle was invalid, holder the right to full benefit presumption of ownership-when and did not pass any title of the law. presumption is rebuttable-Traffic whatsoever. Act 5. Without making any judicial
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pronouncement, although anti-money laundering and is prima facie proof of there is no statutory restriction, anti-corruption measures as ownership. That means the payment in cash of an amount a way of fighting crime and entry in the register is not as huge as Kshs. 3, 000, 000 ensuring security in business indefeasible, rather, it is a without involving a financial sectors through proper rebuttable presumption on institution may be captured management of legitimate such factors as conspiracy, in the radar for suspicious financial transactions. fraud or nullity. transactions especially in 6. today’s world where countries According to the Traffic Act, Objection proceedings have had to put in place registration in the register of disallowed. ownership of motor vehicle
Whether the Industrial Court has Jurisdiction in Employment and Labour Relations Matters where members of the disciplined forces are involved Samson Onyango Ngonga v Public Service Commission & 5 Others [2013] eKLR Petition No. 459 of 2011 In the High Court of Kenya at Nairobi I. Lenaola, J. January 11, 2013 Reported by Nelson K. Tunoi & Mercy Ombima
Issue: Compensation Act, 2007 section 3 — 1. Whether the Industrial (a) In the armed Court has jurisdiction Employment Act of 2007 forces, or in any reserve in employment and Section 3 (2) This Act shall force thereof; labour relations matters not apply to― (b) In the Kenya where members of the (a) The armed forces or Police, the Disciplined Forces are the reserve as respectively Administrative involved. defined in the Armed Forces Police Force, the Act; Kenya Prisons 2. Whether the Labour (b) The Kenya Police, the Service and the Relations Statutes apply Kenya Prisons Service or the National Youth to members of the Administration Police Force; Service, or in any Disciplined Forces. (c) The National Youth reserve force or Labour law-jurisdiction-whether Service. service thereof. the High Court had jurisdiction to hear and determine disputes Labour Institutions Act Work Injuries Compensation Act arising from an employment Section 4(1) This Act shall of 2007 context-where the labour relations not apply to― Section 3- This Act shall statutes exclusively limited its (a) The armed forces or apply to all employees, applicability to members of the reserve as respectively including employees the Police and Armed Forces- defined in the Armed Forces employed by the whether the Industrial Court had Act; Government, other than jurisdiction to hear and determine (c) The National Youth the armed forces, in the disputes involving members of Service same way and to the the Police Force and the Armed same extent as if the Forces in an employment context- Labour Relations Act, No. 14 of Government were a Employment Act, 2007 section 2007 private employer. 3 (2); Labour Institutions Act 3. This Act shall not apply section 4 (1); Labour Relations to any person in respect of Held: Act, 2007 section 4; Work Injuries his employment or service 1. The Industrial Court has
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jurisdiction to hear and employment context. for by Article 41 of the determine both disputes 2. The issue on the Constitution and further relating to employment unconstitutionality of the jurisdiction to interpret and labour relations the Labour Relations the Constitution especially including those involving statutes was an issue for over matters within its members of the Kenya the Industrial court to exclusive domain. Police Force and the interpret and determine. Case ordered to be transferred to Defence Forces in The Industrial Court has the Industrial Court. instances where such jurisdiction to enforce disputes arise in an labour rights as provided
Migration of Television Signal Transmission from Analogue to Digital unreasonable and expensive to consumers Consumer Federation of Kenya (COFEK) Suing through Stephen Mutoro & 2 others v Minister For Information & Communications & 2 Others [2013] e KLR Petition No. 563 of 2012 High Court at Nairobi Constitutional and Human Rights Division I. Lenaola, J. January 11, 2013 Reported by Nelson K. Tunoi & Mercy Ombima
Issues: contrary to the set global deadline importance and created 1. Whether the analogue of 2015-whether the planned awareness of digital television signal switch off was inappropriate, immigration. Further, it was transmission should unreasonable and expensive not sufficient to allege that have been switched to consumers-whether the they had cushioned the off to digital television conservatory orders sought met customers by subsidizing transmission in line with the requisite conditions-whether the costs of the set-top the 31st December 2012 the petition had merit-Constitution boxes to affordable regional deadline? of Kenya, 2010 Articles 10, 159 (2) amounts in order to make (c) them accessible to a 2. Whether the digital common Kenyan. Hence, switch contravenes the Held: the consumers who had freedom of information 1. The petitioners had not acquired the set- and public participation established that the top boxes to receive the in policy formulation citizens would be digital transmission would and implementation prejudiced by the digital be heavily prejudiced processes? migration and they would by the migration, which Constitutional Law-fundamental suffer irreparable injury harm cold not reasonably rights and freedoms-right to which would never be be compensated in information-petitioners seeking adequately compensated damages. conservatory orders preventing in damages. 3. Even though the the respondents from switching 2. The citizens’ freedom respondents had proven off analogue television signals of information would the extensive measures pending the hearing and be limited by the they had undertaken to determination of the petition- digital migration. It was create public awareness not enough for the for the digital migration where the 1st respondent had respondents to contend since 2006, the timing of threatened to switch off analogue that they had fully the switch off was not television signal transmission sensitized the public on the proper. The country was
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at a crucial electioneering available at an estimated digital migration is in the period and accordingly cost of between Kshs. year 2015 hence there the consumers had the 2,500/= to Kshs. 5,000/=, was no legal, economic right to benefit from the which amounts were way and moral basis to impose information available in above the reach of many on the Kenyan consumers the broadcast media ordinary Kenyans. Such an earlier deadline. The as well as information citizens would be heavily global deadline switch available in other media prejudiced if they would off of 2015 can be easily forums to enable them be without access to the negotiated between the make informed decisions. television in the election parties. 4. The citizens were not year. prepared for such 5. There was no hurry for Application allowed. migration because the the migration. The global required set-tops were deadline switch off for
Circumstances when parental responsibilities to a person extends beyond 18 years John Mbatia Kibebo &another V Eliud Kibebo Mbatia [2012] eKLR Civil Cause No. 169 of 2008 High Court of Kenya at Nakuru R.P.V. Wendoh, J. January 9, 2013 Reported by Mercy Ombima & Cornelius Lupao
Issues: of Law education- the Kenya with the leave of the court, 1. Can parental responsibility School of Law education is not apply to the court for a extent to a person above further education after the Law maintenance order to be the age 18 years? degree but is an integral part made in his favour in the of legal education in Kenya. To following circumstances - 2. What amounts to further qualify as an advocate of the (i) The person is education? High Court of Kenya, one must go or will be involved in Children - extension of parental through the Kenya School of Law. education and training responsibility- Application for The Children’s Act Section 91(i) which will extend beyond court order to extend parental (b) and (iv):- the person’s eighteenth responsibility in respect of a law “Any parent, guardian birthday; or student aged 25years - special or custodian, of the (iv) [Other] special circumstances under which a child, may apply to the circumstances exist which person can make an application court to determine any would warrant the making to the court for maintenance of matter relating to the of the order. a child- applicant seeking court maintenance of the child Held: 1. orders to compel her parents to and to make an order The law on extension of pay fees for her post-graduate that a specified person parental responsibility diploma in law at the Kenya make such periodical or to an adult is clear. School of Law- whether such lump sum payment for the There have to exist a suit could be entertained - maintenance of a child, special circumstances Children’s Act No. 8 of2001 and in this Act referred to as a in accordance with the the Children’s (Practice and “maintenance order,” as Children’s Act which Procedure), Parental Responsibility the court may see fit; provides exceptional Regulations 2002, section 91(i)(b) Provided that - circumstances when a and (iv) (b) A person who has person who is not a child Words and phrases- Kenya School attained the age of can apply to the court eighteen years may, for a maintenance order.
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The court has to consider one to work and pay fees that required extension of whether the Applicant for themselves. parental responsibility. has a genuine need that 3. 4. cannot be met in any The School of Law Kenya School of Law other way except through programme under education is not further the order sought. which the applicant had education after the Law enrolled ran for one year. degree but is an integral 2. The father’s arguments The fees required was part of legal education that the applicant, a girl Kshs.190, 000= plus other in Kenya. To qualify as of 25 years should seek subsistence costs. The an advocate of the High other options in order to Applicant being such a Court of Kenya, one must pay fees for herself were bright student was likely to go through the Kenya absurd. The applicant’s complete the programme School of Law. conditions in Kenya could within the specified period. not be compared to All relevant considerations The court directed the Respondent the Respondent’s other put on the balance, to continue to pay the applicant’s children studying in U.S.A. the Applicant had fees at the School of Law and her because, in the U.S.A., established that special subsistence requirements related there are opportunities for circumstances existed to the school till completion of the School of Law programme.
Mandate to vet eligibility of candidates vested in IEBC Michael Wachira Nderitu & 3 others v. Mary Wambui Munene & 4 others [2013] eKLR Petition No. 549 of 2012 High Court at Nairobi Constitutional and Human Rights Division D. S. Majanja, J. January 4, 2013 Reported by Nelson K. Tunoi
Issue: various reports injuring her moral met the constitutional and 1. Whether the High Court had standing-whether the court could statutory provisions entitling them the mandate to consider determine whether an individual to be registered as candidates whether candidates met who had expressed interest in nominated to contest the election- the constitutional and vying for a political office met where the matter before court statutory provisions entitling the stipulated standards under was subject to constitutional and them to be registered as Chapter Six of the Constitution- legislative procedures-whether the candidates nominated to validity of the application- application was valid contest an election? Constitution of Kenya, 2010 Articles 10, 27, 35, 38, 47, 73, 75, 88, 99, Article 88 (4) (e) of the Constitution:- Constitutional Law-petition- 156, 157 & 165; Leadership and 88(4)“The Commission is petitioners seeking, inter alia, Integrity Act responsible for conducting declaration that the 1st respondent or supervising referenda did not meet the integrity test Civil Practice and Procedure- and elections to any stipulated under Chapter Six of preliminary objection-jurisdiction- elective body or office the Constitution (Leadership & application contending that the established by this Integrity) in her quest to contest High Court lacked jurisdiction to Constitution, and any other for a Parliamentary seat-where entertain the petition-grounds that elections as prescribed by the petitioners alleged that the 1st the petition was premature and an an Act of Parliament and, respondent did not have proper abuse of court process-whether in particular, for- academic credentials and that she the court had the mandate to (e) the settlement had been adversely mentioned in consider whether candidates of electoral
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disputes, including matter for determination to act or acted contrary disputes relating by the High Court in terms to the Constitution and to or arising from of Article 88(4(e) of the the law. nominations Constitution. It is a matter to 6. The office of the DPP is but excluding be determined according subject to the Constitution election petitions to the procedures and and the Bill of Rights and disputes mechanisms provided contained therein and in subsequent to by law applicable to the every case, the High Court the declaration of entire electoral process. as the custodian of the election results.” 4. Chapter Six of the Bill of Rights is entitled to Constitution on “Leadership intervene where the facts Held: and Integrity” captures disclose a violation of the 1. The qualifications the desire of Kenyans to rights and fundamental under Article 99 of the instil values of integrity freedoms guaranteed Constitution for a person and leadership in those under the Constitution. to be nominated and who are entrusted with Apart from the general elected are not self- the responsibility of state allegations made against enforcing but are given and public offices. The the 1st respondent, effect by the Independent provisions under Chapter the petition did not Electoral and Boundaries Six have been given effect demonstrate any breach Commission (IEBC) by the Leadership and of the Constitution or of the through the provisions Integrity Act, 2012 which petitioners’ fundamental of the Independent provides for procedures rights. Electoral and Boundaries and mechanisms for 7. Kenya is not a mandatory Commission Act, 2011 and enforcement. The prosecution State since the the Elections Act, 2011 petitioner has not invoked office of the DPP is vested which give effected to any of the procedures or with the discretion to the various provisions of mechanisms prescribed investigate and prosecute the Constitution governing under the Leadership and criminal offences. Nothing the electoral process as Integrity Act, and there was placed before a whole, the right to vote was no evidence that court to show that the and the right to contest any complaint had been powers of the DPP had elections. lodged relating to the 1st been abused or exercised 2. The IEBC has the mandate respondent, assuming that unconstitutionally. to consider whether the Act was applicable 8. The petition was premature candidates meet the to her. and no justiciable case constitutional and statutory 5. Although reference was had been presented for provisions entitling them made by the petitioners to determination. The 1st to be registered as various reports containing respondent had merely candidates nominated to allegations and adverse expressed an intention contest the election. The comments made against to contest for the office provisions of Article 88(4)(e) the 1st respondent, the of Member of Parliament of the Constitution would petition did not disclose and there was no dispute apply if there is any dispute anything to show that presented to the court arising as to a candidate’s any complaint had for determination hence suitability. been lodged against 1st there was no question 3. The issue of whether one is respondent, and that the for Court to determine qualified as a candidate Attorney General and under Article 165 of the to contest or vie for a the Director of Public Constitution. Parliamentary seat is not a Prosecutions had refused Petition dismissed.
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Whether a Notice of Appeal may be filed before leave to appeal against a decision is granted Euro Bank Limited (in liquidation) v Shah Munge & Partners Ltd Civil Case No. 232 of 2006 The High Court at Nairobi (Milimani Commercial & Admiralty Division) J. B. Havelock J. December 20, 2012 Reported by B. A. Ikamari
Issue: the Civil Procedure Rules 3. The proposed appeal 1. Whether a litigant seeking 2010. would raise fundamental to appeal against an issues in relation to the 2. order for which the leave No application for leave court’s powers to dismiss a of court is required should was made at the time suit for want of prosecution first seek such leave then when the court made for a step not taken, not lodge its appeal. an Order earlier on, only in a case where a Held: on February 17, 2012. hearing date was fixed 1. Order 43(2) of the Civil However, the application less than a year prior to Procedure Rules 2010 for leave was made on the dismissal as envisaged provided that an appeal February 29, 2012 within under Order 17 Rule 2 would lie with leave of 14 days of the date of but also generally. The the Court from any other the court’s Order and appeal would also be order made under the within the time prescribed useful in defining the role rules. The Rule would by Order 43(3). Hence of the court in driving the cover an Order made by the Defendant’s Grounds litigation process. the Court under Notice to of Opposition had no Show Cause why the suit bearing on this matter. Application allowed, leave to should not be dismissed appeal against the Court’s Order under Order 17 Rule 2 of of February 17, 2012 granted
Whether a litigant can be permitted to challenge the decision of a High Court Judge by filing a separate petition to challenge the judgment Andrew Okiya Omtatah Okoiti and 3 Others v. Attorney General & another Petition No. 351 Of 2012 High Court of Kenya at Nairobi D.S. Majanja J. December 14, 2012 Reported by Njeri Githang’a Kamau
Issues: would be to set aside the appointing County Commissioners judgment? in civil proceeding-whether a 1. Whether a litigant can be litigant can be permitted to permitted to challenge Constitutional Law -interpretation of presidential immunity- petition challenge the decision of a the decision of the High High Court Judge by filing a Court by filing a separate based on the ground that the President had the power to separate petition to challenge petition to challenge the the judgment- whether the court judgment? appoint County Commissioners and the President could not be could allow the petition the result 2. Whether the High Court challenged by way of a suit-where of which would be to set aside could allow such a there had been a judgment the judgment- Constitution of petition, the result of which impugning the President’s act of Kenya,2010 Article 165
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Arguments by the petitioners Constitution, the wide but it does not exist in President could only be a vacuum to be exercised · The petitioners contended held accountable by when a party requests the that by dint of section 3(2) Parliament for the manner Court to answer a “question.” of the Sixth Schedule to in which he exercises his The “question” contemplated the Constitution, sections powers and functions in Article 165 must arise from 23 and 24 of the former under the Constitution or a real controversy or case. Constitution remained in any other law. In legal Indeed the right granted to force until the first general terms under section 59(3) parties either to challenge any election under the of the former Constitution of by any person, office, organ Constitution was held. In where the President was or authority contemplates a the premises the petitioners alleged to have violated real controversy or case. aver that the judgment the law, the National is unconstitutional to the 3. The substance of the High Assembly could pass a Court’s determination was the extent that it purported resolution declaring that it to declare that sections President’s power and whether had no confidence in the the President is subject to 23 and 24 of the former Government of Kenya. Constitution were not in the law. If the inquiry in the force. Held: present petition proceeded and succeeds, the Court · The President having made 1. The issues in controversy could would have to examine and Gazette Notice No. 6604 of not be unmoored from the analyse the judgment and 11th May 2012 and Gazette facts of the case as pleaded. categorically state that the Notice No. 6937 of 23rd The petitioners’ case was High Court was wrong. This May 2012 in exercise of pleaded on the basis of the was not permitted as it was his powers under sections exercise of power by the a collateral attack on a valid 23 and 24 of the former President to appoint County judgment of a competent Constitution, the two cases Commissioners, absent of that Court. aforementioned were null basic fact; the other issues 4. A litigant will not be permitted and void ab initio and no raised became academic person could challenge to challenge the decision of issues which would require a High Court Judge by filing a the legality of the said the Court to enter upon a legal notices until the separate petition to challenge dissertation on the President’s the judgment. expiry of the President’s power. term of office. 2. The jurisdiction of the High Petition dismissed. · Under the former Court under Article 165 is
Whether an advocate can re-summon witnesses on behalf of an accused Person? Anthony Musee Matinge v Republic Criminal Appeal No 25 of 2010 High Court at Machakos G. Dulu, J. December 13, 2012 Reported by Andrew Halonyere
Issue: section 200 (3) of the Criminal accused person of the said right Procedure Code (Cap 75). – whether an advocate can 1. Whether an advocate can demand to re summon witnesses demand to re summon Criminal Practice and Procedure -right to re summon witnesses – on behalf of the accused. witnesses on behalf of an Criminal Practice and Procedure accused person pursuant to duty of the court to inform an
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-right to be arraigned in court Held: he elected not to recall within twenty four hours for non- witnesses. His advocate capital offences – remedy for 1. Section 200 (3) of Criminal could not respond for him. violation of such right - Criminal Procedure Code is couched The response had to be that Procedure Code (Cap 75) section in mandatory terms. It is the of the accused. The omission 200 (3) accused person, and not by the trial court was therefore the advocate who must fatal to the proceedings. Criminal Procedure Code (Cap be informed by the court 75), section 200 (3):- of the right to re summon 3. The remedy for failure to “Where a succeeding magistrate witnesses. He is also the person arraign an accused person in commences the hearing of to state whether or not the court in non-capital offence proceedings and part of the case should proceed without within twenty four hours is a evidence has been recorded recalling witnesses; it is not claim for damages. It does by his predecessor, the accused his advocate to do so on his not result in an acquittal in a person may demand that any behalf. criminal case. witness be summoned and 2. There was no record that the Appeal allowed, conviction reheard and the succeeding appellant was informed of quashed, sentence set aside and magistrate shall inform the his right to recall witnesses, a retrial ordered. accused person of that right.” nor was there a record that
Extent of Power of Attorney in Joint Ownership of Land Isabel Chelangat V Samuel Tiro Rotich & 5 others [2012] eKLR E & L No. 915 of 2012 Environment & Land Court of Kenya at Eldoret M. Sila, J. December 11, 2012 Reported by Cornelius Lupao & Mercy Ombima
Issues: party-whether entry of the third jointly; or 1. Whether a holder of Power party to the land jointly owned (c) [Each] joint of Attorney of one joint would be construed to be trespass tenant may owner can be regarded to the land- Land Registration Act transfer their as trespasser in respect to of 2012 section 4. interest inter vivos the other joint owner. to all the other 2. Whether the right Land Registration Act No. 3 of 2012 tenants but to of possession and no other person, occupation of land can Section 4- If land is and any attempt be transferred to a donee occupied jointly, no to so transfer an of a Power of Attorney tenant is entitled to any interest to any without consent of other separate share in the land other person shall joint owner; and, consequently— be void. Land Law-power of attorney- scope of Power of Attorney in (a) [Dispositions] Held: joint ownership of land-whether may be made only by all 1. The holder of a Power a donee to a power of attorney the joint tenants; of Attorney may be a entering land on the basis of (b) [On] the death trespasser in relation to power of attorney can be said to of a joint tenant, the other joint tenant. This have trespassed on the said land- that tenant’s flows from the nature of where a husband jointly owning interest shall vest the joint tenancy because property with his wife donated in the surviving the joint tenants are in the power of attorney to a third tenant or tenants law regarded to be one.
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The introduction of the a Power of Attorney. By an unqualified person holder of the Power of dint of S.91(4)(c) of the representing a litigant. Attorney into the suit land Land Registration Act, a 5. There are public policy may destroy the unity of tenant can only transfer considerations which limit possession which can only his interest inter vivos to the extent to which one be held by the two joint the other joint tenant but can utilize the instrument tenants and not by one to no other person, and of a Power of Attorney. joint tenant and a holder any attempt to so transfer A holder of a general of a power of attorney. an interest to any other Power of Attorney cannot 2. One joint tenant cannot person shall be void. wave a general or special transfer to a holder of a 4. Although the purpose Power of Attorney at the Power of Attorney the of donating a Power of spouse of the donor, assert right of possession and Attorney is to allow a 3rd that by virtue of the power occupation of a jointly party to perform what the of attorney he now stands held property without the donor would otherwise in the shoes of the donor, permission of the other do, and that the donee is and claim conjugal rights. joint tenant. legally in the shoes of the In the same vein, the 3. It is not in the contemplation donor, this position does position of joint tenants of the law of joint tenancy not apply to all situations. is so intimate as not to be that one joint owner can For example one cannot disturbed by a 3rd party impose and thrust on engage a power of claiming under a power the other joint tenant a attorney to represent him of attorney. stranger with full rights of in a suit as this would be Application allowed. occupation by virtue of tantamount to having
Whether a defendant against whom no claim is made in the plaint can be a necessary party to a suit Jan Bolden Nielsen v Herman Philipus Steyn (a.k.a. Hermannus Philipus Steyn), Hedda Steyn & Nguruman Limited Civil Case No. 332 of 2010 The High Court at Nairobi (Commercial & Admiralty Division) A. Mabeya J. December 10, 2012 Reported by B. A. Ikamari
Issues: of court process; Section 7 operates only in 1. Whether an 3. Whether a defendant instances where a matter unconditional against whom no has been litigated upon withdrawal of a claim is made in and a decision made. previous application the plaint can be a In the present case, the can estop the a necessary party to a application was withdrawn defendant from suit before it was heard. This did bringing a subsequent 4. Who is a necessary not bar the a defendant in application of the party to a suit? this matter from bringing same nature; the said application again 2. Whether lodging Held: for consideration by the of an application 1. Section 7 of the Civil court. Neither issue estoppel similar to a previous Procedure Act prohibits the nor res judicata does arise. application which court from trying any issue Additionally, the application was unconditionally which has been substantially could not be said to be an withdrawn is an abuse in issue in a former suit. abuse of process of court.
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2. Pursuant to Rule 10(2) the Court. If a ‘necessary 5. One can summarize a cause of Order 1 of the Civil party’ is not impleaded, the of action to mean an act on Procedure Rules 2010 , the suit may be a non-starter the part of the defendant court has the discretion to as the relief(s) sought, if which gives the plaintiff his strike out any party who is granted, may be ineffective; cause of complaint. improperly joined in any 4. This particular suit could 6. The power of striking out a proceeding. In the exercise not be effectively resolved pleading or even a party of this discretion the court in the absence of the 3rd is one that a court should will of course act according defendant. The Court could exercise sparingly and to reason and fair play and only make a complete cautiously, as the same not according to whims and and final decision on the is exercised without the caprice; questions involved in this court being fully informed 3. A ‘necessary party’ is a action in the presence of on the merits of the case person who ought to have the 3rd defendant. The 3rd through discovery and oral been joined as a party defendant was a necessary evidence. and in whose absence no party in the suit, and effective decree can be such joinder was indeed Application dismissed. passed in a proceeding by warranted.
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Right to bond or bail not absolute Republic v Joktan Mayende & 4 Others Criminal Case No. 55 of 2009 High Court of Kenya at Bungoma F. Gikonyo. J December 6, 2012 Reported by Dorcas Onam Mac’Andere
Issues: on bond is not absolute. not therefore be denied on It has been limited by the flimsy grounds but on real and Constitution itself in two cogent grounds that meet 1. Whether the right to be released respects. One, the release on the high standard set in the on bond or bail under Article bond or bail is on conditions, Constitution. 49(1) (h) of the Constitution is albeit reasonable. Second, absolute. 4. The high standard under Article the accused will not be 49(1) (h) of the Constitution 2. Whether under Article 49(1) (h) released on bond or bail is more in accord with the of the Constitution, interfering where there are compelling stringent constitutional with witnesses is a compelling reasons. The court however requirements in Article 24 of reason to deny the accused should determine the the Constitution on Limitation bail and therefore reasonable conditions of bond or bail or of rights and fundamental and justifiable limitation of if the reasons adduced are freedoms; and requires the the right to liberty in an open compelling reasons to deny prosecution to prove that it is democratic society. the accused bond or bail in proportionate and justified in the sense of Article 49(1) (h) the circumstances of the case of the Constitution of Kenya, Constitutional Law - right to to deny the accused bail. 2010. be released on bond or bail - 5. Under Article 49(1) (h) of the Constitutional limitation of right 2. In a constitutional transition Constitution, interference with to bail - Article 49(1) (h) of the where the law is still settling, witnesses as a compelling Constitution of Kenya, 2010 courts are continually reason does not necessarily engaged in interpretation require strict medical proof of Words and Phrases - the meaning sessions aimed at defining assault since the court is not of the term ‘compelling reasons’- the scope of the jural words, determining a criminal charge duty of court to define jural words, terms and phrases used in of assault as in a criminal trial. terms and phrases used in the the Constitution; which is 6. Evidence that the accused Constitution – Constitution of an exercise that the courts accosted a witness in the Kenya, 2010 Article 49 (1) (h). should strive to do with wise circumspection in order that case where the accused Article 49(1) (h) of Constitution of the meaning and scope is facing charges, whether Kenya 2010:- assigned to those words, terms physically or otherwise, suffices to prove that the An arrested person has the right- and phrases give effect to the objects, purposes and values accused did act(s) tending (h) to be released on bond or of the Constitution. or intended to interfere with bail, on reasonable conditions, witnesses. The court is then if 3. Under Article 49(1) (h) of pending a charge or trial, unless not bound, to infer that the the Constitution, the phrase there are compelling reasons not intention of the accused in compelling reasons denotes to be released. accosting the witness had reasons that are forceful and been to dissuade the witness Held: convincing as to make the from giving evidence. Threats court feel very strongly that or improper approaches to 1. The constitutional right of the accused should not be witnesses although not visibly the accused to be released released on bond. Bail should
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manifest, as long as they justice. accused, witnesses or other are aimed at influencing or 7. Interference with witnesses persons. Interference with compromising or terrifying may occur immediately on witnesses aimed at impeding a witness either not to give commission of the offence, or perverting the course of evidence, or to give schewed during investigations, at justice, is a justifiable reason evidence, amounts to inception of the criminal to limit the right to liberty of interference with witnesses charge in court or during the the accused. and is an impediment to or trial; and can be committed perversion of the course of The fourth accused person denied by any person including the bail.
Court exempts the issuance of undertakings in damages in seeking enforcement of Environmental Rights. Fadhila S. Ali & 2 Others V National Housing Corporation & another [2012] e KLR Environmental Case No. 5 of 2012 High Court of Kenya at Mombasa E .M Muriithi, J December 4, 2012 Reported by Mercy Ombima & Cornelius Lupao
Issue: Constitutional Law- environmental as to an inquiry as to 1. Whether a suit to enforce rights - right to clean and damages, the duration of Environmental Rights healthy environment – land use the injunction, keeping an would place the plaintiff, - construction by a landlord in account, giving security a private citizen, in the too close proximity to the houses or otherwise, as the court same position as the resided by tenants-application may deem fit. Attorney General such by tenants for an injunction that the Plaintiff would restraining the construction on The 1st Defendant, a private be exempted from giving the ground that the constructions developer, sought for an order undertaking in damages. were a hindrance to the right to that the plaintiff, a private citizen, 2. What constitutes healthy and safe environment-The gives an undertaking in damages undertaking in damages? Environmental Management and as security contemplated under Coordination Act, section 3. Order 40 rule 2 (2) of the Civil Constitutional law-fundamental Civil Practice and Procedure Procedure Rules. This was in rights and freedoms-right to clean – damages - undertaking in respect of an ex parte injunction and healthy environment-petition damages - what constitutes an that sought to stop a construction seeking, inter alia, an order that undertaking in damages - where by the 1st Defendant and which the Plaintiff be compelled to give the undertaking in damages the plaintiffs contended would an undertaking in damages in was required to be given in a affect their right to a clean and respect of an injunction to stop suit to enforce environmental healthy environment under the the defendant from continuing rights - whether a petitioner Constitution of Kenya 2010 and with constructions which were seeking to enforce environmental the Environmental Management in contravention to the statutory rights should be exempted from and Coordination Act No. 8 of and constitutional principles on the requirement of giving an 1999. protection and conservation of undertaking in damages - Civil the environment-whether the Procedure Rules 2010, order 40 (2). Held plaintiff would be required to give 1. The Plaintiffs had sufficient that undertaking in damages- - The Civil Procedure Rules 2010 private interest to justify whether the petition had merit- Order 40 (2)- The court their seeking to enforce Constitution of Kenya, 2010, may by order grant such the environmental law Articles 42,69 and 70 injunction on such terms provisions and could not
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be prevented from so civil Procedure Rules would offending act by which doing by a condition for unduly hamper the right of time the injury would be provision of undertaking in access to justice in that if completely irreversible damages. Besides section the injunction was refused and irreparable. 3 of the Environmental because the Plaintiffs 3. An undertaking given in Management and could not undertake in conditional injunctions Coordination Act gives a damages they would be under common law is right to any person who compelled to undergo such that a Plaintiff would alleges contravention what might have turned secure an injunction of the right to healthy out to be an unclean and only if he/she gave environment in relation to unhealthy environment an undertaking to the him whilst Articles 42, 69 for the period of trial court that he/she would and 70 of the Constitution before their right could be abide by any order as to of Kenya, 2010 entrench enforced by a final order. damages that the court the right to a clean and Such a scenario would might make. This would healthy environment and render the constitutional be made in case the the right of access to protection under the court should afterwards court for the enforcement Bill of Rights illusory be of the opinion that the thereof. and of no meaningful Defendant had sustained 2. To require the provision effect: a complainant damage by reason of of undertaking in would be required to court order and which damages or other security suffer a violation until a damage the Plaintiff contemplated under declaration after hearing ought to have paid. Order 40 rule 2 (2) of the of the suit outlaws the Application dismissed.
Appointment, tenure and removal of Judges Albert Lukoru Loduna & 2 others v Judicial Service Commission & 4 others Petition No 480 of 2012 High Court of Kenya Constitutional and Human Rights Division December 3, 2012 Majanja DS J Reported by Phoebe Ida Ayaya
Issues: Civil Practice and Procedure- Held: jurisdiction of court- 1. Whether a High Court has jurisdiction of the High Court 1. High Court has jurisdiction to inquire to hear a matter to inquire jurisdiction to inquire into the appointment, into the appointment, tenure into the process of tenure and removal of and removal of a High Court appointment of a a High Court judge in judge in a suit to remove him Judge of the High a suit to remove him from office Court to satisfy itself from office on the basis Civil Practice and Procedure- of the legality of the of a complaint raised Interests of the state- whether appointment. about the appointment the Attorney General as a procedure. true representative of a state in suit matters
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Subscribing to Oath of Office Africa Centre For International Youth Exchange (ACIYE) and 2 others v The Ethics and Anti-Corruption Commission & Another Petition No 334 of 2012 High Court of Kenya Constitutional and Human Rights Division December 3, 2012 Majanja DS J Ruling Reported by Phoebe Ida Ayaya
Issues: Kenya, 2010; Article 259(3)(b) of substantive holder of the said the Constitution of Kenya, 2010 office. 1. Whether one would be in 2. As a result, she was required breach of the Article 74 of the Employment Law - secondment to to subscribe to the oath of Constitution of Kenya, 2010 by office- legality of the secondment- office in accordance with performing the functions of a whether officers seconded to a Article 74 of the Constitution State Officer without taking commission the Public Service of Kenya , 2010 within the next or subscribing to the oath of Commission are illegally in office – fourteen (14) days from the office. inconsistency with the Constitution date thereof as a condition of Kenya, 2010 2. Whether the 63 officers for her to continue performing seconded to the Ethics and Held: the functions. Anti-Corruption Commission 1. The 2nd Respondent had 3. The secondment of employees by the Public Service performed and continued by the Public Service Commission are illegally in to perform the functions of Commission to the Ethics and office. a state officer namely the Anti-Corruption Commission Secretary of the Ethics and was in accordance with the Constitutional Law - oath of Anti-Corruption Commission Ethics and Anti-Corruption office-subscribing to oath of within the meaning of Article Act and was not inconsistent office-whether a state office is in 74. In accordance with Article with the Constitution of Kenya, breach of the law for not taking 259(3)(b), she was entitled to 2010. or subscribing to oath of office- continue acting as such until Petition denied Article 74 of the Constitution of the Commission appoints a
Court declines to restrain the implementation of the Traffic (Amendment) Act Ferdinand Ndungu Waititu & 2 Others v Attorney General & another Petition No. 553 of 2012 High Court of Kenya at Nairobi Constitutional and Human Rights Division D.S Majanja J. December 3, 2012 Reported by Emma Kinya Mwobobia.
the rules and regulations conservatory orders to restrain therein were punitive and the implementation of the Traffic Issue: draconian and would cause (Amendment) Act, 2012 – grounds 1. Whether conservatory orders suffering and inherent security that the rules and regulations should issue to restrain the risks to Kenyans? were punitive and draconian implementation of the Traffic Constitutional Law -petition and would cause suffering (Amendment) Act, 2012 and – application seeking and inherent security risks to
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Kenyans – whether the petitioners people delegated to them 2. The petitioners affidavit sets were entitled to the grant of in enacting laws. It is for this out matters which point to the conservatory orders sought. reason that every statute inconvenience of those upon that flows from the legislative whom the law applies rather process is presumed to be than constitutionality which is Held: constitutional and valid and a matter the court will have unless there are very clear the opportunity to take full 1. Under the Constitution, the reasons to stay enforcement arguments. National Assembly and of the statute the court will not President exercise delegated ordinarily grant conservatory Application rejected. sovereign authority of the orders.
Effect of the High Court decision on the delimitation of Electoral Units Wilson Kiplagat Kemboi & Another v Independent Electoral & Boundaries Commission & Another Constitutional Petition No.119 of 2012 High Court of Kenya at Nairobi Constitutional Division M.Warsame, R.N. Sitati, H.A Omondi, P.Nyamweya, D. Majanja November 30, 2012 Reported by Emma Kinya Mwobobia
Issues: This was a matter regarding the Held: delimitation of electoral units under 1. Whether the movement of Article 89(11) of the Constitution 1. To have allowed the the 6 sub locations from one where complaints had been earlier application would have been constituency to another would raised regarding the manner in tantamount to undertaking a have been contrary to the which the 80 new constituencies fresh delimitation. That would court’s previous decision which and 1450 County Assembly wards have necessitated the re- did not interfere with the sub had been created, their distribution, ordering of other sub locations locations? their names, boundaries and areas in neighbouring County assembly wards to ensure 2. What was the effect and of allocation. The movement of sub locations hitherto falling in one that they complied with the consequence of the judgment constitutional threshold. that had been previously constituency to one or more of delivered by the High Court? the propose constituencies was 2. The effect of the previous also contested. In disposing of the judgment was to create a right matter, the court issued orders for that had now crystallized and Constitutional Law - electoral and the renaming of certain wards, the taken effect and the nature of boundaries law – delimitation moving of some wards, locations the instant application would of electoral and administrative and sub-locations into other have had a fundamental effect boundaries – petition seeking the constituencies, the moving of some on the decision. movement of six sub locations locations into certain wards and for 3. The court was mindful that from Nandi Hills constituency to the amendment of the maps of the Tinderet constituency – effect the delimitation process was affected constituencies in the IIEBC not only a legal process but and consequence of the previous final report. decision by the High Court – whether a political one within which the movement of the six sub The instant application therefore strict timelines had been set locations from one constituency to seeks orders to review the by the Constitution and the another would have been contrary previous judgment in respect of statutes governing the conduct to the intention of the previous constituencies so as to reflect the of elections. decision by the High Court not to County Assembly wards to accord Petition dismissed. interfere with the sub locations. with the decision.
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Retrospective application of the 2010 Civil Procedure Rules Kuria Tharao and Another v Joseph Kinyanjui Mwai and 3 others Environment and Land Case No. 493 of 2008 High Court, at Nairobi R. Ougo J November 30, 2012 Reported by Phoebe Ida Ayaya & Derrick Nzioka
Issue: time of the coming into force of Held: these rules, the provisions of these 1. Whether the Civil rules shall thereafter apply, but 1. By virtue of Order Procedure Rules, without prejudice to the validity of 54, the Transitional 2010 can apply anything previously done:- clause, the 2010 Civil retrospectively. a) If, and in so far it is Procedure Rules apply impracticable in any such retrospectively to any matter pending at the Civil Procedure Practice and proceedings to apply time at which they came Rules - Retrospective application the provisions of these into force. of the 2010 Civil Procedure Rules – rules, the practice and whether the 2010 Civil Procedure procedure heretofore Rules apply to a pending case- obtaining shall be 2. Any cases pending when whether application was subject followed. the 2010 Civil Procedure to this rules b) In any case of difficulty or Rules which came into doubt the Chief Justice force were subject to the Civil Procedure Rules, Order 54 may issue practice provisions of the rules. provides: In all proceedings notes or discretions as pending whether preparatory or to the procedure to be incidental or consequential upon adopted. Application dismissed. any proceedings in Court at the
Interpretation of section 113(1) of the Industrial Property Act Republic v. Industrial Property Tribunal and 2 others J R. Misc. Case No 208 of 2011 High Court of Kenya at Nairobi W. K. Korir J. November 29, 2012 Reported by Njeri Githang’a Kamau
Issue: and determining appeals in Tribunal as provided for under accordance with section 112 Section 113(1) of the Industrial 1. Whether the Industrial Property and exercising the other powers Property Act-whether all the Tribunal can be said to be conferred on it by this Act, there is five members had to sit for the legally constituted in the established an Industrial Property proceedings of the Tribunal to absence of one or more of its Tribunal which shall consist of be valid five members as provided for the chairman and four members Held: under Section 113(1) of the appointed by the Minister.” Industrial Property Act of 2001 Statute Law-interpretation of 1. It would be unreasonable to Section 113(1) of the Act provides statutes- purposive interpretation imagine that in the event of for the composition of the Industrial -interpretation of Section 113(1) one member being absent Property Tribunal as follows:- of the Industrial Property Act no case can proceed before “For the purposes of hearing -quorum of Industrial Property the Tribunal. This would be
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a very narrow interpretation envisaged a situation where 5. A purposive interpretation was of the law which would not replacement of an absent the most appropriate and give essence to the intentions member need not be made reasonable way of dealing of Parliament. Such an by the Minister. The Minister is with Section 113 of the Act. interpretation would result in given room to decide whether That meant that not all the absurd outcomes. or not to replace a member five members had to sit for the 2. The main objective of creating of the Tribunal. Hence not proceedings of the Tribunal to the Tribunal was to have a all the five members of the be valid. body composed of persons Tribunal have to be present 6. The failure by Parliament to knowledgeable in industrial during a hearing in order for provide for the quorum of the property disputes to hear its proceedings to be valid. Tribunal has the potential of and dispose of such disputes 4. Holding that the Tribunal violating the rights to access to expeditiously. cannot act in the absence justice and fair administrative 3. Although Parliament did of the chairman or any other action. For purposes of clarity, not expressly provide for the member will mean that its the Act ought to be amended quorum of the Tribunal, a operations would at times to include a provision on the reading of sub-sections 9 and be paralyzed and the result quorum of the Tribunal. 10 of Section 113 of the Act will be delayed resolution of disputes. Such a situation Application dismissed, a copy clearly showed that Parliament of the decision to be served on envisaged a situation where a goes against the spirit of the Constitution of Kenya, 2010 as the Attorney General for the member of the Tribunal can necessary action. be absent. Parliament further provided for under Articles 47 and 159(2).
Jurisdiction of High Court on disputes involving Co-Operative Societies Alex M. Wafubwa & 7 others v Elias N. Waminta & 5 others Petition No 7 of 2012 High Court at Bungoma F. Gikonyo, J. November 29, 2012 Reported by Dorcas Onam Mac’Andere
Issues: High Court under Article 165 of Held: the Constitution- interpretation 1. Whether the petition herein of section 19 of Sixth Schedule 1. Not all grievances under related to a dispute of the Constitution- whether the the Cooperative Societies concerning the business of high Court has jurisdiction to Act were disputes within a co-operative society within hear matters pertaining to a co- the jurisdiction of the co- section 76 of the co-operative operative society -Constitution of operatives tribunal. The court Societies Act. Kenya, 2010 should therefore carefully Statutes - Interpretation of Statutes- consider the claims before 2. Whether the High Court has it to determine whether jurisdiction to hear matters interpretation of section 76 of the co-operative Societies Act- they amount to a ‘dispute pertaining to a co-operative concerning the business of society. matters relating to the business of a co-operative society to be the society’ in the sense of adjudicated by the Co-operative section 76(1) and (2) of the Constitutional Law- fundamental Tribunal-Section 76 of the Co- Co-operative Societies Act. rights and freedoms - right to vote operative Societies Act 2. The fact that the High – right provided under Article 38 Court was the final court of the Constitution-jurisdiction of
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in cooperative societies’ Cooperatives was not akin of the Bill of Rights in the matters, only reinforced the to the powers of the Tribunal Constitution of Kenya, 2010, need for the court to ensure under section 76, 77 and 80 until the Chief Justice makes that a proper analysis was of the Act. the rules anticipated under done to determine whether Article 22(3).The rules however the dispute was one that fell 5. The Co-operative Tribunal should be read in conformity within the jurisdiction of the does not have jurisdiction to with the Constitution. co-operative tribunal in order issue a judicial review order Therefore, absence of the to avoid prejudice of the right to compel the Commissioner rules under Article 22(3) of of access to justice under the for Co-operatives to act in the Constitution does not Constitution, but not a bar for accordance with a statutory foreclose the right to apply for the High Court to determine or legal obligation in relation constitutional remedies under matters falling outside the to elections. the Bill of Rights. ambit of the Tribunal. 6. Judicial review is a relief 8. Elevating every legal 3. Section 76(2) of the Co- under Article 23(3) (f) of complaint to a constitutional operative Societies Act should the Constitution, and is not issue would greatly diminish be construed ejusdem generis confined to the Law Reform the value of constitutional , and as far as possible, include Act or Order 53 of the Civil remedies. However, the only matters of the same kinds, Procedure Rules as neither allegations in the Petition were class, or nature, as to restrict it of the two establishes the not trivial complaints which within the overall objective of remedy of judicial review but had merely been inflated the Act, especially because provide for the mechanisms in the hope that they will section 76(2) is on ouster of the which give effect to the relief pass for constitutional issues. jurisdiction of the High Court. of judicial review. They were issues which merit 4. Grievances relating to; 7. The correct interpretation a trial by this court since it elections, illegal holding of of section 19 of the Sixth had jurisdiction to hear and office, failure to convene Schedule of the Constitution, determine constitutional a general meeting by the 2010, is that the High Court issues under Article 165 of the management committee, Practice and Procedure Rules, Constitution. 2006, will continue to apply in or special general meeting Preliminary objection disallowed. by the Commissioner for proceedings for enforcement
Court Declares Petition to Challenge the delimitation of constituencies res Judicata Samwel ondieki Makori & 2 Others v Independent Electoral & Boundary Commission (IIEBC) & 3 Others Petition No. 41 of 2012 High Court of Kenya at Kisii R.N. Sitati J. November 28, 2012 Reported by Emma Kinya Mwobobia
Issues: judicata the decision by the a previous suit – whether the suit 1. Whether the petition was High Court on the delimitation was res judicata the decision by time barred by virtue of the of electoral units under Article the High Court on the delimitation decision by the High Court on 89 of the Constitution. of the electoral units under Article the delimitation of electoral Civil Practice and Procedure – res 89 of the Constitution. units under Article 89 of the judicata - preliminary objection Pursuant to the commencement Constitution. raised to a suit on the ground that of the voter registration exercise the issues raised in it had already the petitioners/applicants herein 2. Whether the petition was res been heard and determined in who are residents of township
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and Mwamosioma sub locations units was to be filed as being to ventilate their case. situated within Kitutu Chache on or before 10th April 2012. 3. Article 89 (11) of the South Constituency sought to be If the court was to entertain Constitution, 2010 had set time registered at the various polling this petition it would end up lines to be met by those who registration centers within the delimiting new boundaries for wished to challenge the legal said constituency. However, the two constituencies and notice that had gazette the when some visited the registration it had no mandate to do so. delimitation of the electoral centers in the sub locations which The application was therefore units and anybody who had fell within Kitutu Chache South filed out of time. not met those timelines and in Constituency they were issued 2. The petition was res judicata particular the 10th April, 2012, with voters card slips for Nyaribari the judgment of the High was shut out and remains shut Chache Constituency. Court on delimitation of out. Held: electoral units under Article 89 of the Constitution because Petition dismissed. 1. The High Court ruling had the issues raised ought to have given the time within which been raised on or before 10th petitions challenging the legal April 2012. The petitioners had notice delimiting the electoral therefore lost the opportunity
DPP Requires consent of all parties affected by a suit to withdraw the suit from court Republic v Director of Public Prosecutions & 4 others [2012] eKLR Judicial Review Case No.15 of 2012 High Court at Nairobi W.K. Korir, J. November 21, 2012 Reported by Cynthia Liavule & Mercy Ombima
Issues: the use of those powers. the functions of the DPP in 1. Whether the DPP has 2. The DPP in the case had put the administration of justice. absolute power in the himself in a position in which he prosecution of cases would be unable to charge 4. The consent would 2. Whether a consent entered the ex-parte applicant have been lawful and into by a party and the were better evidence to constitutional had it been DPP not to carry out future be found since the consent reached in the language of prosecution as against that would forever bar the 1st Section 87(a) of the Criminal party and which affects and 3rd Respondents from Procedure Code so that an interested party to the prosecuting the exparte the 1st respondent would suit the though not party to applicant in relation to the be at liberty to have the the consent is unlawful and incident that led to his being ex-parte applicant arrested unconstitutional. charged with a criminal and charged if sufficient offence. It would also bar evidence were to be found. It Held: a private prosecution once was therefore apparent that 1. The office of the Deputy Public it was established that the part of the consent between Prosecutor must exercise its evidence in the case was the ex-parte applicant powers in a rational, lawful insufficient to mount a and the respondents was and constitutional manner prosecution. unconstitutional and the otherwise the court may 3. The order would be an abuse court cannot be party to be invited to exercise its of court process and would such an agreement. supervisory jurisdiction over not be in consonance with Application allowed.
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Court declares that voter registration in the diaspora is not an absolute right New Vision Kenya (NVK Mageuzi) & 3 Others v Independent Electoral and Boundaries Commission & 9 Others Petition No. 331 of 2012 High Court at Nairobi Constitutional and Human Rights Division D.S. Majanja J. November 15, 2012. Reported by Emma Kinya Mwobobia
Issues: outside of Kenya to vote is the duties. not absolute and is subject to 1. Whether there is a violation 4. There was no violation of a such reasonable restrictions as fundamental right or breach or threat of a violation of are required to be enacted the petitioners (Kenyan of the Constitution in the by the legislature to ensure circumstances and there citizens residing abroad) the progressive registration of right to register as voters was no threat neither to citizens residing outside Kenya the petitioners nor the rights 2. What is the nature and and in general the progressive of Kenyan citizens residing extent of the right to vote realization of the right to vote. abroad. for Kenyan citizens residing 2. The Elections (Kenya 5. The provisions of the outside the country; Citizens Residing outside regulations gave discretion Kenya)Registration and 3. What is the extent of the to the IEBC to consider Voting Regulations), 2012 logistical consideration and responsibility of the IEBC (Regulations) provides a to facilitate this right; other criteria that was to be framework for the registration determined by the commission Constitutional Law -fundamental of citizens outside Kenya as and unless a wrong or violation Rights – right to vote – freedom of voters and the decision on was demonstrated by the citizens to exercise their political which country to register as petitioners, the court would rights – claim by Kenyan citizens voters is grounded on logistical not interfere with the work of residing abroad (Petitioners) of consideration and any other the IEBC in ordering to the IEBC their right to register as voters criteria that the IEBC may to abide by the regulations. from the diaspora in order to be determine. 6. Parliament has now enacted able to vote in the next General 3. The regulations provide a Elections – whether the Petitioners and IEBC has promulgated framework for the progressive the necessary regulations were entitled to register as realization of the rights of the voters outside Kenya in order to and is required to act in Kenyan citizens living outside accordance with them. participate in the Next General Kenya. The IEBC is given a Elections. responsibility to implement Petition dismissed with no costs. the provisions as it has the Held: technical expertise and competence to do carry out 1. The right of citizens residing
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Discrimination of section 24 of the Matrimonial Causes Act in Payment of Alimony K.M v AG & Another Petition No. 458 of 2012 High Court at Nairobi Constitutional and Human Rights Division D.S Majanja J. November 15, 2012 Reported by Emma Kinya Mwobobia
Issue: providing for equality in marriage – by entitling the court to read whether the petitioner had a valid into the Act, words that would 1. Whether section 25 of the claim. bring it in conformity with the Matrimonial Causes Act is Constitution. unconstitutional in lieu of Article Held: 2. In the circumstances, section 27 and 45(3) of the Constitution 1. The provisions of the of Kenya, 2010 since it only 25 of the Matrimonial Causes Matrimonial Causes Act Act which applies to the wife is provides for payment of requiring alimony to be paid alimony to wives. now to be read as “spouse” to to wives was contrary to Article bring it in conformity with Article 27 which provides for equality 27 and 45 of the Constitution Family Law - dissolution of and outlaws discrimination and and section 25 of the Act marriage – claim for alimony – Article 45(3) which provides and shall be read with all the requirement for husbands to pay for equality of parties within a necessary alteration to make alimony to their wives – petitioner marriage. However, section it gender neutral. claiming unconstitutionality of 7(1) of the Sixth Schedule to the the Matrimonial Causes Act with Constitution provides a solution Petition dismissed. the provisions of the Constitution to the petitioner’s grievance
Amendment of Affidavits Republic V the Commissioner of Value Added Tax Ex-Parte Iron Art Limited JR. Misc. Civil. Appl. No.19 Of 2012 High Court of Kenya at Nairobi C.W. Githua J. November 15, 2012 Reported By Njeri Githang’a Kamau
Issues: amount to evidence. Affidavit affidavit In Judicial Review evidence hence cannot be proceedings under. Order 1. Whether an affidavit can be amended but a party who 53 Rule 4 only requires that amended. realizes a mistake in the way the Notice of Motion be 2. Whether a Notice of Motion that such evidence had served together with the for Judicial review need to been presented can seek statutory statement and that be supported by an affidavit. the court’s leave to file a affidavits accompanying further affidavit to explain the the application for leave Civil Practice and Procedure- mistakes or anomalies in an be supplied to the persons affidavits – amendment of affidavit if the same had been served upon demand. An affidavits – whether an affidavit filed in court and is part of the affidavit filed in support of an can be amended court record. application for judicial review Held: 2. Order 53 Rule 3 of the Civil is hence unnecessary and is superfluous. 1. Depositions in affidavits are Procedure Rules does not statements given under require the Notice of Motion Application allowed oath which means that they to be supported by any
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Court declines to declare section 34(9) of the Elections Act unconstitutional Micah Kigen & 2 Others v Attorney General & 4 Others Petition 268 of 2012 High Court at Nairobi Constitutional and human Rights Division D.S. Majanja J. November 15, 2012 Reported by Emma Kinya Mwobobia
Issue: name of any Presidential or Deputy 4. The nature of special interests Presidential candidate nominated requiring representation is infinite 1. Whether section 34(9) of the for an election under this Act. and various and a political party Elections Act is unconstitutional Held: must be permitted to define for permitting the political parties those interests from time to time. to include candidates for the 1. Taking into account all the position of President and Deputy 5. The special interest of the political Constitutional provisions means party and the need to promote President in the party list for that ‘special interests including’ nomination. party based democracy is a must have a broad and legitimate purpose which serves expanded meaning to cover the Constitutional objectives. Election Law -membership of interests identified by the political Providing for the nomination the National Assembly – petition parties and not restricted to the of the persons who were challenging the inclusion of the categories of interest or groups candidates as President and name of any Presidential and identified by the Constitution. Deputy President does not of Deputy Presidential candidate 2. Where the Constitution has itself undermine the rights and nominated for an election under provided for the representation protections afforded to special the Election Act in the party list – of specific groups or interests it groups taking into account the grounds that inclusion of the names has explicit provisions for these already existing provisions that limited the representation of special specific groups and interest to provide for representation of groups – Whether the Election Act be represented. It would be special groups and interests. was unconstitutional in as far as it inconsistent with the Constitution allowed for inclusion of Presidential 6. The special interests referred to limit the right of any special to in Article 97(1)(c) are not and Deputy Presidential candidates interests identified by political therefore limiting the representation limited to a particular group of parties to be represented in the people or particular interests but of special groups – Article 97 (1)(c); National Assembly. Section 34(9) Elections Act. rather concerns special interests 3. The Constitution envisions the defined by the political party Words & Phrases -special promotion of democracy nominating the candidates. interests – definition of ‘special through political parties and it is 7. Section 34(9) of the Elections interests including’ – broad and the Court’s role consistent with Act is not inconsistent with Article expanded meaning – meaning is Article 259(1) to strengthen and 97(1)(c) of the Constitution and not restricted to what appears in not weaken political parties as the Bill of Rights and therefore the constitution – whether special vehicles for exercise of political the party list for purposes of interests included other groups rights, representation and Article 97(1)(c) may contain other than those specifically governance. In this context a name of any Presidential or mentioned in the Constitution. therefore, inclusion of the Deputy Presidential candidate Presidential and the Deputy nominated for election and Section 34 of the Elections Act (Act Presidential candidates to therefore section 34(9) the No. 24 of 2011) makes provision represent legitimate and indeed Election Act falls within the for the process of nomination of special interests from the political provisions of the Constitution. members through the party lists. party’s point of view is within the (9) The party list may contain a Constitution. Petition dismissed.
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Power of the Police Commissioner under the repealed Constitution Charles Ndege Nyakieni v the Hon Attorney General For & On Behalf Of The Commissioner of police Misc. civil Application 27 of 2009 High court of Kenya at Kisumu November 14, 2012 Reported by Njeri Githang’a Kamau
Issues: of Commissioner of Police shall vest Held: in the President. 1. Power of the police commissioner 1. The argument that under to dismiss a police officer under (2) The power to appoint persons Section 108 (2) of the the Repealed Constitution- to hold or act in offices in the Constitution of Kenya repealed, Whether the commissioner of Kenya Police Force (except the the Commissioner of Police police could go contrary to the office of Commissioner of Police), was “not required to consult police recommendations of including the power to confirm anybody or bodies of person the Disciplinary Appeal Board appointments, the power to when making such decision” not to dismiss and uphold exercise disciplinary control over was absolute power. The dismissal without providing any persons holding or acting in those Commissioner of Police was reason for his decision. offices and the power to remove not above the laws and more those persons from office shall vest – so the Constitution. The courts 2. Whether the failure to give had to intervene to curtail such reasons for dismissal ran (a) in the case of offices of or absolute power. contrary to the principles of above the rank of Assistant natural justice. Inspector, or such rank other than 2. Whether or not the decision the rank of Assistant Inspector as of the disciplinary board is not may be specified for the purposes binding on the commissioner Judicial Review -rules of natural of police under the Force justice-procedure for dismissal of this section by or under an Act of Parliament, in the Public Standing Orders, the rules from the Police Force-applicant of natural justice had to be having been dismissed from the Service Appointment, etc., of members of Kenya Police Force. applied by the Commissioner police force by the commissioner of Police. He could not hide of police even after the police (b) in the case of offices below the rank of Assistant Inspector, or such under the force standing orders Disciplinary Appeal Board having and issue any order whether recommended for the applicant other rank as may be specified as aforesaid, in the Commissioner of valid or invalid affecting a party not to be dismissed-where it was without giving any reasons. argued that under the Force Police: Provided that – 3. The respondent demonstrated Standing Orders the decision of (i) the Commission may, by the disciplinary board was not bias against the applicant and directions in writing and subject further violated the principles binding on the commissioner of to such conditions as it thinks fit, police-whether the decision of the of natural justice by failing delegate any of its powers under to accord the applicant the commissioner of police to reject this section to any one or more the decision of the board without reasons for the refusal to follow members of the Commission or to what the board had suggested giving such reasons was against the Commissioner; rules of natural justice namely to reinstate and sack him for the sake of police Constitution of Kenya (repealed) (ii) the Commissioner may, by directions given in such manner interest. Appointment, etc. of members of as he thinks fit and subject to such Application allowed, exparte Kenya Police Force. conditions as he thinks fit, delegate applicant reinstated in the Kenya any of his powers under this section Police Force 108.(1) The power to appoint a to any member of the Kenya Police person to hold or act in the office Force.
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Stay of execution pending appeal Tarbo Transporters Ltd Absalom Dova Lumbasi [2012] eKLR Civil Appeal No. 31 of 2012 High Court of Kenya At Bungoma F. Gikonyo, J November 12, 2012 Reported by Dorcas Onam Mac’Andere
Issues: for granting stay of execution 2010, simply shows that there pending appeal -appellant can never be a single strict or 1. Whether the Applicant had must establish sufficient cause neutral interpretation of the satisfied the conditions set to wit; substantial loss will occur, concept of discrimination, out under Order 42 Rule 6 of application was filed without and its category is not the Civil Procedure Rules for unreasonable delay and give heretically closed. It will all the grant of stay of execution security for the performance of depend on the context in pending appeal. decree- whether an application which discrimination is alleged 2. Whether the argument by the for stay to the appellate court to have arisen. The language Applicant that the Respondent after a similar application had in Article 27 of the Constitution was poor and could not be been dismissed by the lower court does not create any ranking able to refund the decretal is res judicata-Civil Procedure of importance among sum herein, amounted to Rules the prohibited grounds of discrimination under Article 27 Held: discrimination enumerated of the Constitution of Kenya, under the Article. 2010. 1. Under Order 42 Rule 6 of the 3. Mere argument by the Civil Procedure Rules, the Applicant that the Respondent 3. Whether an application made Applicant is allowed to file is poor and cannot refund the to the High Court under an application of stay to the decretal sum is not materially Order 42 Rule 6 of the Civil appellate court, even if a disadvantageous to the Procedure Rules, after a similar application had been Applicant. It must be shown similar application had been previously rejected by the that the differentiation was dismissed by the subordinate court appealed from. There is applied to the detriment of court, is res judicata. no any statutory restriction of the Respondent or some real the discretion of the appellate disadvantage resulted or Constitutional Law - discrimination- court in entertaining and some right was infringed. test applicable in analyzing determining such application Although, the claim of inability alleged discrimination-whether for stay. Even with extreme to make refund does draw the argument that the decree ingenious craft, rejection of attention to the status of holder cannot refund the a similar application by the the beneficiary of a decree, decretal sum because he/she lower court is not a fetter on it is not in a context that is poor is discrimination under the discretion of the appellate could realistically be said to Article 27 of the Constitution court. The order does not stigmatize the decree-holder of Kenya, 2010-balancing the also require the applicant to or occasion exclusion on Appellant’s right of appeal, and apply for the setting aside account of inability. the Respondent’s prima facie of a dismissal of an earlier 4. Article 27 of the constitution right to the fruits of the decree- application either to the trial offers protection to all parties Constitution of Kenya, 2010 magistrate or to the appellate court. including the Applicant. That is the threshold on which the Civil Practice and Procedure 2. The array of open ended ratio of this judgment on the - Order 42 Rule 6 of the Civil words used in Article 27 (3) issue of discrimination rests. Procedure Rules -conditions of the Constitution of Kenya, The discretionary relief of stay
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of execution pending appeal part of the Respondent, it perpetuate prohibited forms is designed on the basis that may as well raise evidential of discrimination rather than no one would be worse off burden on the Respondent a crude reduction of every by virtue of an order of the to file an affidavit of means. argument on an intrinsically court; as such order does not In this case the Respondent’s difficult social issue such as introduce any disadvantage, income is such that it may poverty. If the concept of but administers the justice that not be sufficient to constitute discrimination was entirely the case deserves. This is in ability to pay and on that unqualified, that would raise recognition that both parties basis the Applicant will suffer the prospect of theoretical, have rights; the Appellant to substantial loss if an order innocuous or de minimus his appeal which includes the of stay of execution is not disadvantages qualifying as prospects that the appeal will granted. prohibited discrimination, not be rendered nugatory; 6. Obiter dictum: "We may and that indeed would and the decree holder to the be spreading Article 27 of risk trivializing the right decree which includes full the Constitution far too thin protected under Article 27 benefits under the decree. to achieve its purpose if of the Constitution. At least The court in balancing the two each and every argument violation of a right needs to competing rights focuses on that is perceived to be be established by the person their reconciliation which is not discriminatory is to be treated alleging discrimination." a question of discrimination. as prohibited differential Application allowed. Court orders 5. The burden of proving that the treatment even those that that half of the decretal sum be Respondent will not be able to happens to coincide with paid to the Respondent and the refund to the Applicant any ordinary life situations like the other half to be deposited in a sums paid to the Respondent way poverty is to humans. joint account in the names of the lies on the Applicant. But A well-focused construction advocates within 30 days from the where the records show some of Article 27 is directed at date of this ruling. financial limitations on the laws and practices that
Substantial Question of Law as envisaged by the Constitution Matiko Bohoko & Another v Deputy Prime Minister & Minister for Local Government & 2 Others Misc.Civil Application No. 56 of 2011(O.S) High Court of Kenya at Kisii R.N. Sitati J. November 8, 2012 Reported by Emma Kinya Mwobobia
Issue: ought to be heard by an uneven 2010 sets out the type of matters number of judges not being less that ought to be heard by an 1. Whether the various issues than three to be assigned by uneven number of judges not based on political questions the Chief Justice – need for such being less than three to be raised in this matter constituted matters to be certified by court assigned by the Chief Justice. a substantial question of law as raising a substantial question Such matters are those that as envisaged in Article 165 (4) of law touching on jurisdiction are certified by the court as of the Constitution. – whether the issues based on raising a substantial question of political questions which were law touching on jurisdiction to Constitutional Law-interpretation in the realm of a political organ determine the question whether of the Constitution – substantial raised a substantial question of a right or fundamental freedom question of law – constitutional law? in the Bill of Rights has been provision setting out matters that Article 165 (4) of the Constitution, infringed, denied, violated or
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threatened or jurisdiction to hear interpretation by the courts. number of judges not being any question respecting the 2. If every such question were to less than three. Therefore, interpretation of the Constitution. be determined by a bench there was no justification to of more than 2 judges, other refer the matter to the Chief judicial business would come Justice to empanel a bench Held: to a standstill and if so, then of not less than three judges the expectation of the public to hear and determine the 1. The promulgation of the to have their cases decided same. Constitution of Kenya, 2010 expeditiously as provided 4. The Constitution had brought into being a whole under Article 159 (2) of the established the Supreme new law that in every aspect Constitution and section 1A Court so that if the petitioners raises substantial questions of and 1B of the Civil Procedure were not satisfied by the law because the Constitution Act would never be realized. decision of a single judge is new. The expanded bill they could move to the Court of rights, citizenship issue, 3. The petition did not raise such a substantial question of Appeal and to the Supreme leadership and integrity and Court if need be. the issue of dealing with of law as envisaged by the devolved government were Constitution which could only Application dismissed. matters that needed constant be decided by an uneven
Proof of Possession of title to Land necessary by one who claims forcible detainer Abraham Lonyangat & another v Republic Criminal Appeal No. 91 of 2012
High Court, at Kitale J.R. Karanja J. November 8, 2012 By C W Lupao
Issue: be the lawful owner of the land 2. The appellants could not be in dispute-Penal Code, section 91 said to be guilty of forcible 1. Complainant in a Held: detainer yet the land is not charge of forcible registered in the name of detainer ought to 1. Section 91 of the Penal the complainant or lawfully demonstrate that he/ Code presupposes that the possessed by himself thereby she is the lawful owner complainant is the lawful giving him the colour of right of the land in dispute. owner of the land in dispute /thereof to the exclusion of Criminal Law-forcible detainer- for there to be founded a the appellants or any other need for the complainant in a charge of forcible detainer person. charge for forcible detainer to against the accused. Appeal allowed.
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Retiring people on medical grounds may constitute a violation of their Rights Paul Pkiach Anupa & another v. Attorney General & another Petition No. 93 of 2011 High Court, at Nairobi D S Majanja J November 7, 2012 Reported by C. W. Lupao
Issues: amounted to a violation of Constitution and the Person dignity. with Disabilities Act, the 1. When does retiring one from 2. A police officer may be Commissioner of Police public service on medical must consider reasonable grounds/public interest removed from the Police Service if he is certified to accommodation of a person amount to violation of the with disabilities. person’s rights under the be medically unfit for further Constitution? service in the Service and 5. Section 15(5) of the Persons not unfit for ‘the duty for with Disabilities Act enjoins 2. How employers should avail which he was assigned.’ employers to provide such necessary working conditions The petitioner wasn’t unfit facilities and effect such to accommodate persons or incapable of discharging modifications, whether with disabilities at work alternative duties within the physical, administrative or places. Police Service. otherwise, in the workplace 3. The petitioner’s rights as may reasonably be Constitutional Law -access to guaranteed under Articles 27, required to accommodate justice-right of every citizen 28 and 54 of the Constitution persons with disabilities. to access justice without any of Kenya, 2010, were violated 6. The right of access to justice hindrance whether physical or by the Commissioner of articulated in Article 48 of otherwise. Police retiring him on medical the Constitution includes Constitutional Law -constitutional grounds under Regulation infrastructure necessary to right-right not to be discriminated 30(c) of Chapter 20 of the ensure justice is available against on the basis of one’s Forces Standing Order to all persons. It must disability-where the petitioner without taking into account necessarily entail physical was retired from the police the possibility of reasonable access to court buildings and force after suffering a disability- accommodation. As a the personnel, information, whether this was discriminative consequence of this failure to process and procedures as against the petitioner- reasonably accommodate that relate to them including Constitution of Kenya,2010, the petitioner, the access to information about Articles 27, 28 and 54 ;Persons Commissioner of Police the justice system. The with Disabilities Act, section violated section 15(6) of current physical structure 15(6). the Persons with Disabilities of the Milimani Law courts is Held: Act by retiring the petitioner such that it is a hindrance to before the prescribed justice seekers owing to the 1. The petitioner had specifically retirement age. physical barriers that make it trained for a job in the police 4. In light of the responsibility a herculean task for persons service and suffered disability cast on the Commissioner with disabilities to access the at a prime age while on duty. or the person exercising his courts. To deny him the opportunity power under Regulation Petition partly allowed, petitioner to carry on police duties 30 of Chapter 20 of the when he was able to do awarded general damages, Force Standing Orders salary and gratuity. so, despite the disability, by the provisions of the
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Public officers should adhere to the Rules of Natural Justice Rev. David Mulei Mbuvi & 13 others v The Registrar General & 3 others [2012] eKLR Jr. Misc. App. No. 138 of 2010 High Court at Nairobi C.W. Githua, J November 5, 2012 Reported by Sylvie Nyamunga
Issues: General and not to the person hearing the Applicants’ side occupying the Office of the of the story subjected them to 1. Whether the 2nd Respondent’s Registrar General personally. unfair treatment and violated decision to cancel the Some of the decisions and their legitimate expectation applicants’ licenses to statutory functions of the that due process would be celebrate marriages was Registrar General would of followed in the event that ultra vires Section 6(1) of the necessity be executed by the Respondents found it African Christian Marriage authorized officers in that necessary to make decisions and Divorce Act office not because of any that would adversely affect 2. Whether the abovementioned delegated powers but their status in the Church and decision was contrary to the because those officers are part consequently their livelihood. rules of natural justice and and parcel of the office of the 5. This was important for the article 47 of the Constitution Registrar General. Therefore purpose of promoting of Kenya, 2010 the decision by the Senior transparency and Deputy Registrar General was accountability, values which Judicial Review -order of certiorari- made in the exercise of her an order of certiorari to quash a are not only recognized under statutory mandate donated the Constitution of Kenya 2010 decision of the Senior Deputy by Section 6(1) of the Act. Registrar General published but are important pillars in under Kenya Gazette Notice 2. The power had to be exercised good public administration. 2877-where the applicants’ objectively, reasonably, The duty to give reasons licenses to celebrate marriages and in good faith. It was has also been elevated to were cancelled-whether the not supposed to be abused. a constitutional requirement Senior Deputy Registrar General The Respondent’s being under Article 47 of the has the power to make this public officers discharging Constitution of Kenya. decision-whether the rules of public functions had a legal obligation to act fairly in the Application allowed no orders as natural justice had been upheld- to costs Sec. 6 (1) of the African Christian performance of their duties. marriage and Divorce Act- Article 3. Failure by the 2nd respondent 47 of the Constitution of Kenya, to allow the applicants 2010. an opportunity to defend Held: themselves against the allegations leveled against 1. Through Legal Notice No.569 them was a breach of the of 1956, the minister’s power, rules of natural justice. under Sec. 6 (1) of the 4. The purpose of judicial review African Christian marriage is to ensure that the individual and Divorce Act, to license is given fair treatment by the church ministers or to cancel authority to which he has such licensees was delegated been subjected. The 2nd to the Registrar General. This Respondent in making the delegation was done to impugned decision without the Office of the Registrar
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When should the prosecution disclose evidence to the defence in a criminal trial? Dennis Edmond Apaa & 2 others v. Ethics and Anticorruption Commission & another Petition No. 317 of 2012 High Court, at Nairobi D. S. Majanja J November 5, 2012. Reported by C W Lupao
Issue: whether it ought to be continuous of the evidence before it is Held: produced and the accused 1. When should the prosecution having reasonable access disclose evidence to the 1. The duty of disclosure is a to it. defence in a criminal trial? continuing one throughout the trial. The words of Article 50(2) 2. The duty of disclosure is cast on Evidence - disclosure of evidence- (j) that guarantee the right the prosecution to disclose all duty of the prosecution to disclose “to be informed in advance” the evidence, material and evidence during a criminal trial- cannot be read restrictively witnesses to the defence nature and extent of disclosure to mean in advance of the during the pre-trial stage and by the prosecution of evidence, trial. The duty imposed on the throughout the trial. Whenever material and witnesses, to court is to ensure a fair trial a disclosure is made during the defence- whether such for the accused and this right the trial the accused must be a duty is a one-off act at the of disclosure is protected by given adequate facilities to commencement of the trial or the accused being informed prepare his or her defence.
Payment not a Requirement ion Proof of Special Damages Thomas Kabaya Ngaruiya & 2 Others v David Chepsisror Civil Appeal No. 8 of 2006 High Court of Kenya at Eldoret M.K. Ibrahim J. October 31, 2012 Reported by Emma Kinya Mwobobia
Issue: outstanding sums of money 524). could constitute proof of special 2. Payment was not a conditional 1. Whether proof of special damages? damages necessitated prior precedent to claiming special payment as opposed to Held: damages. As long as the damages had been pleaded outstanding medical bills or 1. The degree of certainty and debts pending payment? and proof provided, they particularity of proof required were recoverable. in proof of damages depends Damages -special damages on the circumstances and Appeal dismissed. – claim of special damages – nature of the act itself. requirement of proof - whether (Ratcliffe v Evans (1892)2 QB
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Conditions to be met for a new trial under the Constitution of Kenya 2010 Rodgers Ondiek Nyakundi And 2 Others V Republic Criminal Appeal Nos. 135, 136 & 137 Of 2006 High Court of Kenya At Kisii Ruth Nekoye Sitati J. October 31, 2012 Reported by Njeri Githang’a Kamau
Issues: In BLACKS LAW DICTIONARY “…discovery of new and Eighth Edition, the word “new” important matter or evidence 1. Whether, in light of Articles 263 as relates to the context of the which, after the exercise of and 264 of the Constitution application is defined as adj. due diligence, was not within 2010, the Constitution (of a person, animal or thing) his knowledge or could not operates retrospectively recently come into being; 2.(of be produced by him at the 2. What constitutes “new and anything) recently discovered” time when the decree was compelling evidence” as while the word “compelling” passed ...” which is derived from the verb envisaged by Article 50 (6) (b) 4. Principles to be followed as per of the Constitution to compel” means “to come or bring about by force, threats or Mzee Wanjie & 93 others –vs- A.K. Sakwa& 3 others [1982-88] 3. Common law doctrine of error overwhelming pressure.” 1 KAR 465. Were; of coram nobis Held: a. The applicant Constitutional Law -fundamental 1. The Constitution of Kenya, 2010 must show that the rights – right to a new trial – could not apply retrospectively evidence could not petition for a new trial founded on in favour of the appellant who have been obtained the Constitution of Kenya, 2010– was charged, tried, convicted with reasonable factors that the court considers and sentenced under the old diligence for use at in allowing a new trial– what order. the trial; court considers to be new and 2. For a new trial to be ordered b. The evidence must compelling evidence – whether under Article 50 (6) of the the petitioner was entitled to a be such that, if given, Constitution, an applicant it would probably new trial in the circumstances – had to prove two things: Constitution of Kenya, 2010 have an important a. first that his appeal influence on the result Common Law -doctrine of error to the highest court of the case, though it of coram nobis-where the writ of has been dismissed or need not be decisive; coram nobis was available for that he did not appeal c. The evidence must be curing an error of fact not apparent within the stipulated such as is presumably on the face of the record and for time allowed for to be believed, or in which the applicant could not appeal and secondly, other words, it must be be held accountable-whether apparently credible, the writ was available where an b. that new and compelling evidence though it need not be applicant would eventually take incontrovertible. advantage of the alleged error has become at the trial, such as where the available. 5. The right for review as provided facts complained of were known 3. Under Order 44 ofthe Civil under Article 50 (6) of the before or at the trial Procedure Rules, a party is Constitution of Kenya, 2010 entitled to apply for review has its historical basis under Words and Phrases in the event that there is common law doctrine of
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error of coram nobis. Thus, 7. The court before which an merely corroborative, a defendant who was application seeking to re-open cumulative, collateral dissatisfied with the result a case is made, must exercise or impeaching. Such of his case was entitled to great caution when dealing evidence must not petition the appellate court with such an application. As only be favourable for review on the ground that seen from the Civil Procedure to the applicant there were facts that were Rules, a civil court dealing but it must be such unknown to him at the time of with such an application will evidence as is likely the trial and that if these facts only grant the prayer if it is to persuade this court had been known, they would clear that new and important to reach an entirely have changed the outcome evidence which was not different decision from of the case. If the applicant available to the applicant the decision already persuaded the court to grant at the time of trial despite reached by the two a new trial on the basis of diligent efforts is available. appellate courts. those new facts, the judge The courts must be extremely would then determine the cautious when presented with 9. A Petition under Article 50 (6) case afresh. Article 50 (6) of such applications. was not a retrial or an appeal, the Constitution is premised on and the court to which such that doctrine and represents 8. The burden of satisfying the a petition or application is a big paradigm shift from conditions of Article 50 (6) of made has “no jurisdiction the old Constitution which the Constitution lies squarely to consider and determine did not allow for such an on the shoulders of the matters which have already opportunity to an applicant applicant. The applicant been decided upon by the who discovered new facts must therefore show the court Court of Appeal.” The only after he had been tried and that:- duty that the court has to convicted. fulfill is to see whether there a. There is new evidence is any new and compelling 6. In effect, the writ of coram which must not have evidence to warrant an order nobis was available for curing been available to him for retrial. an error of fact not apparent during the trial, and on the face of the record and that such evidence 10. New and compelling for which the applicant could could not have evidence is evidence that is not be held accountable. been obtained with being seen for the very first time The writ was not available reasonable diligence and it must be overwhelming where an applicant would for use at the trial or evidence. The applicant had eventually take advantage that the evidence was placed no such evidence of the alleged error at the not available at the before the court, so the court trial, such as where the facts time of the hearing of had no opportunity to test complained of were known the two appeals. the evidence to confirm before or at the trial or where whether the same was new b. The evidence and compelling. the applicant alleges that his is compelling, is counsel knew of the existence admissible and Application dismissed. of the facts but failed to credible and not present the same.
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Adverse possession by Way of Counter Claim Inland Beach Enterprises Ltd v Chege & 15 others Civil Suit No 171 of 2008 High Court at Mombasa EM Muriithi J October 31, 2012 Ruling Reported by Phoebe Ida Ayaya
Issue: by way of counter- claim as possession has been sued for opposed to by way of Originating trespass and eviction by the 1. Whether a claim in adverse Summons as under Order 37 rule 7 registered owner by way of possession may be made of the Civil Procedure Rules 2010 Plaint, the person would, be by way of counter-claim and section 38 of the Limitation of entitled to set up a defence as opposed to by way of Actions Act of counter -claim to the suit Originating Summons in property on the ground of response to a suit for trespass adverse possession. to land. Held: Land Law-adverse possession- Application allowed. claim to land in adverse possession 1. Where the person in adverse
Procedural Requirements are not mere technicalities Republic v Chairman Matungu Land Disputes Tribunal Exparte Electina Wang’ona & Another Miscellaneous Application No. 107 of 2010 High Court of Kenya at Bungoma F. Gikonyo, J October 29, 2012 Reported by; Dorcas Onam Mac’Andere
technicalities under Article 159 to think that all procedural Issues: (2) (d)-setting aside of ex parte requirements have been Whether Article 159 of the leave-value of procedural law- rendered obsolete by constitution undermines the proper parties in a suit-Whether Article 159(2) (d) of the need to adhere to procedural Article 159 of the constitution Constitution. In spite of the requirements. undermines the need to adhere constitutional admonitions Whether an incorrectly intituled to procedural requirements against placing undue regard application for leave renders the to technicalities, there is substantive application for judicial Judicial Review– Certiorari- nothing wrong in observing review incompetent; application to quash the decision procedural requirements Whether, in law, the decision of of Matungu Land Disputes Tribunal provided it is kept under a Tribunal can be challenged –claim that the order made by proper constitutional control, independent of or separate from the Tribunal was made without and relates to a technicality the order of the court adopting jurisdiction-determination of rights of a nature that is the Centre the award of the Tribunal. of parties in a contract, title to piece of administration of land and beneficial ownership in justice. 2. Civil Practice and Procedure- succession matters The proper constitutional competence of an incorrectly control on technicalities intituled application for leave- Held: is whether the procedural 1. proper constitutional control on It is an utter misconception requirement is one that affects
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the rights of the parties. orderly, regular and smooth adopting the award was a 3. The test to be applied in running of the legal machinery nullity. determining whether and operation of due process 7. The presence of proper parties an incorrectly intituled is ensured; and fair trial is before the Tribunal is a matter application for leave to achieved. of jurisdictional significance. apply for judicial review is 5. Procedural requirements Therefore absence of proper incompetent is whether it is so should not however be applied parties denied the Tribunal the muddled up as to completely as a peremptory command as jurisdiction to try the case. obscure the identity of the to defeat substantial justice of 8. The appropriate procedure for parties and the remedies the case. As far as possible, challenging leave granted in applied for. cases should be determined a judicial review proceeding is 4. Procedural law is necessary on merit. by applying under the inherent in the administration of 6. The Tribunal did not have jurisdiction of the court, to the justice as it is through the jurisdiction to decide on rights judge who granted the leave, laid down procedures that and obligations of parties in to set aside such leave. the substantive law is put a contract, title to land and Application allowed, the order into motion, its objects and matters falling under the Law adopting the award quashed. essentials are realized; an of Succession Act. The order
Anticipatory Bail Kennedy Wanjala Wafula v Republic Misc. Application Criminal Case No. 136 Of 2012 High Court of Kenya at Eldoret A.Mshila J. October 25, 2012 Reported By Njeri Githang’a Kamau
Issue: by an officer in charge of a police Held: station, or appears or is brought before 1. Whether an application for bail a court, and is prepared at any time 1. It was clear from Section 123 (3) in anticipation of arrest can be while in the custody of that officer or at that anticipatory bail is not catered made under Section 123 (3) of the any stage of the proceedings before for in the Criminal Procedure Criminal Procedure Code that court to give bail, that person may Code. The section was intended be admitted to bail: for an accused person while the Criminal Practice and Procedure -bail- applicant was not as he was yet anticipatory bail-application for bail 2) Provided that the officer or court to be arrested and charged. pending arrest-where the application may, instead of taking bail from the 2. The applicant ought to have was brought under Section 123 (3) of person, release him on his executing moved the court by way of a the Criminal Procedure Code-whether a bond without sureties for his Petition under the Bill of Rights as an application for bail in anticipation of appearance as provided hereafter set out in the Constitution of Kenya, arrest can be made under Section 123 in this part. 2010. The Constitution bestows on (3) of the Criminal Procedure Code 3) The amount of bail shall be fixed with every Kenyan citizen a right to his Section 123 (3) of the Criminal due regard to the circumstances of or her freedom and liberty but Procedure Code provide as follows:- the case, and shall not be excessive. the Applicant or Petitioner must demonstrate to court how his 1) When a person, other than a person 4) The High Court may in any case Constitutional rights have been accused of murder, treason, robbery direct that an accused person be infringed upon by the Police. with violence, attempted robbery with admitted to bail or that bail required violence and any related offence is by a subordinate court or police officer Application dismissed arrested or detained without warrant be reduced.
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Stay of execution of decree pending appeal James Wangalwa & Another v Agnes Naliaka Cheseto Misc Application No. 42 of 2011 High Court, at Bungoma F. Gikonyo J October 24 2012 Reported by Dorcas OnamMac’Andere
Issue: 6 of the Civil Procedure Rules. It is state of affairs that will irreparably grantable at the discretion of the affect or negate the very essential 1. Conditions for satisfying grant of stay court on sufficient cause being core of the applicant as the of execution as set out under Order established by the applicant. successful party in the appeal. This 42 Rule 6 of the Civil Procedure is what substantial loss would entail. Rules. 2. The fact that the process of execution has been put in motion, 3. The right of appeal is a constitutional Civil Practice and Procedure-Stay-stay or is likely to be put in motion, by itself, right that actualizes the right to of execution of a decree pending does not amount to substantial loss. access to justice, protection and appeal-right of appeal-substantial loss- Even when execution has been benefit of the law, whose essential what amounts to substantial loss under levied and completed, that is substance, encapsulates that the Order 42 Rule 6b of the Civil Procedure to say, the attached properties appeal should not be rendered Rules-Civil Procedure Act (Sub Leg, have been sold, that does not nugatory, for anything that renders Order 42 ). in itself amount to substantial loss the appeal nugatory impinges on Held: under Order 42 Rule 6b of the the very right of appeal. CPR. This is because execution is a 1. The grant of stay of execution lawful process. The applicant must Order of stay of execution of decree pending appeal by the High Court establish other factors which show granted upon the deposit of the is governed by under Order 42 Rule that the execution will create a requisite security by the applicants.
Role of Ministers in appointments of parastatal’s Chief Executive Officers Centre of Human Rights and Democracy V Moi Teaching and Referral Hospital Board and 2 others Petition No.8 Of 2011
High Court of Kenya at Eldoret A. Mshila J. September 27, 2012 Reported By Njeri Githang’a Kamau
Issues: such appointments-requirement of proficient persons. for the appointments to be based 1. Role of Ministers in on fair competition and merit 2. The sector Minister’s role appointments of and adherence to Article 47 and is advisory and limited Parastatal’s Chief Chapter Six of the Constitution of to forwarding the best Executive Officers. Kenya 2010- Constitution of Kenya names of those persons who scored highly in the 2010, Article 47 and Chapter Six 2. Basis of appointment of interviews to the President. CEO’s of Parastatals under Held: the Constitution of Kenya, 3. With the advent of the 2010 1. The parastatal board new Constitution of Kenya when recruiting Chief 2010 it is a requirement Executive Officers must that all appointments to Constitutional Law -Public utilise a competitive and appointments-appointment of parastatals must be based effective process to ensure on fair competition and CEO’s of parastatals-procedure to they get a balanced mix be followed -role of the Minister in merit and adherence to
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Article 47 and Chapter other Parastatal there and the people shall not Six of the Constitution of is need for the proper fail to act to have any Kenya 2010 is of utmost streamlining of the process unprocedural actions importance and the for the appointment declared unconstitutional. Management Boards are of Chief Executives. The Petitioner, herein, is also accountable to the In the absence of this at liberty to petition to People of Kenya and not due process the sector move the High Court, to politicians and other Minister for Moi Teaching again, at any point in time bureaucrats. and Referral Hospital is to stop any anticipated reminded that the people violation or infringement 4. (Obiter)”…so as to avoid of Kenya are watching the of the Legal Notice herein the controversies such Executive’s lurking hand and Article 47 of the as the one being played behind the appointment Constitution.” out at a well-known of the Parastatal head parastatal and at any Petition dismissed.
Naming of Law Firms in Kenya In Re: Mary Mugure & 3 others [2012] eKLR Misc. Application No. 3 of 2012 High Court at Nairobi Family Division G. B. M. Kariuki, J. June 28, 2012 Reported by Nelson K. Tunoi
Issue: Held: in the deed poll. The 1. Whether law firms can 1. The philosophy behind statement that “Azania” operate using a trade the requirement was the name of a name other than names contained in Rule 12 of partner or the partners of their own present or the Advocates (Practice) was misplaced. past members? Rules is not difficult to 3. appreciate. The Rule The heading of the Advocates-law firms-naming requires that advocates letter “Waiver of Rule of law firms-whether law firms who have practicing 12 of the Advocates can practice in names other certificates to practice (Practice) Rules” to the than those of their present under their own names or Law Society of Kenya or past members-firm trading names of past or present (LSK) was flippant and under the name “Azania members of their firms. mischievous not least Legal Consultants”-Advocates The originating summons because it was borne out (Practice) Rules, Rule 12 was thus filed in breach by either the contents or Advocates (Practice) Rules, of the Rule. the subsequent letter by Rule 12 provides: the LSK. “No advocate shall 2. Although there was a practice under any deed poll stating the Suit struck out. name other than his own change of names by the name or other name of a advocate, nowhere did past or present member the name “Azania Legal or members of the firm.” Consultants” appear
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Appeal of a conditional stay of execution Reuben Omwenga Marwanga & Another v Gwaro Onwonga Civil Appeal No. 382 of 2010 High Court of Kenya at Nairobi M.A Ang’awa J. March 20, 2012 Reported by Emma Kinya Mwobobia
Issue: condition that the decretal sum be granted the prayers or in the suit be deposited with the otherwise. 1. Whether a party who had been court as security – whether the granted a stay of execution 2. The subordinate court in this appellants appeal was valid in case had granted the orders order on condition that a the circumstances. decretal sum had to be sought for stay of execution on deposited in the subordinate Held: condition that the appellants deposited the decretal sum court could appeal to the 1. An application for stay of High Court on grounds that as security with the court. execution if made in the However, this condition was they were unable to furnish subordinate court and the security ordered. not met and therefore the is granted stood till the appellants should return to the finalization of the appeal. subordinate court and report Civil Practice and Procedure-stay However, if the application is of their inability to comply – stay of execution – operation denied, the party has a right with the terms issued by court. of the orders of stay granted – to make the same identical They are allowed to pray for where the subordinate court had application to the High vacation of their terms. granted the stay orders with a Court and upon application Application dismissed.
Removal of the Provision for compensation by Kenya Wildlife Services for Damages Caused by Wildlife Rift Valley Agricultural Contractors Limited v Kenya Wildlife Services Civil Case No. 256 of 2002 High Court of Kenya W. Ouko J. July 27, 2011 Reported by Emma Kinya Mwobobia
Issue: claim is based on the breach to ensure the protection of crops of duty, negligence, the rule in and property from destruction by 1. Whether the defendant (Kenya Rylands v Fletcher and nuisance. the wildlife – whether KWS was Wildlife Services) was liable for Civil Practice and Procedure - liable for the loss of crops and the loss of crops and property property caused by the invasion caused by the invasion of damages – suit for compensation for damages caused by wildlife to of wildlife into the plaintiff’s farm wildlife into the plaintiff’s farm - section 62(1) of the Wildlife in light of the amendment of the plaintiff’s farm – Amendment of the Act removing the section (Conservation and Management) the Wildlife (Conservation and Act. Management) Act (the Act) on compensation in case of which removed the provision destruction of crops and property Held: for compensation? - claim by the plaintiff that Kenya Wildlife services (KWS) were 1. Before the amendment NB: Court noted that the plaintiff’s negligent in their statutory duty to section 62(1) of the Wildlife (Conservation and
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Management) Act (the crops and animals from the the defendant had failed in its Act)by the Act No.16 of wildlife. duty to protect the plaintiff’s 1989, there was a provision 2. Considering the defendant’s crops as required by law. for compensation of any functions enumerated under 4. Although the provisions person who suffered bodily section 3A (a) of the Act, dealing with compensation injury or death or loss of there was no doubt that for damage to crops and crops or property caused the defendant was under property was removed in the by any wildlife. However, the a statutory duty not only to Act, the Court of Appeal in amendment, removed the formulate policies on all issues Joseph Boro Ngera& Another compensation for damage of wildlife but also to ensure v Kenya Wildlife Services Civil or loss of crops or property among other things, the Appeal No. 171 of 1997 held destroyed by wildlife. In protection of crops and other that the absence of provision its stead, the amendment domestic animals against for compensation in itself was placed an obligation upon destruction by wild animals. no bar to an aggrieved party the defendant to ensure that 3. Evidence of destruction of the to claim damages under the the farming and ranching common law. communities in Kenya are plaintiff’s farm and destruction protected against loss to their of crops was evidence that Judgment entered for the plaintiff.
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Industrial CourtCompilation by NelsonCases K. Tunoi, Advocate An implied term to increase or review salary of an employee can be incorporated into a contract of Employment Isabel Wayua Musau v Copy Cat Limited Cause No 1562 of 2011 Industrial Court of Kenya at Nairobi S. Radido, J March 15, 2013 Reported by Andrew Halonyere & Cynthia Liavule
Issues: 1. For an annual salary labour costs and burden 1. Whether management increase or review to be an employers’ managerial practices and custom to legally enforceable, it control. increase or review salaries had to either be based 4. An implied term to of employees creates a on some statute or be increase or review the legitimate expectation expressed in a contract salary of an employee among the employees of as an express term or could be incorporated into an annual salary review. in certain cases as an a contract of employment 2. Whether the Court can implied term. where such a practice/ intervene to enforce the 2. Annual salary reviews custom had been custom or management by the respondent had established either through practice of reviewing taken effect as a custom annual salary increments/ salaries annually. thus creating a legitimate review or through staff expectation among the policies or manuals and Labour law – contract of employees of an annual where an employer acts employment-claim for entitlement salary review. capriciously or arbitrarily, to salary increment/review- 3. The management the Court could intervene whether there was a contractual practices and custom of to enforce the practice, basis upon which claimant could the Respondent had the custom or management found a claim for salary increment/ effect of hardening into an practice. review-whether an implied term to implied term thus creating Respondent to pay claimant increase employees’ salaries can an obligation upon it. 204,000 in damages and Group be incorporated into a contract However the Court must Incentive Award of 480,000 of employment not transfer to itself the Held: control of an employer’s
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Whether the industrial court has the discretion to grant leave to file contractual Employment disputes out of time Maria Machocho v Total Kenya Limited Misc. Cause No. 2 of 2012 Industrial Court of Kenya at Mombasa Radido Stephen, J. March 15, 2013 Reported by Beryl A. Ikamari
Issue: Employment Act, Cap 226, Cap 22, are applicable 1. Whether the Industrial which has been repealed where the cause of action Court has the jurisdiction by the Employment Act, is based on negligence, and discretion to grant 2007 and the Limitation nuisance or breach of leave for an applicant of Actions Act, Cap 22. duty. These provisions to file a contractual The statutory limitation are not applicable to employment dispute period for causes of action contractual claims and claim out of time. based on contract under as such the court lacks the Limitation of Actions the discretion to entertain Limitation of Actions-leave to Act was 6 years but it claims for the granting of file a claim out of time-whether has been reduced to 3 leave to file claims based discretion to file a claim out of years by Section 90 of the on contract out of time. time is available for contractual Employment Act, 2007, employment disputes-the in respect of contracts 4. Pursuant to Section 12(3) jurisdiction and discretion of the of service or causes of (viii) of the Industrial Court Industrial Court to grant leave for action arising out of the Act, No. 20 of 2011, the an applicant to file a contractual Employment Act, 2007. Industrial Court has wide employment dispute claim out discretionary powers to of time-the Employment Act, 2. Section 90 of the issue such appropriate 2007, Section 90, the Limitation Employment Act, 2007 relief as it may deem fit. of Actions Act, Cap 22, Sections set the limitation period However, such discretion 4(1), 27, 28 and 31, the Industrial to three years in respect cannot be exercised in Court Act, No. 20 of 2011, Section of employment contracts favour of the applicant 12(3)(viii). and it does not envisage as it would amount to Held: extension of time to file divesting the respondent/ 1. As the applicant was claims out of time. defendant of a substantive dismissed in 2006, the right to limitation. applicable statute at the 3. Sections 27 and 28 of the material time was the Limitation of Actions Act, Application dismissed.
Whether stipulations on limitation periods are technicalities that may be dispensed with by the courts Charles Onganya Okulo & 3 Others v Sweety Sweets Ltd. Cause No. 430 of 2011 Industrial Court of Kenya at Nairobi Linnet Ndolo, J. February 27, 2013 Reported by Beryl A. Ikamari
Issues:- employment disputes is in the interests of justice 1. Whether the limitation a technicality which the and proceed to hear period relating to court may dispense with employment disputes on
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merits; and, Employment law-limitation of Limitation of Actions Act, Cap. 22, 2. Whether a memorandum actions-whether statutory Section 4(1). of claim, constituting a provisions on limitation periods series of claims for which are technicalities which the courts Held:- different limitation periods may dispense with in the interests 1. Stipulations on limitation are applicable, ought to of justice-whether an action periods constitute be struck out due to the constituting claims for which substantive matters and fact that some claims different limitation periods apply do not amount to mere made in it are time barred. ought to be struck out, where technicalities. some claims are time barred and 2. Where some claims are The Employment Act, 2007, under others are within time Employment time barred while others Section 90, provides that the Act, 2007, Section 90 and the are within time, striking limitation period for employment Limitation of Actions Act, Cap. 22, out the memorandum disputes is 3 years, except for Section 4(1). of claim does not serve actions concerning negligence Limitation of actions-whether the interests of justice. for which the limitation period statutory provisions on limitation The claimants ought to is 1 year from the date that the periods are technicalities which examine their claims and negligence or default complained the courts may dispense with in make amendments in light of ceased. the interests of justice- the effect of the law on limitation of The Limitation of Actions Act, Cap. of filing a suit in which some claims actions. 22, under Section 4(1) states that are made within time while others Application dismissed. the limitation period for actions are time-barred-the Employment founded on contract is 6 years. Act, 2007, Section 90 and the
Procedure for filing defence in industrial court proceedings Walter Wanyama & 4 others v ITA Marine Co Ltd [2013] eKLR Cause No.124 of 2012 Industrial Court at Mombasa Onesmus N. Makau, J. February 21, 2013 Reported by Nelson K. Tunoi & Beatrice Manyal
Issues: within fourteen days from the days Held: i. What is the correct of the date of 1. The Rules provide for filing procedure for filing service, file and serve a response of only response which in defence in proceedings to the claim or appeal. essence is the defence. at the Industrial Court? (4) The court may on application by a party to any 2. A responding party need ii. Whether failure to file proceedings, not file a memorandum of and serve any pleadings extend or reduce the time within appearance or notice of within the statutory period which to a responding party appointment before filing renders the pleading a may respond to a response. The filing of the nullity. a pleading”. Notice of Appointment Civil procedure-procedure of by the Federation of Rule 13 of the Industrial Court Kenya Employers (FKE) Procedure Rules 2010, filing defence in industrial court- statutory period of filing defence- was unnecessary and 13(1) If a party served with not informed by the law a statement of the claim or Industrial Court procedure rules 2010, Rule 13(1) & (4) or practice. Possibly that memorandum of appeal was the reason it was not intends to respond to the claim or served upon the claimant appeal, the party shall,
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and instead a response sought prior to the filing for this court should be was filed which was served of the response, meaning amended to allow filing promptly. the response was filed of a memorandum of out of time and was appearance before 3. The provision of Rule 13(1) incompetent. the response is filed. and (4) of the Court’s This will allow a party to Rules is in mandatory 5. In view of the Article assume audience before terms that the response 159 of the Constitution the court even before must be filed and served and section 20(1) of the filing the response. This within 14 days of service Industrial Court Act, the will become even more of the claim or appeal court is not to be bound reasonable when an on the respondent. Sub by the legal technicalities advocate appears before rule(4) thereof provides a to just terminate the court to seek leave to leeway to any party that proceedings especially file response to claim out leave can be sought to when no precipitate of time.” either extend or reduce action had been taken the limitation period like entry of judgment. Objection dismissed with no costs; stipulated in sub rule(1). leave granted to the claimant to 6. ( Obiter, per O. N. file and serve reply to the response 4. The response was filed Makau, J.) “As a way within 7 days. 90 days after service of of parting shot, I think the claim. No leave was the rules of procedure
When does the cause of action accrue in an employment dispute where parties commence with Out- Of -Court dispute resolution mechanisms which later fail? Kenya Plantation & Agricultural Workers Union V Mununga Leaf Base [2013] e KLR Industrial Cause No. 91 of 2012 Industrial Court of Kenya at Nyeri N. Abuodha, J. February 12, 2013 Reported by Mercy Ombima & Cornelius Lupao
Issue: the claimant barred by limitation of contract; 1. When does a cause of actions rule? (b) [Actions] to enforce a action accrue in an Labour Law- Wrongful dismissal- recognizance; employment dispute where Whether the cause of action (c) [Actions] to enforce an parties opt for other dispute commenced when the claimant’s award; resolution mechanisms first services were terminated or after the (d) [Actions] to recover a before going to court? conciliation process failed- whether sum recoverable by virtue the action was statute barred after of a written law, other than 2. Whether a cause of action lapse of seven - Limitation of Actions a penalty or forfeiture or is suspended while out- of Act CAP 22 Laws of Kenya. sum by way of penalty or court dispute resolution - Limitation of Actions Act forfeiture; mechanisms are on-going. (cap 22)- Section 4 (1) (e) [Actions], including The claimant, in a labour dispute, Actions of contract and tort actions claiming equitable opted to refer the dispute to a and certain other actions relief, for which no other conciliator appointed by the (1) The following actions may period of limitation is minister. The conciliation process not be brought after the end provided by this Act or by dragged on for seven years before of six years from the date on any other written law the dispute was referred to court. which the cause of action Held: The question that arose was; was accrued— 1. The determination together (a) [Actions] founded on
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with recommendations the six year rule prescribed resolution mechanisms. was rendered on 3rd June, under Section 4(1) of the Court action is just one of 2004. The Respondent Limitation of Action Act. them and at times the last refused to oblige to 2. Resolution of labour and of the mechanism. the recommendations employment disputes 4. The Minister having prompting the Claimant is a process with the admitted the dispute and to ask the Minister in 2006 Industrial Court. In most appointed a conciliator, to intervene in getting the cases the Court is the the pace and conclusion Respondent to sign a form final arbiter when other of such conciliation process to enable the Industrial pre-courts mechanisms was a matter beyond the Court arbitrate the matter. fail. Once a disputant exclusive control of the From the foregoing, the involves the prescribed Claimant. The claimant cause of action as it dispute resolution having invoked the were accrued in 2006 mechanism the accrual labour dispute resolution when it became clear of the cause of action mechanism as provided to the Claimant that the becomes suspended under the then Trade Respondent would not until the outcome of the Dispute Act, the question honour the conciliator’s conciliation process is of limitation did not arise. recommendations. rendered. The preliminary objection was Therefore by filing the 3. Unlike ordinary civil actions, dismissed with costs. claim on 9th July, 2012, trade disputes frequently the claimant was still within involve multi-tiered disputes
When a weekly employee is not a casual employee Harrison Meshack Lusimbo & Anor v Mareba Enterprises Limited Cause No. 2007 of 2011 Industrial Court of Kenya at Nairobi Moureen Onyango, J January 16, 2013 Reported by Teddy Musiga
Issue: according to the provisions Section 37 [3] he was “entitled 1. Whether a weekly contract of the Employment Act, to such terms and conditions of of employment can be 2007 which defined a casual service as he would have been converted from a casual employee as that person entitled to under this Act had employment to a monthly whose terms of engagement he not initially been employed employment. provided for his payment at as a casual employee”. the end of each day and who Such terms and conditions of Employment Law – contract of was not engaged for longer service included annual leave, employment – weekly contract of periods than twenty four hours termination notice and service employment - conversion of a weekly at a time. pay. employee to a monthly employee 2. Section 37 of the Employment 3. Having worked continuously – whether a weekly contract of Act provided for conversion of for 19 years the Claimant was employment can be converted from a casual employee to monthly also entitled to a fair hearing in a casual contract to a monthly contract contract of employment accordance with Section 41 – Employment Act, 2007 after working continuously of the Employment Act before Held: for 1 month or intermittently his services were terminated. 1. The claimant was not a casual for 3 months. The claimant Since this was not done, his employee since he was paid therefore qualified to be a termination was unfair. at the end of each week monthly employee. By virtue of Petition allowed.
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A decree issued pursuant to section 49 of the employment Act 2007 is Subject to PAYE
Hosea Njeru Kagondu v Kenya Union of Commercial Food and Allied Workers [2012] eKLR Cause No 106 of 2010 Industrial Court of Kenya M. Onyango, J. December 13, 2012 Reported by Andrew Halonyere
Issue: 1. Section 49 of the were based on the Employment Act 2007 provisions of section provides for remedies for 49. The Income Tax Act i. Whether a decree wrongful dismissal and requires an employer to issued pursuant to unfair termination. The deduct PAYE from any section 49 of the section provides that Taxable income of an Employment Act any payments made by employee derived from 2007 is subject the employer under the employment. Failure to to deduction of section shall be subject to do so is an offense. income tax. statutory deductions. The word “Shall” connotes that it is mandatory. The 3. All payments due from Employment law - wrongful section does not give the Respondent to the dismissal – remedies for wrongful a judge an option to Claimant in respect of dismissal – whether a decree decide whether or not the decree is subject issued pursuant to section 49 of the benefits under the to statutory deductions the Employment Act is subject section are taxable. including PAYE as to deduction of income tax – provided in sections 49 Employment Act 2007 section (2) of the Employment 49(2) 2. The Claimant was Act 2007. an employee of the Held: Respondent. The benefits Application succeeds. awarded by the Court
Court declares retrenching exercise as unfair and wrongful Aviation and Allied Workers Union v Kenya Airways Limited & 3 others [2012] eKLR Cause Number 1616 of 2012 The Industrial Court at Nairobi J. Rika, J December 3, 2012 Reported by Sylvie Nyamunga
Issues 2. Whether the process was carried Employment Act 2007-section 41, out fairly and in accordance 43 and 45-Constitution of Kenya, 1. Whether the retrenchment with the law governing the 2010-Article 10 exercise initiated by Kenya parties’ relationship; Airways Ltd (KQ) on 1st August Held: 2012, and scheduled for Employment Law - retrenchment 1. The reasons, inter alia adoption completion on 4th September exercise- whether the exercise of a new business model, given 2012, was justified and based was justified and valid- whether by the employers are open to on valid grounds; the process was carried out fairly-
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judicial interpretation. The in the Constitution. A new 7. An employer coming to Court must be satisfied that in Constitution has been Court with evidence of all the circumstances of the adopted, which puts people, record financial loss as its matter the decision made by fairness and the planet, at the decision to mass-terminate the employer was reasonable. core of development. the contracts of its employees, Retrenchment becomes a is not substantively justifiable. colourable exercise if done for 5. Procedural fairness in a It is not nationalist fervour, collateral purpose of getting retrenchment exercise is as but hard evidence from KQ rid of an employee. important as the substantive corporate records. There is justification. How an employer no justification that roles have 2. The Government and Judicial treats its employees really been collapsed or merged; Authorities have an obligation matters to those who exit, and expansion naturally demands to ensure it is a business that even those who remain. Fair an increase in the roles. meets its economic, strategic procedure involves notification as well as social responsibilities. to employee, their trade 8. Fair procedure, reasonableness In the context of Article 10 of the union and the government and consultation were thrown Constitution of Kenya, which of the intended redundancy. out of the window. Alternatives carries the national values and Collective consultation does were not considered, and principles of governance this not mean that employers can even when the Government flagship carries very weighty avoid individual consultation. of Kenya requested for responsibility. Businesses must Employees must be consulted dialogue, KQ was impervious be conducted in a manner individually, informed they to such entreaties. An unfair that meets the demands of are at a risk of redundancy redundancy process results the Constitution. It is a law that and allowed the chance to in an unfair termination. is addressed to all persons. challenge the process and Under section 43 and 45 of highlight the flaws in it. At the Employment Act 2007, 3. In applying or interpreting the the consultation, selection the employer must establish Labour Laws, KQ was bound criteria must be discussed with valid reason or reasons for to observe these principles. the employee and the trade termination, and demonstrate The Court is bound to observe union. Fair selection criteria that it followed fair procedure. the principles in applying and include the preparation Fairness in all forms of interpreting the law. Security and adoption of objective employment termination is of employment is a core value selection criteria. the staple of Industrial Law. of the Employment Act 2007. This is the reason why sections 6. KQ issued a redundancy All the affected 447 unionisable 41, 43 and 45, place such notice to Aviation and Allied employees are hereby reinstated onerous duty on employers Workers Union (AAWU), The to their roles at KQ, held as of in justifying employment impression the Court made 30th August 2012, without loss of decisions. This security has of these notices is that they seniority, continuity, benefits and now been anchored in the were lacking in good faith. privileges; All employees shall Constitution, by availing to all KQ was communicating a be paid their back-salaries and persons, the right to fair labour decision, not inviting the trade allowances from the month of practices. union, the employees and the September 2012; All the reinstated government for honest social employees are directed to report 4. There was no substantive dialogue. After the notice, to work next morning at 8.00 a.m.; justification for the there were no good faith and Costs of the claim Awarded to retrenchment exercise. The genuine consultations with the the claimant to be paid by the entire Constitution of Kenya Ministry of Labour, the AAWU 1st Respondent; and 2nd, 3rd and is demanding that business and the individual employees. 4th Respondents to cater for their models are founded on KQ management rode own costs the principles laid down roughshod over everyone.
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Court declares retrenching exercise as unfair and wrongful Aviation and Allied Workers Union v Kenya Airways Limited & 3 others [2012] eKLR Cause Number 1616 of 2012 The Industrial Court at Nairobi J. Rika, J December 3, 2012 Reported by Sylvie Nyamunga
Issue: the salary specified therein- the office were not met whether such an employee can as at the time he signed 1. Whether an employee who repudiate such terms at a later the contract. Given that accepts terms of employment stage. the claimant was offered as per the contractual terms Held: the appointment and he can repudiate the same at a took it up and continued later stage? 1. The complainant to receive the salary, Contract-contract of (employee) should have allowances and benefits employment-where an employee declined to take up the attached to it, he could acknowledges terms in a contract appointment at the time not turn around and deny of employment and works in the of appointment given that he accepted the capacity appointed and receives that he felt that the terms offer given to him. and conditions befitting
Summary dismissal- hearing and notification on the part of the employer mandatory Shankar Saklani v. DHL Global Forwarding (K) Limited Cause No. 562 of 2012 Industrial Court of Kenya at Nairobi B. Ongaya, J. November 23, 2012 Reported by Njeri Githang’a Kamau
Issue: notification (2) Notwithstanding 1. Whether in cases of 41. (1) Subject to section any other provision of summary dismissal 42 (1), an employer this Part, an employer from employment, a shall, before terminating shall, before terminating hearing and notification the employment of an the employment of an are mandatory and employee, on the grounds employee or summarily necessary. of misconduct, poor dismissing an employee performance or physical under section 44 (3) or (4) Employment law-summary incapacity explain hear and consider any dismissal- hearing and to the employee, in a representations which the notification- whether in cases of language the employee employee may on the summary dismissal, a hearing and understands, the reason grounds of misconduct or notification are mandatory and for which the employer is poor performance, and necessary- Employment Act, 2007 considering termination the person, if any, chosen Section 41 and 44(1) and the employee shall be by the employee within entitled to have another subsection (1) make. Section 41 of the Employment employee or a shop floor Held: Act, 2007 union representative of his 1. A hearing and The need for a hearing and choice present during this notification on the explanation. part of the employer
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are mandatory where the close of any day entitled to under it is contemplated to without notice. That is statute or contract. terminate the contract the only circumstance 6. In matters of of employment where a termination performance it is very on the grounds of notice is not required useful and important misconduct, poor as envisaged under to demonstrate performance or Section 44 (1) of the that the employer’s physical incapacity Act and for the obvious officer charged of the employees. reason that service of with supervising 2. “Gross misconduct” the notice would be the employee has that justify summary impracticable or of specifically made an dismissal under little practical value. adverse performance section 44 (4) of the 4. In all other cases, report there was none Employment Act, 2007 Section 44 (1) of the in the case before (the Act) and conduct Act only entitles the the court hence amounting to a employer to terminate the deficiencies fundamental breach on account of gross in the manner the of an employee’s misconduct with less Respondent handled obligations as notice than which the the case was envisaged in Section employee is entitled by evidence of absence 44(3) of the Act are any statutory provision of misconduct on the “misconduct” for or contractual term. part of the Claimant which a notification 5. The employer must that would justify and hearing are serve a notice summary termination necessary as and accord the of the contract of envisaged under employee a hearing employment. Section 41 of the Act. as contemplated in 7. The Respondent 3. Section 35 of the Act Section 41 of the Act. acted unreasonably prescribes the period The only leeway the and unfairly by failing of the termination employer is entitled to comply with express notice in various to under Section 44 statutory provisions circumstances. Under (1) is to serve a shorter requiring the Claimant Section 35(1) (a), a notice, on account to be heard. contract to pay wages of gross misconduct, daily is terminable than that to which Judgment entered for the by either party at the employee was Claimant against the Respondent.
Resolution of disputes by conciliation in industrial relations Kenya Plantation & Agricultural Workers Union V MajiMazuri Flowers Ltd Cause No.1365 Of 2011 Industrial Court Of Kenya at Nairobi Mathews N. Nduma J. November 21, 2012 Reported by Njeri Githang’a Kamau
Issues: conciliation under Section 68 strike of the Industrial Relations Act, 1. Whether an Institution can 2007 not to dismiss workers for 2. enforceability of conciliation be bound by a Return to engaging in an unprotected outcomes Work Formula arising from
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disputes as possible should be with a contract which it is Employment Law - industrial resolved through conciliation trying to enforce”. Cognizant relations-dispute resolution resulting in a minority of of such difficulties of enforcing mechanism- dispute resolved disputes going to the Industrial agreements reached in after conciliation- terms of the Court. This is a cornerstone mediation or conciliation, agreement settled in conciliation- of industrial peace in the it is desirable to specifically whether an institution can be country. provide in the agreement itself bound by a Return to Work Formula that the parties have agreed arising from conciliation under 2. The enforceability of to present the same before Section 68 of the Industrial Relations conciliation outcomes is an court to be reduced into an Act, 2007 not to dismiss workers for important feature of dispute order of the court. This should engaging in an unprotected strike resolution on processes. This be done without the necessity -enforceability of conciliation is intrinsically linked to the of having to commence outcomes- Industrial Relations Act principle of self-determination. judicial proceedings as in the 2007, Section 68 It is for the parties to determine case before the court. whether an agreement Industrial Relations Act, 2007 reached through conciliation 4. The respondent was bound “promotion of orderly is to be a legally enforceable by the terms of the Return to and expeditious contract or a non-binding Work Formula entered into. dispute settlement”. agreement. Where the parties It committed itself not to rely Section 68(1), titled conclude a written agreement on allegations of participating ‘Dispute resolved after signed by all parties and in an unprotected strike to conciliation’ provides:- the conciliator, it is clearly terminate the employment intended to be a binding of the grievants in a Written “If a trade dispute is settled contract between the parties Agreement entitled “Return in conciliation the terms of and therefore, enforceable. to Work Formula”. The the agreement shall be:- Such an agreement ordinarily Respondent therefore relied is presented before court and on an invalid reason to (a) recorded in writing, is made an order of the court. terminate the employment of and the grievants. The conduct of 3. In many jurisdictions including the Respondent was inimical (b) signed by the parties Kenya, the principal methods and conciliator.” to dispute resolution between of enforcing a settlement the parties and in the Country Held: agreement reached at at large and the same was not mediation or conciliation just and equitable. 1. The intention of Section 68 of is as a contract. That is the Industrial Relations Act, “unsatisfactory result since Application allowed, Respondent 2007 was to ensure resolution that enforcement mechanism to reinstate the grievants of disputes at conciliation. leaves the party precisely It is intended that as many where it started in most cases,
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Beneficiary of pension still deemed to be in employment until all pension is paid Charles M. Shitiavai v City Council of Nairobi Cause No. 2028 of 2011 Industrial Court, at Nairobi Hellen Wasilwa, J. November 20, 2012 Reported by C. W. Lupao
Issue payments are made. outstanding, it is deemed that the recipient is still in 1. Whether a retiree who has not Section 16A of Pensions Act states as follows: employment and he shall been paid full pension is still be entitled to his full pay. deemed to be in employment “A person to whom a pension The mischief sought to be and entitled to full pay until or other allowance is payable averted by this provision is all terminal payments are under this Act shall be entitled the delay usually caused by made? to be retained in the service until the department responsible the payment in full of the gratuity in paying the beneficiaries. Constitutional Law - constitutional payable to him consequent upon Courts must enforce rights of right-right to expeditious, the exercise by him of his option retirees who continue to suffer efficient, lawful, reasonable and to receive such gratuity under the due to delays occasioned by procedurally fair administrative provisions of this Act”. the payments due to them. action-action of retiring an individual without paying him/ Held: Claimed awarded a total of Ksh.1,022,060/= as compensation her the requisite pension at the 1. What is due or owing for a time of retirement- beneficiary for the 52 months he was waiting pensioner must be paid in for his pension to be paid at the of the pension deemed to be still full. If the amounts remain in employment until all pension salary rate of 19,655 per month.
The impact of pre-trial process on the limitation period under the Employment Act
Kenya Scientific Research International Technical and Allied Institutions Workers Union vs. Mr. Rainald Schumcher’s & another Cause No. 832(N) of 2009 Industrial Court of Kenya at Nairobi Hellen Wasilwa, J. November 6, 2012
Reported by: Njeri Githanga & Victor Andande
Issue: which limitation period starts the provisions of running in case of pretrial process- section 4 (1) of 1. Whether the limitation the impact of pretrial process on the Limitation of period can start running the limitation period under the Actions Act, no before the conciliation Employment Act- Employment civil a c t i o n process is exhausted. Act, Section 90. or proceedings based or arising Section 90 of the out of this Act Employment Law - limitation Employment Act provides or a contract of period- pretrial process- thus; service in general conciliation process-time within “Notwithstanding shall lie or be
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instituted unless months next after exhausted. The claim it is commenced the cessation was thus not barred by within three thereof”. the dint of Section 90 years next after Held: of the Employment Act the act, because it was filed 1. neglect or default Since the conciliation within one week from complained or process had been the time the conciliation in the case of ongoing, the limitation process ended. continuing injury period could not start or damage running before the Preliminary objection dismissed. within twelve process had been
An employer can only extend the probationary period as per the Employment Act
Gichuki Kabukuru vs. Postal Corporation of Kenya Cause No. 297 of 2011
Industrial Court of Kenya at Nairobi
Hellen Wasilwa J.
November 5, 2012
Reported by: Njeri Githanga & Victor Andande
Issue: probationary of 12 months and could i. Whether the probationary period shall not not be extended even period can be extended be more than six by a single day. At this beyond what the months but it may point, the Claimant was Employment Act provides be extended for automatically converted for. a further period of into a permanent not more than six employee on 5th May, months with the 2010. Employment law: -terms of agreement of the employment -probationary period employee. 2. The probation period –extension of a probationary was 12 months which the period –probationary period (3) No employer Claimant acceded to. not to go beyond 12 months – shall employ an However, the extension employee was on probation for employee under of probation period by 12 months –purported extension a probationary another six (6) months of the probationary period –at contract was contrary to Section the expiry of 12 months it was more than the 42 of the Employment deemed the probationary period aggregate period Act. automatically lapsed –extension provided under beyond statutory period was subsection (2). Judgment entered for the unlawful. Claimant in the sum of Held: Ksh.1,150,060. Section 42 of the 1. The extension probation Employment Act 2007 period was contrary to states that; law, thus the probation period ceased “(2) a automatically at the end
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Are the limitation provisions in Section 90 of the Employment Act, 2007 applicable to contracts of service terminated before the Act’s commencement? Charles Kiruthi Mwangi v G4S Security Services (k) Ltd Cause No. 1418 of 2010 Industrial Court at Nairobi Radido Stephen, J. October 26, 2012 Reported by Michael Obura & Beatrice Manyal
Issue: accordance with it. on limitation from such i. Whether the limitation contract must have been 2. provisions in section Section 93 of the determined on the basis of 90 of the Employment Employment Act, 2007 the repealed Employment Act, 2007 is applicable set out the transitional Act, Cap. 226 and the to contracts of service provisions relating to Limitation of Actions Act. terminated before its continuance of valid 4. commencement. contracts of service Section 4(1) of the and foreign contracts of Limitation of Actions Act Held: service entered into before amended by section 90 of 1. The Employment Act its commencement. At the Employment Act 2007 2007 did not have any the time the contract is not merely procedural provision which stated of service in contention but a substantive that it would have was terminated, the provision. It affects rights retrospective application. Employment Act, 2007 which persons such as The only respect in which was not in place. the Claimant in this case the Employment Act, 2007 enjoyed. It is a general 3. applied to contracts of The continuance, presumption at common service entered into before application and law and rule of statutory its commencement in interpretation of the interpretation that statutes 2008 was its amendment contract in accordance should not be interpreted of the terms of such with the provisions of the to operate retrospectively contracts which were still Employment Act, 2007 in unless there is express subsisting to be construed case of inconsistency did intention by the legislature. as if they were made in not arise. Any disputes
Employers are under an obligation to issue their employees with letters of appointment Joseph Okello Adhiambo & another vs. Y. J. Elmi & others Cause No. 594 of 2010 Industrial Court of Kenya at Nairobi H. Wasilwa, J. October 26, 2012 Reported by: Njeri Githanga & Victor Andande
Issue: appointment letter-fair labour Held: 1. Whether an employment practice- where no letter of 1. It was the duty of relationship can exist appointment issued- whether respondents as employers where there’s no letter of the court can result to minimum to issue the claimants who appointment. terms under the Employment were their employees with Act- whether an employment a letter of appointment. Employment Law- terms of relationship can exist where 2. Failure of an employer employment- appointment- there’s no letter of appointment to issue a letter of
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appointment to an Court should resort back to is unfair. employee amounts to the minimum terms of an Judgement entered for the unfair labour practice employment relationship claimants at Kshs 63,840 for each contrary to Article 41(1) under the Employment claimant. of the Constitution as the Act. letter of appointment 4. It can be inferred from contains the terms and Section 45(2)(c) of the conditions of service. Employment Act that 3. In absence of any tangible termination without contract agreement the adherence to procedure
Ministers not bound to appoint parastatal board nominees Dr. Anne Kinyua v Nyayo Tea Zone Development Corporation & 2 others (2012) eKLR Cause Number 1065 of 2012 Industrial Court, at Nairobi J.O. Abuodha, J. October 18, 2012 Reported by C. W. Lupao
Issues: Civil Practice and Procedure Government-unconstitutionality - commencement of suits- of this requirement- Government 1. Are Ministers bound to requirement by law of the need to Proceedings Act, section 13A; appoint parastatal board issue notice of intention to sue the Constitution of Kenya,2010, nominees? Government-unconstitutionality Articles 23(3), 159(1)(d). 2. Is the requirement that of this requirement- Government one needs to issue Proceedings Act, section 13A; Held: notice of intention to Constitution of Kenya,2010, 1. The decision to reappoint sue the Government as Articles 23(3), 159(1)(d). the applicant or not was not per section 13A of the within the exclusive authority Government Proceedings Civil Practice and Procedure - of the Board. Hence, the Act unconstitutional? jurisdiction of court- jurisdiction Ministry was not bound to of the industrial court to accept any recommendation 3. Expanded scope of hear claims of breach of for appointment of the Board. Principles governing grant fundamental rights in the course Ministers are members of the of injunctions. of employment-Constitution of cabinet which the President Kenya, Article 165 (3);162 (2) chairs. They are accountable Constitutional Law - fundamental to him as the appointing rights and freedoms-right to fair Civil Practice and Procedure - authority over affairs and administrative action- claim that Injunctions- what an employee the running of the Ministries a fundamental right under the seeking relief for injunction needs and corporations under their Constitution has been violated or to demonstrate over and above docket. It would therefore be fair administrative procedure has the principles in Giella v Cassman untenable to have a scenario not been followed- jurisdiction of Brown. where the Ministers have the industrial court to adjudicate no role at all on how Chief on matters pertaining to such a Civil Practice and Procedure Executive Officers and senior claim. - notice of intention to sue officials of the Ministry and the Government-requirement parastatals under them are by law of the need to issue appointed or removed. notice for intention to sue the
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2. A claim that a fundamental shown that the claimant ‘has that her contract would not right under the Constitution no reasonable prospect of be renewed. has been violated or fair succeeding at trial’ in being administrative procedure granted a final injunction 8. Issuing of the certiorari and has not been followed in the , that injunctions can be declaratory orders sought course of employer-employee granted to restrain dismissals would not as a corollary relationship is a dispute as can declarations that acts restore the applicant to relating to employment and of purported dismissal are office. She would have to labour relations hence within invalid, that sufficient relevant be reappointed afresh her the jurisdiction of the Industrial confidence subsists between contract having expired on Court. the employer and the 19th June, 2012. employee and finally that the 9. For a court to grant prayers 3. The Constitution and the claimant has not accepted Industrial Court Act has given for specific performance in the alleged repudiation of a contract of employment, the Industrial Court original contract. and exclusive jurisdiction to the court would have to hear and determine disputes 6. By the time the claimant be satisfied that trust and relating to employment and moved to Court she had confidence still existed labour relations. That means, no contract and was a between the parties and any dispute regardless of its former employee of the that damages would not be nature which arises in the Corporation. The issue of her an adequate remedy. context of employment and reinstatement therefore was 10. The applicant had been on labor relations is within the untenable since by the time a three year contract which exclusive mandate of the of moving the Court there had been renewed three Industrial Court. was no continuing employer- times previously. She had the employee relationship expectation that her contract 4. Whereas article 165(3) of between the applicant’s the Constitution of Kenya, would be renewed for the and the Corporation. Besides fourth time after showing 2010, gives the High Court an order of reinstatement jurisdiction among others interest to have it renewed cannot issue in respect of an as required by the Guidelines to determine the question expired appointive-fixed-term whether a right or fundamental and the Corporation’s Board contract. Reinstatement was agreed with her and made freedom in the Bill of Rights an inappropriate remedy as has been denied, violated, the recommendation to she was not removed during the appointing authority. infringed or threatened, this the currency of her contract. jurisdiction is subject to sub However the appointing article 5 of article 165 that 7. Injunction is an equitable authority declined the states that the High Court remedy and will be granted renewal citing the fact that shall not have jurisdiction to a party who exercises due the applicant had had three in respect of matters falling diligence. The circumstances previous renewals and in within the jurisdiction of the of this matter made it keeping with good corporate Courts contemplated under incumbent on the applicant management her contract article 162(2). to act with speed to preserve should not be renewed. her rights if any that she 5. With regard to employment 11. From the foregoing the feared were being infringed or applicant did not demonstrate cases, the employee seeking threatened with infringement. relief will in addition to the the exceptional circumstance The ripe moment therefore to of her claim to persuade general principles for grant of move that Court would have injunction in Giella v Cassman the Court to circumnavigate been immediately after she the common law principle Brown, need to demonstrate received communication that the respondent has not that in making an order for from the Corporation’s Board specific performance, the
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Court must bear in mind that deprived of by the act of line with values and principles it should not be made except the respondents in declining of public service as enshrined in exceptional cases. the renewal and no more. In in the Constitution. the circumstance, damages 12. The measure of damages Prayer for injunction barring would be an adequate appointment of the Director payable to the applicant if remedy in the event that the successful were determinable. of the Corporation pending applicant was successful at determination of the substantive These would be at the most, the trial. In light of the new payment of salary and suit against the appointment Constitutional dispensation declined. allowances for the period of renewal of the applicant’s the contract she was unfairly appointment ought to be in
Court’s jurisdiction to grant both compensatory relief and judicial review orders in the same pleading Meshack Angeng’o Omondi V Eldoret Municipal Council & another [2012] e KLR Industrial Cause No. 15 (N) of 2010 Industrial Court of Kenya at Nairobi B. Ongaya, J. October 12, 2012 Reported by Mercy Ombima & Cornelius Lupao
Issue: encompass three essential or infringed, or is threatened. 1. Whether one can apply elements, i.e.- It is possible for a litigant to for and pray for both (a) an earlier decision on apply for and pray for both compensatory relief and the issue; compensatory relief and orders of judicial review in (b) a final judgment on orders of judicial review the same pleading. the merits; and in the same pleading. (c) The involvement of However, the same cannot Civil practice and Procedure the same parties, or be said of Judicial Review – preliminary objection – parties in privity with proceedings in the former application- whether court can the original parties. Constitutional dispensation grand both compensatory relief in which a litigant could only and orders of judicial review Held: allege procedural issues prayed in the same pleading- Civil 1. Article 22 (1) of the and not issues of merits, Procedure Rules Order 53 and the Constitution of Kenya and, seek only prerogative Constitution of Kenya 2010, Article 2010 gives every person orders of mandamus, 22(1). the right to institute court certiorari or prohibition but Words & Phrases- Res judicata- proceedings claiming that not compensatory remedy definition of Res-Judicata a right or fundamental in the same pleadings. according to the Black’s freedom in the Bill of Rights law Dictionary, 9th edition to has been denied, violated Application dismissed with costs.
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Wrongful dismissal from employment can attract general damages Hudson Mukhwana V National Hospital Insurance Fund [2012] eKLR Industrial Cause No. 765N of 2009 Industrial Court of Kenya at Nairobi H. Wasilwa, J. October 9, 2012 Reported by Mercy Ombima & Cornelius Lupao
Issue: to payment of damages. jurisdiction to give orders 1. Whether wrongful dismissal Even though the Court of for an award of damages can attract general Appeal had previously in any circumstances damages. held that such a claim contemplated under the would not attract general Act or any written law. damages, this would not Under Section 49 of the Labour Law- wrongful termination- be viable because that Employment Act 2007, the availability of general damages had been under the old court can order payment to a claimant who was wrongfully regime of the Industrial to the employee the retrenched- the legal position Court when the Court was equivalent of a number concerning this remedy in an still a Tribunal. The parties, of months’ wages or employment contract- whether having agreed to submit salary not exceeding it would be proper for the court to the Industrial Court twelve months based on to award general damages to as currently constituted the gross monthly wages the claimant- the Constitution under Section 162 (2) of or salary of the employee of Kenya 2010 Article 162(2) and the Constitution, they had at the time of dismissal. the Industrial Court Act of 2011 in principle agreed to be section 12(3.) bound by the rules and The court thus entered judgment procedures governing for the Claimant and granted Held: the court presently. general damages to the claimant 1. Given the wrongful to the tune of a total of Ksh. manner in which the 2. Under Section 12(3) of 1,042,020. retrenchment was done, the Industrial Court Act, the Claimant was entitled the Industrial Court had
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EAST AFRICAN COURT OF JUSTICE A compilation of the selected judicial opinions from the East African Court of Justice at Arusha delivered during the first quarter of 2013 January-Apri,( 2013). - Compiled and edited by Linda Awuor
Court Rules on Principle of Continuing Violations Under the Eac Treaty
Attorney General of the Republic of Uganda V Omar Awadh and 6 Others Appeal No. 2 of 2012 East African Court Of Justice at Arusha Appellate Division Tunoi, VP; E. R. Kayitesi, and J. M. Ogoola, JJA April 15, 2013 Reported by Linda Awuor
Background hearing and the determination 1. Whether the Treaty The Appeal before this Court of Reference No. 4 of 2011 due establishing the East originated in Application No. 4 to the nature and urgency of African Community of 2011 arising from Reference their Application. However, in provides room for the No. 4 of 2011 lodged in the First opposition to the Application, concept of continuing Instance Division on 15th June the Second Respondent violations 2011. The facts that gave rise to (Attorney General of Uganda) 2. Whether the Court has this case happened in both Kenya raised a preliminary objection on power to extend the and Uganda. The Applicants limitation of time. He contended time limit of two months averred that they were arrested, that the Reference on which provided in Article 30 and forcibly removed from Kenya the Application is based is itself (2) of the Treaty for the through abduction between 22nd out of time, consequently the Establishment of the East July and 17th September 2010, Application is time barred. The First African Community and handed over to Uganda Instance Division on 1st December where they are now illegally 2011, concluded that the alleged International law – treaty detained, without due process Treaty violations complained of in interpretation – Treaty for the of extradition; and that their the Reference, were continuous; Establishment of the East African impending trial in Uganda is in could not be subjected to Community - whether the First violation of their fundamental mathematical computation of Instance Division erred in law rights, both under Kenyan and time; and that, therefore, the in interpreting that Article 30(2) Ugandan Constitutions, under Reference was properly lodged does not apply to the continuing International Law, and also before it. Accordingly, that violations - Article 30 (2) of the under the Treaty establishing the Court disallowed the objection. Treaty East African Community (“the Aggrieved by the above decision, International Law - principle of Treaty”). It is against those acts the Appellant (Attorney General continuing violations - applicability that the Applicants moved the of Uganda) lodged an appeal of the principle of continuing First Instance Division of the EACJ on 17th February 2012, based on violations – where the Applicants for orders that the Court restrains the ground that the First Instance filed their Reference in excess of and prohibits the Government of Division erred in law in finding that two months after they became Uganda (the Second Respondent Reference No. 4 of 2011 was not aware of the alleged infringement herein) from proceeding with time barred and was properly of their rights - whether the acts the prosecution and/ or trial before the Court. complained of were continuous of the Applicants pending the Issues: and therefore, could not be
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subjected to the time-limit – Article “exceptions” (for (implicitly allowed in the 30 (2) of the Treaty continuing violations) on second limb of that Article) Article 30 (2) states that: the grounds that securing for the complainant to “The proceedings provided for in the fundamental rights of have knowledge of the this Article shall be instituted within the citizens is of paramount act. From the date of two months of the enactment, essence. such knowledge, the legal publication, directive, decision 3. There is nothing in the clock for the two month or action complained of, or in the express language of period starts to tick. absence thereof, of the day in Article 30 (2) that compels 5. The solution that was which it came to the knowledge any conclusion that designed to balance the of the complainant, as the case continuing violations are interest of the individual may be.” to be exempted from complainant against the Held: the two month limit. collective interests of all the 1. The cause of action for Nor does the nature of other Community citizens, the Reference before the the particular violation is the overall framework Court is not the alleged alleged in the instant case of Article 30, in which unlawful detention demonstrate any intent on the collective interest of of the Respondents in the part of the drafters of legal certainty is secured Uganda, nor their arrest the Treaty to treat unlawful under Article 30 (2), but and rendition from Kenya arrest and rendition as without compromising the to Uganda, which are a “continuous violations” for individual complainant’s matter of criminal law. purposes of the time limit right to judicial redress (if Rather, it is the alleged of Article 30 (2) promptly lodged within infringement of the EAC 4. It is clear that both the two months under Article Treaty by the Partner content and intent of 30 (2), including the States of Kenya and Article 30 (2) provide a legal grace period afforded Uganda, which is a matter framework for determining the complainant to of civil law. the starting date of an acquire knowledge of the 2. The purpose of Article act complained of, or particular act). That grace 30 (2) of the Treaty was alternatively the date on period can be as long as it to secure and uphold which the complainant takes for the complainant the principle of legal first acquired the requisite to be possessed of the certainty; which requires knowledge, all with the requisite knowledge. Only a complainant to lodge objective of ascertaining after the complainant has a Reference in the East the commencement and that knowledge, will the African Court of Justice expiry of the time limit period of the two-month within the relatively brief of two months. In that limitations begin to run. time of only two months. spirit, the Article does not That, in this Court`s view is Nowhere does the Treaty contemplate the concept a perfectly fair, equitable provide for any exception of continuing breach or and rational solution to to the two month period. violation, in as much as the balance the competing Therein lies the critical acts complained of, or the interests. difference between the time when a claimant had 6. the Reference, having EAC Treaty (which governs knowledge of the breach been filed more than one trade matters as the or infringement, have a year after the happening objective of cooperation definitive starting date of the events complained between Partner States) and expiry date within of, was time-barred for on the one hand; and, on the two month period. non-compliance with the other hand, Human The only continuing period Article 30 (2) of the Treaty Rights Conventions and envisaged under the Appeal allowed Treaties which provide Article is the grace period
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Court Orders Kenya Government to Immediately Reinstate the Restrictions it had Imposed on Land Transactions in Mau Forest In the matter of the African Commission on Human and People’s Rights v the Republic of Kenya African Court on Human and Peoples’ Rights, at Arusha Application No 006/2012 Sophia Akuffo (President), Fatsah Ouguergouz, (Vice President), Bernard Ngoepe, Gerard Niyungeko, Augustino Ramadhani, Duncan Tambala, Elsie Thompson, Sylvian Ore, El Hadji Guisse, & Kimelabalou Aba , (Judges) & Robert Eno (Registrar) March 15, 2013 Reported by Linda Awuor
Issues: On the 12th of July 2012, an part and parcel of application was made by the the government land 1. Whether the African African Commission on Humans under section 4 of the Court on Human and and Peoples’ rights instituting Governments Lands Act People’s rights had proceedings against the Republic The applicant was concerned that of Kenya for alleged serious and the implementation of the eviction jurisdiction to issue massive violations of human notices of the Government of provisional orders rights guaranteed under the Kenya would have far reaching reinstating the ban African Charter on Humans and implications on the political, social Peoples rights (the Charter). and economic survival of the on transactions of The application was brought Ogiek Community as their eviction land in the Mau Forest under Article (5)(1)(a) of the would lead to the destruction Complex Protocol to the African Charter of their means of survival, their on Humans and Peoples’ rights livelihoods, culture, religion and 2. Whether there on the Establishment of an African identity which amounts to serious existed a situation of Court on Human and People’s massive violations of the rights Rights (Protocol). enshrined in Articles 1, 2, 4, 14, extreme gravity and The applicant submitted that on 17(2) and (3), 21 and 22 of the urgency and a risk of 14 November 2009, it received a Charter. irreparable harm to complaint against the respondent The applicant was thus seeking on behalf of the Ogiek Community that the court orders the the Ogiek community of the Mau Forest asserting that: Respondent to: with regard to · They are an indigenous · Halt the eviction of the violation of their rights minority ethnic group Ogieks from the East Mau comprising about Forest and refrain from guaranteed under 20,000 members, about harassing, intimidating the African Charter on 15,000 of whom inhabit or interfering with the the greater Mau Forest community’s traditional Humans and Peoples complex, a land area of livelihoods. rights about 400,000 hectares, · Recognise the Ogiek’s straddling about seven historic land, and issue International law – African Court administrative districts. the community with legal on Human and People’s rights – · In spite of the near universal titles that is preceded by Jurisdiction of the Court – issue of acknowledgement of consultative demarcation provisional orders – whether the their dependence on the of the land by the Court had the jurisdiction to issue Mau Forest as a space Government and Ogiek provisional orders reinstating the for the exercise of their community, and for the ban on transactions of land in the traditional livelihoods and respondent to revise its Mau Forest Complex as a source of their sacral laws to accommodate International law – African Court identity, the Government communal ownership of on Human and People’s rights of Kenya in October property – issue of preservatory orders – 2009, through the Kenya · Pay compensation to whether there was a situation of Forestry Service, issued a the community for all the extreme gravity and urgency as thirty days eviction notice loss they have suffered well as risk of irreparable harm to the Ogiek and other through the loss of their to the Ogiek community with settlers of the Mau Forest, property, development, regard to violation of their rights demanding that they natural resources and also guaranteed under the charter- move out of the forest on freedom to practice their Protocol to the African Charter the grounds that the forest religion and culture. on Humans and Peoples’ rights constituted a reserved On December 31, 2012, the Article (5)(1)(a) water catchment zone, Court received a request for Background of the case and was in any event the applicant for provisional
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measures. The applicant alleged further the respondent right to economic, social that by its letter dated November ratified the protocol and cultural development 9, 2012 and addressed to the which came in force on under article 22 Nakuru District Land Registrar, the the 25th of January 2004 3. The circumstances require Respondent had lifted restrictions on the 4th of February the Court to order, as on land transactions for all parcels 2004 and deposited its a matter of urgency, of land measuring five acres or less instruments of ratification provisional measures in within the Mau Forest Complex on 18th February 2005 and accordance with article and this had great potential to is therefore a party to both 27(2) of the Protocol cause further irreparable damage instruments. and Rule 51 of its Rules to the Ogieks and would serve 2. There exists a situation to preserve the status to perpetuate and expand the of extreme gravity and quo ante pending the prejudice that was subject of the urgency as well as risk determination of the Court applicant’s main application. of irreparable harm to on the main application. Pending resolution therefore, the the Ogiek community Government of Kenya ordered applicant prayed that the court with regard to violation to immediately reinstate the orders the respondent to reinstate of their rights guaranteed restrictions it had imposed on the ban on transactions of land in under the charter to, land transactions in Mau Forest the Mau Forest Complex and to among others; enjoyment and refrain from doing anything follow up on implementation in of their cultural rights that would or might irreparably accordance with rule 51(5) and protection of their prejudice the main application Held: traditional values under pending the decision of the 1. The respondent ratified article 2 and 17(2) and Court on the matter. The Order the Charter, which came (3), Protection before also enjoined the Government of into force on the 21st the law under Article 3, Kenya to report on execution of of October 1986 on the Integrity of their persons the measures within 15 days from 10th February 1992, and under article 14 and the the receipt of the Order.
Court Finds the Republic of Uganda in Breach of the Treaty to the Establishment of the East African Community and the East Africa Common Market Protocol on the Free Movement of Persons
Samuel Mukira Mohochi V the Attorney General of the Republic Of Uganda Reference No 5 of 2011 East African Court of Justice, at Arusha (First Instance Division) Johnston Busingye, PJ, John Mkwawa, J Isaac Lenaola, J. May 17, 2013
Reported by Linda Awuor was arrested, detained and verbally or in writing, why he Background to the case confined by airport immigration had been denied entry as well The Applicant travelled to authorities. The Immigration as why he had been declared Uganda from Kenya on 13th April authorities however maintained a prohibited immigrant and 2011 on a Kenya Airways flight. that that they handed him to subsequently returned to Kenya. He was part of a 14-member- Kenya Airways who took him The immigration authorities delegation of the International into their custody. The Applicant maintained that they owed him Commission of Jurists- Kenya was subsequently served with a no such duty, under the law. Chapter (ICJ Kenya) scheduled copy of a “Notice to Return or The Applicant contended that to meet The Chief Justice of Convey Prohibited Immigrant” these actions were violations Uganda, the Honourable Mr addressed to the Manager, of his legal rights and Uganda’s Justice Benjamin Odoki, on Kenya Airways by the Principal obligations under the Treaty, the 14th April 2011. The whole Immigration Officer, Entebbe the Protocol and The African delegation was on the same International Airport, bearing Charter on Human and Peoples’ flight. On arrival at Entebbe his (the Applicant) names as Rights and filed a reference in International Airport, at 9.00am the prohibited immigrant. That the East Africa Court of Justice the Applicant was not allowed same day, at 3.00 pm, he was seeking redress. beyond the Immigration put on a Nairobi bound Kenya checkpoint in the Airport. Airways flight and returned It was the Applicant’s contention to Kenya. The immigration that it was unlawful on the The Applicant alleged that he authorities did not inform him, part of the Respondent not
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to subject him to any legal or the Republic of Uganda movement of persons – where administrative process before were in conformity with the applicant was denied the decisions of declaration of Article 104 of the EAC entry entry into Uganda and status of prohibited immigrant, Treaty and Article 7 (6) deported back to Kenya without denial of entry and deportation of the Common Market disclosure of the reasons, due back to Kenya were taken. Protocol on the free process of law or any form of He contends that he had movement of persons; administrative process being committed no immigration or 5. Whether the Provisions carried out – whether this criminal offence against the of section 52 of the amounted to violation of the laws of Uganda or the East Uganda Citizenship Applicant’s fundamental rights African Community to warrant and Immigration Act and freedoms - Article 104 of the the denial of entry into Uganda were inconsistent and EAC Treaty and Article 7 (6) of and deportation back to Kenya. in violation of Articles 6 the Common Market Protocol (d), 7 (2) and 104 of the The Respondent denied that Treaty and Article 7 of Words & Phrases the Applicant was arrested, the Protocol; Definition of “due process” restrained or detained by 6. Whether the Applicant – definition according to the immigration authorities and was entitled to the Black’s Law Dictionary stated, instead, that the prayers sought. Definition of “principle” as Applicant was validly denied applied under article 6 of the entry in accordance with Article International Law – jurisdiction Treaty for the Establishment of 7 (5) of the Protocol, that the – jurisdiction of the East Africa the East African Community Respondent was under no legal Court of Justice – whether the obligation to give the Applicant actions complained of by the Article 6 of the Treaty for the reasons for the denial of entry applicant were breaches of Establishment of the East African and that the Applicant was obligations under the Treaty or Community on Fundamental handed over to Kenya Airways, human rights violations – whether Principles of the Community with instructions to take him the Court had jurisdiction to provides: into its custody and ensure that hear the matter – Treaty for the The fundamental principles that he was removed from the non- Establishment of the East African shall govern the achievement of permissible area and returned Community Article 27(1) the objectives of the Community to Kenya on its first available by the Partner States shall flight. International Law – fundamental include: and operational principles of the (a) Mutual trust, political Issues East African Community – where will and sovereign the Applicant was detained at equality; 1. Whether the Reference Entebbe International Airport - (b) Peaceful co- was properly before the whether the actions complained existence and good Court; of, of the Republic of Uganda, neighborliness; 2. Whether the Treaty were in conformity with Articles (c) Peaceful settlement establishing the East 6 (d) and 7(2) of the Treaty of disputes; African Community and (d) Good governance the East African Common International Law –sovereignty including adherence Market Protocol take of member states – application to the principles of away the sovereignty of of domestic laws vis a vis democracy, the rule Uganda to deny entry to Community laws – whether of law, account unwanted persons who community law takes ability, transparency, are citizens of Partner precedence over domestic social justice, equal States of the EAC; law – whether domestic law can opportunities, gender 3. Whether the Applicant be overridden by community equality, as well as the was detained at Entebbe legal provisions - Whether recognition, promotion International Airport and the Provisions of section 52 and protect ion of whether the actions of the Uganda Citizenship human and peoples right complained of, of the and Immigration Act were s in accordance with the Republic of Uganda, inconsistent and in violation of provisions of the African were in conformity Articles 6 (d), 7 (2) and 104 of Charter on Human and with Articles 6 (d) and the Treaty and Article 7 of the Peoples’ Rights; 7(2) of the Treaty on Protocol (e) equitable distribution the fundamental and of benefits; and operational principles International Law – Treaty for the (f) co-operation for of the East African Establishment of the East African mutual benefit. Community; Community and the East African 4. Whether the actions of Common Market Protocol –free Article 7 of the Treaty for the
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Establishment of the East African 1. The Partner States opening of border posts Community provides: hereby guarantee and keep the posts Operational Principles of the the free movement of opened and manned Community persons who are citizens for twenty four hours. 1. The principles that shall govern of the other Partner 8. The movement of the practical achievement of States, within their refugees within the the objectives of the Community territories. Community shall be shall include: 2. In accordance with governed by the (a) people-centered paragraph 1, each relevant international and market-driven Partner State shall ensure conventions. co-operation (b) the non‐discrimination of 9. The implementation provision by the Partner the citizens of the other of this Article shall be in States of an adequate Partner States based accordance with the and appropriate on their nationalities by East African Community (b) enabling environment ensuring: Common Market (Free , such a s conducive (a) the entry of citizens of Movement of Persons) policies and basic the other Partner States Regulations, specified in infrastructure; into the territory of the Annex I to this Protocol. (c) the establishment of Partner State without a an export oriented visa; Held: economy for the Partner (b) free movement of (d) States in which there persons who are citizens 1. The Treaty is neither a shall be free movement of the other Partner Human Rights Convention of goods, persons, States within the territory nor a Human Rights (e) labour, services, capital, of the Partner State; Treaty as understood in information and (c) that the citizens of international law. It is technology; the other Partner States rather a Treaty to govern (f) (d) the principle are allowed to stay in the the widening and of subsidiarity with territory of the Partner deepening of, inter alia, emphasis on multi-level State; and the political, economic, (g) participation and (d) that the citizens of social, cultural, research, the involvement of a the other Partner States technology, defence, wide range of stake- are allowed to exit the security, legal and holders in the process of territory of the Partner judicial cooperation integration; State without restrictions. between the Partner (h) the principle of variable 3. The Partner States shall, States. However, it geometry which allows in accordance with their is not the violation of for progression in national laws, guarantee human rights under the (i) co-operation among the protection of the Constitution and other groups within the citizens of the other laws of Uganda or of the Community for wider Partner States while in international community (j) integration schemes their territories. that is the cause of in various fields and at 4. The free movement of action in the Reference, different speeds; persons shall not exempt rather the cause of (k) the equitable distribution from prosecution or action is constituted of benefit s accruing or extradition, a national by allegations of to be derived from of a Partner State who infringements of specific (l) the opera t ions of commits a crime in Treaty provisions by the the Community and another Partner State. Ugandan Government. measures to address 5. The free movement of 2. The Treaty provisions economic persons shall be subject alleged to have been (m) imbalances that to limitations imposed by violated have, through may arise from such the host Partner State on Uganda’s voluntary operations; grounds of public policy, entry into the EAC Treaty, (n) the principle of public security or public been scripted and complementarity; and health. transformed into several (o) the principle of 6. A Partner State principles, obligations asymmetry. imposing a limitation and treaty guarantees under paragraph 5, shall stipulated in, among Article 7 of the East African notify the other Partner others, Articles 6(d), 7(2), Common Market Protocol States accordingly. 104 of the Treaty and 7 provides: 7. The Partner States of the Protocol, breach Free Movement of Persons shall effect reciprocal of any of which by
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Uganda would give rise preferential and superior of legal proceedings to infringement of the treatment and rights in according to established Treaty. It is this alleged terms of movement, rules and principles for infringement which, establishment, residence the protection of private through interpretation and working within the rights, including notice of the Treaty under Partner States. With and the right to a fair Article 27(1) constitutes specific regard to the hearing before a tribunal the cause of action Republic of Uganda, her with the power to decide in the Reference, sovereignty regarding the case”. and consequently, the movement of the 9. Based on Article 54 of establishes the legal citizens of partner states the Protocol and the foundation of the in and out of the Partner decision of the European jurisdiction of this Court. States started to be Court of Justice in State 3. Article 6 of the Treaty defined and governed by v Royer Case 48/75, the provides the six the Treaty, the Protocol immigration officials had Fundamental Principles and the Citizenship and an obligation to strictly of the Community. Black’s Immigration Control Act, apply the limitations of the Law Dictionary defines provisions of the former freedom of movement, “Principle” as “a basic taking precedence in given its importance rule, law or doctrine. case of conflict. to the East African Our understanding 6. By accepting to be Community Common of “Fundamental bound by the provisions Market in particular, and Principles” as used in of the Treaty, with no integration in general this Article, aided by the reservations, Uganda 10. The actions of denial above definition, is that also accepted that of entry, detention, these are rules that must her sovereignty to removal and return of be followed or adhered deny entry to persons, the Applicant, a citizen to by the Partner States in who are citizens of of a Partner State, to order that the objectives the Partner States, the Republic of Kenya, of the Community are becomes qualified and a Partner State, were achieved. governed by the same illegal, unlawful and in 4. These principles are and, therefore, could no violation of his rights foundational, core longer apply domestic under Articles 104 of and indispensable legislation in ways that the Treaty and 7 of to the success of the make its effects prevail the Common Market integration agenda, and over those of Community Protocol. were intended to be law. 11. Detention is deprivation strictly observed. Partner 7. The Sovereignty of the of liberty. When it is States are not to merely Republic of Uganda to illegal it is not only an aspire to achieve their deny entry to unwanted infringement of the observance, they are to persons who are citizens freedom of movement, observe them as a matter of the Partner States is not but also an act that of Treaty obligation. All taken away by the Treaty undermines one’s dignity. the six principles in the and the Protocol but, in Furthermore, when a Article were carefully denying entry to such citizen of a Partner State thought out, negotiated, persons, the Republic of is illegally detained in appropriately weighted, Uganda is legally bound another Partner State, individualized and to ensure compliance with no right to be crafted the way they are with the requirements of informed why or to be for a particular effect. the relevant provisions heard in his defence, Integration depends on of the Treaty and the and the reasons cannot each of them singly and Protocol. Sovereignty be disclosed, even in collectively. cannot act as a defence a court of law, it is not 5. The Treaty defines or justification for non- just a violation of the persons, formerly foreign compliance, and neither Treaty, it is a threat to nationals as between can it be a restraint integration. the individual EAC or impediment to 12. The denial of entry states prior to entry into compliance. into Uganda of the force of the Treaty, as 8. The Court adopted the Applicant, a citizen of nationals or citizens definition of due process a Partner State, without of Partner States. The as provided by the according him the due Treaty accorded these Black’s Law Dictionary process of law was illegal, persons wide ranging, to mean “The conduct unlawful and a breach
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of Uganda’s obligations with them a permanent formerly inconsistent with under Articles 6(d) and 7 limitation against which provisions of the Treaty (2) of the Treaty. a provision of existing or and the Protocol were 13. The obligations subsequent national law rendered inoperative voluntarily entered incompatible with the and have no force of law, into by the Republic of Treaty and Protocol, by as of the respective dates Uganda, and the rights the Republic of Uganda, of entry into force of the acquired by the citizens cannot stand. Treaty and the Protocol of the Partner States, 14. On matters pertaining as law applicable in the under the Treaty and to citizens of the Partner Republic of Uganda. Protocol, in respect of States, any provisions of the movement of citizens Section 52 of Uganda’s Judgment for the applicant, of the Partner States, Citizenship and each party to bear its costs within Uganda, carried Immigration Control Act
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17 April 2013 PRESS SUMMARY
Public Relations Consultants Association Limited (Appellant) v The Newspaper Licensing Agency Limited and Others (Respondents) [2013] UKSC 18 On appeal from: [2011] EWCA Civ 1541
JUSTICES: Lord Neuberger (President), Lord Kerr, Lord Clarke, Lord Sumption, Lord Carnwath
BACKGROUND TO THE APPEAL
This appeal raises an important question about the application of copyright law to the technical processes involved in viewing copyright material on the internet.
Where a web-page is viewed by an end-user on his computer, without being downloaded, the technical processes involved will require temporary copies to be made on screen and in the internet “cache” on the hard disk of the computer. The end-user’s object is to view the material. He does not make a copy unless he downloads or prints the image. The copies temporarily retained on the screen or in the cache are merely an incidental consequence of using a computer to view the material.
Temporary copies of copyright material on a computer are dealt with by section 28A of the Copy, Designs and Patents Act 1988. S28A gives effect to Directive 2001/29/EC (“the Directive”). The Directive gives copyright owners various rights. Article 5.1 qualifies rights in relation to “temporary acts of reproduction” which are “transient or incidental [and] an integral and essential part of a technical process whose sole purpose is to enable: (a) the transmission in a network between third parties by an intermediary, or (b) a lawful use of a work or other subject-matter to be made, and which have no independent economic significance…”
The appellant is a professional association of public relations professionals who monitor news coverage for clients, using on-line monitoring and search services. The Meltwater group of companies provides members of the association with automated software programmes to create a daily index of words appearing on newspaper websites. Meltwater’s customers supply them with search terms, and Meltwater produces a monitoring report listing the results. Meltwater sends the monitoring report to the customer by email, but the customer can also access it through Meltwater’s website.
The question in this appeal is whether Meltwater’s customers need a licence to receive its service if a monitoring report is made available only on Meltwater’s website. Proudman J held that the end-user needed a licence and the Court of Appeal agreed, largely on the ground that making copies, however temporary, in the end-user’s computer while browsing was not part of the technological process but generated by the user’s voluntary decision to access the web-page.
JUDGMENT
Before making an order, the Court refers the question of whether the requirements of article 5.1 of the Directive are satisfied to the CJEU for a preliminary ruling. Lord Sumption gives the judgment of the Court.
The Supreme Court of the United Kingdom Parliament Square London SW1P 3BD T: 020 7960 1886/1887 F: 020 7960 1901 www.supremecourt.gov.uk
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REASONS FOR THE JUDGMENT
Lord Sumption reviewed and summarised the effects of a series of CJEU decisions [26]. He rejects the idea that article 5.1 does not apply to temporary copies generated by an end-user of the internet. Recital 33 to the Directive makes clear it was intended to “include acts which enable browsing as well as acts of catching to take place.” Browsing by its very nature is an end-user function. These acts are “acts of temporary reproduction” which “enable” browsing and are the making of temporary copies in the end-user’s cache and screen. The exception is wider than the process of transmission in a network between third parties by an intermediary. Article 5.1(b) also extends it to “lawful use”. This covers use of work subject to copyright, whether or not authorised by the copyright owner, provided it is not restricted by legislation. This necessarily includes use of the work by an end-user browsing the internet [27]. Once it is accepted that the purpose of article 5.1 is to authorise the making of copies to enable the end-user to view copyright material on the internet, the various conditions laid down by it must be constructed consistently with that purpose, and apply to ordinary technical processes associated with internet browsing [28].
As to the other conditions of article 5.1, copies in the cache and on screen are an integral part of a technological process as they are basic features of modern computers. The technical process required to browse the internet could not function “correctly and efficiently” with the acts of reproduction concerned [29]. Copies are stored automatically by browsing and deleted automatically by a lapse of time coupled with continuing browser use, rather than being dependent on discretionary human intervention. The technological processes are those necessarily associated with browsing including retention of material in the cache for no longer than the ordinary processes associated with internet use continue. The restriction to “temporary” and “transient” is designed to prevent downloading or copying which is permanent until the user chooses to delete the material. The copying has no independent economic value unless Meltwater’s customers download or print the material. The sole economic value is from accessing information on Meltwater’s website which is derived from merely reading it on screen [31].
The above conclusions would not result in large-scale piracy. It has never been an infringement of EU or English law to view or read an infringing article in physical form. Making mere viewing, rather than downloading or printing, the material an infringement could make infringers of millions of ordinary internet users across the EU. Nothing in article 5.1 stops Meltwater needing a licence to upload copyright material on their website. The copyright owner still has remedies against pirates including the remedies provided in the Directive itself.
Given the appeal’s transnational dimension and potential implications for internet users across the EU, the Court, while expressing its own view of the matter, proposes to refer the matter to the CJEU for a preliminary ruling. The question which it will refer is (in substance) whether the requirements of article 5.1 of the Directive that acts of reproduction should be (i) temporary (ii) transient or incidental and (iii) an integral and essential part of the technological process are satisfied, having regard in particular to the fact that copies may remain in the cache after the browsing session that generated them has ended until overlaid by other material, and a screen copy will remain on screen until the browsing session is terminated by the end-user [38].
NOTE This summary is provided to assist in understanding the Court’s decision. It does not form part of the reasons for the decision. The full judgment of the Court is the only authoritative document. Judgments are public documents and are available at: www.supremecourt.gov.uk/decided-cases/index.html
.
The Supreme Court of the United Kingdom Parliament Square London SW1P 3BD T: 020 7960 1886/1887 F: 020 7960 1901 www.supremecourt.gov.uk
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The Power of Temperaments
By Naomi Mutunga LoK Department
melancholy and phlegmatic. I they savor every bit. Phlegmatic say basic because no one is 100% are the most deliberate eaters of sanguine, choleric, melancholy all and are invariably the last ones or phlegmatic. We are all a through eating. That’s the main combination of at least two or reason they rarely gain weight. perhaps three temperaments. Each temperament has both Driving strengths and weaknesses that Sanguines are erratic drivers, form a distinct part of someone’s sometimes they speed, then for makeup throughout life. no apparent reason lose interest in driving fast and slow down. The following are brief examples They are so people oriented that on how different temperaments they want to look you on the n our last edition of Bench Bulletin react to different situations. face when talking even while I(vol. 20) we introduced you to a driving. Choleric are daring speed topic on our temperaments, the Marriage Counselling demons who dart in and out reason why you do things the way In his book Why We Act The Way traffic constantly. They always try you do. In this and subsequent We Do Tim LaHaye dares us to sit to get more accomplished in a editions we continue to expound with him in a marriage counseling given period of time more than it more on this intriguing subject session and you will notice how is humanly possible, and attempts that I believe will help you analyze different people are. A sanguine to make up time by driving your strengths and weaknesses, will talk about the weather, friends furiously between appointments. discover how God can use your and a hundred things before he Melancholy never leaves home gifts, improve your relationships faces the real problem. On the until he has prepared well in with others, get ahead in your other hand, the choleric gets advance. They study the map career, enable you deal with straight to the point, he/she want and know the best route from A depression and anger, improve you to straighten out his partner so to Z. They are likely to keep a log your relationship with your spouse that he can have a good home of their driving history, including or help you select your future life (the problem is the wife). The gas and oil consumption and husband or wife and identify for melancholy sighs deeply as he car repairs. Legalist by nature you the specific spiritual gift God sits down with depression, self- they rarely speed. Phlegmatic is has given you. pity, and unhappiness etched on the slowest driver of all. The last his face, while the phlegmatic one to leave an intersection, he Humanly speaking, there is rarely gets round to make an rarely changes lanes and is an no other influence in your appointment with the counselor indecisive danger when joining life more powerful than your and when he/she does, it takes the flow of freeway. He rarely temperament or combination of most of the half hour to prime his causes accidents or tickets from temperaments. Temperaments conversational pump. the police but he can be a road influence everything you do, hazard. from sleep habits to eating style Eating Habits to study habits to the way you You can almost judge a man’s Meet the Four Basic Temperaments get along with other people. temperament by their eating That Is why it is essential to know habits. Sanguine eats everything No doubt you will identify several your temperament and to in sight and usually looks it. In a of your friends in one or another of analyze other peoples, not to restaurant, they so enjoy talking these classifications and you may condemn them, but so that you that they almost never look at even discover one of that reminds may maximize your potential and the menu until the waiter arrives. you of yourself. enable others to maximize theirs. Choleric seldom vary their menu from one day to next and when The heart of temperament theory it comes they bolt it down in Sparky Sanguine who is a warm first conceived by Hippocrates big chunks often talking while buoyant, lively and “enjoying” over 2400 years ago divides chewing. Melancholy are very person, receptive by nature, people into four basic categories picky eaters. It takes them forever external impressions easily find namely sanguine, choleric, to make up their minds about their way to his heart, where they what to order but once it arrives cause an outburst of response.
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Feelings rather that reflective for music and fine arts unless his if his natural tendency to gripe thoughts predominate to form his secondary temperament traits throughout the sacrificial process decisions. Sparky is so outgoing are those of the melancholy. He doesn’t get him so depressed he is usually considered a super invariably seeks utilitarian and that he gives up on it altogether. extrovert, he has an unusual productive values in life, he tends No temperament has so much capacity for enjoying himself to look at the goal for which is he natural potential when energized and usually passes on his fun- working without recognizing the by the Holy Spirit. loving spirit. The minute he enters potential pitfalls and obstacles a room he tends to lift the spirits in the path. Once he has started Philip Phlegmatic, the calm easy of everyone present by his towards the goal, he may run going, never-get-upset individual exuberant conversation. He is roughshod over individuals who with such a high boiling point a fascinating story teller and his stand on his way. He tends to that he almost never becomes warm, emotional nature almost be domineering and bossy and angry. He is the easiest type of helps you relive the experience does not hesitate to use people person to get along with and is as he tells it. Mr./Ms Sanguine to accomplish his ends. He is often by nature the most likeable of never lacks for friends. He can considered an opportunist. all temperaments. Life for him is genuinely feel the joy and sorrows a happy , unexcited, pleasant of the person he meets and has Martin Melancholy, who is the experience in which he avoids as the capacity to make him feel richest of all the temperaments, much involvement as possible. He important, as though he were a is analytical, self-sacrificing gifted is so calm and unruffled that he very special friend – and he is as perfectionist type with very never seems agitated, no matter long as he looking at him, then he sensitive emotional nature. No what circumstances surround fixes his eyes with equal intensity one enjoys more enjoyment from him. He is one temperament on the next person he meets. fine arts than the melancholy. type that is consistent every time By nature he is prone to be an you see him. Beneath his cool, Rocky Choleric is hot, quick active, introvert but since his feelings reticent almost timid personality, practical, strong willed, self- predominates, he is given to a is a very capable combination of sufficient and very independent. variety of moods. Sometimes abilities. He feels more emotions He tends to be decisive and they will lift him to heights of than appears on the surface opinionated, finding it easy to ecstasy that cause him to act and appreciates the fine arts and make decisions both for himself more extraverted. However, at beautiful things in life. Usually he and others. Like Sparky he is an other times he will be gloomy avoids violence. He never lacks for extrovert but not nearly as intense. and depressed, and during these friends because he enjoys people Mr. Choleric thrives on activity, he periods he becomes withdrawn and has a natural dry sense of does not need to be stimulated and can be quite antagonistic. humour, he maintains a positive by environment, but rather Martin is a very faithful friend, approach to life. He has a good, stimulates the environment with but unlike Sanguine, he doesn’t retentive mind and is capable of his endless ideas, plans, goals and make friends very easily, he being a fine imitator. Philip tends ambitions. He does not engage seldom pushes himself forward to be a spectator in life and tries in aimless activity for he has a to meet people. His exceptional not to get involved with activities practical, keen mind, capable of analytical ability causes him of others. Infact it’s usually with making sound instant decisions or to diagnose accurately the great reluctance that he is ever planning worthwhile projects. He obstacles and dangers of motivated to any form of activity does not vacillate under pressure any project he has a part in beyond his daily routine. That’s not of what others think, but takes planning. Such a characteristic to say however that he cannot a definite stand on issues and often finds him reticent to initiate appreciate the need for action can be found crusading against some new projects or in conflict and the predicaments of others. some social injustice or subversive with those who wish to do so. He and choleric may confront situation. Rocky is not frightened Occasionally, in good mood of the same social injustice but their by adversities, infact they tend great work of art or genius, but responses will be totally different. to encourage him. His dogged those accomplishments are often The crusading spirit of a Choleric determination usually allows him followed by periods of great will cause him to explain “ let’s to succeed where others have depression. Martin Melancholy get a committee organized and failed. Mr. Choleric’s emotional usually finds his greatest meaning campaign to do something about nature is the least developed in life through self sacrifice, he this!” the phlegmatic would likely part of his temperament. He seems desirous of making himself respond, “ these conditions are doesn’t sympathize easily with suffer, he will often choose a terrible! Why doesn’t someone do others, nor does he naturally difficult life vocation involving something about them?” Usually show or express compassion. He great personal sacrifice. But once kind hearted and sympathetic but is often embarrassed or disgusted it is chosen , he is prone to be seldom conveys his true feelings. by the tears from others and is very thorough and persistent in He will not volunteer to leadership usually insensitive to their needs. his pursuit of it and more than on his own, but when it is forced on He reflects little appreciation likely will accomplish great good him he proves to be very capable
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leader. He has a conciliating sanguine or choleric; analytical and somewhat effect on others and a natural (2) If 1 is Yes, do you lean critical? Then you are peacemaker. towards being extra probably a melancholy; extrovert? Are you (5) If you answered No to 1 As we have observed people are generally the first to then are you known to not the temperaments they are talk, or you are a good others as very quiet, rarely because they do those things, salesman type? Then get angry but experience rather they act the way they do you are predominantly a many fears and worries? because of their temperaments. sanguine; Then you are probably a (3) If Yes to 1 but No to 2 phlegmatic. Your predominant or basic ask yourself am I a strong temperament should not be too natural leader? If yes difficult to diagnose.- then you are probably a This is an over simplified test and choleric; only considers your predominant (1) Are you an extrovert? If so (4) If you answered No to 1 temperament. you are predominantly a then you are perfectionist,
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Notes
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Notes
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