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A Compilation of Summaries of Selected Cases on the Interpretation of the Constitution of Kenya, 2010

(Sept. 2010-Sept. 2012)


Prepared by Njeri Githang’a
Law Reporter

June 2013.


Introduction

The dawn of a new era set in on August 27, 2010 when the much awaited Constitution was promulgated. The Constitution of Kenya 2010, ushered in a new set of national values, bill of rights and system of governance among other things. Two years on, the Kenyan Courts have dealt with various Constitutional issues in which the courts have made landmark decisions. The landmark judicial opinions include those that touch on subjects such as fundamental rights and freedoms e.g. right to life and health, limitation of the right to information, advertising by advocates, evictions and right to adequate housing, appointments to constitutional offices etc. The following is a synopsis of some of the issues that have been determined by the courts since the promulgation of the new Constitution.


1. Appellate jurisdiction of the Supreme Court

“In the interpretation of any law touching on the Supreme Court’s appellate jurisdiction, the guiding principle is to be that the chain of Courts in the constitutional set-up, running up to the Court of Appeal, have the professional competence, and proper safety designs, to resolve all matters turning on the technical complexity of the law; and only cardinal issues of law or of jurisprudential moment, will deserve the further input of the Supreme Court.”

Peter Oduor Ngoge V Hon. Francis Ole Kaparo and 5 Others

Petition No. 2 Of 2012

Supreme Court of Kenya at Nairobi

J.B. Ojwang, N.S. Ndungu, SCJJ.

September 4, 2012

The dispute before the Court arose at the High Court, when the petitioner sought, by interlocutory motion, to secure orders barring the respondents from being represented. The High Court, after considering the matter, came to the conclusion that the petitioner’s object was essentially diversionary and tendentious, and accordingly, dismissed the proceedings. The petitioner, who felt aggrieved by the High Court’s decision, sought leave to appeal there from; but the High Court refused leave, whereupon he now sought leave from the Court of Appeal. The Court of Appeal similarly, refused leave, taking the position that the proposed appeal was frivolous. The petitioner in the Supreme Court departed from his initial perception that the interlocutory matter before the High Court was a question requiring leave to lodge an appeal; instead he framed his claims in the initial interlocutory matter as a major constitutional question, which must be taken up on appeal to the Supreme Court as of right.

The main issue was whether the Supreme Court could entertain an application where the Court of Appeal has either not determined such motion by the petitioner for leave under s.19 of the Supreme Court Act, 2011, or, has entertained such an application but declined to grant leave. The court observed that the appellate jurisdiction of the Supreme Court is defined clearly enough under Article 163 of the Constitution, and s.19 of the Supreme Court Act and the petitioner’s case which had been brought without the leave of the Court of Appeal was outside the jurisdiction of the Supreme Court.

It was further noted that the petitioner had not rationalized the transmutation of the issue from an ordinary subject of leave-to-appeal, to a meritorious theme involving the interpretation or application of the Constitution – such that “it becomes, as of right, a matter falling within the appellate jurisdiction of the Supreme Court”. A careful review showed that there was nothing improper with the rulings delivered by both the High Court and the Court of Appeal, holding the petitioner’s interlocutory proceedings to be merely frivolous.

Ultimately, the court noted that in the interpretation of any law touching on the Supreme Court’s appellate jurisdiction, the guiding principle is to be that the chain of Courts in the Constitutional set-up, running up to the Court of Appeal, have the professional competence, and proper safety designs, to resolve all matters turning on the technical complexity of the law; and only cardinal issues of law or of jurisprudential moment, will deserve the further input of the Supreme Court.

Petition dismissed at the preliminary stage


2. Balancing Competing Constitutional rights

“A child’s best interests are of paramount importance in every matter concerning the child (Article 53(2) of the Constitution). The children’s right to education enjoys Constitutional protection just as the Respondents’ Constitutional rights in Article 41 on labour relations… Article 19 of the Constitution offers clear guidance on balancing these two competing rights. Postponing the rights of the children to education for which both the Claimants and Respondents protect is not a decision that can be remedied in future. It would be an irreparable injury to the children.

Teachers Service Commission v National Union of Teachers (KNUT) & another

Cause No. 1539 of 2012

Industrial Court of Kenya at Nairobi

B. Ongaya J.

August 31, 2012

The application was brought by a Notice of Motion made under Article 53(1) (b), 53 (2) and 162 of the Constitution, Section 77 of the Labour Relations Act, Section 12 Industrial Court Act, 2011 and Rule 16 of the Industrial Court (Procedure) Rules, 2010. Counsel for the applicant, The Teachers Service Commission submitted that a restraining exparte order should be issued to restrain the respondents, The Kenya National Union of Teachers (KNUT) from taking part in the strike which was scheduled to begin upon opening of the primary, secondary and post-secondary learning institutions on September 3, 2012. The matters in dispute which concerned teachers’ pay was said to have commenced in 1997.

The court noted that the Teachers Service Commission Act, 2012 had not been published which was an Act of Parliament for implementation of the Constitution of Kenya, 2010. The coming into effect and operation of the Act would provide the Respondents’ an institutional framework for efficiently and effectively negotiating the matters leading to the filing of the case. In particular the Act sought to establish in Section 13(5) a Consultative Committee to review the Teachers Remuneration and Salaries. The Act also provided for the appointment of the Chairperson and other members of the Applicant as established in Article 237 of the Constitution and governed in accordance with Chapter 15 of the Constitution.

On the issue of the parties’ rights under the Constitution, the court observed that there was the need to protect the rights of the children to free and compulsory education as provided for in Article 53 (1) (b) and Article 53(2) of the Constitution, that a child’s best interests are paramount importance in every matter concerning the child. The children’s right to education enjoys Constitutional protection just as the Respondents’ Constitutional rights in Article 41 on labour relations.

The court considered that Article 19 of the Constitution offered a clear guidance on balancing the two competing rights. The Respondents were substantially demanding payment of money which could be done at a future date. Postponing the rights of the children to education for which both the Claimants and Respondents protect was not a decision that could be remedied in future. It would be an irreparable injury to the children.

In conclusion, the court opined that on a balance of the right of children to education and the right of the Respondents to go on strike, the right to education outweighs the monetary demands the Respondents were making. The court also took into account the need for both the Respondent and the Claimant to harmoniously work towards the realization of the relevant Constitutional and Statutory provisions.

Respondents restrained from taking part in or calling an unprotected strike pending the hearing and determination of the Application.


3. Court’s jurisdiction to stop an electoral process in order for a party to agitate for their rights

Francis Gitau Parsimei & 2 Others v The National Alliance Party & 4 Others

Petition No. 356 of 2012

High Court of Kenya at Nairobi-Constitutional and Human Rights Division

D.S Majanja J.

August 22, 2012.

The application concerned allegations of rigging in political party nominations for the presentation of candidates to the Independent Electoral and Boundaries Commission (“IEBC”) for the Kangema and Kajiado North By-election. The issue of jurisdiction was raised in both maters and the parties agreed that the issue be determine first. The question for consideration was whether the High Court could entertain applications seeking conservatory orders to stop the nomination of candidates in light of the provisions of Article 88(4) (e) and section 74 of the Elections Act, 2011.

The court observed that to determine the issue, the Constitution must be read as a whole. On the one hand there was the Bill of Rights which protects, inter alia, the political rights of the petitioners. These rights were enforceable under Article 22 which offered the petitioners direct access to the High Court to enforce fundamental rights and freedoms. There is also Article 258 which entitles any person to move the court where the Constitution is contravened or is threatened with contravention. The petitioners had exercised the option to invoke these provisions to move the court.

The court affirmed that the Court of Appeal had established the principle that where the Constitution and or statute established a dispute resolution procedure, then that procedure must be used. The court further found that the insistence of a specific procedure was not inconsistent with the bill of rights; it is recognition that election disputes require special rules for determination which are justifiable in a democratic society and indeed it was noted that the Constitution itself contemplated that the electoral process was a special process. The court observed that Article 88(4) (e) and section 74(1) of the Elections Act 2011 has provided for alternative modes of dispute resolution specific to the nomination process. Ultimately, it was held that the court could not entertain nomination disputes where such a process has not been invoked or it has been demonstrated that the process has failed.


4. Provisions requiring the resignation of state officers seven months prior to the electionswhile at the same time excluding other categories of state or public officers constitutional

“The principle of equality does not mean that every law must have universal application for all persons who are not by nature, attainment or circumstances in the same position and the varying needs of different classes of persons require special treatment. Equality means parity of treatment under parity of conditions. Equality does not connote absolute equality. A classification in order to be constitutional must rest upon distinctions that are substantial and not merely illusory. The test is whether it has a reasonable basis free from artificiality and arbitrariness embracing all and omitting none naturally falling into that category.

Charles Omanga & Another v The Independent Electoral & Boundaries Commission & 2 Others

Petition No 2 of 2012

High Court at Nairobi

I. Lenaola J.

August 2, 2012.

Section 43 (5) of the Elections Act is not inconsistent with Article 27 of the Constitution, the Constitutional court has held. This was decided in a petition before the High Court seeking to challenge the constitutionality of section 43 (5) of the Election Act, 2011. Section 43 (5) of the Elections Act 2011 provides that a public officer who intends to contest an election under the Act shall resign from public office at least seven (7) months before the date of election. Further, section 43 (6) provides an exemption that the section shall not apply to the President, the Prime Minister, Deputy President, Member of Parliament, a County Governor, a Deputy County Governor and a Member of County Assembly.

The petitioners argued that section 43 (5) of the Election Act was punitive and discriminatory in its very nature since the provision accorded an unfair advantage to some public officers, breached the requirement for fairness, equality and proportionality and therefore was unconstitutional. The main issues for determination were whether section 43 (5) of the Elections Act was inconsistent with Article 27 of the Constitution and whether the resignation period from Public Office at least seven (7) months prior to the date of election was reasonable.

The court found that the principle of equality does not mean that every law must have universal application for all persons who are not by nature, attainment or circumstances in the same position and the varying needs of different classes of persons require special treatment. The Legislature understands and appreciates the need of its own people, and the law that it enacts are directed to problems made manifest by experience and that its discriminations are based upon adequate grounds.

Further the court opined that the rule of classification is not a natural and logical corollary of the rule of equality, but the rule of differentiation is inherent in the concept of equality. Equality means parity of treatment under parity of conditions. Equality does not connote absolute equality. A classification in order to be constitutional must rest upon distinctions that are substantial and not merely illusory. The test is whether it has a reasonable basis free from artificiality and arbitrariness embracing all and omitting none naturally falling into that category. It was hence upon the state or a person seeking to justify the limitation of a right or fundamental freedom to show that such a limitation is reasonable and justifiable. He who asserts must prove.

The court while dismissing the petition affirmed that public officers who wished to run for elective positions could not have one leg in public service and another at their elective area. The law was designed to aid them make up their minds on where they want to maximize their energies. Seven months before the election date was sufficient time for them to prepare themselves to meet their fate at the election box, a longer period would be more unreasonable.


5. High court’s jurisdiction under the Vetting of Judges And Magistrates Act

“Jurisdiction is everything. Without it, a Court has no power to make one more step.”

Peter O. Ngoge V the Vetting Of Judges and Magistrates Board and Another

High Court of Kenya at Nairobi

D.S. Majanja J.

May 7, 2012.

The High Court has restated that it has no jurisdiction in matters arising from the ongoing vetting process of Judges and Magistrates. The decision was made in an application by Peter O. Ngoge, an advocate of the High Court of Kenya brought under Order 53 rules 1, 2, 3 of the Civil Procedure Rules, Section 8 and 9 of the Law Reform Act and Articles 10, 20, 22, 23, 27, 34, 35, 47, 50 and 159 of the Constitution. Mr Ngoge complained that he had been condemned unheard contrary to the rules of natural justice as he was not notified of the hearings which were conducted in camera and he was not given an opportunity to present or prove his complaints in violation of the Constitution. He also contended that he was discriminated against contrary to Article 27 of the Constitution as he was not mentioned in the decision as one of the complainants, Mr S. K Macharia.

The court noted that the matter concerned the vetting of judges and magistrates which was carried out pursuant to section 23 of the Sixth Schedule to the Constitution. Section 23 (1) provided for the establishment of the Vetting of Judges and Magistrates Act, 2011 (VMJA) and section 23(2) provided; ”(2) A removal, or a process leading to the removal of a judge from office by virtue of the operation of legislation contemplated under subsection (1) shall not be subject to question, in, or review by, any court.”

Pursuant to these provisions, the court noted that Parliament enacted the VMJA which came into force on March 22, 2011. Section 6 of the VJMA establishes the Board and section 13 provides for the functions of the Board as being, ‘to vet judges and magistrates in accordance with the provisions of the Constitution and this Act.’ The court opined that the Board as constituted therefore exercised a mandate and function vested in it by the Constitution and the VJMA.

The court affirmed that the Board had already completed its work in respect of the vetting of Court of Appeal Judges subject to the right of review under the VJMA. In light of section 23(2) of the Sixth Schedule to the Constitution, the Board’s decision was part of a process leading to removal of a judge and could not be the subject to question in, or review by, any court.

In substance Mr Ngoge sought to review the decision of the Board in so far as it applied to complaints lodged by him. That, according to the court, would be a collateral attack on the Board’s decision and was not permitted by the Constitution. The court referred to the case of Dennis Mogambi Mong’are v Attorney General and Others Nairobi Petition No. 146 of 2011, where the court held that the Sixth Schedule was part of the Constitution and could not be challenged on the basis of any inconsistency with the Constitution.

The court affirmed that the order of certiorari, if granted, would lead to quashing the decision of the Board. It was therefore in conflict with the direct provisions of the Constitution and in the circumstances, the proceedings in so far as they would lead to a re-opening or reconsideration or review of the Board’s decision or process leading to the removal of a judge could not lie in law and were not permitted by the Constitution.

Though the court concurred with Mr Ngoge that where there is a breach of natural justice, the Court must intervene to correct such a violation, it noted that the proceedings under the VJMA were sui generis, the Board was empowered to regulate its procedure and in so doing receive complaints. A challenge to the Board’s procedure agitated by the applicant would inevitably lead to questioning the decision of the Board and would inevitably breach the wall established by the Constitution to protect the decisions and process of the Board.

In conclusion the court found that to allow the application in the circumstances of the case would be to circumvent the constitutional prohibition inherent in section 23(2) of the Sixth Schedule to the Constitution. Hence, the court had no jurisdiction to embark on the inquiry suggested by the applicant.


6. Court declares section 45(3) of the Employment Act unconstitutional

“section 45(3) of the Employment Act 2007 is inconsistent with the Constitution of Kenya particularly Articles 28, 41 (1), 47, 48 and 50(1) to the extent the said section deny rights and freedoms enshrined in the said Articles of the Constitution”

Samuel G. Momanyi v The Hon. Attorney General & Another

Petition No. 341 OF 2011

High Court, Constitutional and Human Rights Division

Lenaola J.

May 18, 2012.

Section 45(3) of the Employment Act 2007 has been declared inconsistent with the Constitution of Kenya 2010 particularly Articles 28, 41 (1), 47, 48 and 50(1). The court found the said section purported to deny rights and freedoms enshrined in the said Articles of the Constitution. Samuel Momanyi was employed by the SDV Transami Kenya Ltd as a Project Manager until his services were terminated without being heard and without any lawful reasons being given for that action. He filed a claim before the Industrial Court which claim was struck off under Section 45(3) of the employment Act 2007 as he had only worked for 11 months and 27 days with Transami.

He therefore appealed to the High Court and prayed for a declaration that his right to fair labour practices under Article 41(1) of the Constitution had been violated by his employer because he was not accorded a fair opportunity to be heard on the allegations resulting in the termination of his employment and that section 45(3) of the Employment Act was inconsistent with the provisions of the Constitution of Kenya particularly Articles 28, 41 (1), 47, 48 and 50 (1). He therefore asked that an order be issued declaring section 45(3) of the Employment Act invalid by reason of its violation of the rights and fundamental freedoms and the said ruling be reviewed and set aside.

Samuel had also argued that section 45(3) was in conflict with Articles 48 and 50 (1) of the Constitution which guaranteed the rights to access justice and the right to a fair hearing. It was his argument that it was discriminatory of certain kinds of employees and that only those who had served for over 13 months could have claimed for unfair termination of their services.

The court observed that the Employment Act was enacted in 2007 before the enactment of the 2010 Constitution of Kenya and therefore there was need to align the provisions of all statutes enacted prior to it with the said Constitution. The Judge held that in lieu of Articles 27 and 48 of the Constitution which guaranteed equality and freedom from discrimination and the right to access to justice, there was obvious discrimination and the Samuel had been denied equal protection and equal benefit of the law. The court noted that no explanation had been given by either Transami or the Attorney General as to why a person who had worked for 13 months was the only one who could have claimed that his employment had been unfairly terminated and that one who had worked for a lesser period could not have had the benefit of that claim.

In considering what circumstances a court could have declared a law to have been unconstitutional, Judge Lenaola held that section 45(3) was unreasonable and had the opposite of what the object of the Employment Act was intended to be. Judge Lenaola thus observed that the law was oppressive and the Industrial Court’s hands were tied and therefore upheld the Constitution and declared section 45(3) invalid to the extent of its consistency.


7. Requirement for presidential consent for transfer of beach plots unconstitutional

“The requirement for presidential consent for transfer of beach plots is unconstitutional and contravenes Article 27(1) (4) of the constitution, which prohibits discrimination in any form”

Mohamed Balala & 10 others vs. the Attorney General, Commissioner of Lands and 6 others [2012] eKLR

High Court at Mombasa

Kasango J

May 17, 2012

The High Court in Mombasa ruled that the requirement for presidential consent for persons wishing to acquire or dispose 1st and 2nd row beach plots in Mombasa is unconstitutional. Lady Justice Mary Kasango held that the requirement for presidential consent was unconstitutional and contravened Article 27(1) (4) of the constitution, which prohibits discrimination in any form and states as follows;

“(1) Every person is equal before the law and has the right to equal protection and equal benefit of the law.

(4) The state shall not discriminate directly or indirectly against any person on any ground, including race, sex, pregnancy, marital status, health status, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, dress, language or birth.”

Within the new Constitutional dispensation, the petitioners in this case who are members of the Laws Society of Kenya, Mombasa Chapter, brought a suit against the Attorney General, Commissioner of Lands and registrars of titles in Mombasa, Kilifi, Lamu and Kwale seeking an order prohibiting them from asking for presidential consent so as to register any land transactions relating to the 1st and 2nd row beach plots. The petitioners argued that there existed no legal backing for this requirement and that the requirement was discriminatory since it did not apply to the whole country but only to Mombasa. They also sought an order declaring that requirement of consent was illegal and discriminative. The respondents in this case did not file any replying affidavit to controvert the petitioners’ application.

In granting the orders sought, the Court noted that the requirement for presidential consent for the disposition or acquisition of 1st and 2nd row beach plots was a contravention of the national values articulated in Article 10 of the Constitution of Kenya; the rule of law, equity, non-discrimination and transparency. Justice Kasango also noted that the requirement for presidential consent was an appendage of yesteryears, which has no place in Kenya today due to its discriminative nature.

The court therefore granted prohibitory orders against the respondents requiring presidential consent to transfer 1st and 2nd row beach plots and issued a declaration that such a requirement is illegal. The petitioners were also awarded costs.


8. Prospective application of the Constitution of Kenya, 2010

‘…the Constitution of Kenya is only prospective and the acts occurring prior to the Constitution are, unless otherwise stated by the Constitution itself, to be judged by the existing legal regime that is, the former Constitution.’

Duncan Otieno Waga v The Attorney – General

Petition No. 94 of 2011

High Court, at Nairobi – Constitutional and Human Rights Division

D.S Majanja (J)

June 19, 2012


The Constitutional and Human Rights Court has held that the Constitution of Kenya is only prospective and the acts occurring prior to the Constitution are, unless otherwise stated by the Constitution itself, to be judged by the existing legal regime that is, the former Constitution. This pronouncement followed a suit where the Petitioner, one Duncan Otieno averred that his constitutional rights under the Constitution and the Persons with Disabilities Act (No. 14 of 2003) had been violated.

Mr. Duncan Otieno Waga, the petitioner, was enlisted as a police officer since 1986. He went about his normal duties while being posted to several stations where he worked until 2004. However, during this period, he developed an eye ailment which gradually led to a complete loss of all but very limited peripheral vision. His condition deteriorated despite the various stages of treatment. Despite all this, Duncan was able to perform his duties at the Police Force at the Central Bank of Kenya (CBK) Police Post in Mombasa. Duncan, despite his visual disability, was assigned duties such as manning the Report Office and Radio Room. However, he was later transferred to Central Police Station, Mombasa, and was to reside at Mbaraki Police Depot, which was far from the Central Police Station where there was no direct means of transport. Due to his visual impairment, it was going to be virtually impossible for him to carry out his duties. It was Duncan’s contention that he was not assigned any duties between 2004 and 2008 though he was fully capable to perform his duties such as those he had performed in the nine years he had been stationed at the Central Bank of Kenya Police Post.

In 2008, Duncan was requested to appear before the Medical Board at the Ministry of Health to show cause why he should not be removed from the force on medical grounds. In its report, the Board recommended that he should be rehabilitated to perform special duties. The Commissioner, despite the Board’s recommendation instituted removal proceedings against the petitioner and by his letter required Duncan to show cause why he should not be removed from the force on medical grounds. He relied on Section 30(c) of the Force Standing Orders. Duncan responded by re-affirming his initial position of being reposted to his initial workplace where he had performed duties for a period of nine years. Despite this, the Commissioner retired him on medical grounds at the age of 46 and awarded his dues

Duncan averred that his constitutional rights under Article 27(4) of the Constitution which prohibits discrimination on the basis of disability were violated. Further, he contended that there was violation of section 15 of the Persons with Disabilities Act (No. 14 of 2003) which prohibits discrimination by employers and Article 4 of the Convention on the Rights of Persons with Disabilities. This Article obligates States to ensure and promote the full realization of all human rights and fundamental freedoms for all persons with disabilities without discrimination of any kind on the basis of disability. It was Duncan’s contention that the termination of his duties on grounds that he was visually impaired was nothing short of discrimination.

The court was quick to remind itself of the applicability of the Constitution of Kenya, 2010 as the matter concerned the enforcement of fundamental rights and freedoms under the Bill of Rights. By virtue of Article 263, the Constitution took effect on the date of promulgation which was August 27th, 2010. Article 264 states that on the date of the promulgation, the former Constitution subject to the Sixth Schedule stood repealed. The effect of these provisions is that the Constitution is not retrospective, it cannot invalidate, except by express provision what was otherwise legal. The acts of discrimination upon which the petition was grounded occurred within this period meaning that the former Constitution must be applied to Duncan’s case.

The court held that the definition of discrimination at section 82(3) of the repealed Constitution was limited to classifications of “race, tribe, place of origin or residence or other local connexion, political opinions, colour, creed or sex.” There was no protection for discrimination on account of disability. To include a prohibition based on disability would be inconsistent with the language of section 82(2). Therefore the former Constitution was not applicable to the facts and circumstances of this case and therefore Duncan could not claim breach of his rights. The petitioner’s case was thus struck out.


9. Gazette Notice declaring Mombasa Republican Council as an organized criminal group unconstitutional

“Secession can only be achieved by far reaching amendments to the Constitution. All Kenyans will decide this by a referendum under Article 255 of the Constitution. Any secession must be freely given by all Kenyans, if cannot be forced on them”

Randu Nzai Ruwa and 2 Others V the Internal Security Minister and Another

Misc. Application No. 468 Of 2010

High Court of Kenya at Mombasa

J. W. Mwera, M. Kasango, F. Tuiyott JJ.

July 25, 2012

The High Court in Mombasa lifted the ban on the Mombasa Republican Council (MRC). The three-judge bench ruled that the Gazette Notice that declared the MRC illegal was unconstitutional. The three petitioners brought the action on behalf a group of persons who have associated and branded themselves MRC. MRC had over 30,000 committed followers and central to its objective was secession.

The originating motion asked the court to declare that the issuing of the Gazette Notice wherein several groups and or private associations inter alia, the MRC were proscribed, contravened Articles 36, 37, 38, 40 and 47 of the Constitution 2010. The said ban had been made pursuant to section 22 of the Prevention of Organized Crime Act (Act No. 6 of 2010) (POCA). The question before the court was whether or not the action of the Government of Kenya in proscribing a group known as Mombasa Republican Council (MRC) vide Gazette Notice No. 12585 was unconstitutional and whether that proscription restricted or limited the Fundamental Rights and Freedoms of the petitioners.

While making the decision, the court noted that the Constitution 2010 had elaborate instructions on how it was to be construed. Article 259 (1) provides the Constitution shall be interpreted in a manner that advances the rule of law, and the human rights and fundamental freedoms in the Bill of Rights. The court emphasized that it would take a generous and purposive approach to the Interpretation of the Rights and Freedoms guaranteed by the Constitution.

While the court appreciated that the executive arm of the Government was charged with the responsibility of ensuring national security (Chapter 14 of the Constitution) it however stated, that where there was a complaint raised that national security has been wrongfully invoked to take away a fundamental right the court needs to be judicially satisfied that the action of the State is reasonable and justifiable. It was the duty of the Minister to demonstrate that his action was justified and in accordance with the Constitution and the Act which according to the court, had not been demonstrated.

The court agreed with the argument of the State Counsel that Kenya is one indivisible sovereign state. This is expressly proclaimed in the preamble of the Constitution and national unity entrenched by Article 10 of the Constitution as a national value. Indeed, the court reiterated that the Constitution does not contemplate secession and if the people of Kenya would have wished otherwise, then they would have expressly said so in the Constitution.

From the evidence presented by the parties, the court concluded that MRC was a political movement as central to its objective is secession. Secession According to the court was a political agenda and hence MRC had all the attributes of a political movement.

The court further noted that democracy is not a license to disorder or lawlessness and for that reason; the group had to register as a political party to pursue its agenda through legal means. And apparently alive to the fact that Kenyans may question the rationale behind their judgment, more so in the light of the group’s secession demands, the judges emphasized that secession was a weighty matter that could not be realized through the means the group was pursuing.

Ultimately, the court declared that the Gazette Notice declaring MRC as an organized criminal group unconstitutional and was therefore lifted.


10. Arresting a judgment- debtor without sufficient notice unconstitutional

“…Order 22 rule 7 is a cause for concern as it empowers the court to issue a warrant of arrest upon an oral application by the judgment creditor when passing the decree if the judgment debtor is within the court precincts. This 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…”

Beatrice Wanjiku & another v Attorney General & 3 others (2012 eKLR).

Petition No. 190 of 2011

High Court, at Nairobi

D S Majanja J

July 23, 2012.

A section of the law that allows the arrest of a judgment debtor without giving them sufficient notice or opportunity to repay the debt due is unconstitutional. This was held in a petition in which the petitioners, judgment debtors, were challenging, among other things, the fact that the law allows their arrest and committal to civil jail within the court precincts upon a decree being issued by the court. Part of the sections of the law that the petitioners were challenging were Order 22 rule 7 (1) of the Civil Procedure Act (Cap.21) which states as follows…” 7. (1) Where a decree is for the payment of money the court may on the oral application of the decree-holder at the time of the passing of the decree, order immediate execution thereof by the arrest of the judgment-debtor, prior to the preparation of a warrant, if he is within the precincts of the court.

The petitioners argued that Kenya had ratified the United Nations International Covenant on Civil and Political Rights whose Article 11 disallowed civil jail for matters whose cause of action arose from contractual obligations; that Article 2(5) and 2(6) of Kenya’s Constitution incorporates into Kenyan Law the above mentioned convention and thus civil jail for debtors would be unlawful; and that imprisonment of a debtor violates their rights as captured in the bill of rights including the right to liberty and movement.

The issues for determination centered around two aspects, that is, whether there was a breach of the petitioners’ rights under Article 11 of the United Nations International Covenant on Civil and Political Rights and whether enforcement of civil jail against the petitioners was a breach of their fundamental rights and freedoms as are protected under the Bill of Rights.

On the first question, the court held that the fact that Article 11 of the Convention states that, “No one shall be imprisoned merely on the ground of inability to fulfil a contractual obligation…” meant that one could not be imprisoned for the sole reason of inability to fulfil a contractual obligation but where additional reasons other than inability to pay existed, then one would be imprisoned. The court went ahead to state that the said Article 11 recognizes that in fact there may be instances where imprisonment for inability to fulfil a contractual obligation may be permitted hence there is no inconsistency between Article 11 of the Convention and the general tenor of the committal regime under Civil Procedure Act and the Rules. It concluded that the provisions of Article 11 of the Convention are at best an interpretative aid.

On the second question as to whether the Civil Procedure Act was unconstitutional, the court analyzed section 38 of the Civil Procedure Act and Order 22 of the Rules and stated the they demonstrate the following:

  1. The process of arrest and detention is not arbitrary. The debtor is given an opportunity to show a judicial officer makes cause before an order.
  2. The Judgment-Creditor can only be committed to civil jail once it is demonstrated that he or she has refused or neglected to pay, is about to abscond or is intent on obstructing or delaying execution of the decree.
  3. The burden of proof rests on the judgment-creditor to show prove the elements that are necessary for the arrest and committal of the judgment-debtor.
  4. That arrest and committal is the last resort after other modes of execution have failed.
  5. There is a right of appeal against the decision of ordering arrest and committal.

However, the court took issue with Order 22 section 7 of the Civil Procedure Act, which it stated, empowers the court to issue a warrant of arrest upon an oral application by the judgment creditor when passing the decree if the judgment debtor is within the court precincts. This provision, the court concluded, does not entitle the judgment debtor to sufficient notice nor opportunity to pay the debt even where he has the means to do so. It is thus an unnecessary infringement on the rights of the judgment-debtor hence unconstitutional, null and void.


11. Court of Appeal Decision on Election Date

“It was the intention of the Constitution of Kenya 2010, as evident in sections 9(1) and 10 of the Sixth Schedule, that the National Assembly would complete its unexpired term and that the first elections would be held within sixty days after the dissolution of the National Assembly at the end of its terms.”

Centre for Rights Education and Awareness & another v John Harun Mwau & 6 others [2012]eKLR

Court of Appeal at Nairobi

EM Githinji, MK Koome, HM Okwengu, KH Rawal & DK Maraga JJ A

July 31, 2012

On August 27, 2010, Kenya promulgated a new constitution – the Constitution of Kenya, 2010. The new constitution provided for a new structure of government and contained transitional provisions governing the conclusion of the term of the serving government and the establishment and commencement of the term of the new government through a general election.

Previously, in 2008, Kenya’s legislature had passed the National Accord and Reconciliation Act, 2008 to establish a coalition government through a National Accord, which was a reconciliation framework brokered after the violent aftermath of the disputed results of the general election held in December 2007.

A dispute arose on the interpretation of some provisions of the new constitution and the National Accord and Reconciliation Act, 2008 on the question of what would trigger the first general election under the new constitution and how the date of the election would be reckoned. These provisions were:

The National Accord and Reconciliation Act, 2008:

Section 6: The coalition shall stand dissolved if – (a) the Tenth Parliament is dissolved;…”

The Constitution of Kenya 2010:

  1. Article 101(1): “A general election of members of Parliament shall be held on the second Tuesday in August in every fifth year”.
  2. Article 102(1): “The term of each house of Parliament expires on the date of the next general election”.
  3. Article 262provided that the transitional and consequential provisions set out in the schedule were to take effect on the date that the Constitution came into force on August 27 2010.
  4. The Sixth Schedule, section 3(2) provided that certain provisions of the former Constitution would continue to apply until the first general elections. That section excluded section 59 which gave the President the power to prorogue and to dissolve Parliament at any time. The section further provided that the provisions of the former Constitution concerning the executive and the National Accord would continue to operate until the first general elections.
  5. The Sixth Schedule, section 9(2): “The first elections for the President, the National Assembly, the Senate, county assemblies and county governors under this Constitution shall be held at the same time, within sixty days after the dissolution of the National Assembly at the end of its term”.
  6. The Sixth Schedule, section 9(2): “Despite subsection (1), if the coalition established under the National Accord is dissolved and general elections are held before 2012, elections for the first county assemblies and governors shall be held during 2012.”
  7. The Sixth Schedule, Section 10 provided that the National Assembly existing immediately before the date of the promulgation of the new constitution would continue as the National Assembly for the purposes of the Constitution for “its unexpired term”.
  8. The Sixth Schedule, section 12 provided that the President and the Prime Minister would continue to serve in accordance with the former Constitution and the National Accord until the first general elections unless they vacate office under the former Constitution and the Accord.
  9. The Sixth Schedule, section 12(2) allowed the Cabinet and the Assistant Ministers under the repealed constitution to continue holding office until the first general elections under the new constitution unless they vacated or were removed from office in accordance with the former Constitution and the National Accord.

In interpreting these provisions, the High Court had found, among other things, that, firstly, following the repeal of the former Constitution, the President had no power under the Constitution to dissolve Parliament. Secondly, it had found that the date of the first elections under the new Constitution would be determined by reference to Sections 9 and 10 of the Sixth Schedule as follows: -

  1. In the year 2012, within sixty days from the date on which the National Coalition is dissolved by written agreement between the President and the Prime Minister in accordance with Sections 6(b) of the National Accord and Reconciliation Act, 2008 or,
  2. Upon the expiry of the term of the 10th Parliament on the 5th of the Anniversary of the day it first sat which is designated by Legal Notice No.1 of 2008 on 15th January 2008 and the term therefore expired on 14th January, 2013 and the elections shall be held within sixty days of 15th January, 2013.

Two appeals were lodged in the Court of Appeal against these findings. One of the appeals was lodged by an entity which had not been a party to the proceedings in the High Court on the ground that the entity was directly affected by the decision of the High Court and that the Constitution entitled it to file the appeal. The two appeals were consolidated.

Held:
On the principles of interpreting a Constitution:

  1. Some of the important principles which apply to the interpretation of a constitution are:
  2. A court should avoid a construction that produces an absurd, unworkable or impracticable result;
  3. A court should find against a construction that creates an anomaly or otherwise produces an irrational or illogical result;
  4. The court should strive to avoid adopting a construction which is adverse to public interest, economic, social and political or otherwise.
  5. The sixth schedule to the Constitution of Kenya 2010 was an integral part of the Constitution and had the same status as the provisions of the other Articles although it is of a limited duration.

On the merits of the appeals:

  1. By finding that the general election could be held in the year 2012 within sixty days from the date on which the National Coalition is dissolved by the President and the Prime Minister, the High Court was in effect giving the President and the Prime Minister power to dissolve the National Assembly, which power was not conferred by the Constitution.
  2. It was not within the province of the High Court to amend, as it in effect did by that decision, sections 9(2) and 10 of the Sixth Schedule to the Constitution of Kenya 2010 and section 6(b) of the National Accord and Reconciliation Act, 2008. The decision was inconsistent with the new constitution particularly sections 10 and 12 of the Schedule.
  3. It was the intention of the Constitution of Kenya 2010, as evident in sections 9(1) and 10 of the Sixth Schedule, that the National Assembly would complete its unexpired term and that the first elections would be held within sixty days after the dissolution of the National Assembly at the end of its terms.
  4. The High Court was right in its second finding that the first elections under the
    new Constitution could only be lawfully held within sixty days upon the expiry of the term of the 10th Parliament and in computing the date of expiry as January 14 2012.

Per Martha Koome JA, dissenting:
Held:

  1. Having considered that the life of Parliament is five years as per the Section 59 (5) of the repealed Constitution, which was saved by section 10 of the Sixth Schedule to the new Constitution, then section 9(1) of the Sixth Schedule should not have been read as a stand-alone leaving out the provisions of Section 10 of the Sixth Schedule to the new constitution and section 59(5) of the repealed Constitution.
  2. If Sections 9 and 10 of the Sixth Schedule to the new constitution and section 59(5) of the repealed constitution were read conjunctively and given their purposeful meaning within the prevailing context that traditionally general elections are held within five years, the National Assembly should dissolve sixty days before the expiration of term. The dissolution of Parliament sixty days after the expiry of its term would contradict section 10 of the Sixth Schedule as it extended the period of the National Assembly beyond the term of five years.
  3. The National Assembly should have been dissolved sixty days before the expiration of its term – that should have been on or about 14th November, 2012. This way, the current National Assembly would not go beyond its lifespan of five years and the Members of Parliament would have served their entire term of five years. The date for the next general elections would then be on or about the January 15 2013.

By majority decision: The order of the High Court providing that the general elections could be held in the year 2012 within 60 days from the date on which the National Coalition is dissolved by written agreement between the President and the Prime Minister in accordance with section 6(b) of the Accord was set aside.

The order of the High Court providing that the general elections shall be held upon the expiry of the term of the 10th Parliament on the 5th Anniversary of the day it first sat – which is designated by Legal Notice No. 1 of 2008 as 15th January, 2008 and the term therefore expires on 14th January, 2013 – so that the election shall be held within sixty days of 15th January, 2013, was confirmed.


12. Right to Damages for Breach of Right to Fair Administrative Action

“Where a municipal authority neglects to respond to several letters from a member of the public who has acquired land within the municipality and is seeking clearance to develop the land, has the authority breached the person’s right to expeditious, efficient, lawful, reasonable and procedurally fair administrative action provided in Article 47 of the Constitution of Kenya, 2010?”

Rachel Auma Owiti v Municipal Council of Kisumu [2012] eKLR

Petition 52 of 2011

High Court at Kisumu

HK Chemitei J.

July 13, 2012

All statutory bodies have the duty to serve its constituents with utmost care speed and diligence; the High Court at Kisumu has held. Justice Chemitei made the decision in a suit where the petitioner Rachel Auma Owiti had purchased a parcel of land in Kisumu Municipality from one Joseph Gathamba Maina on December 20, 2001. The said Mr. Maina had been allotted the property by the respondent, Municipal Council of Kisumu on January 4, 1999.

The petitioner had made an application to the Municipal Council of Kisumu for development of the said property and which she paid for approval on December 2, 2010. It was her contention that the respondent despite numerous letters and reminders had refused to approve the necessary building plans which it was holding for the petitioner to start developments on the land which according to her was in complete breach of her fundamental rights as per the Constitution.

The respondent objected to the petition and submitted that the said plot had been repossessed and given to another deserving person as the petitioner or the allotee had failed to comply with the stipulated rules requiring that the property be developed within twelve (12) months after being allotted.
Was the respondent therefore in breach of the relevant constitutional provisions? The court in making the decision made reference to Article 47 (1) and (2) of the Constitution which states:-

47 (1) Every person has the right to administrative action that is expeditious efficient, lawful, reasonable and procedurally fair.

47 (2) If a right or fundamental freedom of a person has been or is likely to be adversely affected by administrative action, the person has the right to be given written reasons for the action.

The court pointed out that after petitioner’s plot was repossessed, the respondent continued to receive the rates and approval fees from the petitioner. It was further noted that all petitioner’s letters went unanswered by the respondent. The court opined that the failure to respond to the petitioner letters clearly breached Article 47 (1) and (2) of the Constitution. The approval fee of Kshs. 21,300 was paid on December 30, 2010. Ordinarily the respondent ought to have approved the plans or at least communicated to the petitioner expeditiously of its failure to approve. The court emphasized that the recalcitrance action by the respondent was inefficient, unlawful, unreasonable and un-procedural and time wasting. It was pointed out that there was no reason shown by the respondent why it failed to respond to the letters and yet it was quick to receive payments from the petitioner. At most it ought to have rejected the cash since at any rate it had revoked the allotment.

In conclusion the court reiterated that the purposes and duty of any statutory body was to serve its constituents with utmost care speed and diligence. The respondent was hence in breach of Article 47 of the Constitution and for that reason the respondent was ordered to pay to the petitioner the sum of Kshs. 150,000 for general damages. The respondent was further ordered to refund to the petitioner all the amount of money it had received from the date it revoked the allotment of the petitioners.

Similarly in Grace A. Omolo V Attorney General and 3 Others;


13. Right to fair administrative action

“The Public Service Commission has the constitutional responsibility of ensuring expeditious and fair proceedings in a manner consistent with Article 47 and the values set out in Article 10 and ensuring that public servants are protected as required by Article 236. Where the public servants rights are threatened the Court will not hesitate to intervene”

Grace A. Omolo V Attorney General and 3 Others

Petition No. 252 Of 2011

High Court of Kenya at Nairobi

Constitutional & Human Rights Division

D.S. Majanja

May 4, 2012

The petitioner was a career civil servant and at the tme of filing the petion, was deployed as the Deputy Director, Human Resource Management at the Ministry of Labour. At the time material to the case, she was Deputy Director, Human Resources in the Ministry of Education (“MoE”) where she was tasked to deal with recruitment of lower cadre staff in that Ministry. She was however interdicted on March 4, 2011 on the allegation that she was involved in irregular recruitment of lower cadre staff.

The petitioner’s case was that the interdiction constituted a breach of her fundamental rights and freedoms guaranteed under Article 47 of the Constitution. She averred that she was denied her right to a fair administrative process that was “expeditious, efficient, lawful, reasonable and procedurally fair.”

The court found that what is required for an interdiction to satisfy the requirements of Article 47 is that there is reasonable basis for taking action. What is reasonable depends on the facts and circumstances of the case. In the courts view, the evidence suggested that there was a reasonable basis to interdict the petitioner as the Head of Human Resource Management pending contemplated disciplinary or criminal action as required by Regulation 23 of the PSC. However, the concern was that the disciplinary proceedings had not been commenced 13 months after interdiction.

Regulation G33(13) of the Code of Regulations Governing the Civil Service specifies that disciplinary proceeding cases should be dealt with promptly and must be finalised within six months. This is the standard upon which delay is to be judged. A year of inaction on the disciplinary process was hence an inordinate delay and infringed on the petitioner rights protected under Article 47. The petitioner had been under interdiction for over a year without knowing her fate. Based on regulation G33(13) of the Code of Regulation Governing the Civil Service she had a legitimate expectation that disciplinary proceedings would be completed within six months or at any rate within a reasonable time. However, the court opined that to prohibit disciplinary proceedings would amount to granting immunity to the petitioner from the disciplinary process where serious allegation had been levelled against her.

Petitioner awarded Ksh. 300,000/00 general damages, disciplinary proceedings ordered to commence in 30 days


14. The Industrial Court has jurisdiction to determine applications for enforcement of rights and fundamental freedoms.

“The Industrial Court has jurisdiction to enforce not only labour rights in Article 41, but also all fundamental rights ancillary and incidental to the employment and labour relations including interpretation of the Constitution within a matter before it.”

United States International University v Attorney General & 2 Others (2012) eklr

Petition No 170 of 2012

High Court at Nairobi

D.S Majanja J.

August 3, 2012.

The Constitutional Court has ruled that all employment and labour relations matters that raised constitutional issues filed in the High Court prior to the establishment of the Industrial Court should be transferred to the Industrial Court. Justice Majanja held that the Industrial Court had jurisdiction to enforce not only labour rights in Article 41, but also all fundamental rights ancillary and incidental to the employment and labour relations including interpretation of the Constitution within a matter before it.

Following the appointment of the Industrial Court Judges, the High Court informed parties with employment and labour relations matters that it would transfer the matters to the Industrial Court for hearing and determination since it did not have Jurisdiction to deal with those matters under Articles 162 (2) and 165 (5). Counsels for the petitioners sought to address the Court on the matter as they were of the view that the matters could not be transferred to the Industrial Court.

Art 162(2) of the Constitution provides that the High Court has a Constitutional mandate to determine questions concerning the enforcement of fundamental rights and freedoms, whereas Art 165 (5) of the Constitution reserves certain matters for the Supreme Court, the Employment and Labour Relations Court and the Environment and Land Court.

Counsel for the petitioner submitted that the totality of Article 162 (2) and 165 left no doubt that the High Court had a Constitutional mandate to determine questions concerning the enforcement of fundamental rights and freedoms despite the claw back provision of Article 165(5), which reserved certain matters for the Supreme Court, the Employment and Labour Relations Court and Environment and Land Court. Counsel contended that the question of interpretation of the Constitution was vested expressly in the High Court under Article 165(3) (d).

The High Court having entertained rivalry arguments, considered whether the Industrial Court was competent to interpret the Constitution and enforce matters relating to breach of fundamental rights and freedoms, and whether employment and labour relations matters which raised constitutional issues filed in the High Court prior to establishment of the Industrial Court should have be handled by the High Court.

Justice Majanja in his analysis observed that both the Industrial Court Act, 2011 and Article 165 of the Constitution were silent on whether the Industrial Court and courts of the status of the High Court respectively had jurisdiction to interpret the Constitution and enforce fundamental rights and freedoms under the Bill of Rights. The Judge was of the view that it was important to consider the Constitution as a whole and that all provisions bearing upon a specific issue should be considered together. In his view the jurisdiction of the High Court was not governed by Article 23 but by Article 165 and the conferring of the Industrial Court, the Status of the High Court as superior courts were covered by Article 165 to the extent of labour and employment rights. The High Court further observed that to exclude the jurisdiction of the Industrial Court from dealing with any other rights and fundamental freedoms howsoever arising from the relationships defined in section 12 of the Industrial Court Act, 2011, or to interpret the Constitution, would lead to a situation where there would be parallel jurisdiction between the High Court and the Industrial Court. According to the Judge, that would give rise to forum shopping thereby undermining a stable and consistent application of employment and labour law.

In view of the aforesaid the High Court adopted the position of the Constitutional Court of South Africa in Gcaba v Minister of Safety and Security and Others CCT 64/08 [2009] ZACC 26, where it was held that the Industrial Court was a specialist court to deal with employment and labour relations matters. The High Court therefore held that, the Industrial Court as constituted under the Industrial Court Act, 2011 as court with the status of the High Court was competent to interpret the Constitution and enforce matters relating to breach of fundamental rights and freedoms in matters arising from disputes falling within the provisions of section 12 of the Industrial Court Act, 2011. Ultimately the court ordered that both matters be transferred to the Industrial Court for hearing and disposal.


15. Failure to extend a disabled person’s retirement age from 55 years to 60 years Unconstitutional

Discrimination is subtle but can manifest itself in many forms and the State is obligated to eradicate it by inter-alia procedural fairness imposed upon it.”

Fredrick Gitau Kimani & another v Attorney General & 2 others (2012) eKLR
High Court at Nairobi (Constitutional & Human Rights Division)

I. Lenaola J,

August 2, 2012

The court has held that it is a violation of a disabled person’s right to be retired before the age of 60 years, due to the disability, contrary to section 15(6) of the Persons with Disabilities Act. The said Act enhances the retirement age of persons with disabilities from 55 years of age to 60 years of age. The brief facts of the case were as follows:

The petitioner, Fredrick Gitau Kimani was until his retirement in March 2004, a public officer, in the police force, having been employed as such in January 1974. He was however relieved of his duties on medical grounds, having had one of his limbs amputated due to ill health. This amputation resulted into his being certified as a disabled person by the National Council for Persons with Disabilities.

The petitioner’s retirement was initiated by the 3rd respondent who expressed to him (the petitioner) the fact that he had to retire upon attaining the mandatory age of 55. This was despite the fact that the said respondent had been requested by the petitioner for extension of his retirement age as is provided for in the Persons with Disabilities Act.

As a result, the petitioner moved the court contending that the act of retiring him at the age of 55 years as opposed to 60 years amounted to discrimination on his part on grounds of health, status, age as well as disability which was a direct violation of Article 27(4) of the Constitution as read with Section 15(6) of the Persons with Disabilities Act.

He thus sought; a declaration that his right not to be discriminated against under Article 27(4)(5)(6) and (7) of the Constitution and Article 7 of the Universal Declaration of Human Rights had been violated, a declaration that failure by the 2nd and 3rd respondents in extending his retirement age from 55 years to 60 years in total disregard to the provisions of Section 15(6) of the Persons With Disability Act amounted to a violation of his right not to be discriminated against on grounds of health, age and disability; a declaration that failure by the 2nd and 3rd respondents in recognizing him as a disabled person pursuant to Section 15(6) of the Persons With Disabilities Act, Chapter 14 Laws of Kenya, is discrimination against him, hence a violation of his right as a fore-mentioned; a declaration that as a result of the breaches afore-mentioned, he had been unfairly treated and subjected to serious economic hardship thus deprived of his right to livelihood and lastly, a declaration that he is entitled to payment of Kshs.358,540/- tabulated at Kshs.15,448.00/- per month being the amount in arrears he would have otherwise earned had his rights not been violated for five (5) years until the retirement age of sixty (60).

Held:

  1. The Petitioner’s right not to be discriminated against under Article 27(4) (5)(6) and (7) of the Constitution and Article 7 of the Universal Declaration of Human Rights had been violated. There was no procedural fairness when his request for extension of his retirement age was not responded to and least of all, acknowledged.
  2. The failure by the 2nd and 3rd respondents to recognize the petitioner as a disabled person and to extend the petitioner’s retirement age from 55 years to 60 years in total disregard of section 15(6) of the Persons With Disabilities Act amounted to a violation of his right not to be discriminated against on grounds of health, age and disability.
  3. Even though general damages are the preserve of the Court as they are discretionary, specific claims must be specifically pleaded and proved even in matters of a constitutional nature. A person cannot be paid for services that he has not rendered. There was no evidence that the petitioner was earning the amount of money that he had claimed.
  4. The remedy for breach of one’s constitutional rights is clearly set out in Article 23(e) of the Constitution and whether pleaded or not, the fact of breach of a fundamental right will in appropriate cases attract the remedy and it is a remedy at the discretion of the Court.

Petitioner awarded Kshs. 500,000 being general damages at large as compensation by the 2nd and 3rd respondents.


16. Constitutionality of statutory provision on academic qualifications for nominees for elective offices

“Sections 22(1) (b) and Section 24(1) (b) of the Elections Act 2011 which bar persons not holding a post-secondary school qualification from being nominated as candidates for elective office or for nomination to Parliament is unconstitutional and is in violation of rights under the Constitution”

Johnson Muthama, v Minister for Justice and Constitutional Affairs & another

Petition No 198 of 2011 Consolidated With Petition No. 166 of 2011 and 172 of 2011

High Court at Nairobi (Milimani Law Courts)

Justice M. Ngugi

June 29, 2012

The petitioners sought for a declaration that the Elections Act, 2011 read as a whole was inconsistent and in conflict with the Constitution more particularly the preamble to the constitution, articles 1, 2, 10, 19, 20, 21, 22, 23, 24, 27, 28, 38, 55, 57,81, 82, 83, 93, 94, 95 and 96 of the Constitution and thus null and void. The petitioners’ case as it emerged from the oral and written submissions was that Section 22 – 26 inclusive and 78 of the Elections Act were unconstitutional as they violated the Constitution, the petitioners’ fundamental rights and freedoms, and were in breach of international human rights law and legal principles. It was further submitted that the provisions of the Elections Act violate the sovereign will of the people contained in Article 1 as they tend to limit the people’s exercise of such power through democratically elected representatives. The provisions grossly curtail the people’s right to choose their leaders by imposing unreasonable restrictions by limiting the number of people who can vie for leadership positions to those who have post-secondary qualifications, ethical and moral attributes.

It was further argued that the right to choose the educational and leadership attributes of a leader are purely the preserve of the electorate. The petitioners contend that statistical information available from the Kenya Bureau of Statistics shows that very few people are able to attain post primary school education. It would therefore be unreasonable to limit the right of the majority of Kenyans without educational qualifications to vie for elective posts. This would amount to denying the majority their right and reserving elective posts to a select few, which would be discriminatory.

Held:

  1. In enacting the new Constitution and with special reference to Articles 1, 10, 27 & 38 among others, the people of Kenya sought to create a future with equal opportunity and equal voice regardless of social status. The legislation in deciding the educational requirements should consider the specific social context in which it will be applicable. Article 24 (1) (b) allows for the limitation of certain rights through legislation so long as certain criteria are met.
  2. By providing that a person may not be nominated as a candidate for an election unless the person ‘holds a post-secondary school qualification recognized in Kenya’, section 22 of the Elections Act was discriminatory and offended Article 27 of the Constitution which provides for the right to equality and freedom from discrimination.
  3. The Act, by excluding everyone who does not have a post-secondary qualification,a term which is not defined in the Act, from running for any elective office established under the Constitution, discriminates directly on the basis of status and social origin.
  4. Considering also the statistics on girl-child and women education in Kenya and the cultural gender biases on that subject, the provision also indirectly discriminated on the basis of gender.
  5. The provision also violated the Constitution in Article 38 and international law by limiting the right of the citizen to be a candidate for public office and the right to participate in public affairs as recognized in Article 25 of the International Covenant on Civil and Political Affairs.
  6. The provision in the Elections Act section 22(2) that persons may be nominated for candidate for election as President, Deputy President, County Governor or Deputy County Governor only if the person is a holder of a degree from a university recognized in Kenya was not in violation of the petitioner’s rights or inconsistent with the Constitution.
  7. Section 24(2) (c) of the Elections Act which made certain limitations with regard to exercise of political rights by those who acquire citizenship was reasonable and in accord with the Constitution. Limiting eligibility for election as Members of Parliament to those who have been citizens for at least ten years can properly be said to bear a rational connection to a legitimate purpose.
  8. The disqualification from contesting in elections of persons who have participated in a public fundraising or harambee during or within eight months preceding a general election did not violate the Constitution. This prohibition has been in statute and its intentions are in line with the attempt to bring in ethics in the conduct of elections.
  9. The provision in section 78 of the Elections Act for the payment of a deposit of money by a party coming before the court did not violate the right of access to justice under the Constitution.

Petition allowed in part


17. Constitutionality of Presidential appointment of County Commissioners

“…it is important that anything that is done in order to implement the new Constitution is done so as to faithfully accord with the provisions of the Constitution. It will do great damage to the hopes of Kenyans for a new dawn should the country continue on the well-trodden path of disregard for the provisions of the Constitution.”

Centre for Rights Education & Awareness (Crew) & others v The Attorney General consolidated with Patrick Njuguna & another v the Attorney General & another

High Court at Nairobi (Milimani Law Courts)

Justice Mumbi Ngugi

June 29, 2012.

The Petition and the Judicial Review Application questioned the constitutionality of the appointment or deployment by the President of 47 County Commissioners by way of Gazette Notices issued on the 11thand the 23rd of May 2012. In the Petition dated the 17thMay 2012, the petitioners sought various declarations and orders the gist of which was to declare the act of the President in making the appointments as unconstitutional, null and void.

Held:

  1. In applying Article 129, 131, 132 (2), 2, 3, 10 ,20 , the 47 County Commissioners appointed by the President in which only 10 out of 47 were women did not meet the constitutional requirements at Article 27 (8) and violated the non-discrimination provisions of Article 27.
  2. In referring to the principle of progressive realization the interpretation in the case of Milka Adhiambo Otieno & Another -v- The Attorney General & Others Kisumu High Court Petition No. 44 of 2011 was upheld. It went further with the view that the phrase progressive realization’ is applied to those circumstances where an allocation of limited resources is required.
  3. The appointments failed the test of constitutionality by disregarding the national values and principles set out at Article 10(b) and the principle contained in Article 27(8) of the Constitution.
  4. With regard to public appointments, it is critical to have public participation and consultation. The publication of the Gazette Notices presented a fait accompli to the country and thus did not respect the values and principles of the Constitution.
  5. Section 23 and 24 of the former Constitution, were not saved by the Transitional Provisions contained in Schedule 6 of the Constitution. Consequently, the President could not make any appointments under the former constitution.

Petition allowed,


18. Award of damages for unlawful arrest and detention

“No rule of natural justice, no rule of statutory protection, no rule of evidence and no rule of common sense is to be sacrificed, violated or abandoned when it comes to protecting the liberty of the subject. He is the most sacrosanct individual in the system of our legal administration.”

Otieno Mak’onyango V Attorney General and Another

Civil Case No 845 of 2003

High Court of Kenya at Milimani Law Courts

K. H. Rawal

June 15, 2012

The plaintiff sued the two respondents for his arrest after the 1982 attempted coup and subsequent four-year detention without trial. The plaintiff had been arrested in August 1982 from his place of work at the Standard newspapers without a warrant of arrest and held at the GSU headquarters for 14 days before the 1st respondent terminated his case and subsequently released by the High Court. He was, however, re-arrested soon after the release and detained for four years without trial. He cited the particulars of malice as lack of evidence linking him to the attempted coup, inhuman treatment, torture, cruelty, loss of employment and demanded a total of Sh1.4 billion compensation.

The court ruled that the detention of the plaintiff for five years without trial was unconstitutional, illegal and unjustified and that he was entitled to payment of damages for the inhuman act committed by state officers. He was consequently awarded a sum of Kshs. 20,000,000/- (Kshs. Twenty Million) as fair and reasonable award to the plaintiff for violation of his fundamental rights.


19. Accused persons entitlement to evidence

“Both the Police and the Prosecutors must internalize the Constitutional command that every accused person is entitled to all evidence – including evidence that would tend to exculpate the accused person. This is not a discretionary rule that the Prosecution might choose to obey or not; it is a peremptory rule straight from the Constitution. Both the Police and Prosecutors should take heed”

Morris Kinyalili Liema V Republic

Criminal Appeal No. 58 Of 2010

High Court of Kenya at Machakos

J.M. Ngugi & Asike-Makhandia

June 15, 2012

The Appellant had been charged together with another with the two counts of robbery with violence contrary to section 296(2) of the Penal Code in the Senior Resident Magistrate’s Court. The Magistrate relied on evidence of recent possession of a cell phone which was allegedly recovered from the Appellant when he was arrested on the same night the offences were committed. Persuaded that the cell phone was found in possession of the Appellant and finding no plausible explanation from the Appellant, the Magistrate concluded that the presumption of guilt was not sufficiently rebutted and hence convicted the appellant.

On appeal, it was argued by the appellant that he was never found in possession of the cell phone. In order to prove that, he had sought the Police to produce the Occurrence Book extract for the day of his arrest. That extract, though in the exclusive possession of the Police, was never produced in Court. The record showed that the Appellant requested for the Occurrence Book at least three times and it was never produced. The case closed without the Occurrence Book ever having been produced.

The court allowed the appeal stating that every accused person is entitled to all evidence – including evidence that would tend to exculpate the accused person. That is not a discretionary rule that the prosecution might choose to obey or not; it is a peremptory rule straight from the Constitution and the Police and Prosecutors should take heed.


20. Court’s jurisdiction to extend time under Article 89 (11) of the Constitution

“Article 89(11) of the Constitution intended to be time limited. Such an exercise could not be open ended as it has an effect on other activities that lead to the conduct of a free and fair election. The context of Article 89 does not envisage jurisdiction to extend time for filing an application for review”

CLR Elliot Lidubwi Kihusa v Independent Electoral & Boundaries Commission

JR. NO. 94 of 2012

High Court of Kenya at Nairobi

Warsame, Sitati, Omondi, Nyamweya & Majanja J.

May 30, 2012

The Independent Electoral and Boundaries Commission (IEBC) published the National Assembly Constituencies and County Assembly Wards Order; 2012 through Legal Notice No. 14 of 2012. The petitions before the court related to issues arising from the said report which was published in the Kenya Gazette March of 6, 2012. The IEBC lodged preliminary objections to applications they claimed were filed outside the time provided for in Article 89(11). The IEBC argued that since the decision was published in the Kenya Gazette of 6th March 2012 then the last date of filing any application was 6th April 2012.

This was with regard to the period within which the matters ought to have been filed in accordance with Article 89(11) as read with section 36 of the Independent Electoral and Boundaries Commission Act (Act No. 9 of 2011) and regulation 5 of the Fifth Schedule. The Independent Electoral and Boundaries Commission (“IEBC”) argues that no party is allowed to file an application for review outside the period specified under Article89 (11). The contention by the IEBC is that the report containing the decisions under Article 89 was published on 6th March 2012 through the Kenya Gazette. Counsel for the IEBC referred to Article 259(5) regarding computation of time and submitted that if time is expressed as days, as it is in Article 89(11) then there must be strict compliance.

After hearing the application the court held that Considering Special Gazette Supplement of 6th March 2012 and the position taken by IEBC, the effective date of publication of the order was 6th March 2012, which meant the first date of computation was 8th March 2012 and 30 days would end on 6th April 2012, which was Good Friday, a public holiday. The next date on which filing could be done fell on 9th April 2012 which was Easter Monday, a public holiday. The last effective date for filing the application for review was therefore 10th April 2012.

On the issue of jurisdiction, the court opined that it lacked jurisdiction to extend time for filing an application under Article 89(11) as read with Article 259(9). It observed that, “Article 89 confers upon the High Court a special jurisdiction. The jurisdiction is specific and exclusively governed by Article 89(11). Article 259(9) contemplates that there is either specific authority to extend time or that the context of the provision entitles the Court to extend time. There is no provision under Article 89(11) granting the court authority to extend time for filing an application for review outside the period contemplated.” Ultimately, the court held that the context of Article 89 had not envisaged jurisdiction to extend time for filing an application for review. The intention behind the limitation could not have been questioned and if it was the intention of Kenyans to have made such provisions nothing would have stopped them.


21. Can exemplary damages be awarded for unconstitutional actions

“…cases under section 84 of the Constitution are cases concerning the Constitution. It is unnecessary to consider the element of “unconstitutional action” when the relief is awarded for unconstitutional conduct. It is also clear that the principle in Obongo v Kisumu Municipal Council was a case in tort so that the issue of “unconstitutional action” was an additional factor and the court would consider in awarding exemplary damages.”

Koigi wa Wamwere v Attorney General

JR Petitioner No. 737 of 2009

High Court of Kenya at Nairobi

M. Ngugi J.

March 28, 2012

The petitioner had alleged violation of his constitutional rights as a citizen of Kenya as had been guaranteed by the former constitution and therefore sought orders for a declaration that: his fundamental rights and freedom were contravened and violated by the respondent’s special branch police officers who were the government servants during his detentions without trials and the Nyayo house torture chambers; the petitioner was entitled to the payment of damages and compensation for the violations and contraventions of his fundamental rights and freedoms under the aforementioned provisions of the Constitution and general, exemplary and moral damages for the unconstitutional conduct by the government servants be awarded.

The petitioner argued that the detention order was wrongful as it had not specified the persons he had allegedly conspired with and had not attached a copy of the detention order to his affidavit. He also averred that both the conviction and sentence had been quashed by the High Court in Nairobi in 1997 and that he had been set free and therefore argued that the quashing of the conviction and his release showed that the criminal charges were for persecution purposes and denial of his personal liberty contrary to the provisions of section 72 (1) of the Constitution.

The court however disagreed holding that he was given a fair hearing leading to appeal and acquittal. The acquittal did not on its own imply the trial was malicious or charges fabricated, the court observed. On claims of torture in detention, the judge said, “I must, regretfully, find that there were no acts of torture as recognised in law committed against the petitioner during his detention in prison. What he was subjected to was the same deplorable conditions to which other prisoners in Kenya are subjected to. The poor diets, lack of adequate medical and sanitary facilities have all been hallmarks of prison conditions in Kenya.” The Judge said if she ruled that poor prison conditions amounted to torture, which entitled the petitioner to compensation, she would open doors for similar claims by all who have passed through the Kenya prisons. She said in any case, the petitioner should have raised the issues in the case he filed in 1984.

The petitioner claimed that the period he was in exile in Norway amounted to violation of his constitutional rights. The judge rejected that reasoning, saying the decision to go to exile was made voluntarily but prudently by him and his family. However, the court noted that the torture in the period during which the petitioner was held in Nyayo house where he was beaten, denied food and water, kept naked etc, amounted to a violation of his rights and freedom under section 74 (1) of the former constitution.

On the issue of exemplary damages, the court noted that though there was a divergence of opinion in the courts on whether or not exemplary damages should be awarded in addition to general damages for unconstitutional actions, it was unnecessary to consider the element of unconstitutional action when the relief had been awarded for unconstitutional conduct. It was also clear that the principle in Obongo v Kisumu Municipal Council [1971] EA 91 was a case in tort so that the issue of unconstitutional action was an additional factor and the court would have considered in awarding exemplary damages. After analyzing previous decisions on similar claims, the court awarded him a global sum of Sh2.5 million as damages and compensation for the Nyayo House torture. She also ordered the State to pay him costs of the suit plus interest on damages.


22. Enforcement of Article 81 of the Constitution on the one third gender rule.

“…Kenya being a democratic Country, its people in enacting the new Constitution appreciated the inequalities of the system and put measures in place to curb the same. That being the case all subordinate legislation including the Sugar Act must comply with the provisions of the Constitution 2010. The issue of affirmative action was well within the minds of the drafters of the Constitution and there was arguably the need to bridge historical imbalance.

Milka Adhiambo Otieno & another v Attorney General & 2 others

Civil Petition no. 33 of 2011

High Court at Kisumu,

Ali-Aroni, S.J. Chitembwe & H.K Chemitei JJ.

February 28, 2012.

The petition before the court sought to have sugar board elections held and conducted on the July 21, 2011 in six Electoral Areas declared null and void abinitio. Among the issues raised by the petitioners was the issue of infringement of their fundamental rights; namely that the 1st respondent did not ensure that there was gender parity within the Kenya Sugar Board as envisaged by the Constitution of Kenya 2010.

Counsel for the petitioners argued that the sugar board elections following the nominations published in the Daily Nation of July 17, 2011 contravened Article 27 of the Constitution as there were no measures taken to include affirmative action programmes and policies designed to ensure that not more than two thirds of the elective public body is of the same gender. He further contended that there was failure on the part of the intermediary agencies in the industry and the government to promote rights of the vulnerable women groups in the industry. He claimed also that the respondents failed to oversee the formulation of mutual rights and obligations of growers and of the interested parties in line with the Constitution of Kenya, 2010.

The issues were whether the petitioners’ rights had been infringed in terms of the new constitution and whether the 1st and 2nd respondents had breached their mandate to ensure that there was compliance with Articles 20, 21, 22, 23, 27(8), 81 & 258 of the Constitution.

The court while interpreting the Constitution found that the state and public officers have a duty to deliberately bring into fruition the spirit and the letter of the constitutional provisions by taking such steps so as affirmative action, programmes and direct state polices to ensure that the aspiration of women and other vulnerable groups are well taken care of, in particular complying with the one third rule in all areas of representation, and not just in legislative elections.

The court noted that the issue of affirmative action was well within the minds of the drafters of the Constitution and there was arguably the need to bridge historical imbalance. That is the import of the said articles. The same were a deliberate move to take care of the said inequalities.

On two issues raised by the respondents; that the time frame of five years to implement the same is yet to expire and that the petition before the court was premature, the court agreed with the respondents only to the extent that the time to legislate in support of Article 27(8) under the Fifth schedule of the Constitution was given as five years from the date of promulgation. However, the court observed that the said Article creates room to achieve the same before legislation is put in place .The article also stipulates other measures of achieving the same through affirmative action and direct state policy. That, in the court’s view was a deliberate move bearing in mind that legislation may take long. The respondents therefore had a duty and also had ways and means of undertaking such steps and policies towards achieving this call.

In conclusion, the court held compliance with Article 27(8) of the Constitution or not would become obvious after the full board had been put in place and hence it decreed that when the Board was finally constituted, it had to adhere to the third gender representation rule.


23. Public Participation crucial in determining Electoral Boundaries

“The IEBC was duty bound to ensure public participation in the process of delimitation. The nature and extent of that participation was for the IEBC to determine provided it was meaningful and gave effect to the purposes of the Constitution, that is, to promote accountability, transparency and good governance”

Republic v Interim Independent Electoral and Boundaries Commission & another ex parte Eliot Lidubwi Kihusa & 5 others [2012] eKLR

High Court at Nairobi – Judicial Review Division

M. Warsame, RN Sitati, HA Omondi, P Nyamweya & D Majanja JJ

July 9, 2012

The Constitution of Kenya (Amendment) Act, 2008 amended Kenya’s former constitution to dissolve the then Electoral Commission of Kenya and to create two interim bodies; the Interim Independent Electoral Commission (the IIEC) and the Interim Independent Boundaries Review Commission (the IIBRC).

After a national exercise of consultations and review of the boundaries of various administrative units, the IIBRC presented its report (the IIBRC Report), in November 2010, which determined the names and details of the boundaries of 290 constituencies. The IIBRC also published the names of the constituencies in the National Assembly Constituencies Order No. 2 of 2010. Whereas it was mandated to determine the optimal numbers, names and boundary details of County Assembly Wards, the IIBRC was unable to deliver on this mandate because the county wards came into force through a new Constitution promulgated in August 2010; long after the IIBRC had held public consultations. The IIBRC recommended that the existing local authority wards established under the Local Government Act (Cap. 265) should serve as wards until County Assembly Wards were determined in accordance with the new Constitution. It also noted that its work was to run up to June 2011 hence it was unable to conduct field surveys to confirm the maps for the 290 constituencies in line with the names and boundary details it had determined.
The IIBRC Report was adopted by the National Assembly in December 2010. In its transitional provisions, the new constitution preserved the IIBRC but created the Independent Electoral and Boundaries Commission (IEBC) in Article 88(4) (c). The IEBC was to be responsible for the delimitation of constituencies and wards.

The Bill of Rights of this new Constitution guaranteed political rights, including the freedom to make political choices and the right to free, fair and regular elections based on universal suffrage. Chapter Six on representation of the people set out how the right to vote is realized. Article 81 set out the general principles for the electoral system, including the freedom of citizens to exercise their political rights; gender representation quota in elective public bodies; fair representation of persons with disabilities; universal suffrage based on the aspiration for fair representation and equality of vote; and free and fair elections.

In order to operationalize the activities of the IEBC, the Independent Electoral and Boundaries Commission Act (the IEBC Act) was passed. Section 36 empowered the IEBC to resolve all issues relating the delimitation of boundaries of constituencies and wards arising from the report of the IIBRC. In addressing the issues arising out of the first review, IEBC was restricted by the IEBC Act and section 2(1) of the Fifth Schedule to use the IIBRC Report as its primary reference material and the report of a parliamentary committee on the IIBRC Report as secondary reference material.

Ultimately, in March 2012, after a national exercise of public consultations, the IEBC published the National Assembly Constituencies and County Assembly Wards Order; 2012 through Legal Notice No. 14 of 2012. This Order contained the decision of the IEBC concerning the delimitation of constituencies and wards.

The formula used by the IIBRC and the IEBC to distribute the constituencies was based on a national constituency population quota of 133,138, being the product of dividing the total country population (over 38 million) by the number of legally mandated constituencies (290). To this quota was added or subtracted a number representing the percentage variation prescribed by Article 89(6) of the Constitution for a city, sparsely populated areas, and other areas as the case may be to arrive at population quotas of 186,394 for cities; 79,883 for sparsely populated areas; and for other areas, not more than 173,079 and not less than 93,197. The IEBC then mathematically redistributed the 290 constituencies within the existing provinces to arrive at 17 constituencies for Nairobi and 284 for other provinces but taking care to protect constituencies with populations below the quota. In effect, some constituencies were split and others were renamed.

The methodology applied by the IEBC in the delimitation of County Assembly Wards took into account the county population quota. This quota was arrived at by dividing the total population of the county by the number of constituencies in the county. The total number of constituencies in the county was multiplied by five, being the ideal number of county wards per constituency as recommended by the Report of the Task Force on Devolved Government. Each constituency population within a county was then divided by the county population and the result multiplied by the number of County Assembly Wards awarded to the county to arrive at the number of the County Assembly Wards awarded to a constituency.

Complaints were raised regarding the manner in which 80 new constituencies and 1450 County Assembly Wards had been created, their distribution, their names, boundaries and areas of allocation. The movement of sub-locations hitherto falling in one constituency to one or more of the proposed constituencies was also contested. Further grievances and controversies arose regarding the number of wards given to a particular constituency mainly on the basis of population, geographical, ethnic, clan, community, marginalized groups, minorities and other interests and the adequacy of the wards allocated. These complaints were contained in constitutional petitions and applications for judicial review filed in various High Court registries across the country, which were consolidated and heard by a bench of five judges of the Constitutional and Judicial Review Division of the Court.

The two main issues for determination were, firstly, the jurisdiction and the powers of the High Court to ‘review’ a decision on the delimitation of electoral unites under Article 89(11) of the Constitution and secondly, the constitutionality and legality of the criteria for delimitation applied by the IEBC. The question of which party should bear the costs of the litigation was also contested.

The fulcrum of the litigation was therefore the interpretation of and application of the criteria for delimitation set out in Article 89 as read with section 27 of the Sixth Schedule to the Constitution and section 36 of the IEBC Act as read with the Fifth Schedule to the Act.

Held:

  1. Under Article 259(1) of the Constitution, the Constitution is to be interpreted in a manner that promotes its purpose, values and principles; advances the rule of law, human rights and fundamental freedoms in the Bill of Rights and permits development of the law and contributes to good governance. In interpreting the Constitution, the letter and the spirit of the supreme law must be respected. Various provisions of the Constitution must be read together to get a proper interpretation. Article 89 could not be read or interpreted in isolation. The mandate of the IEBC was to be read, and the right to fair representation and equality of the vote determined, against the background of the entire Constitution.
  2. Since section 4 of the Fifth Schedule to the IEBC Act granted the right to apply for review either under the IEBC Act or the Constitution, the purported limitation on the Court to determine the matter within thirty days of filing the application was inconsistent with Article 89(11) of the Constitution which provided that the application for review shall be heard and determined within three months of the date on which it is filed.

No person or body could claim not to be subject to or beyond the powers of the High Court when it is alleged that he or she has committed a transgression in exercise of a legitimate power conferred by the Constitution and the law. The jurisdiction of High Court can only be ousted by very clear and express language in the Constitution.
The jurisdiction of the High Court to review the boundary delimitation process was not granted by statute but was founded in the Constitution Article 165; it is the jurisdiction of the High Court to satisfy itself of the propriety of any act or decision done by any person or body pursuant to the Constitution and the law.

  1. In discharging the function of review contemplated by Article 89(11), the court was not constrained by the statutory provisions or common law remedies. The duty was a constitutional duty and the relief must accord with the task at hand. The High Court had the powers to grant appropriate relief if contravention of the Constitution is established, even if the State and the IEBC were to be inconvenienced. The review contemplated in Article 89(11) was a review of the procedures and merits of the delimitation exercise. Where an application is made, the court assumes all the plenary powers necessary to ensure that the IEBC complied with the Constitution.
  2. Therefore in exercising its jurisdiction in relation to the delimitation process, the High Court is meant to correct, modify, verify, eradicate, amend, override or suppress any illegality or unconstitutionality committed by the IEBC in exercise of its mandate of delimitation under Article 89.

The requirement of Article 89(2) of the Constitution that the review of constituency and ward boundaries was to be completed at least twelve months before a general election did not apply to the review of boundaries preceding the first general elections under the Constitution. This left no doubt that it was intended that the first general elections under the Constitution be carried out based on the work done by the IIBRC. Therefore, the provisions of Legal Notice No. 14 of 2012 took effect and applied to the next general elections.

  1. The internationally recognized and accepted principles of boundary delimitations were representativeness, equality of voting strength, independent and impartial authority, transparency and non-discrimination. The decision as to whether to delimit an electoral area and the means adopted depends on a country’s specific administrative, political, social conditions and the financial resources available.
  2. The purpose of the right to vote enshrined in the Constitution was not equality of voting power per se, but the right to “effective representation”. Effective representation and good governance compelled that factors other than absolute voter parity such as geography and community of interest be taken into account in setting electoral boundaries. The creation of electoral units must meet the necessary conditions and there must be a pressing and substantial need that is rationally connected to the concept that the creation will result in fair and effective representation while the differing representational concerns of urban and rural areas may be properly considered in drawing constituency and ward boundaries. The one-person one-vote principle was tempered by the unique circumstances of Kenya and the specific provisions of the entire Constitution. The delimitation of the boundaries as required by Article 89 required the IEBC to take into account the criteria contained in Article 89(5) and (6).
  3. The effect of treating the marginalized and minority communities in the exact same manner as the larger communities in the delimitation process would have been far more discriminatory, and would never eliminate the mischief intended to be reduced by Article 27 of the Constitution [on the right to equality and freedom from discrimination]. Instead, it would undermine the achievement of social justice.

The IEBC was not restricted by the Constitution in the number of wards it could create and neither could it restrict itself to creating five wards per constituency. However, it adopted an objective, rational and valid process of determining the number of County Assembly Wards in line with the mandate imposed by the IEBC Act on it to resolve outstanding issues from the first review. The methodology used by the IEBC in conducting the first review did not breach of the Constitution or the Fifth Schedule to the IEBC Act.

However, the IEBC was duty bound to ensure public participation in the process of delimitation. The nature and extent of that participation was for the IEBC to determine provided it was meaningful and gave effect to the purposes of the Constitution, that is, to promote accountability, transparency and good governance.
Giving effect to the principles of consultation and public participation meant that the IEBC was to give great weight to public consensus where this was possible. In order to give effect to this value, the IEBC was obliged to consider the submissions made to it and give reasons for its ultimate decision. It is the giving of reasons that distinguishes an arbitrary decision from one that is founded in law. The IEBC had not properly discharged its obligation for public participation and consultation.
It was not fatal for the IEBC to fail to consult the Attorney General on the delimitation plan. However, consulting the Attorney General expresses fidelity to the law and could, in the future, lead to a result that reduces the scope of litigation.

  1. Costs remained in the court’s discretion and like all forms of discretion, it must be exercised judicially, in light of the particular facts of the case and giving due regard to the national values and principles of governance set out in the preamble to the Constitution and Article 10 in order to achieve the objects of Article 259(1) on construing the Constitution. Each of the parties was to bear their own costs.

In applying its findings in disposing of the consolidated petitions and applications, the Court issued orders for the renaming of certain wards; the moving of some wards, locations and sub-locations into other constituencies; the moving of some locations into certain wards and for the amendment of the maps of the affected constituencies in the IEBC Final Report and Legal Notice No.14 of 2012 accordingly.


24. Sections Of The Anti-Counterfeit Act Violate The Right To Life And Health

Sections 2, 32 and 34 of the Anti Counterfeit Act threatened to violate the right to life of the petitioners as protected by Article 26 (1), the right to human dignity guaranteed under Article 28 and the right to the highest attainable standard of health guaranteed under Article 43 (1) of the Constitution. In so far as the enforcement of the Act affected access to affordable and essential drugs and medication particularly generic drugs, it was in violation of the right to life, human dignity and health guaranteed under the Constitution

P.A.O & 2 others v Attorney General

High Court of Kenya at Nairobi

Mumbi Ngugi J

April 20, 2012

The crux of the dispute before the court was whether, by enacting sections 2 of the Anti Counterfeit Act (the Act) and by providing the enforcement provisions in section 32 and 34 of the same Act, the State was in violation of its duty to ensure conditions were in place under which its citizens can lead a healthy life.

Section 2 (d) of the Act defines counterfeiting as “in relation to medicine, the deliberate and fraudulent mislabeling of medicine with respect to identity or source, whether or not such products have correct ingredients, wrong ingredients, have sufficient active ingredients or have fake packaging”.

The question before the court was whether these provisions would deny the petitioners access to essential medicines and thereby violate their rights under Articles 26(1), 28, and 43(1) of the Constitution. The Articles provide for the right to life, human dignity and health. According to the petitioners the government had failed to acknowledge and specifically exempt generic drugs and medicines from the definition of counterfeit goods in the Act. It had also failed to provide a clear definition of counterfeit goods in such a manner that would allow generic drugs to be included. Such a clear definition would effectively prohibit importation and manufacture of generic drugs and medicines in Kenya.

It was noted that the danger in the possibility of the terms ‘generic’ and ‘counterfeit’ being used interchangeably was borne out by the fact that there had been instances, admittedly in other jurisdictions, in which generic medication has been seized while in transit on the basis that it is counterfeit. Such seizures have affected users of generic drugs in developing countries which, like Kenya, have large populations dependent on generic HIV medication for survival.

The court stated that ‘in a legal regime that is focused on protection of intellectual property rights, the danger that such generic drugs can be seized under section 32 and 34 of the Act is therefore manifest.’

The court found that Sections 2, 32 and 34 of the Anti Counterfeit Act threatened to violate the right to life of the petitioners as protected by Article 26 (1), the right to human dignity guaranteed under Article 28 and the right to the highest attainable standard of health guaranteed under Article 43 (1) of the Constitution. The High Court declared that the enforcement of the Anti Counterfeit Act (the Act) in so far as it affects access to affordable and essential drugs and medication particularly generic drugs is in violation of the right to life, human dignity and health guaranteed under the Constitution. The court opined that “The right to life, dignity and health of the petitioners must take precedence over the intellectual property rights of patent holders…had the primary intention been to safeguard consumers from counterfeit medicine, and then the Act should have laid greater emphasis on standards and quality”


25. Revocation Of Land Titles By Way Of Gazette Notices Unconstitutional And Ineffectual

Whereas section Article 40(6) of the Constitution provides that the rights to property established in that article do not apply to property that has been ‘unlawfully acquired’, a finding that property has been unlawfully acquired had to be through a legally established process and not by whim or revocation of the Gazette Notice as the Commissioner of Lands had purported to do.

Isaac Gathungu Wanjohi & another Vs the Attorney General & 6 others [2012]

High Court, at Nairobi-Constitutional and Human Rights Division

D.S. Majanja (J)

30th March, 2012

The suit arose from a disputed piece of land situated at the junction of Airport Road and the Mombasa-Nairobi Road and is part of land that was intended for construction of the Eastern Bypass. The suit property had been compulsorily acquired by the State. The High Court reiterated the legal position that revocation of land titles by way of gazette notices is unconstitutional and ineffectual. Holding that such land revocations must be through a legally established mechanism, the Constitutional Court stated that due process of the law had to be followed even in cases of compulsory acquisition of land. It is immaterial that such land titles may have been acquired irregularly because even such assertions were subject to be proved through a court process. It was likewise irrelevant whether the process leading to the revocation was based on recommendations arising from a consultative process such as a task force because according to the court, such recommendations had no force of law and hence cannot be a substitute to following the due process of the law.

Similarly in Kuria Greens Limited v Registrar of Titles and Another [2011] eKLR the court held that the Registrar of Titles had no authority to cancel a land title by way of gazette notice and that only a court could do so when the title in question had been obtained through fraud and or mistake and only where it was not a first registration.

While upholding the finding in the Kuria Greens Limited case, the court opined thatunlawful acquisition’ referred to in Article 40(6) of the Constitution had to be through a legally established process and not by whim or revocation of the Gazette Notice as the Commissioner of Lands had purported to do. Hence, such action was illegal, null and void in so far as it purported to revoke that title.


26. Rule Banning Advertising By Advocates Inconsistent With Article 46(1) And 48 Of The Constitution

In so far as Rule 2 of the Advocates (Practice) Rules constituted a complete ban on advertising by advocates, it was inconsistent with Article 46(1) of the Constitution regarding consumers’ right to have access to information necessary for them to gain the full benefit of a product or service.

Okenyo Omwansa George and Another v The Attorney General and two others

High Court, at Nairobi – Constitutional and Human Rights Division

D.S Majanja J.

March 29, 2012

Advertising is a traditional mechanism in a free market economy for a supplier to inform a potential purchaser of the availability and terms of exchange. Until recently, there had been a complete ban of advertising by advocates under rule 2 of the Advocates (Practice) rules. The court found the rule to be unconstitutional and inconsistent with Articles 46(1) and 48 of the Constitution following a petition to the High Court to challenge the prohibition against advertising in the legal profession.
The petitioners had submitted that rule 2 of the Advocates (Practice) rules which barred advertising was in conflict, inconsistent and contravened Article 35(b) of the Constitution. Article 35(b) clearly stated that every citizen had the right to the correction or deletion of untrue or misleading information that affects the person. Further, it was submitted that the rule was in contravention of consumer rights under Article 46 of the Constitution. Consumers had the right to information to gain the full benefit of goods and services offered by either a public or a private person. They argued that legal services were included in the definition and by prohibiting advertising, rule 2 essentially suffocated and constrained a consumer’s right to have access to information regarding where, when and from whom and how to get the services of an advocate or even what issues can be dealt with by an advocate.

The court noted that it was becoming clear that the prohibition of advertising had come under considerable challenge both locally and internationally and in order to achieve a just society that met the expectations of Kenya, legal services offered by advocates had to be available and the people had to have the necessary information to access these services. A ban on advertising by advocates was hence inimical to these broad objectives of the Constitution.

The court concluded that Rule 2 of the Advocates (Practice) Rules made under the Advocates Act in so far as to constitute a complete ban on advertising by advocates was inconsistent with Article 46(1) and 48 of the Constitution.


27. Reference of a Constitutional matter to a three-Judge Bench of the High Court Discretionary

Whereas Article 165(4) of the Constitution provides that any matter certified by the court as raising a substantial question of law on a constitutional issue shall be heard by an uneven number of judges, being not less than three, assigned by the Chief Justice, the court should consider each case on its merits and determine on its own discretion whether a particular matter ought to be referred to the Chief Justice for the constitution of a three judge bench to hear it.

Gilbert Mwangi Njuguna v Attorney General [2012] eKLR

Petition No. 267 of 2009

High Court of Kenya at Nairobi

Mumbi Ngugi, J.

March 16, 2012

Although past judicial thinking alluded to the conventional wisdom that many heads are better than one, or to the fact that the subject matter was such as could not escape arousing public interest, recent court decisions have taken a different approach in interpreting the requirements of Article 165 (4) of the Constitution with regard to what a ‘substantial question of law’ that merits reference to a three-judge-bench means.

The petitioner had filed a petition alleging violation of his fundamental rights under sections 71, 73, 74, 75, 77, 82 and 84 of the former Constitution that arose with regard to his removal from his position as a magistrate. Amongst the orders that the petitioner sought included an order that the file be referred to the Chief Justice for purposes of constituting a three-judge-bench to hear the petition.
Ms. Mwangi representing the petitioner made reference to an article by former Chief Justice F. K. Apaloo carried in the Nairobi Law Monthly (January, 1995) on the circumstances in which the Chief Justice should appoint a three-judge-bench to hear a matter under section 84 of the former Constitution as being where complex issues of determinations of constitutional issues are raised. She further relied on the case of Samuel Kamau Macharia & another v. Attorney general & another [2000] eKLR in which the former Chief Justice Bernard Chunga while appointing a three-judge bench set out the matters to be considered in appointing a three-judge-bench, among them that the motion seeking the referral should not be frivolous and must raise matters of considerable complexity and gravity in relation to the interpretation of the Constitution.
The court made reference to the case of Community Advocacy Awareness Trust & others v Attorney General & others [2012] eKLR where the High Court (Majanja, J.) observed:
The Constitution of Kenya does not define, ‘substantial question of law.’ It is left to the individual judge to satisfy himself or herself that the matter is substantial to the extent that it warrants reference to the Chief Justice to appoint an uneven number of judges not being less than three to determine a matter.
The Court in the Community Advocacy Awareness Trust case further observed that in view of the fact that the new Constitution had an expanded Bill of Rights, “every question concerning the interpretation of the Constitution would be a substantial question of law as it is a matter of public interest, affects the rights of the parties, is fairly novel and has not been the subject of pronouncement by the highest court.

The court noted that the circumstances would defeat the objective of the expeditious justice as outlined under Article 159 (2) (b) of the Constitution, providing that justice shall not be delayed, and therefore the court should consider each case on its merits and determine whether a particular matter ought to be referred to the Chief Justice for constitution of a three judge bench to hear it.


28. President’s Discretion In Public Appointments

The President is under no obligation to appoint the person ranked first where names are forwarded to him by a particular selection panel for public appointment. The President’s discretion, authority and responsibility of independently taking into account the values that guide the making of public appointments should not be taken away.

Community Advocacy and Awareness Trust & 8 others v National Gender and Equality Commission & 5 others

High Court, at Nairobi (Constitutional and Human Rights Division)

D.S. Majanja J

March 14, 2012

The President is under no obligation to appoint the person ranked first where names are forwarded to him by a particular selection panel for public appointment. The brief background facts of the petition were; pursuant to section 11(1) and (2) of the National Gender and Equality Commission Act, a selection panel was duly constituted to invite applications from the Kenyan public for short listing and interview for the position of the Chairperson as well as a commissioner of the National Gender and Equality Commission and thereafter make recommendations to the President and the Prime Minister to appoint a person to the office of the Chairperson and Member of the Commission. Various applicants were interviewed, amongst them, the 6th interested party in the petition, Ms Lichuma.

According to the results of the interviewing panel, Ms Lichuma was ranked 4th. Nevertheless, her name as well as the names of the first 4 applicants was forwarded to the President for subsequent appointment, after consultation with the Prime Minster. The President and the Prime Minster settled on Ms Lichuma, precipitating the petition. The petition was on the basis that Ms. Lichuma wasn’t the most suitable person due to her being ranked as the 4th most suitable candidate by the interviewing panel.

While holding for the respondents, the court opined that the persons whose names were forwarded were all considered competent and the statutory mandate imposed on the selection panel to forward “at least three names” indicates that the President and Prime Minister had discretion in selecting the preferred candidate having regard to the various factors. According to the court, neither the Constitution nor the National Cohesion and Integration Act, 2008 required the President in consultation with the Prime Minister to appoint the person ranked first. To insist that the President must appoint the person ranked first in the circumstances would be to take away the President’s discretion, authority and responsibility of independently taking into account the values that guide the making of public appointments.


29. Widows Have A Right To Bury Their Husbands In Their Established Homes “Boma”

Article 27(3) and (4) of the Constitution gives both women and men the right to equal opportunities in cultural and social spheres and also provides that there should be no discrimination directly or indirectly against any person on any ground.

Lucy Kemboi v Cleti Kurgat & 5 others (2012) eKLR

A Mshila. J

High Court Eldoret

March 13, 2012.

A widow has a right, just like that of her in-laws, to bury the remains of her husband. In a burial dispute, the High Court held that a widow’s right to bury the remains of her husband were provided for and protected by Article 27 (3) and (4) of the Constitution, in that a widow should not be discriminated upon by cultural practices.

Article 27(3) and (4) of the Constitution gives both women and men the right to equal opportunities in cultural and social spheres and also provides that there should be no discrimination directly or indirectly against any person on any ground.

Lucy Kemboi brought a suit against her in-laws, seeking inter-alia authority to arrange for the collection, burial and interment of the body of her husband at their matrimonial home. The High Court after hearing rivalry submissions considered inter-alia, who should actually bury the deceased and where had the deceased established a home.

It was the Court’s view that though Keiyo customary law was applicable and that under the said customary law the clan together with the deceased brothers were responsible for the burial of the deceased, Lucy having been married to the deceased had a right derived from written law to bury the deceased.

The Court was of the view that the rights of Lucy were provided for and protected by the Constitution, and Lucy should not be discriminated upon by cultural practices, that she had an equal right as her in-laws and the clan to bury her husband’s remains.

As to whether a wife of a deceased person had the first right and duty to decide on his husband’s burial, the courts seem to have diverged from the judicial reasoning in the S.M Otieno case. In Njoroge v Njoroge & Another (2004)1KLR, Justice Ojwang ruled that marital status was more relevant to burial and that ‘it was the marriage regime rather than the succession regime that should prevail in determining questions of burial.’


30. Right Of Access To Information Is Limited To Kenyan Citizens

The right to access to information under Article 35(1) of the Constitution was limited by reference to ‘citizen’ and was not to be exercised by juridical persons.

Famy Care Ltd v Public Procurement Administrative Board & 5 others

Petition No 43 of 2012

High Court at Nairobi (Constitutional and Human Rights Division)

Majanja J.

March 2, 2012

The main issue for consideration was whether a company incorporated outside Kenya was a citizen for the purpose of Article 35(1) of the Constitution. Article 35 of the Constitution provides that every citizen has the right of access to information held by the State; and information held by another person and required for the exercise or protection of any right or fundamental freedom.

The Court was of the view that the right protected under Article 35(1) has an implicit limitation, that is, it is only available to a Kenyan citizen. Other rights were available to “every person” or “a person” or “all persons” but this right is limited by reference to the scope of persons who can enjoy it as there has to be a distinction between the term “person” and “citizen” as applies in Article 35.

The court noted that though under Article 260, a person includes a company association or other body of persons whether incorporated or unincorporated, citizenship was in reference to natural persons. Though the term “citizen” was not defined in Article 260, the same was dealt with under Chapter 3 of the Constitution, Articles 12 to 18 and the provisions were in reference to natural persons.

The right to access to information under Article 35(1) was limited by reference to citizen and was not to be exercised by juridical persons. The court observed that the only other right which was limited by reference to citizen is to be found in Article 38 which protected the political rights of citizens and which also negatives any intention by the people of Kenya to give juridical persons political rights.

The Judge went on to emphasize and state that a corporation was not a real thing, it was legal fiction, an abstraction and a vehicle through which natural persons can engage as a collective to realize certain objectives set out in the founding instrument and also that a juridical person could not vote or make political choices or exercise the political rights protected by Article 38.


31. Sentencing In Attempted Capital Offences

Section 297 (2) of the Penal Code (which prescribed a sentence of death for the offence of attempted robbery) contradicted section 389 of the Penal Code (which prescribed a maximum of seven years imprisonment for an attempt to commit a capital offence) and was against the general rules of international law which by virtue of Article 2 (5) of the Constitution are part of the law of Kenya.

Protus Buliba Shikuku v Attorney General [2012] eKLR

Constitutional Reference No. 3 of 2011

High Court at Kisumu

R N Nambuye, JA & A Aroni, J.

February 13, 2012

The High Court sitting as the Constitutional Court invoked its mandate in Article 23 (3) as read with Article 165 (1) (2) (3) (a) (b) (d) (i) (ii) of the Constitution and declared that section 297 (2) of the Penal Code contradicted section 389 of the Penal Code as to the sentence of the offence of attempted robbery, noting that section 297 (2) of the Penal Code had no primacy over section 389 of the Penal Code.

The petitioner’s final appeal against conviction and sentence before the Court of Appeal had been dismissed hence the petition before the Constitutional court on grounds, inter alia, that the petitioner’s constitutional rights had been breached by the respondent by convicting and sentencing him to serve an unlawful sentence, and that section 297 (2) of the Penal Code (which prescribed a sentence of death for attempted robbery) was in contradiction with section 389 of the Penal Code (which prescribed a maximum of seven years imprisonment for an attempt to commit a capital offence) as to the offence of attempted robbery and was against the letter and spirit of the Constitution enshrined in Article 26 (1) (2) and Article 50 (2), and the benefit of the contradiction should be accorded to him. It was the petitioner’s case that all the courts through which he was processed had failed to reconcile the contradictions in the provisions of section 297 (2), 388 and 389 of the Penal Code. He submitted that the Court of Appeal had appreciated the said contradictions and accorded the benefit to the respective appellants in Evanson Muiruri Gichane v Republic, CA No. 277 of 2002; Godfrey Ngotho Mutiso v Republic, CA No. 17 of 2008; and Boniface Juma Khisa v Republic CA No. 268 of 2009, and it was on this basis that he approached the Constitutional Court to bestow a similar benefit on him as well.

The court held that section 297 (2) contradicted section 389 of the Penal Code regarding the sentence of the offence of attempted robbery and was not only against the letter and spirit of section 389 of the Penal Code providing a general penalty for attempted felonies among them attempted robbery, but also against the provisions of the Constitution as well as international norms and best practices accessed through Article 2 (5) of the Constitution.


32. DNA Testing To Be Ordered Where It Is In The Best Interest Of The Child

The right of the child to parental care takes precedence particularly in light of the cardinal constitutional principle set out in Article 53(2) that in such matters, the paramount consideration is the best interests of the child.

C. M.S Vs I.A.K Suing through Mother and Next Friend C.A. O.

Constitutional Application No. 526 of 2008

High Court of Kenya at Nairobi

Mumbi Ngugi J.

January 20, 2012.

Can a children’s court, in a matter involving a child, order a party to undertake a DNA test where paternity is denied? And if so, would such an order amount to infringement of the party’s constitutional right to freedom of conscience either under the new or the repealed constitution? An order compelling the petitioner to undertake a DNA test had been issued by the Children’s Court after the petitioner had denied paternity of the respondent’s child. It was the petitioner’s case that the order was unconstitutional as it violated his freedom of conscience contrary to Article 32(1) of the New Constitution and also contrary to section 70(b) and 78(1) of the repealed Constitution. According to the petitioner, the order infringed his rights as he had made it very clear to the subordinate court that he was not ready for such a DNA test and he would suffer mental anguish and trauma if he was subjected to a test that he was not ready for.

However, it was the view of the court that in determining a paternity dispute, the court must of necessity weigh the competing rights of the child and the party who is alleged to be the biological father. The right of the child to parental care takes precedence particularly in light of the cardinal constitutional principle set out in Article 53(2) that in such matters, the paramount consideration is the best interests of the child.

The principle was that an order for DNA testing should be made if it is in the interests of the child and if a prima facie case had been made to justify such an order. Such an order would not in the courts’ view be in violation of any of the petitioner’s constitutional rights and would be in the best interests of the child. In light of that, the petition was dismissed with costs to the respondent.


33. Date Of The First General Elections Under The New Constitution

The powers of the President in relation to determining the term of the National Assembly did not exist anymore. The first general elections under the new Constitution could only be lawfully held in 2012 within sixty (60) days from the date of dissolution of the National Coalition by written agreement between the President and the Prime Minister in accordance with section 6 (b) of the National Accord and Reconciliation Act or within sixty (60) days from the expiry of the term of the National Assembly in January 15, 2013

John Harun Mwau & 3 others v Attorney General & 5 others [2012] eKLR

Constitutional Petition No. 65 of 2011

High Court at Nairobi

Isaac Lenaola, Mumbi Ngugi & David Majanja, JJ.

January 13, 2012

The Key issues for determination in the petition was the date of the first general elections under the new Constitution and whether the High Court had jurisdiction to determine the matter.

Submissions regarding the date of the first elections fell into three categories:-

  • Proponents for the second Tuesday of August, 2012 as stipulated in the Constitution
  • Proponents for a December date
  • Proponents for the March 2013 date.

Reference was made to various provisions of the law, schedules of the Constitution, and Legal Notice No. 1 of 2008, and whether the issue of the date when the first elections could be lawfully held was integrated with the issue of whether the President could dissolve Parliament under the Constitution. There was also the issue whether the unexpired term of the National Assembly incorporated the terms and conditions of service for the National Assembly?

The court held that the first general elections under the Constitution promulgated in August 27, 2010 could only be lawfully held in 2012 within sixty (60) days from the date of dissolution of the National Coalition by written agreement between the President and the Prime Minister in accordance with section 6 (b) of the National Accord and Reconciliation Act or within sixty (60) days from the expiry of the term of the National Assembly in January 15, 2013. It was noted that the powers of the President in relation to determining the term of the National Assembly did not exist anymore and therefore the ‘term’ for purposes of the Sixth Schedule referred to the term of 5 years from the time the National Assembly first met which was stipulated by Legal Notice 1 of 2008 as January 15, 2008, meaning that the term ought to expire in January 14, 2013.


34. Supreme Court’s Advisory Opinion On Election Date

The constitutional petitions filed in the High Court raised justiciable questions, entailing issues constitutional interpretation under a jurisdiction properly vested in the High Court. The issues ought to be litigated and resolved in the High Court, and the High Court’s decision in that respect would be subject to the appellate procedure running through the Court of Appeal, to the Supreme Court.

In Re the Matter of the Interim Independent Electoral Commission [2011] eKLR

Constitutional Application 2 of 2011

The Supreme Court of Kenya

W.M. Mutunga, CJ; Nancy Baraza, DCJ & Tunoi, Ibrahim, Ojwang, Wanjala & Ndung’u, SCJJ.

December 20, 2011.

The applicant, the Interim Independent Electoral Commission, had moved the Supreme Court by a Constitutional Application dated April 28, 2011. It cited Articles 101(1), 136(2) (a), 177(1)(a) and 180(1) of the Constitution as providing that elections for Members of the National Assembly and the Senate, the President, Members of County Assemblies and Governors “shall be held on the second Tuesday in August in every fifth year”. It was also noted that clause 9(1) of the Sixth Schedule to the Constitution stated that: “The first elections for the President, the National Assembly, the Senate, county assemblies and county governors under this Constitution shall be held at the same time, within sixty days after the dissolution of the National Assembly at the end of its term.”

The applicant hence sought the advisory opinion of the Court on the question what, in the light of the above provisions and the other provisions of the Constitution of Kenya and the other continuing applicable provisions of the former Constitution, was the date for the next election for the aforesaid offices of President, Members of the National Assembly and the Senate, Members of County Assemblies and Governors.

A preliminary objection was raised on the ground, among others, that the original grievance in the High Court Petition of April 19, 2011 was a justiciable question, entailing constitutional interpretation belonging first and foremost, to the jurisdiction of the High Court; and that such a matter ought to be litigated and resolved in the High Court which decision in that respect would be subject to the appellate procedure running through the Court of Appeal, to the Supreme Court. The contention, in its essence, was that the Supreme Court lacked jurisdiction at that stage.

The court noted that while the Advisory-Opinion jurisdiction was exclusively entrusted to the Supreme Court, the Constitution did not provide that the Court while rendering an opinion may not interpret the Constitution. It followed that the Supreme Court could, while rendering an Advisory Opinion under Article 163(6) of the Constitution, undertake any necessary interpretation of the Constitution. It was opined that the application amounted to a request for an interpretation of Articles 101(1), 136(2) (a), 177 (1)(a) and 180(1) of the Constitution, and clause 9 of the Sixth Schedule to the Constitution hence the question placed before the court was not a normal one within the Advisory-Opinion jurisdiction as envisaged under Article 163(6) of the Constitution.

In the light of the several petitions pending before the High Court, the court found that the application was inappropriate. The cases sought the interpretation of the Constitution, with the object of determining the date of the next general election. Those petitions raised substantive issues that required a full hearing of the parties; and those matters were properly lodged and the parties involved had filed their pleadings and made claims to be resolved by the High Court. To allow the application, in the opinion of the court would constitute interference with due process, and with the rights of parties to be heard before a Court duly vested with jurisdiction and also constitute an impediment to the prospect of any appeal from the High Court up to the Supreme Court. The Court had to protect the jurisdiction entrusted to the High Court hence it consequently upheld the preliminary objections and directed the High Court to proceed to hear and determine the several petitions pending before it.


35. Supreme Court’s Maiden Ruling

The Supreme Court had jurisdiction to adopt previous proceedings relating to an application for an advisory opinion filed in the Court of Appeal sitting in its special jurisdiction as a Supreme Court on the question of nomination of persons for constitutional offices under the Constitution of Kenya 2010.

In Re the Matter of Commission for the Implementation of the Constitution [2011]

Advisory Opinions Application 1 of 2011

Supreme Court of Kenya

MK Ibrahim & S Wanjala

November 2, 2011

On November 2, 2011 history was made when the Supreme Court of Kenya delivered its first ruling. The Supreme Court was faced with the question whether it had jurisdiction to adopt previous proceedings relating to an advisory application filed by the Commission on the Implementation of the Constitution relating to the question of nomination of persons for constitutional offices under the Constitution of Kenya 2010. The proceedings in this case had been before the Court of Appeal sitting as a Supreme Court and were adjourned indefinitely following the establishment of the Supreme Court and appointment of the Supreme Court Judges. At the time, the Court of Appeal had established interim Supreme Court Rules to guide its proceedings. The Supreme Court ruled that it would indeed adopt the proceedings including all its pleadings. In making the ruling, the Court observed that due to the urgency of the motion and the issues which had been raised, time was of the essence and the questions which were of national importance and interest could not await the establishment of the Supreme Court. It was the court’s view that it would be totally improper, irregular and unfair for the court to set aside all proceedings and record and to order the applicant to file a fresh application so that they could comply with the new Supreme Court Rules. The court observed that it would be prejudicial, costly and oppressive to the applicant (Commission on the Implementation of the Constitution) and even the interested parties who had invested heavily in terms of expenses and precious time in reaching the stage of proceedings that had been recorded.


36. Appointments To Constitutional Office & Gender Balance

The national values and principles of governance stated under Article 10 of the Constitution and the spirit of the National Accord and Reconciliation Act ought to have been borne in mind in making nominations to constitutional offices.

Centre for Rights Education and Awareness & 7 others v Attorney General [2011]

High Court at Nairobi

Justice Daniel Musinga

February 3, 2011

Prior to the adoption of the promulgation of the new Constitution, the appointment of persons to a constitutional office was solely the prerogative of the president. That position has since changed. In the case above, the court determined whether the nomination of the candidates to the offices of Chief Justice, Attorney General, Director of Public Prosecutions and Controller of Budget by the President had been done after consultation between the President and the Prime Minister in accordance with the National Accord and Reconciliation Act. The Court ruled that it would be unconstitutional for the State to carry on with the process of approving and eventual appointment of persons to those offices based on the nominations made by the President on January 28, 2011. The court observed that it appeared that there was some consultation between the two principals but there had been no consensus or agreement between them. The consensus or agreement, the Judge noted, was not a requirement under the Constitution. However, that notwithstanding, he stated that “the values and principles stated under Article 10 of the Constitution and the spirit of the National Accord and Reconciliation Act ought to have been borne in mind in making the nominations.
Similarly in the case of Federation of Women Lawyers Kenya (FIDA-K) & 5 others v Attorney General & Another [2011] eKLR - issue of gender balance was raised in the appointment of persons to a constitutional office. The gender composition of the persons recommended for the position of the Supreme Court Judges elicited a petition filed by (FIDA-K). It was alleged that the Judicial Service Commission did not meet the mandatory requirement and threshold set by the Constitution. It was contended that with two women and five men in the Supreme Court, it meant that the percentage composition of the female gender was 28.57% whereas the percentage composition of the male gender was 71.43%, thereby breaching Article 27 of the Constitution which provided that not more than two thirds of the members of elective or appointive bodies shall be of the same gender. The court recognized that persons to be appointed to any judicial office have to be learned persons who have gone through vigorous learning and experience and that the criteria for appointment of the judicial officers were clearly spelt out in the Constitution and the provisions of the Judicial Service Act particularly Articles 166, 172 and Regulation 13 respectively. The court took the view that Article 27 as a whole or in part did not address or impose a duty upon the Judicial Service Commission in the performance of its constitutional, statutory and administrative functions. It opined that Article 27 could only be sustained against the Government with specific complaints and after it had failed to take legislative and other measures or after inadequate mechanisms by the State.
However, the court emphasized that judicial appointments should be based on the concept of equal opportunity, non-discrimination and above all must reflect the diversity of the people of Kenya taking into consideration the values, beliefs and experience brought about by an individual appointed for a particular position. It stressed that women are just as likely as men to possess attributes of good judges and experience.


37. Forceful Evictions And The Right To Adequate Housing

Kenya lacked appropriate legal guidelines on eviction and displacement of people from informal settlements and even formal ones, particularly in instances where low income earners have to be displaced from public or private land. Evictions should not result in individuals being rendered homeless or vulnerable to the violation of other human rights and where those affected are unable to provide for themselves, the State party had to take all reasonable measures to ensure that adequate alternative housing resettlement or access to productive land was available

Satrose Ayuma & 11 others V Registered Trustees of the Kenya Railways Staff Retirement Benefits Scheme & 2 others [2011] eKLR

High Court at Nairobi

D. Musinga

Petition 65 of 2010

February 17, 2011

The year 2011 was marked by a number of petitions with respect to land, forceful evictions and right to adequate housing. For instance In Satrose Ayuma & 11 Others v Registered Trustees of the Kenya Railways Staff Retirement Benefits Scheme & 2 Others [2011] eKLR the petitioners, residents of Muthurwa estate went to court seeking an Injunction against forceful removal from the respondent. The court considered the competing rights between the tenants and the owners of the estate. The court observed that Kenya lacked appropriate legal guidelines on eviction and displacement of people from informal settlements and even formal ones, particularly in instances where low income earners have to be displaced from public or private land. The court further stated that while it appreciated the first respondents good intentions of developing modern residential and commercial properties on the suit land, subject to compliance with all the necessary contents and/or approvals it recognized that the developments could not be undertaken while the tenants of Muthurwa estate remained in occupation of the dilapidated houses, thus holding that it could not overlook the fundamental rights of the tenants and that even though at some particular point in time the tenants would have to move out of the estate , when the that time came, the court opined, it ought to be done in a humane manner.

Similarly In the case of Susan Waithera & 4 Others v the Town Clerk, Nairobi City Council and 2 others [2011] eKLR the court considered whether twenty four hours notice was adequate notice to vacate the premises, in this case an informal settlement, where the applicants had lived for over forty years. The court held that such notice was unreasonable and indeed unconstitutional and further observed that “eviction should not result in individuals being rendered homeless or vulnerable to the violation of other human rights and that where those affected are unable to provide for themselves, the State party had to take all reasonable measures to the maximum of its available resources to ensure that adequate alternative housing resettlement or access to productive land as the case may be was available.”


38. Kenya’s Obligation To Issue An Arrest Warrant Against Sudan’s President

The High Court had jurisdiction not only to issue a warrant of arrest against any person, irrespective of his status, if he has committed a crime under the Rome Statute, under the principle of universal jurisdiction, but also to enforce the warrants should the Registrar of the International Criminal Court issue one.

International Commission of Jurists-Kenya v Attorney General & 2 others [2011]

High Court at Nairobi

N.R.O. Ombija J.

November 28, 2011

A warrant of arrest was issued against President Al Bashir, the President of Sudan on November 28, 2011. This followed an application by the International Commission of Jurists (ICJ)-Kenya which sought orders to the effect that a provisional warrant of arrest against President Bashir be issued and a subsequent order against the Minister of State for Provincial Administration to effect the said warrant of arrest. The application by ICJ was based on grounds that the Constitution of Kenya under Article 2 (5) applies all treaties and conventions that have been ratified by Kenya to be part of the Laws of Kenya; that Kenya ratified the Rome Statute on 15th March 2005 and followed up on that act by domesticating the Statute vide the International Crimes Act of 2008.

It was argued that Article 3 the Constitution of Kenya, 2010 put an obligation on every person to respect, uphold and defend the Constitution. The application also stated that there were two outstanding warrants of arrest against President Al Bashir issued by the International Criminal Court on 4th March, 2009 and 12th July 2010 respectively and there were also two requests for co-operation in the arrest and surrender of President Al Bashir issued by the International Criminal Court on 6th March, 2009 and 21st July, 2010 to States that were parties to the Rome Statute.
The court, upon applying various International Law principles held that the High Court had jurisdiction not only to issue a warrant of arrest against any person, irrespective of his status, if he has committed a crime under the Rome Statute, under the principle of universal jurisdiction, but also to enforce the warrants should the Registrar of the International Criminal Court issue one.


39. Constitutionality Of The Vetting Of Judges And Magistrates Act, 2011

The Vetting of Judges and Magistrates Act, 2011 was sanctioned by the new Constitution and its provisions had not violated the doctrines of separation of powers and the independence of the Judiciary. The Act did not threaten the constitutional rights of judges and magistrates.

Dennis Mogambi Mong’are V Attorney General & 3 Others [2011] eKLR

Petition 146 of 2011

High Court at Nairobi

Mumbi Ngugi, DS Majanja & GV Odunga

November 18, 2011

In Dennis Mogambi Mong’are v Attorney General & 3 others [2011] eKLR the court considered whether by permitting parliament to enact legislation for the removal of judges, the Sixth Schedule to the Constitution was unconstitutional. The court also considered whether both the Schedule and certain sections of the Vetting of Judges and Magistrates Act were null and void on the allegation that they violated the constitutional principles of separation of powers and the independence of the Judiciary. The court held that the Vetting of Judges and Magistrates Act, 2011 (VJM Act) was sanctioned by the new Constitution and its provisions had not violated the doctrines of separation of powers and the independence of the judiciary and that it had not threatened the constitutional rights of judges and magistrates. While admitting that the vetting process may have caused some anxiety, the Court observed that the process would have helped to underpin the values of accountability and integrity in the Judiciary and restore it to its respected place as the arbiter of justice in Kenya.


40. Married Daughters’ Right To Inherit

Article 60 (f) of the Constitution provides for the elimination of gender discrimination in respect of land. The marital status of a daughter is not a basis to deny her the right to inherit her father’s estate.

Samson Kiogora Rukunga V Zipporah Gaiti Rukunga [2011] eKLR

Succession Cause 308 of 1994

High Court at Meru

Kasango J.

February 17, 2011

Married daughters have a right to inherit their parents’ estate under Article 60 (f) of the current Constitution. The brief facts of the case were that the objector, Consolata Ntibuka had challenged her brother’s decision to evict her from a piece of land left behind by her late father on the ground that she was married. Justice Kasango in her ruling stated “...In my view, the law as it is now, it matters not, whether a daughter of the deceased is married or not when it comes to consideration of whether she is entitled to inherit her parent’s estate. Article 60 (f) of the Constitution of Kenya 2010 provides for elimination of gender discrimination in respect of land. Marital status of a daughter is not a basis to deny her the right to inherit her father’s estate…’’.


41. Right Of Inheritance In Woman To Woman Marriage

Contemporary social systems in the shape of current practices in the domain of family among the Nandi were to be regarded as aspects of culture which would rightly claim protection under Article 11 (1) of the Constitution of Kenya 2010.

Monica Jesang Katam V Jackson Chepkwony & another [2011]

Succession Cause 212 of 2010

High Court at Mombasa

J. B. Ojwang J.

June 17, 2011

In Monica Jesang Katam v Jackson Chepkwony & Another [2011] eKLR the High Court affirmed the right of Inheritance in woman to woman marriage. Monica Jesang had claimed the right of inheritance by affirming that she was a beneficiary of the estate of Cherotich Kimong’ony Kibserea (deceased) by virtue of having been married to the deceased in a woman to woman marriage under the Nandi tradition. The High Court at Mombasa in deciding the case upheld customary law by observing that contemporary social systems for instance, in the shape of current practices in the domain of family among the Nandi were to be regarded as aspects of culture which would rightly claim protection under Article 11 (1) of the Constitution of Kenya 2010. The Constitution under the Article recognized culture as the foundation of the nation and as the cumulative civilization of the Kenyan people and the nation.


42. Form One Quota System Curbing Private Schools’ Dominance In National Secondary Schools Not Discriminatory

Not all distinctions resulting in differential treatment could properly be said to violate equality rights as envisaged under the Constitution. The appropriate perspective from which to analyze a claim of discrimination had both a subjective and an objective component.

John Kabui Mwai and 3 Others V Kenya National Examination Council and 2 others (2011)

Petition No. 15 of 2011

High Court of Kenya at Nairobi

J.Gacheche, G. M. Dulu, A. O. Muchelule

September, 2011

On January 6, 2011 the Permanent Secretary in the Ministry of Education issued guidelines for form one selection for the year 2011 which indicated that to determine the number of candidates to be placed in national schools from public or private institutions of a particular district a certain formula would be used. Using the formula, it was announced that out of the 4,517 available spaces in national schools, 1,224 would be availed to private schools. The applicants were aggrieved by the directive and consequently filed a Petition on behalf of the Kenya Private Schools Association to challenge the 2nd respondent’s policy guidelines regarding the selection of candidates to national schools. The petition, brought under Articles 3, 19, 20, 21, 22, 23, 27 and 43 (f) of the Constitution, sought to have the policy found to be discriminatory against candidates from private schools and therefore unconstitutional.

While arriving at its decision, the court recognized that under Article 10 (2) (b) of the Constitution there were national values and principles of governance that had to be borne in mind which included equality, human rights, non-discrimination and protection of the marginalized. Under Article 20(4) (a), the court was obligated, in interpreting the Bill of Rights, to promote the values that underlie an open and democratic society based on human dignity, equality, equity and freedom. Article 21 (3) enjoined the court to address the needs of the vulnerable groups within the society, including children.

In the courts view, the inclusion of economic, social and cultural rights in the Constitution aimed at advancing the socio-economic needs of the people of Kenya, including those who were poor, in order to uplift their human dignity. The protection of these rights was an indication of the fact that the Constitution’s transformative agenda looked beyond merely guaranteeing abstract equality.

According to the court not all distinctions resulting in differential treatment could properly be said to violate equality rights as envisaged under the Constitution. The appropriate perspective from which to analyze a claim of discrimination had both a subjective and an objective component.

A comparison between different groups was necessary to discern the differential effect of policy and to assist the court in properly characterizing and identifying the groups that were relevant to Article 27. Accordingly, it was only by examining the larger context that a court could determine whether differential treatment resulted in equality or whether, on the other hand, it would be identical treatment which would in the particular context result in inequality or foster disadvantage.

The court referred to Willis –Vs- The United Kingdom, No. 36042/97, ECHR 2002 – IV and Okpisz –Vs- Germany, No. 59140/00, where the European Court of Human Rights observed that in certain circumstances a failure to attempt to correct inequality through different treatment may in itself give rise to a breach of Article 14 (non-discrimination) of the European Convention on Human Rights.

The Court hence found the policy directive not discriminatory to the applicants.


43. Public Participation In The Law Making Process

Article 118 of the Constitution provides that Parliament shall facilitate public participation and involvement in the legislative and other business of Parliament and its committees.

Ladama Olekina v Attorney General & Another [2011]eKLR

High Court at Nairobi,

M.A Ang’awa J.

September 9, 2011.

The petition challenged the removal from office of the director of the Kenya Anti-corruption Commission (KACC) together with his four deputies by virtue of the Ethics and Anti-Corruption Act, 2011. The petitioner invoked the right to public participation in parliamentary processes duly recognized under the new Constitution.

The Ethics and Anti-corruption Bill was published on August 19 2011. Parliament had reduced the period of publication of the Bill from 14 days to 4 days, thereby allegedly denying the petitioner the right to participate in the legislation making process.

The amendment of the Ethics and Anti-Corruption Bill which touched on Section 34(1) forced the five KACC officers to leave statutory employment of the former commission. The petitioner argued that amendment of this provision by Parliament was not in line with the spirit of the original intention of the Anti-Corruption and Economic Crimes Act, 2003 and the Constitution of Kenya. He also submitted that Parliament had failed to respect the right of public participation in its proceedings. He questioned the removal of the five officers by way of enactment of the section 34(1) against the provisions of section 8 of the Anti-Corruption and Economic Crimes Act, 2003 which dealt with the removal of the said officers – that is solely through a Tribunal. The petitioner sought ex parte injunctive orders pending the substantive hearing of the petition.

The court was satisfied prima facie with the petitioner’s argument and held that the issues raised were of monumental, national and of public interest and granted orders ex parte staying the effect of the impugned amendment pending hearing inter partes.


44. Courts’ Dilemma In Bail Applications For Serious Offences

The new Constitution (Article 49(1)) does not exclude any class of suspects from the right to be released on bail. There seem to be emerging two different approaches by the courts on the issue of whether the seriousness of the crime with which a suspect is charged should be a consideration in an application for bail and if so, how much weight should be given to it.

Aboud Rogo Mohamed & another v Republic [2011]eKLR

High Court at Nairobi

Justice F.A. Ochieng

February, 2011

The High Court has reiterated that where a crime suspect seeks to be released on bail or bond pending his trial, the primary consideration is whether he would voluntarily and readily present himself to the trial court, and each case is to be determined in its own circumstances. However, in the context of the new Constitution, there seem to be emerging two different approaches by the courts on the issue whether the seriousness of the crime with which a suspect is charged should be a consideration and if so, how much weight should be given to it.

Previously, a strong link had been established between the seriousness of the offence and the entitlement of the suspect to bail or bond. This connection was based on section 72(5) of the repealed Constitution which expressly denied bail or bond to persons arrested in connection with offences punishable by death. Accordingly, section 123 of the Criminal Procedure Code went on to provide for the exclusion from bond and bail of persons charged with the offences of murder, treason, robbery with violence, attempted robbery with violence and curiously, ‘any drug related offence’, though the latter offences may not carry a death sentence. However, the new Constitution (Article 49(1)) does not exclude any class of suspects from the right to be released on bail. It gives all accused persons the right to the presumption of innocence and the right to be released on bond or bail pending trial with the court having the discretion to deny bail where there are ‘compelling reasons’.

In interpreting the new Constitution, is Kenya’s criminal legal system to make a sharp departure from this historical link and what significance, if any, is to be given to the gravity of the offence charged in considering application for bail? Recent decisions of the High Court highlight two different approaches.

In Aboud Rogo Mohamed & another v Republic [2011] eKLR, the High Court (Justice F. Ochieng) considered an application for bail pending trial filed by two persons charged with engaging in organized crime by being members of Al-Shabaab, an outlawed organized criminal group, contrary to section 3(3) and 4(1) of the Prevention of Organized Crimes Act, 2010. The offence carries a maximum term of fifteen years imprisonment or a fine not exceeding Kshs. 5 million or both the fine and the imprisonment. However, if the commission of the offence results in the death of a person, a convicted person would be liable to life imprisonment. Reiterating the applicant’s constitutional right to a fair trial which includes the right to be presumed innocent until the contrary is proved, the High Court refrained from making any conclusions about the guilt or innocence of the applicants. The only question that the High Court was concerned was whether there were compelling reasons not to release the applicants on bail.

In considering this issue, the Court referred to its previous decisions. In Danson Mgunya & another v Republic [2011] eKLR (Justice M. Ibrahim), while releasing two murder suspects on bond, the Court had observed that the Constitution was to be interpreted in a manner that enhances rather than curtails the fundamental rights of the individual and that each case is to be decided on its own facts.

Earlier in January 2010, before the promulgation of the new Constitution, in the case of Republic v Muneer Harron Ismail & 4 others [2010] eKLR which involved a charge of being in possession of a large cache of firearms, the Court (Justice M. Warsame) released the principal suspect on ‘strict and stringent conditions’ and noted that one paramount consideration would be whether the release of the suspect would endanger public security and public interest.

The different approach is presented by Justice E. Emukule when in October 2010 he declined an application for bail pending trial by a person charged with murder – Republic v Moses Kenu Ole Pemba [2010]eKLR. The Judge recalled that the repealed Constitution had ruled out bail for such offences and under section 123 of the Criminal Procedure Code, the courts were still prohibited from granting bond or bail in such cases. In fact, to these classes of offences, the Judge would add ‘persons charged with terrorism or offences of mass killings’ because the gravity of the offence was a compelling reason for not releasing the accused on bail. Except in cases involving child suspects who are exempted from the death penalty, the Judge observed that there were also subsidiary reasons for denying bail. In cases of murder, for instance, such reasons would include the consideration that ‘society does not condone the taking away of human life and the pleasure of mixing with the accused in the streets. Such a person may well become a victim of his own freedom and release may lead to serious breaches of the peace.


45. Proper Reasoning Needed In Writs For Nolle Prosequi

A subordinate court could properly make an inquiry under the Constitution so as to satisfy itself whether the exercise of the powers of entering a writ of nolle prosequi conferred on the Director of Public Prosecutions under Article 157 (4) (6) and (9) of the Constitution of Kenya were consonant to the provisions of the Constitution.

Republic v Enock Wekesa & another [2010] eKLR

High Court at Kitale

M. Koome

November 19, 2010

Two accused persons had been charged before the Magistrate’s court with three counts of robbery with violence contrary to section 296 (2) of the Penal Code. At the commencement of the trial the state presented a writ of nolle prosequi to discontinue the criminal proceedings against the two accused persons. This writ was issued in exercise of the powers conferred on the Attorney General by Article 157 (4) (6) and (9) of the Constitution of Kenya. The writ was dismissed by the magistrate prompting the application for revision.
In his submissions Mr. Onderi stated that the Magistrate’s court had no powers under the Constitution to question the writ of nolle prosequi. He claimed that the Attorney General was authorized to enter nolle prosequi and was not bound to give any reasons to the trial court. In this regard counsel made reference to the case of Mwangi And Seven Others Vs Atornney General [2002]KLR where a three judge bench held, among others, that the High Court had specifically been given jurisdiction to hear the applications made by the Attorney General and therefore only the High Court could question the functions of the Attorney General.

The High Court identified with the Magistrate’s court finding that under the new Constitution, the state had to submit reasons or the court’s consideration and that the Constitution superseded those of the Criminal Procedure Code. This was trite law and was basic as provided for by Article 2 of the Constitution of Kenya 2010.

The High Court was guided by Article 157 (6) of the new Constitution which provides that the Director for Public Prosecutions may at any stage discontinue criminal proceedings but in doing so, he should have regard “…to the public interest, the interest of the administration of justice and the need to prevent and avoid abuse of the legal process.”
The court noted the general principle of interpretation of statute was to give overarching objective which was meant by a particular legislation. The Constitution recognized as fundamental respect of human rights, equality before the law and other values. The protection of human rights in the High Court’s view included those of the accused person(s) and the complainant(s). This was in line with provisions of Article 159 (2) of the new Constitution which provided that in exercise of judicial authority, the courts and tribunals were to be guided by set principles. These principles in part were; that justice was to be done to all, irrespective of status, that justice would not be delayed, and that justice would be administered without undue regard to procedural technicalities.
Although the trial magistrate was faulted for making a Constitutional interpretation and questioning the powers granted to the learned State Counsel to enter the writ of nolle Prosequi it was the High Court’s understanding that the Magistrate made an inquiry which could now be made under the Constitution so as to satisfy herself on whether the powers in the writ of nolle prosequi were consonant to the provisions of the constitution. The magistrate while exercising judicial powers had to adhere to the principles set out in the Constitution.


46. Jurisdiction Of The ICC

An international tribunal such as the ICC was well recognized to have compétence de la compétence – an initial capacity to determine whether or not it had the jurisdiction to hear and determine a case coming up before it.

Joseph Kimani Gathungu v The Attorney General & another eKLR

High Court of Kenya at Mombasa

J B Ojwang J

November 23, 2010

The application was an indictment of the launched operations of the International Criminal Court (ICC) in Kenya, in the aftermath of an outbreak of violence and consequential destruction of human life, following the general elections of December, 2007.

The applicant was aggrieved by the involvement of the ICC and hence sought to challenge the legality of the ICC’s activities in the country. It was the applicant’s case that the involvement of the ICC in the affairs of Kenya in general, and in particular the investigations and possible prosecutions of the perpetrators of the post-2007 “general-elections violence” violated Articles 1,2,3,23,159-170 (inclusive), 258 and 259 of the Constitution of Kenya. When the case came up for hearing, counsel for 2nd Interested Party raised a preliminary objection on the ground that the High Court had no jurisdiction to hear and determine the cause. The issue of the role of international law in the context of Kenya’s new Constitution was also raised.

The court found that an international tribunal such as the ICC was well recognized to have compétence de la compétence – an initial capacity to determine whether or not it had the jurisdiction to hear and determine a case coming up before it. The ICC, acting within the terms of the Rome Statute, had already determined that it indeed had jurisdiction over the issue. The ICC had even gone further to determine the second jurisdictional question: whether the special facts of post-election violence in Kenya (2007-2008) rendered the matter justiciable before that Court. The ICC had determined that, on the facts, it had jurisdiction to investigate, hear and determine the cases arising from the post-election violence. The applicant’s challenge to the operations of the ICC had no legal foundation, apart from invoking a jurisdiction which was not available. The matter raised by the applicant was hence not justiciable.


47. Committal To Civil Jail Goes Against Civil And Human Rights

There were several methods of enforcing a civil debt such as attachment of property. An order of committal to civil jail was meant to punish, humiliate and subject the debtor to shame and indignity due to failure to pay a civil debt. This was against the International Covenant on Civil and Political Rights

In Re the Matter of Zipporah Wambui Mathara [2010] eKLR

High court at Nairobi

M. K. Koome J.

September 24, 2010

Imprisonment in civil jail goes against the International Covenant on civil and political rights that guarantee parties basic freedoms of movement and of pursuing economic social and cultural development. Lady Justice Martha Koome made the orders in an application for stay of execution of order of committal to civil jail pending bankruptcy proceedings by Zipporah Wambui Mathara.

Mrs. Mathara’s advocate submitted that under Article 2(6) of the Constitution of Kenya 2010, any Treaty or Convention ratified by Kenya formed part of the Laws of Kenya under the Constitution. It was contended that that provision imported the Treaties and Conventions that Kenya ratified, especially the United Nations International Covenant on Civil and Political Rights which Kenya ratified on 1st May 1972. According to Article 11 of that Convention, no one could be imprisoned merely on the ground of the inability to fulfill a contractual obligation. It was further submitted that due to the hierarchy of the laws, the Constitution was supreme therefore the Civil Procedure Act that provided for committal to civil jail as a means of forcing a debtor to satisfy a contractual obligation was against the spirit of the Constitution and, International Human Rights Law that protected and promoted basic freedoms.

On the application of the International law, Mr. Maina’s counsel urged the court to consider the Civil Procedure Act which made the provisions for recovery of money and execution by way of committal of the judgment debtor to civil jail as one of the means of enforcing a judgment.

The court concurred that by virtue of Section 2(6) of the Constitution of Kenya 2010, International Treaties, and Conventions that Kenya had ratified, were imported as part of the sources of the Kenyan Law. Thus the provision of Article 11 of the International Covenant on Civil and Political Rights which Kenya had ratified was part of the Kenyan law. The Court noted that the covenant made provisions for the promotion and protection of human rights and recognized that individuals were entitled to basic freedoms to seek ways and means of bettering themselves. It therefore meant that a party who was deprived of their basic freedom by way of enforcement of a civil debt through imprisonment, their ability to move and even seek ways and means of repaying the debt was also curtailed.

The court noted that there were several methods of enforcing a civil debt such as attachment of property. An order of imprisonment in civil jail on the other hand was meant to punish, humiliate and subject the debtor to shame and indignity due to failure to pay a civil debt. The court opined that was indeed against the International Covenant on Civil and Political Rights that guaranteed parties basic freedoms of movement and of pursuing economic social and cultural development.


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