4

Sections 3(3) and 11(2) Declared Unconstitutional in 2018.

Josephat Musila Mutual & 9 others v Attorney General & 3 others [2018] Eklr

High Court, at Nairobi

Petition No 120 of 2017

Mwita J

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Brief facts

In 2016, the National Assembly through the Statute Law (Miscellaneous amendment) Act 2016, amended various statutes one of them being the Auctioneers Act (No. 5) of 1996(the Act). Various provisions of the Act were amended including introduction of section 3(3) which prohibited persons appointed to be judges from being members of the Auctioneers Board and section 11(2) which made it mandatory for licensed auctioneers to retire at the age of 70 years. The Petitioner alleged that the amendments were discriminatory and therefore unconstitutional. It was also alleged that there was no public participation in the process leading to the amendment of the Act.

Held

Section 11(2) of the Act violated the Petitioners’ rights and fundamental freedoms it was inconsistent with the Bill of Rights and was therefore unconstitutional. The amendments to the Auctioneers Act though substantive, were introduced through a Statute Law (Miscellaneous Amendments) Act and without the involvement and benefit of Public participation in violation of the values and principles in the Constitution.

Law Society of Kenya v Attorney General & 2 others [2019] eKLR

Court of Appeal at Nairobi

P N Waki, D K Musinga, & P O Kiage, JJA

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Brief facts

The appellant lodged a petition in the High Court challenging amendments made in the Statute Law (Miscellaneous Amendments) Act No 12 of 2012 on the grounds that the 1^st respondent had purported to make substantive amendments to various Acts contrary to the ordinary usage of a Statute Law (Miscellaneous Amendments) Act. They argued that that a Statute Law (Miscellaneous Amendments) Bill was only used to make minor amendments to the Law, to consolidate various minor amendments to remove anomalies, or to repeal unnecessary enactments. The appellant urged the High Court to, inter alia, declare the Statute Law (Miscellaneous Amendments) Act No 12 of 2012 unconstitutional. After considering the petition, the High Court found it unmeritorious and dismissed it, prompting the appellant to file the instant appeal.

The challenged amendments affected certain provisions of the Law Society of Kenya Act and the Advocates Act. In particular, sections 13(1)(e), 32A, 32B, 55 and 57(1) of the Advocates Act were amended. The effect of those amendments were to remove the responsibility of vetting magistrates from the Judges and Magistrates Board to the Judicial Service Commission; replace the Advocates’ Disciplinary Committee with an Advocates’ Disciplinary Tribunal; empower the Chief Justice to make recommendations on the remuneration of a category of lawyers known as in-house Counsel; and, permitted advocates practising within the East African community and the commonwealth to be admitted to practice law in Kenya.

The appellant argued that the trial court misdirected itself by, inter alia, failing to appreciate that the amendments contained in the Statute Law (Miscellaneous Amendment) Act, 2012, sought to introduce substantive amendments to the law, and the amendments ought to have been subjected to public participation prior to being passed into law.

The respondents opposed the appeal and maintained that the  Statute Law (Miscellaneous Amendments) Act No 2012, did not bring any substantive amendments to the Acts mentioned therein and urged the Court to dismiss the appeal.

Held

1.   A Statute Law (Miscellaneous Amendments) Bill was meant to be an Act of Parliament to make minor amendments to statute law. From ordinary use, the word minor meant something that was of less importance, insignificant even. Substantive law meant the part  of  the  law  that  created,  defined,  and regulated  the   rights  and   duties,   and  powers of parties. As such, the amendments introduced by a Statute Law (Miscellaneous Amendments) Bill ought not to create, define, regulate or confer any powers to any parties, for if they did, they would not be said to be minor or inconsequential.

2.   A committee was defined as an individual or a body to which others have committed or delegated a particular duty, or who have taken on themselves to perform it, in the expectation of their act being confirmed by the body they profess to represent or to act for. On the other hand, a tribunal meant a court or other adjudicatory body. The term committee signified something part of and subordinate to a higher authority to which it reported. That was the case with the Advocates Disciplinary Committee’s relationship to the appellant. A tribunal had a more important, self-directive or autonomous adjudicative connotation to it. As such, the trial court erred in stating that the amendment was merely cosmetic and did not change the substance of the Advocates Act nor interfered with the powers of that body. That was more so when the role of the Attorney General in determining remuneration for the members of the established Tribunal was considered. The appellant’s apprehensions regarding the appearance of the Tribunal being beholden to the Attorney General were not idle.

3.   On the amendment to the Advocates Act which opened up the Kenyan market to foreign advocates, the trial court held that section 11 of the Advocates Act had already provided for the practice and regulation of foreign advocates. The High Court erred in not observing the finer details of the amendments and in not appreciating the text, context and effect that rendered them substantive. The amendments had an effect on the business of the appellant and its membership. Moreover, it undermined the independence of the appellant, something that the Court could not countenance.

4.   There was mischief in the 1^st respondent’s argument that the State needed to have some level of control over the discipline of advocates. It already had the Advocates Complaints Commission under its control. That was enough state control. There was no legitimate purpose to be served by further control through legislative measures clearly cultivated to undermine the independence of the appellant.

5.   On the issue of public participation, the High Court failed to appreciate the mandatory provisions in section 5 of the Statutory Instruments Act which required consultations before making statutory instruments that had a direct or substantial indirect effect on business or restricted competition with persons who were likely to be affected by the proposed instrument. The High Court ought to have found in favour of the appellant based on the claim made on the lack of public participation.

6.   It was an error for the trial court to require the appellant to prove the negative–that there was no public participation, for once it stated there was no public participation, the burden shifted to the respondents to show that there was. Much weight had been placed on public participation because it was the only way to ensure that the legislature would make laws that were beneficial to the mwananchi, not those that adversely affected them. Additionally, the onus was on the Parliament to take the initiative to make appropriate consultations with the affected people. It was therefore misdirection for the High Court to hold that the appellant had the responsibility to prove that the consultations did not happen.

7.   The 1^st respondent was not possessed of an unfettered or carte blanche leeway to table legislation that was detrimental to the people of Kenya or a section of the citizenry. It ought to follow due process which included consultation with stakeholders. The Constitution established that mechanism to enable the Legislature to make laws that were reasonable, having sought and obtained the views of the people. That was the essence of an accountable limited government and the shift from the supremacy of Parliament to the sovereignty of the people birthed by the Constitution.

8.   The Legislature overreached in passing substantive amendments in an un-procedural non-participatory manner, through the Statute Law (Miscellaneous Amendments) Act No of 2012. Parliament’s passing of the challenged amendments was not in keeping with the constitutional bounds of its power and the same ought to be struck down.

Steve Isaac Kawai & 2 others v Council of Legal Education & 2 others [2021] eKLR
Petition 393 of 2018
High Court at Nairobi
W Korir, J
May 20, 2021

Brief facts
The petitioners were citizens of South Sudan who had been admitted to the Advocates Training Program (ATP) at the Kenya School of Law. For purposes of sitting for the final examinations, they had been issued with examination cards. However, they were precluded from sitting for the examinations on the basis that they were South Sudan citizens. The petitioners successfully applied for conservatory orders and were allowed to sit the bar examinations. However, they were denied their results when the examination results were released. They moved the court again and orders were issued directing the release of their examination results. The 1st petitioner was admitted to the Roll of Advocates.
The petitioner's case was that section 12(a) of the Advocates Act was unconstitutional as it limited eligibility for admission to the Roll of Advocates to citizens of Kenya, Rwanda, Burundi, Uganda and Tanzania. The petitioners explained that South Sudan joined the East African Community (Community) in April 2016 and article 126 of the Treaty for the Establishment of the East African Community (Treaty) required the harmonization of legal training. The petitioners stated that they were entitled to equal treatment with citizens of Kenya, Rwanda, Burundi, Uganda and Tanzania.
The petitioners further alleged that the 1st respondent's decision violated article 22 of the 1951 Refugees Convention, article 4 of the 1969 OAU Convention Governing the Specific Aspects of Refugee Problems in Africa, and section 16 of the Refugees Act, 2006 which gave them the right to education to the same extent as to the citizens of the host country. They also alleged that the respondent's actions violated articles 19, 22, 27, 43 and 47 of the Constitution. They also said that their legitimate expectation to sit the bar examinations after undertaking the necessary training was violated.

Issues

Held

Boniface Oduor v Attorney General and 4 others
High Court at Nairobi; Commercial and Admiralty Division
F Tuiyott, J Kamau, R B Ngetich, JJ
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Brief Facts:
The petition related to the constitutionality of the interest rate capping and auxiliary provisions of section 33B of the Banking Act which were enacted through the Banking (Amendment) Act no 25 of 2016. A month prior to the hearing of the petition, there was an amendment to sections 31A and 33B of the Act. Those changes were through section 64 of the Finance Act No 10 of 2018 which commenced on 1st October 2018.
The petitioner’s case was that, in so far as the object and effect of the impugned provisions was to cap the interest rate charged by banks and financial institutions for loans, they deprived Central Bank of Kenya (CBK) of its exclusive constitutional mandate to solely formulate and implement monetary policy. The petitioner contended that the impugned provisions discriminated against banks and financial institutions as no similar restriction on interest rates was placed on mortgage finance institutions, micro finance banks, insurance companies and those dealing with Islamic banking.

Held:
1. The term “credit facility” appeared in various sections of the Banking Act. On occasion it appeared alongside the word “loan”. However, neither had been defined in the interpretation provision of section 2 of the Banking Act. Further, the two terms were not defined in the Interpretation and General Provisions Act (Cap 2 Laws of Kenya), which was a statute inter alia in regard to the construction, application and interpretation of written law. Nevertheless, reference of the two (2) terms had been made in section 44A (5) (b) of the Act. To be noted, was that the meaning assigned to the word “loan” under section 44A (5) (b) was specific for that section. Therefore, for purposes of section 33B (1), the phrase “credit facility” had no statutory definition.

2. Ordinarily, where there was no statutory definition of a word, then it ought to be construed in its plain and simple meaning. The term “credit facility” was open to different subjective interpretations. One could construe the term “credit facility” in its ordinary meaning while another could choose to give it a meaning similar to that assigned in section 44A(5)(b). If the former, a loan was a type of credit facility, and if the latter, a credit facility was a type of loan. That interpretation was conflicting.

3. To remove the possibility of conflicting construction of the phrases, it was necessary that the term “credit facility” for purposes of section 33B (1) be explicitly defined. In the alternative, the terms “credit facility”, “loan”, “advance” and “financial guarantee” could be defined in the interpretation provisions of the Act. Arguments such as whether the section as worded covered loans such as mobile loans and hire purchase facilities would be avoided.

4. One spill-over effect of the ambiguity in the meaning of “credit facility” could be seen on the reading of section 33B (2). What was to be borrowed or lent was not clear in so far as the words “credit facility” used in section 33(B) (1) were not defined.

5. Given that the contravention of section 33B of the Act attracted penal consequences, the Statute should be unequivocal that the CBR referred to was that contemplated in the CBK Act. That would be in consonance with good legislative practice that definitions appearing in one statute ought to appear in related statutes for clarity and to avoid inconsistencies and ambiguity when dealing with a related issue. All laws relating to the same issue had to bear the same meaning as they would have the potential of the same words being assigned different meanings and interpreted differently depending on the statute under consideration. Each statute had to be interpreted in line with all the provisions contained.

6. The use of the words “four percent, the CBR set and published” in section 33(B)(1)(a) of the Act were imprecise, uncertain and fell short of what would be termed a good piece of legislation that was easily understood by “Wanjiku.” In an attempt to clarify that ambiguity, CBK in its Banking Circular No 4 of 2016 gave the following guideline, “For purposes of section 33B (1) (a) which set the maximum interest rate chargeable for a credit facility “at no more than four percent, the base rate set and published by the CBK”, the cap would be set at four percentage points above the CBR.”

7. Section 33(B) (1) (a) of the Act was not clear whether the word “of” was intentionally left out by the drafters of the legislation. The words “at no more than four percent, the base rate” could mean four percent above the CBR set and published by CBK. There could also be a mischievous interpretation of the words “at no more than four percent, the base rate” to mean below the CBR. Unfortunately, the ambiguity persisted even after the 2018 Amendment. There was need for clarity on the issue because left as it was; it was open to different interpretations.

8. Section 33(B) (1) (a) of the Act was also vague as to the period the four (4%) per cent interest was applicable. It did not specify whether it was to be charged per day, per month or per annum. That ambiguity was apparent as CBK felt it necessary to provide a guideline in Banking Circular No. 4 of 2016, that “the interest rates indicated in the Banking (Amendment) Act 2016, would apply on an annual basis.” The attempt to clarify the meaning through circulars/guidelines was not sufficient because it had to be remembered that non-compliance with the section 33B came with penalties and criminal proceedings. In any event, any valid law had to be self-explanatory. It had to and should not be qualified by explanations to be found outside of the statute.

9. No person should be punished for disobeying a law that was uncertain. He had to understand in clear terms the law he was required to obey. As drafted, sections 33B(1) and (2) of the Act were open to different interpretations which could lead to some offending CEOs suffering prejudice while others would go scot free depending on the interpretation that different courts would make. Therefore, section 33(B) (1) and (2) of the Act violated the Constitution in so far as any person contravening the same risked facing criminal liability without the benefit of understanding what s[he] was supposed to comply with. The penalties for contravention of section 33 B (2) were fairly severe and banks, financial institutions and their respective CEOs risked suffering severe penalties for failure to comply with unclear laws.

10. From the wording of section 33B (2), the offender could either be the bank or the customer. However, section 33B (3) provided a penalty for the bank and the CEOs only. The customer had been left out. It was not clear why only the bank and not the customer should be punished yet they would both be contravening the provisions of the law. That anomaly was evident when one compared the provision with the provisions of section 49 of the Act which was the general penalty section. Section 49 covered all offenders and was not discriminatory. Anyone who did not comply with should be subjected to the same treatment in regards to penalty. By failing to do so, section 33B of the Act was discriminatory and therefore unconstitutional.

11. The only unconstitutional aspect of the penal section of section 33B was that it discriminated against the banks and its CEOs. If eventually the Court was to declare as invalid section 33B, there would be no lacuna in the law as section 49 of the Act provided for general penalties for offences under the Act.

12. A lesson to be drawn from the provisions of sections 4B, 4C and 4D of the Central Bank Act was that an integral feature of formulating monetary policy; it was a consultative process between CBK and the Executive (through the Cabinet Secretary, Treasury). It was also a process in which the National Assembly had an input when the monetary policy statements were placed before its appropriate committee for deliberation. Although CBK had the ultimate constitutional authority to formulate monetary policy, the collaborative involvement of the other two organs was testimony of the importance of matters of the nature and therefore the need to have the input of not only the Executive but Parliament, the peoples’ representative. One organ could not act in isolation.

13. Although the provisions of section 33B were of matters that could be outside monetary policy, a framework that regulated interest rate charged by banks and financial Institutions had far reaching consequences. For that reason, the setting of an interest rate cap or any other regulations on interest rates could be enriched by a consultative and/or collaborative framework that drew input from stakeholders not in the least CBK. There was merit in the argument by CBK that the fixing of interest rates caps and the entire regulatory framework should not be arbitrary. But of course those were matters within the remit of the National Assembly and the Court could only make observations.

14. The Court was aware that thousands of contracts had been entered by borrowers and lenders on the basis of the impugned provisions of section 33B. Although the provisions generally had constitutional underpinning, some aspects were unconstitutional. Therefore, the remedies granted would take into account the possible disruption that invalidating everything done under the unconstitutional aspects of the provisions could have on existing contracts. The possible harm should not be disproportionate to the harm that could result if the law was to be given a temporary respite.

15. The approach would be taken for the provisions that were found to be vague, imprecise and ambiguous. Indeed, if the striking out of the provision was not temporarily suspended, there was the risk of throwing the entire banking industry in turmoil. The Circular no 4 of 2016 by CBK had brought some measure of certainty amongst stakeholders. That had to subsist before a new provision could be enacted.

Children Act-Sections 2 (b), 27 (2), 94 (1), 102 (1), 158 (4) (b) & (c)

&

Law of Succession Act-Sections 3 (2) & (3) Birth & Deaths Registration Act-Section 12

NSA & another v Cabinet Secretary for, Ministry of Interior and Coordination of National Government & another [2019] eKLR
High Court at Kakamega
J Njagi, J

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Brief Facts:

The petitioners challenged discrimination by the law on children born out of wedlock and unmarried women on the basis of birth, sex and marital status.

The 1st petitioner averred that she was cohabiting with one PM as a result of which they were blessed with two issues, EA and NF, out of wedlock. She averred that she had serious challenges getting the name of the father of the children inserted in the children’s birth certificates as he had declined to have his name inserted therein and thus denied the minors identity; that EA was issued with a birth certificate which had markings xxx on the place meant for the father’s name and that NT was yet to be issued with one. The 1st petitioner contended that the law required consent of the father before his name was inserted in the children’s birth certificates which according to her was discriminatory and violated her constitutional rights and that of the children to equal protection before the law, equality, dignity, a name, parental care and protection and equal responsibility of father and mother to provide for them.

 The petitioners contended that the language in some sections of the Children Act were discriminatory to children born out of wedlock and to unmarried mothers. They also contended that section 12 of the Birth and Deaths Registration Act and sections 3(2) and 3(3) of law of Succession Act were discriminatory to children born out of wedlock.

Held:

1.  The High Court had inherent power and constitutional jurisdiction to interpret the Constitution of Kenya, 2010 (Constitution), the Bill of  Rights and other laws on principles premised by article 3, 10, 20(3),(4) and (5), 21, 24, 159, 165(3)(b) and ( d), 258, 259 and 260 of the Constitution.

2.  The Constitution should be interpreted in a manner that promoted its purposes, values and principles, advanced the rule of law, human rights and fundamental freedoms in the Bill of Rights, and that contributed to good governance. Article 159(2)(e) of the Constitution mandated the Court, in exercising its judicial authority, to protect and promote the purpose and principles of the Constitution.

3.  The Constitution of a nation was not simply a statute which mechanically defined the structures of government and the relationship between the government and the governed. It was a mirror reflecting the national soul; the identification of ideals and aspirations of a nation; the articulation of the values bonding its people and disciplining its government. The spirit and the tenor of the Constitution had to preside and permeate the processes of judicial interpretation and judicial discretion.

4.  The provisions of the Constitution had to be read as an integrated whole, without any one particular provision destroying the other but each sustaining the other.

5.  There was a general presumption that every Act of Parliament was constitutional. The burden of proving the contrary rested upon any person who alleged otherwise. The Constitution qualified that presumption with respect to statutes which limited or were intended to limit fundamental rights and freedoms. Under the provisions of article 24 there could be no presumption of constitutionality with respect to legislation that limited fundamental rights: it had to meet the criteria set under article 24.

6.  In determining whether an Act of Parliament is unconstitutional, consideration had to be given to the objects and purpose of the legislation.

7.  In interpreting the Constitution, the court would be guided by the general principles that;

a.  the Constitution was a living instrument with a soul and consciousness of its own as reflected in the preamble and fundamental objectives and directive principles of state policy. Courts had to therefore endeavor to avoid crippling it by construing it technically or in a narrow spirit. It had to be construed in tune with the lofty purposes for which its makers framed it. So construed, the instrument became a solid foundation of democracy and the rule of law. A timorous and unimaginative exercise of judicial power of constitutional interpretation left the Constitution a stale and sterile document;

b.  the provisions touching fundamental rights had to be interpreted in a broad and liberal manner, thereby jealously protecting and developing the dimensions of those rights and ensuring that the people enjoyed their rights, the young democracy not only functioned but also grew, and the will and dominant aspirations of the people prevailed. Restrictions on fundamental rights had to be strictly construed.

8.  A party alleging violation of a constitutional right or freedom had to demonstrate that their fundamental right had been impaired, infringed or limited. Once a limitation had been demonstrated, then the party which would benefit from the limitation had to demonstrate a justification for the limitation. The State, in demonstrating that the limitation was justifiable, had to demonstrate that the societal need for the limitation of the right outweighed the individual’s right to enjoy the right or freedom in question.

9.  Article 53 of the Constitution was the reference point as far as the rights of children were concerned. It was the yardstick by which laws relating to children were to be measured. The plain meaning of the article was that fathers and mothers had equal responsibility to a child they bore, and that responsibility was not left to the volition of the man or woman.  The bottom line was that both of them had to take responsibility. \

10. In determining whether a law was inconsistent with the Constitution so as to make the said law invalid, a court needed to lay the article of the Constitution which was invoked beside the statute which was challenged and to decide whether the latter squared with the former.

11. The Children Act No. 8 of 2001 was enacted before the promulgation of the Constitution. There had been no review of the Act to align it with the Constitution. Some of the provisions of the Act were inconsistent with the Constitution.

12. Section 2(b) of the Children Act gave a father the discretion of choosing whether a child was to be his relative or not. A reading of the section had the meaning that if a father did not acknowledge paternity of a child or had not been contributing to the maintenance of the child, that child could not be considered to be a relative of the father. It also meant that children born inside wedlock had an automatic right to be the relatives of their fathers while those born outside wedlock had no such  right. That was discriminatory on the children born outside wedlock on the ground of birth. That violated the right of equal treatment before the law to children born outside wedlock. The definition was against the spirit of article 53 of the Constitution and offended the principle of the best interests of the child, which the constitution placed at a higher pedestal than that of the father or mother.

13. It was in the best interest of a child for the child to be recognized as a relative of his father’s relatives whether the child’s parents were married to each other or not. The definition of ‘relative’ in section 2(b) of the Children Act was in contravention of articles 27(1) of the Constitution which provided for equal treatment before the law and article 27(4) that barred discrimination on the ground of birth.  

14. Section 24(1) and (2) of the Children Act placed equal responsibility for a father and mother who were married either before or after a child’s birth. That section was in line with article 53(1) of the Constitution on equal responsibility of the father and mother whether they were married to each other or not. It had not been shown that the section was in contravention of the Constitution.

15. Section 26 of the Children Act provided for parental responsibility agreements which agreements could only be vitiated like any other contract. There was nothing wrong in having parental responsibility agreements in so far as they were not in conflict with the Constitution and relevant statutes.

16. Section 27(1) of the Children Act provided for transmission of parental responsibility to a father and mother who were married or had subsequently married after the birth of the child. The section provided for the doctrine of survivorship in case of death of either parent where responsibility of the child was transferred to the surviving parent. There was nothing wrong with that provision as a surviving parent continued to have responsibility towards their child.

17. Section 27(2) of the Children Act provided for transmission of parental responsibility of unmarried parents when either parent died. It provided that the father could only take up responsibility after the death of the mother if he had acquired parental responsibility. That was against the principle of equal responsibility of parents under article 53(1) (e) of the Constitution which right could not be qualified for reason that the father had or had not acquired parental responsibility. Parental responsibility was automatic and self-activating on parents upon the birth of a child and fathers could not have the discretion of either accepting or rejecting that responsibility. It also meant that a parent who had not acquired parental responsibility could not do so after the death of the other parent. The section was therefore discriminatory to unmarried fathers on ground of marital status contrary to the provisions of article 27(4) of the Constitution.

18. Section 94 (1) of the Children Act implied that parents of children born out of wedlock had to assume parental responsibility before they could be ordered to pay maintenance towards their children. A parent could not opt out of parental responsibility. The section was in contravention of article 53 (1)( e) of the Constitution which commanded equal responsibility of the mother and father to provide for the child whether they were married to each other or not.

19. Section 102(1) of the Children Act  was inconsistent with the Constitution in so far as the father of a child born out of wedlock needed to ‘acquire parental responsibility’ for them to take up parental responsibility of the child upon the death of a mother. The Court reiterated the automation of parental responsibility upon birth of a child, and the said responsibility was not left to the discretion of either the father or mother. The section was in contravention of article 53 (1) (e) of the Constitution.

20. Section 158 4(b) of the Children Act was inconsistent with the Constitution in that in adoption proceedings it only provided for the consent of the parent or guardian of the mother of the child where the mother of a child born out of wedlock was a child but did not provide for the consent of the parents or guardian of the father where the father was a child. That was discriminatory on such fathers in that their parents or guardian were not required to give consent in adoption proceedings. The section was in contravention of articles 27(1) and 27 (4) of the Constitution on equality before the law.

21. Section 158 4(c) of the Children Act was inconsistent with the Constitution in so far as the father of a child born out of wedlock needed to ‘acquire parental responsibility’ for them to take up parental responsibility and be regarded as a father for purposes  of consenting to the adoption of the child.  The section was discriminatory on fathers who had not acquired parental responsibility. The section had the implication of treating fathers differently based on whether one had acquired parental responsibility which was against the spirit of article 27(1) on equal treatment before the law.

22. Sections 3(2) and 3(3) of the Law of Succession Act were inconsistent with the Constitution in so far as a child born out of wedlock was regarded as such if the father had expressly recognized or in fact accepted as a child of his own or for whom he had voluntarily assumed permanent responsibility. A parent’s responsibility to their child was mandatory and not discretionary.  The section was in contravention of article 53 (1)(e) of the Constitution which required parents to provide for their children whether they were married or not.

23. Section 12 of the Births and Deaths Registration Act was invalidated in L.N.W v Attorney General & 3 others [2016] eKLR. The instant Court was agreeable to the reasoning of the Court in that matter. Section 12 was inconsistent with article 27 and 53 of the Constitution.

24. When the High Court in L.N.W v Attorney General & 3 others [2016] eKLR invalidated the provisions of section 12 of the Births and Deaths Registration Act, it directed the Registrar of Deaths and Births to within 14 days put into place mechanisms to facilitate the entry into the birth register of names of  the father of children born outside wedlock.  That was the proper way to go.  Before such names were entered into the register there had to be some regulations in place.  The petitioner did not inform the court whether such regulations had been put into place.  An order for birth certificate to be issued to the children of the 1^st respondent indicating the name of their father could not issue before the law was amended to cater for that.

25. The mandate of the Court was to ascertain whether a law was inconsistent with the constitution or not.  The court did not supervise other courts of equal jurisdiction.  The instant Court could not issue prohibitory orders on other judges of the High Court.  Even though the Court had powers to supervise the Magistrates’ Courts, it could not issue orders that would be difficult to supervise or implement. 

26. The impugned sections of the Births and Deaths Registration Act, the Children Act and the Law of Succession Act should be amended to align them with the Constitution of Kenya 2010.

Declared Unconstitutional in 2016.

 

L.N.W v Attorney General & 3 others

High Court, at Nairobi

Petition 484 of 2014

Mumbi Ngugi J

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Brief Facts

The petition concerned the rights of children born outside marriage with the main issue revolving around the registration of their births and the circumstances under which the name of the biological father should be inserted in the birth certificate of the child.

The Petitioner, a single mother of a child born out of marriage, filed a petition on her own behalf and for her child and other children born out of wedlock, challenging the constitutionality of section 12 of the Registration of Births and Deaths Act, which provided that the only time that the name of the father of a child born outside marriage can be entered in the register of births was upon the joint request of the father and mother, or upon proof of marriage.

The Petition was brought against the Attorney General (AG), the chief legal advisor and legal representative of the national government and the Registrar of Births and Deaths whose mandate was outlined under the Registration of Births and Deaths Act, and included, inter alia, the registration of all births and deaths in Kenya and the keeping of appropriate records in respect thereof.

 

Held

In so far as the section requires that the name of the father of a child born outside marriage shall be entered in the register of births only with the consent of the father, that provision is unconstitutional and in violation of Articles 27, 28 and 53 of the Constitution. In addition, I take the view that it has the effect of imposing an unfair burden on women, the mothers of children born outside marriage, and is to that extent discriminatory on the basis of sex. The Constitution and the Children Act have set out various rights of children, and the obligations of parents to ensure that children have access to these rights.

 

Children Act-Sections 2 (b), 27 (2), 94 (1), 102 (1), 158 (4) (b) & (c)

&

Law of Succession Act-Sections 3 (2) & (3) Birth & Deaths Registration Act-Section 12

NSA & another v Cabinet Secretary for, Ministry of Interior and Coordination of National Government & another [2019] eKLR
High Court at Kakamega
J Njagi, J

Download the Decision

Brief Facts:

The petitioners challenged discrimination by the law on children born out of wedlock and unmarried women on the basis of birth, sex and marital status.

The 1st petitioner averred that she was cohabiting with one PM as a result of which they were blessed with two issues, EA and NF, out of wedlock. She averred that she had serious challenges getting the name of the father of the children inserted in the children’s birth certificates as he had declined to have his name inserted therein and thus denied the minors identity; that EA was issued with a birth certificate which had markings xxx on the place meant for the father’s name and that NT was yet to be issued with one. The 1st petitioner contended that the law required consent of the father before his name was inserted in the children’s birth certificates which according to her was discriminatory and violated her constitutional rights and that of the children to equal protection before the law, equality, dignity, a name, parental care and protection and equal responsibility of father and mother to provide for them.

 The petitioners contended that the language in some sections of the Children Act were discriminatory to children born out of wedlock and to unmarried mothers. They also contended that section 12 of the Birth and Deaths Registration Act and sections 3(2) and 3(3) of law of Succession Act were discriminatory to children born out of wedlock.

Held:

1.  The High Court had inherent power and constitutional jurisdiction to interpret the Constitution of Kenya, 2010 (Constitution), the Bill of  Rights and other laws on principles premised by article 3, 10, 20(3),(4) and (5), 21, 24, 159, 165(3)(b) and ( d), 258, 259 and 260 of the Constitution.

2.  The Constitution should be interpreted in a manner that promoted its purposes, values and principles, advanced the rule of law, human rights and fundamental freedoms in the Bill of Rights, and that contributed to good governance. Article 159(2)(e) of the Constitution mandated the Court, in exercising its judicial authority, to protect and promote the purpose and principles of the Constitution.

3.  The Constitution of a nation was not simply a statute which mechanically defined the structures of government and the relationship between the government and the governed. It was a mirror reflecting the national soul; the identification of ideals and aspirations of a nation; the articulation of the values bonding its people and disciplining its government. The spirit and the tenor of the Constitution had to preside and permeate the processes of judicial interpretation and judicial discretion.

4.  The provisions of the Constitution had to be read as an integrated whole, without any one particular provision destroying the other but each sustaining the other.

5.  There was a general presumption that every Act of Parliament was constitutional. The burden of proving the contrary rested upon any person who alleged otherwise. The Constitution qualified that presumption with respect to statutes which limited or were intended to limit fundamental rights and freedoms. Under the provisions of article 24 there could be no presumption of constitutionality with respect to legislation that limited fundamental rights: it had to meet the criteria set under article 24.

6.  In determining whether an Act of Parliament is unconstitutional, consideration had to be given to the objects and purpose of the legislation.

7.  In interpreting the Constitution, the court would be guided by the general principles that;

a.  the Constitution was a living instrument with a soul and consciousness of its own as reflected in the preamble and fundamental objectives and directive principles of state policy. Courts had to therefore endeavor to avoid crippling it by construing it technically or in a narrow spirit. It had to be construed in tune with the lofty purposes for which its makers framed it. So construed, the instrument became a solid foundation of democracy and the rule of law. A timorous and unimaginative exercise of judicial power of constitutional interpretation left the Constitution a stale and sterile document;

b.  the provisions touching fundamental rights had to be interpreted in a broad and liberal manner, thereby jealously protecting and developing the dimensions of those rights and ensuring that the people enjoyed their rights, the young democracy not only functioned but also grew, and the will and dominant aspirations of the people prevailed. Restrictions on fundamental rights had to be strictly construed.

8.  A party alleging violation of a constitutional right or freedom had to demonstrate that their fundamental right had been impaired, infringed or limited. Once a limitation had been demonstrated, then the party which would benefit from the limitation had to demonstrate a justification for the limitation. The State, in demonstrating that the limitation was justifiable, had to demonstrate that the societal need for the limitation of the right outweighed the individual’s right to enjoy the right or freedom in question.

9.  Article 53 of the Constitution was the reference point as far as the rights of children were concerned. It was the yardstick by which laws relating to children were to be measured. The plain meaning of the article was that fathers and mothers had equal responsibility to a child they bore, and that responsibility was not left to the volition of the man or woman.  The bottom line was that both of them had to take responsibility. \

10. In determining whether a law was inconsistent with the Constitution so as to make the said law invalid, a court needed to lay the article of the Constitution which was invoked beside the statute which was challenged and to decide whether the latter squared with the former.

11. The Children Act No. 8 of 2001 was enacted before the promulgation of the Constitution. There had been no review of the Act to align it with the Constitution. Some of the provisions of the Act were inconsistent with the Constitution.

12. Section 2(b) of the Children Act gave a father the discretion of choosing whether a child was to be his relative or not. A reading of the section had the meaning that if a father did not acknowledge paternity of a child or had not been contributing to the maintenance of the child, that child could not be considered to be a relative of the father. It also meant that children born inside wedlock had an automatic right to be the relatives of their fathers while those born outside wedlock had no such  right. That was discriminatory on the children born outside wedlock on the ground of birth. That violated the right of equal treatment before the law to children born outside wedlock. The definition was against the spirit of article 53 of the Constitution and offended the principle of the best interests of the child, which the constitution placed at a higher pedestal than that of the father or mother.

13. It was in the best interest of a child for the child to be recognized as a relative of his father’s relatives whether the child’s parents were married to each other or not. The definition of ‘relative’ in section 2(b) of the Children Act was in contravention of articles 27(1) of the Constitution which provided for equal treatment before the law and article 27(4) that barred discrimination on the ground of birth.  

14. Section 24(1) and (2) of the Children Act placed equal responsibility for a father and mother who were married either before or after a child’s birth. That section was in line with article 53(1) of the Constitution on equal responsibility of the father and mother whether they were married to each other or not. It had not been shown that the section was in contravention of the Constitution.

15. Section 26 of the Children Act provided for parental responsibility agreements which agreements could only be vitiated like any other contract. There was nothing wrong in having parental responsibility agreements in so far as they were not in conflict with the Constitution and relevant statutes.

16. Section 27(1) of the Children Act provided for transmission of parental responsibility to a father and mother who were married or had subsequently married after the birth of the child. The section provided for the doctrine of survivorship in case of death of either parent where responsibility of the child was transferred to the surviving parent. There was nothing wrong with that provision as a surviving parent continued to have responsibility towards their child.

17. Section 27(2) of the Children Act provided for transmission of parental responsibility of unmarried parents when either parent died. It provided that the father could only take up responsibility after the death of the mother if he had acquired parental responsibility. That was against the principle of equal responsibility of parents under article 53(1) (e) of the Constitution which right could not be qualified for reason that the father had or had not acquired parental responsibility. Parental responsibility was automatic and self-activating on parents upon the birth of a child and fathers could not have the discretion of either accepting or rejecting that responsibility. It also meant that a parent who had not acquired parental responsibility could not do so after the death of the other parent. The section was therefore discriminatory to unmarried fathers on ground of marital status contrary to the provisions of article 27(4) of the Constitution.

18. Section 94 (1) of the Children Act implied that parents of children born out of wedlock had to assume parental responsibility before they could be ordered to pay maintenance towards their children. A parent could not opt out of parental responsibility. The section was in contravention of article 53 (1)( e) of the Constitution which commanded equal responsibility of the mother and father to provide for the child whether they were married to each other or not.

19. Section 102(1) of the Children Act  was inconsistent with the Constitution in so far as the father of a child born out of wedlock needed to ‘acquire parental responsibility’ for them to take up parental responsibility of the child upon the death of a mother. The Court reiterated the automation of parental responsibility upon birth of a child, and the said responsibility was not left to the discretion of either the father or mother. The section was in contravention of article 53 (1) (e) of the Constitution.

20. Section 158 4(b) of the Children Act was inconsistent with the Constitution in that in adoption proceedings it only provided for the consent of the parent or guardian of the mother of the child where the mother of a child born out of wedlock was a child but did not provide for the consent of the parents or guardian of the father where the father was a child. That was discriminatory on such fathers in that their parents or guardian were not required to give consent in adoption proceedings. The section was in contravention of articles 27(1) and 27 (4) of the Constitution on equality before the law.

21. Section 158 4(c) of the Children Act was inconsistent with the Constitution in so far as the father of a child born out of wedlock needed to ‘acquire parental responsibility’ for them to take up parental responsibility and be regarded as a father for purposes  of consenting to the adoption of the child.  The section was discriminatory on fathers who had not acquired parental responsibility. The section had the implication of treating fathers differently based on whether one had acquired parental responsibility which was against the spirit of article 27(1) on equal treatment before the law.

22. Sections 3(2) and 3(3) of the Law of Succession Act were inconsistent with the Constitution in so far as a child born out of wedlock was regarded as such if the father had expressly recognized or in fact accepted as a child of his own or for whom he had voluntarily assumed permanent responsibility. A parent’s responsibility to their child was mandatory and not discretionary.  The section was in contravention of article 53 (1)(e) of the Constitution which required parents to provide for their children whether they were married or not.

23. Section 12 of the Births and Deaths Registration Act was invalidated in L.N.W v Attorney General & 3 others [2016] eKLR. The instant Court was agreeable to the reasoning of the Court in that matter. Section 12 was inconsistent with article 27 and 53 of the Constitution.

24. When the High Court in L.N.W v Attorney General & 3 others [2016] eKLR invalidated the provisions of section 12 of the Births and Deaths Registration Act, it directed the Registrar of Deaths and Births to within 14 days put into place mechanisms to facilitate the entry into the birth register of names of  the father of children born outside wedlock.  That was the proper way to go.  Before such names were entered into the register there had to be some regulations in place.  The petitioner did not inform the court whether such regulations had been put into place.  An order for birth certificate to be issued to the children of the 1^st respondent indicating the name of their father could not issue before the law was amended to cater for that.

25. The mandate of the Court was to ascertain whether a law was inconsistent with the constitution or not.  The court did not supervise other courts of equal jurisdiction.  The instant Court could not issue prohibitory orders on other judges of the High Court.  Even though the Court had powers to supervise the Magistrates’ Courts, it could not issue orders that would be difficult to supervise or implement. 

26. The impugned sections of the Births and Deaths Registration Act, the Children Act and the Law of Succession Act should be amended to align them with the Constitution of Kenya 2010.

Declared Unconstitutional in 2017.

Republic v Cabinet Secretary, Ministry of Agriculture, Livestock & Fisheries & 3 Others Ex-Parte Council of County Governors & 2 Others

Miscellaneous Civil Application 291 and 314 of 2016

G V Odunga, J

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Brief Facts

In order to resolve the problems bedevilling the coffee sector, the President appointed a National Task Force on Coffee Sub-Sector Reform to look into the same and thereafter recommend to the President on how the problems could be comprehensively resolved. The Task Force Report was forwarded to the President, which was published as Legal Notice No. 120 (The Coffee (General) Regulations, 2016) in the Kenya Gazette Supplement No. 105 dated June 27, 2016.

The Applicants moved the Court for the Court to revoke both the Coffee (General) Regulations, 2016 (the Regulation) and the Task Force Report and to prohibit the1st – 3rd Respondents from implementing the same. The 1st Ex-parte Applicant contented that most of the pressing issues presented by farmers during the public hearing were omitted in the Report; that instead what was contained in the said Report were views of powerful personalities in coffee industry as opposed to ordinary farmers; that if the Report was implemented the way it was, its interest was likely to be prejudiced.

The 2nd Ex-parte Applicant contented that the impugned Regulations were issued without conducting meaningful and qualitative public participation or tabling the same in Parliament for subsequent approval as required under the Statutory Instruments Act; that the impugned Regulations provided for a very minimal role for counties yet agriculture was a fully devolved function. The interested party argued that since the Coffee (General) Rules 2002 stood revoked by virtue of section 21 of the Statutory Instruments Act, that in the public interests the impugned 2016 Regulations ought to be allowed to stand until properly promulgated regulations are made in order to enable the sector to run and players in the industry to carry on business uninterrupted.

According to the Respondents, the 1st Respondent had power to make Regulations for purpose of being placed before the National Assembly for discussion and not implementation; that the 1st Ex-parte Applicant was consulted during the drafting of the impugned Regulations; that the impugned Regulations were laid before Parliament; that there was adequate public participation with all stakeholders involved in the making of the impugned Regulations; that the instant application lacked merit in so far as the applicant sought to challenge the substance of the impugned Regulations as that was tantamount to challenging their merits which was beyond the scope of a judicial review court.

Held

It is therefore clear that the Association was accorded an opportunity of presenting its views. The Association however laments that its views were never taken into consideration in compiling the final report. In Minister of Health vs. New Clicks South Africa (PTY) Ltd (supra) the Court was clear that what is necessary is that the nature of the concerns of different sectors of the public should be communicated to the law-maker and taken into account in formulating the regulations. It enables people who will be affected by the proposals to make representation to the lawmaker, so that those concerns can be taken into account in deciding whether changes need to be made to the draft. In other words public participation is not just a formality and the views gathered in the process ought not to be considered as irrelevant. Whereas the authority is not bound by them, serious considerations must be given to them and must not just be disregarded as being inconsequential. In other words the authority ought not to make a decision and then conduct public participation simply for the purposes of meeting the constitutional mandate.

In this case no attempts have been made by the Respondents to show what material was collected from the Association, what was considered and what was disregarded leave alone the grounds upon which they were disregarded. I am therefore unable based on the evidence placed before me to find that the views given by the Association were in fact considered. The Court cannot simply assume that they were in fact considered. Whereas it is not for the Court to determine for the authority the views that should have carried the day, the authority ought to place before the Court material upon which the Court may find that it indeed considered the views presented to it.

Declared Unconstitutional in 2012.

 

Beatrice Wanjiku & Another v Attorney General & 3 others

Petition No. 190 of 2011

High Court, at Nairobi

D S Majanja, J

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Brief Facts

The Petitioners filed the instant Petition in the public interest and on behalf of those debtors found in their circumstances. The Petitioners sought a declaration that civil jail for debtors, violated, infringed or threatened rights and fundamental freedoms in the Constitution and human rights conventions. The Petitioners had decrees against them in several judgments in the subordinate courts and had been subjected to the process provided for committal to civil jail under the provisions of the Civil Procedure Act and the Civil Procedure Rules.

Held

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 prescincts. 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.

 

Isaac Ndegwa Kimaru & 17 others v Attorney General & another; Kenya National Human Rights and Equality commission (Interested Party) [2022] eKLR

Petition 226 Of 2020

High Court at Nairobi

AC Mrima, J

February 1, 2022

http://kenyalaw.org/caselaw/cases/view/227655/

Brief facts

The petition was a plea by and on behalf of persons who suffer from mental challenges and who were held in various prisons in Kenya at the pleasure of the president. Some of the inmates underwent full trial and at the end they were found to have been suffering from mental challenges at the time they committed the offences. Special findings were made that they were guilty but insane and were subsequently committed to be detained in prisons at the president’s pleasure.

Some inmates had not been tried or did not complete their trials on account of the mental challenges and the courts made like orders that they be held at the president’s pleasure in various prisons. The inmates petitioned the instant court challenging the constitutionality of the various provisions of the law providing for holding of inmates in prisons at the president’s pleasure.

The petitioners challenged the constitutionality of sections 162 (4) and (5), 166 (2), (3), (4), (5), (6) and (7) and 167 (1) (a), (b), (2), (3) and (4) of the Criminal Procedure Code, Chapter 75, Laws of Kenya. The petitioners contended that the impugned sections were contrary to articles 25(a), 27 (1), (2), (4), 28, 29(d) and (f), 50, 51(1) and (2), 159(2)(a), (b) and (d) and 160(1) of the Constitution of Kenya. The petitioners asked the court to, inter alia declare sections 162 to167 of the Criminal Procedure Code unconstitutional to the extent that it occasioned inhuman and degrading treatment against persons living with disabilities and in violation of articles 28, 29 and 54 (1)(a) of the Constitution

The 1^st respondent did not participate in the proceedings despite being duly served. The 2nd respondent opposed the petition failed to demonstrate how their rights and fundamental freedoms were violated by the 2nd respondent. The 2nd respondent asked the court to dismiss the petition.

Held

Sections 162, 163, 164, 166 and 167 of the Criminal Procedure Code, Cap. 75 of the Laws of Kenya (the CPC) related to the power of the Presidency to hold inmates in prisons at its pleasure. The exercise of that power arose in two ways: It could be during the trial of an accused in a criminal case or at the conclusion of a criminal trial. The exercise of the power to hold accused persons at the pleasure of the president pending or during trial was provided for under sections 162, 163, 164 and 167 of the CPC whereas the power to hold the accused persons at the pleasure of the president after conviction, but before sentence, was provided for under sections 166 of the CPC.

Courts had previously dealt with the subject of the instant petition. The subject of the constitutionality of the impugned sections had been severally litigated. Those courts had found that the provisions were unconstitutional. Therefore, the instant court could not attempt to re-invent the wheel. The impugned sections were unconstitutional.

The impugned sections were a threat to the doctrine of separation of powers and the independence of the Judiciary. When the Executive had legal access to undertake and discharge judicial functions of the Judiciary, then there could be no more threat to the doctrine of separation of powers and the independence of the Judiciary than that. That could only be the height of the sequestration of the Judiciary. Previous court decisions had warned against such scenario.

While the Constitution provided for several State organs, including commissions and independent offices, the people’s sovereign power was vested in the Executive, Legislature and Judiciary. The broad principle of separation of powers incorporated the scheme of checks and balances; but the principle was not to be applied in theoretical purity for its ultimate object was good governance, which involved phases of co-operation and collaboration, in a proper case.

The system of checks and balances served the cause of accountability, and it was a two-way motion between different State organs, and among bodies which exercised public power. The commissions and independent offices restrained the arms of Government and other State organs, and vice versa. The spirit and vision behind separation of powers was that there be checks and balances, and that no single person or institution should have a monopoly of all powers. The foregoing, therefore, ring-fenced the independence of the Judiciary and the doctrine of separation of powers such that no one arm of the government ate into the fabric of the other.

There was a distinction between the impugned sections and the exercise of the power of mercy in article 133(1) of the Constitution. The two were crystal different and needed no more elaboration. The exercise of the power under the impugned sections ran from the time a person was charged before a court of law until the conviction, but awaiting sentence. The impugned sections, therefore, dealt with the procedural aspects of the trial.

The exercise of the power of mercy under article 133(1) of the Constitution only came to the fore after an accused had been sentenced by the Court. The powers gave discretion to the president to exercise leniency on the sentence meted out against a convicted person. That was only after the Judiciary had fully exercised its judicial functions in a criminal case.

The two sets of powers ran parallel, the argument that article 133(1) of the Constitution was a basis for sustaining the impugned sections could not hold.

Article 260 of the Constitution defined disability to include any physical, sensory, mental, psychological or other impairment, condition or illness that had, or was perceived by significant sectors of the community to have, a substantial or long-term effect on an individual’s ability to carry out ordinary day-to-day activities. The Persons with Disabilities Act, No. 14 of 2003 defined as a physical, sensory, mental or other impairment, including any visual, hearing, learning or physical incapability, which impacted adversely on social, economic or environmental participation.

Under the impugned sections, a court was supposed to carry out an inquiry as to soundness of mind of an accused before making the order of detention at the president’s pleasure. Upon carrying out the inquiry, the court ought to have been satisfied that the accused person was either unable to follow or understand the proceedings due to the state of the mind or that the accused was guilty but insane at the time of committing the offence. Once the court made the determination aforesaid, it then made an order for the detention of the accused at the president’s pleasure.

An accused who was ordered to be detained at the president’s pleasure fell under the category of persons with disabilities. Such persons were entitled to the protection under article 54 of the Constitution, part III of the Persons with Disabilities Act and any other relevant law.

An accused who was found to be unfit to stand or to continue participating in a criminal trial due to mental challenges or an accused person who was tried and a special finding of guilty but insane made, was a person with disability and ought to be accorded the necessary protection and assistance required under the Constitution and the law. Such a person was sick and a sick person's place was at the hospital and not in prison.

Sections 162 (4) and (5), 166 (2), (3), (4), (5), (6) and (7) and 167 (1) (a), (b), (2), (3) and (4) of the Criminal Procedure Code contravened articles 25(a), 27 (1), (2), (4), 28, 29(d) and (f), 50, 51(1) and (2), 159(2)(a), (b) and (d) and 160(1) of the Constitution.

There were thousands of inmates detained in various prisons in Kenya at the president’s pleasure and that such a state of affairs strained the meagre resources allocated to the Kenya Prisons Service. For instance, the 11^th petitioner in the instant matter was aged 70 years. He had been in detention since October 5, 2010 when a special finding was made against him and had never undergone any medical assessment, review or treatment since then. That was a period of 12 years. There was also the 9^th petitioner who was aged 58 years who had been held at Kamiti Maximum Prison at the president’s pleasure since taking plea on April 19, 2012. He had never been tried and never had he been reviewed or received any medical assistance. That was a period of 10 years.

Despite the impugned sections being declared unconstitutional long ago, the Criminal Procedure Code had not been amended so as to align the statute with the Constitution and in line with the various decisions. There was, therefore, need for taking further steps towards attaining that end.

The detaining of persons facing criminal trials or having been tried and special findings made that they were ‘guilty but insane’ in prisons at the president’s pleasure pursuant to sections 162 (4) and (5), 166 (2), (3), (4), (5), (6) and (7) and 167 (1) (a), (b), (2), (3) and (4) of the Criminal Procedure Code or under any other law constituted a threat to the doctrine of separation of powers and the independence of the Judiciary.

An accused who was found to be unfit to stand trial or to continue participating in a criminal trial due to mental challenges or an accused who was tried and convicted of a criminal offence, but was found insane at the time of committing the crime was a person with disability and ought to be accorded the necessary protection and assistance required under the Constitution and the law.

The persons who were detained in prison facilities in Kenya under the president’s pleasure ought to be arraigned before the courts which committed them and the courts ought to take charge of those persons and make appropriate orders and directions.

Petition allowed; no orders as to costs.

Orders

i. A declaration was issued that detaining of persons with mental challenges who were facing criminal trials or who had been tried and special findings made that such persons were ‘guilty but insane’ in prisons at the president’s pleasure pursuant to sections 162 (4) and (5), 166 (2), (3), (4), (5), (6) and (7) and 167 (1) (a), (b), (2), (3) and (4) of the Criminal Procedure Code or under any other law constituted a threat to the doctrine of separation of powers and the independence of the Judiciary.

ii . A declaration was issued that sections 162(4) and (5), 166 (2), (3), (4), (5), (6) and (7) and 167(1)(a), (b), (2), (3) and (4) of the Criminal Procedure Code or any other law providing for the detaining of any person with mental challenges who faced a criminal trial or had been tried and a special finding made that such a person was ‘guilty but insane’ at the president’s pleasure contravened articles 25(a), 27(1), (2), (4), 28, 29(d) and (f), 50, 51(1) and (2), 159(2)(a), (b) and (d) and 160(1) of the Constitution. Such provisions were declared unconstitutional, null and void.

iii . A declaration was issued that an accused who was found to be unfit to stand trial or to continue participating in a criminal trial due to mental challenges or an accused person who was tried for a criminal offence, and was found to have been insane at the time of committing the crime was a person with disability and ought to be accorded the necessary protection and assistance required under the Constitution and the law.

iv . A declaration was issued that no court of law should commit any person facing a criminal trial found to suffer from mental challenges to any prison facility in Kenya to be detained under the president’s pleasure pursuant to any law.

v . A declaration was issued that no prison facility in Kenya should accept and detain any person found to suffer from mental challenges under the president’s pleasure. For clarity, a prison facility should only accept such persons with mental challenges committed to the facility under the orders of the court which orders should not include any order to hold such persons under the president’s pleasure.

vi. A declaration was issued that any continued detention of persons with mental challenges who were facing criminal trials or who had been tried and special findings made that such persons were ‘guilty but insane’ and that they were to be detained at the of the president’

vii . A declaration was issued that the Advisory Committee on the Power of Mercy established under article 133 of the Constitution had no jurisdiction to deal with persons with mental challenges who were facing criminal trials or who had been tried and special findings made that they were ‘guilty but insane’ until such a time when such persons were sentenced by courts of law.

viii. An order was issued that any prison facility in Kenya holding any person with mental challenges facing a criminal trial or who had been tried and a special finding made that such a person was ‘guilty but insane’ and be detained at the president’s pleasure should make arrangements and arraign such a person before the Court that committed the person to the prison facility.

ix . Once any person with mental challenges facing a criminal trial or who had been tried and a special finding made that such a person was ‘guilty but insane’ was arraigned before Court pursuant to order (h) above, the court should make appropriate orders and directions upon taking into account the mental status of the accused and the period the accused had been detained in prison at the president’s pleasure.

x. In the event the prison facility was unable to arraign such a person before court as ordered in order (viii) above, the facility should immediately so inform the court and the court should make appropriate orders and directions as it deemed fit.

xi . The Honourable Deputy Registrar of the Constitutional and Human Rights Division of the High Court was directed to, within 14 days of the instant decision, transmit copies of the instant judgment to the parties in the instant matter as well as to the Commissioner-General of the Kenya Prisons Service, the Speaker of the National Assembly, the Registrar of the High Court and the Registrar of the subordinate Courts. The Speaker of the National Assembly was directed to take steps towards ensuring that the impugned sections of the Criminal Procedure Code, Cap. 75 of the Laws of Kenya were aligned with the Constitution and in terms of the instant judgment.

xii . The Speaker of the National Assembly had to file an Affidavit in the instant court on the status of implementation of the instant judgment in the next 12 months.

xiii . The Honourable Deputy Registrar was directed to, at the expiry of 12 months from the delivery of the instant judgment, fix the instant matter before court for appropriate directions.

Declared Unconstitutional in 2016.

 

Hassan Hussein Yusuf v Republic

Criminal Appeal 59 of 2014

High Court, at Meru

Kiarie Waweru Kiarie J

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Brief Facts

The Appellant was Charged with an offence of breaking into a building and committing a felony contrary to section 306(a) of the Penal Code and was tried and convicted but at the time of sentencing, the Court realised  that he was of unsound mind. When the psychiatrist confirmed that indeed he was mentally unstable, it was ordered that he be detained at the prison at the president's pleasure. He appealed against the conviction and the order of detention at the President’s pleasure.

 

Held

A sick person's place is at the hospital and not in prison. I find section 167 of the Criminal Procedure code discriminative to people with mental illness for prescribing their detention to be in prison instead of a health facility and for the detention to be indeterminate. This offends articles 25 and 29 (f) of the Constitution… It is my opinion that keeping a sick person for an indeterminate period in a prison is cruel, inhuman and degrading treatment.

Kenya Human Rights Commission v Attorney General & another
Constitutional Petition No 87 of 2017
E C Mwita, J
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Brief facts

The petitioner challenged the constitutionality of the Contempt of Court Act. It said that in purporting to limit the powers of the Court to punish for contempt, it took away power from the courts and eroded their independence. The petitioner added that the Act violated the constitutional principle wherein judicial power was vested in the judiciary and that the Act was enacted without public participation.

Specifically, the petitioner said that section 10 of the impugned Act was vague and it denied a contemnor defences available under the Act and it was therefore a violation of the right to a fair hearing. Section 30 of the Act, according to the petitioner, in shielding accounting officers of state organs and government departments, ministries or corporations by requiring courts to issue a show cause notice of not less than 30 days before contempt proceedings were commenced against them, violated the right of access to justice. Further, the petitioner faulted section 10 of the Act for creating inequality by providing that no state officer should be convicted for contempt for execution of his duties in good faith.

The petitioner said that section 34 of the Act limited the right to a fair hearing by stating that the limitation period for contempt proceedings was 6 months. Also, the petitioner contended that in disallowing proceedings for contempt in relation to decisions made by speakers in the performance of their official responsibilities, the Act elevated speakers above the law.

Held

1. Article 10(1) of the Constitution provided for public participation as one of the national values and principles of governance. In enacting the impugned Act the national assembly was bound to observe the principle of public participation as well as the principle of transparency and accountability. Under article 118 of the Constitution, Parliament was to conduct its business in an open manner and its sittings including the sittings of its committees were to be open to the public. Additionally, parliament should facilitate public participation and the people's involvement in its legislative work and other business including those of its committees.

2. Where a petitioner made an allegation that a statute was enacted without public participation, the respondent was under a legal duty to demonstrate that the legislative process met constitutional standards of public participation. Since it was parliament's duty to ensure that there was public participation, the Attorney General, as the respondent had the legal burden to disprove the contention.

3. The respondent merely stated orally that there was public participation and asked the Court to look at the entire legislative process undertaken in enacting the impugned Act and showed that the impugned Act was published on July 22, 2016. The respondent did not do anything or adduce any other evidence to demonstrate that public participation requirements were complied with during the enactment of the Act. The publication of the Act did not amount to public participation within the terms of article 118(1)(b).

4. Public participation had to include and be seen to include the dissemination of information, invitation to participate in the legislative process and consultation on legislation. The people had to be accorded an opportunity to participate in the legislative process and that was a question of fact to be proved by the party which was required to comply with the constitutional requirement of public participation.

5. Public participation was an important segment of the legislative process. There was no attempt by the respondent to show that there was public participation in the process leading to the enactment of the impugned Contempt of Court Act.

6. There was a general rebuttable presumption that a statute or statutory provision was constitutional and the person alleging unconstitutionality had the burden of proving that the statute or its provisions were constitutionally invalid. That was because the legislature as the people's representative was presumed to understand the problems that the people they represented faced.

7. One of the key principles in determining the constitutional validity of a statute was examining the statute's purpose or effect. The purpose of enacting legislation or the effect of implementing legislation could lead to the nullification of the statute or its provisions if it was found to be inconsistent with the Constitution.

8. The long title of the Contempt of Court Act stated that it was intended to define and limit the powers of the Court in punishing for contempt of court. That long title seemed to contradict section 3 of the Act which stated that the objectives of the Act were to uphold the dignity and authority of the Court, ensure compliance with directions of the Court, observance and respect of the process of law, preserve an effective and impartial system of justice and maintain public confidence in the administration of justice as administered by the Court.

9. Section 4 of the impugned Act defined both civil contempt and criminal contempt. Civil contempt was the wilful disobedience of any judgment, decree, directive, order or other process of court or wilful breach of an undertaking given to a court whereas criminal contempt was publication in any form whether by spoken or written words, visible signs or representation or conduct which tended to scandalize or lower the judicial authority of the Court or something that prejudiced or interfered with the course of justice.

10.Disobedience and disregard of the authority of the courts would violate national values and the Constitution. In that regard, courts punished for contempt in order to maintain their dignity, authority, the rule of law, democracy and administration of justice as foundational values in the Constitution.

11.Courts, under article 159 of the Constitution, made decisions for and on behalf of the people and those decisions had to be respected and obeyed in order to enhance public confidence in the judiciary and the preservation of constitutional democracy.

12.Courts would punish contempt to insulate its processes for purposes of compliance to its orders so that the rule of law and administration of justice would not be undermined. Without that power or where it was limited or diminished, the court would be left helpless and its decisions would mean nothing.

13.Courts had inherent power to punish for contempt. That power was part of the residual authority that courts were endowed with and it was not granted by statute. Courts used it to ensure that the ends of justice were met in the protection of society. Statute should only provide for how that power would be applied and it should make courts more effective but not limit their power.

14.Inherent power was the authority possessed by a court implicitly without it being derived from the Constitution or statute and that power enabled the judiciary to deliver on its constitutional mandate. Under article 159 of the Constitution, judicial authority was derived from and vested in the people and exercised on their behalf by courts and tribunals established by or under the Constitution. Therefore, the judiciary served the public and made pronouncements for and on behalf of the people. The powers of the Court had to be viewed in light of article 2(1) of the Constitution, and therefore any attempt to limit power to punish for contempt violated a foundational constitutional value on judicial authority. Any legislation on contempt had to be in addition to but not in derogation of the Constitution and derogation would be unconstitutional.

15.The fact that the principle aim of the impugned Contempt of Court Act was to limit the power of courts to punish for contempt violated the letter and spirit of the Constitution. The Act could only aid but not stifle that power.

16.Section 10 of the Act created strict liability contempt so that conduct would be treated as a contempt of court for tending to interfere with the course of justice in particular legal proceedings regardless of the intention to do so. The strict liability rule was applicable only to publications, including any speech, writing, broadcast or any other form of communication that was addressed to the public and only to publications relating to proceedings that were actively before court which created a substantial risk that could seriously impede or prejudice the course of justice. The provision aimed to protect the course of justice and it did not interfere with freedom of expression. It protected the integrity of judicial proceedings and the rights of those before the courts. Freedom of expression was not absolute and it could be limited to protect the right of others not to be vilified. The freedoms of others and the administration of justice were more important than the enjoyment of one's own freedoms.

17.The limitation of the right to a fair hearing that section 10 of the impugned Act entailed was justifiable. Judicial officers would not be swayed by what they heard about a given party but the general public would be and that could prejudice the right to a fair trial. Restricting such publications as was done in section 10 of the Act ensured the right to an unbiased and fair public hearing. The limitation was justifiable in an open and democratic society.

18.Section 19 of the impugned Act prohibited electronic recording of court proceedings by parties to the suit or case and made that recording a form of contempt of court. If one sought to record proceedings, provision was made for the court to exercise discretion whether to grant that leave. Recording court proceedings would not advance the right to a fair trial. It was not necessary to record proceedings and failure to record proceedings would not infringe on the parties' rights.

19.Section 30(1) of the Act provided that if a state organ, government, department, ministry or corporation was guilty of contempt, the Court should serve a 30 days’ notice on the accounting officer requiring the accounting officer to show cause why contempt proceedings should not be commenced against him/her. The maximum fine for such officers for contempt of court was set at two hundred thousand Kenya shillings. Further the Act provided under section 30(6) that no state office would be convicted for contempt of court for execution of his duties in good faith. The provisions of section 30 were discriminatory and aimed at hampering the Court's ability to enforce its processes for the benefit of those it had awarded. There was no legitimate, reasonable or justifiable government purpose to be served by that differential treatment accorded to public officers as opposed to private citizens under the impugned provision.

20.The fine imposed in section 30 of the Act was clearly protectionist in favour of government officials yet they could commit similar offences as other citizens. That was a form of unjustifiable discrimination that was outlawed by the Constitution.

21.One could not act in good faith in wilfully disobeying or disrespecting court orders. Good faith could not be a defence for contempt of court. Section 30 of the impugned Act was therefore unconstitutional.

22.Section 34 of the Act provided for 6 months as the limitation period for instituting contempt proceedings. Limitation periods served public interest. People were expected to pursue their claims with reasonable diligence and the lapse of time could mean that crucial evidence could be lost. The 6 months limitation period would not hinder the course of justice.

23.Limitation periods had the purpose of ensuring that litigation was brought to a quick conclusion. Where a court order was violated, an aggrieved party could not wait for six months to commence contempt proceedings as in waiting for that long the aggrieved party would be deemed to have condoned the contemptuous act. There was no unconstitutional purpose or effect in the limitation period provided for in section 34 of the Act.

24.Section 35 of the impugned Act disallowed the initiation of contempt proceedings in relation to a decision made or directions given by a speaker of a house of parliament in the performance of his or her official responsibilities. Courts punish for deliberate and wilful disobedience of their orders or processes and not for the mere discharge of duties or functions. The power to punish for contempt of court was a constitutional power and section 35 in so far as it attempted to limit that power was inconsistent with the Constitution and invalid.

Kelly Malenya v Attorney General and another;

Council of Governors (Interested Party) [2019] Eklr

High Court at Nairobi

E C Mwita, J

Download the Decision

Brief Facts:

The petitioner challenged the constitutionality of certain provisions of the Community Land Act (Act) stating that: section 2 of the Community Land Act defining community land extended beyond that given by the Constitution; that section 8(4) of the Act which provided that the Cabinet Secretary would issue a public notice of intention to survey, demarcate and register community land left out the county governments; that section 9 placed a function that fell under the county governments under the control of the central government through the Chief Land Registrar who appointed a registrar for community land without involving the county government.

The petitioner further stated that section 15 of the Act failed the constitutional muster of validity as it created an amorphous body known as the community assembly without providing how the assembly would be identified; that under section 21 of the Act, community land could be converted into some other forms of land, a role exercised by the assembly; that sections 38 failed constitutionally for introducing other criteria for qualifying and limiting the right to property for communities other than as contemplated by articles 24 and 40 of the Constitution of Kenya, 2010 (Constitution). Finally, there was a challenge to the constitutionality of section 48 of the Act as it gave the Cabinet Secretary mandate to formulate regulations which was a role of the county governments.

The petitioner sought reliefs that: a declaration or order that sections 2 and/or 6 and 8(4) (6) and/or 9 and/or 11 and/or 15 and/or 21 and/or 38 and/or 48 of the Community Land Act were unconstitutional; and an order of suspension of sections 2 and or 6 and or 8(4) (6) and/or 9 and /or 15 and/or 38 and/or 48 of the Community Land Act.

The respondents on the other hand contended that the provisions of the Act were constitutional; that the petition had not met the threshold of constitutional petitions for failing to set out with reasonable degree of precision the provisions infringed and the manner of infringement.

Held:

Section 2 had two ways of defining community land, namely; land as defined in article 63(2) of the Constitution or land converted into community land under any law. From the definition, community land was land that fell within the categories mentioned in article 63(2), was held and used by communities, and or trust land held by the county governments.

Institute for Social Accountability & another v National Assembly & 5 others

Petition 1 of 2018
Supreme Court of Kenya

MK Koome, CJ; PM Mwilu, DCJ; SC Wanjala, NS Ndungu and W Ouko SCJJ

 
Brief facts
Aggrieved by the enactment of the Constituencies Development Fund Act, 2013 (CDF Act, 2013) and the Constituencies Development Fund (Amendment) Act No. 36 of 2013 (CDF Act, 2013), two petitions, which were consolidated, were filed at the High Court by the appellants. The consolidated petitions challenged the constitutionality of the CDF Act 2013. The High Court determined that the CDF Act, 2013 was unconstitutional and held that  the CDF Act, 2013, was passed without the involvement of the Senate. The High Court established that the constituencies development fund (CDF) was not a conditional grant to the county governments within the meaning of article 202(2) of the Constitution of Kenya, 2010.The High Court also held that the CDF Act, 2013, violated the division of functions between the National and County Government, the court found that in as much as the National Government was free to infiltrate its policies at the county levels, it had to do so through the structures recognized under the Constitution and those that did not run parallel to them. The court also noted that charging the CDF with implementing local development projects under section 22 of the CDF Act, 2013, upset the division of functions between the two levels of government. Aggrieved with the judgment of the High Court, the 1st and 4th respondents filed appeals at the Court of Appeal. The appellants raised a preliminary objection to the appeals challenging the Court of Appeal’s jurisdiction on the ground of the doctrine of mootness. They urged that the appeals had been rendered moot following the repeal of the CDF Act, 2013 and the enactment of the National Government Constituencies Development Fund, 2015 (NGCDF Act, 2015). The Court of Appeal partially allowed the appeals, by declaring sections 24(3)(c), 24(3)(f), and 37(1)(a) of the CDF Act, 2013 unconstitutional and invalid for violating the principle of separation of powers. The court also overturned the declaration, that the CDF Act, 2013, was unconstitutional in its entirety. The Court of Appeal also held that the NGCDF Act, 2015, did not expressly repeal the CDF Act, 2013. Dissatisfied with the Court of Appeal’s decision, the appellants filed the instant appeal. The 1st respondent also filed a notice of cross-appeal in the instant court.
Held

Appeal allowed; cross-appeal dismissed.
Orders

Senate & 48 others v Council of County Governors & 54 others [2019] eKLR

Court of Appeal at Nairobi

P N Waki, P O Kiage, S K Gatembu, F Sichale, J O Odek, JJA

Brief facts:

Parliament enacted the County Government (Amendment) Act, 2014 (the Act) and established County Development Boards (CDB) in each of the 47 counties in Kenya. The Act was assented to by the President July 30, 2014 and came into effect on August 18, 2014. The Act amended the County Government Act, 2012. Through the Act, section 91A was introduced into the County Government Act, 2012 establishing for each county a CDB. The CDB were to comprise, inter alia, members of the national assembly representing constituencies within respective counties, members of county assemblies, as well as members of the executive operating within respective counties, and were to be chaired by the senator from the county.

Aggrieved by the enactment of the Act, more specifically the establishment of the CDB, its composition and functions, the respondents filed a constitutional petition against the appellants at the trial court. In the petition, it was contended, among others, that the Act was unconstitutional, null and void as it was enacted in violation of various provisions of the 2010 Constitution and that the Act violated the functional distinctness of national and county governments.

The appellants opposed the petition, reiterating among others, that section 91A of the Act did not violate any constitutional article as alleged and that the senate had the mandate to represent and protect the interests of the counties and their governments. After hearing the petition, the trial court declared the Act unconstitutional, null and void. Aggrieved by the declaration of unconstitutionality of the Act, the appellants lodged the instant appeal, arguing among others, that the trial court erred in declaring the Act unconstitutional, null and void without specifying the particular articles of the Constitution which were inconsistent with the Act.

Held

Declared Unconstitutional in 2017.

 

Seventh Day Adventist Church (East Africa) Limited V. Minister for Education and 3 Others

Civil Appeal No. 172 of 2014

Asike-Makhandia, W. Ouko & K. M’Inoti, JJA

 

Brief Facts

The Appellants were alleging that since 2011, a number of public schools had increasingly curtailed the right of their students (SDA students) who fellowship as Seventh Day Adventists their freedom of worship. That was done by failing to accommodate the religious practices of the church and allowing the SDA students to worship and fellowship in keeping with their religious beliefs and practice by observing the Sabbath between sunsets on Friday to sunset on Saturday. They instituted an action against the Minister for education and Attorney General. The Appellant’s prayer for a declaration that the rights of the affected students under article 32 of the Constitution and section 26 of the Education Act (repealed) had been violated was dismissed by the High Court/trial Court. However, the High Court/trial Court ordered the 1^st Respondent to immediately promulgate appropriate regulations under section 19 of the Education Act to actualize the rights of the students under Article 32 of the Constitution and section 26 of the Education Act, or in the alternative that directions be issued under section 27 of the Education Act to compel the schools to respect the rights of students under Article 32 of the Constitution and section 26 of the Education Act. Aggrieved by the denial of some of its prayers, the Appellant filed the instant suit challenging the trial court’s decision.

 

Held

There was need to expand the scope of freedom of religion in public schools; that to redress that perennial controversy as a country we needed, like the other jurisdictions where religious rights had been embraced in schools, to seriously consider how those rights and fundamental freedoms could be actualized by providing in the law or regulations or by executive directive in form of a policy directive, for accommodation of various religious beliefs and practices. The Cabinet Secretary for Ministry of Education was ordered to comply with the Court of Appeal’s order to promulgate appropriate regulations or issue appropriate circular within one (1) year from the date of the judgment.

Wambui & 10 others v Speaker of the National Assembly & 6 others

Constitutional Petition 28 of 2021 & Petition E549, E077, E037 & E065 of 2021 (Consolidated)

High Court at Nairobi

AC Mrima, J

April 13, 2022

 

http://kenyalaw.org/caselaw/cases/view/231836/

Brief facts

The consolidated petitions variously challenged the constitutionality of section 22(1)(b)(i) of the Elections Act as introduced by an amendment through the Election Laws (Amendment) Act, No. 1 of 2017 (the impugned provision). The impugned provision provided for a university degree qualification as a pre-condition to nomination for election and/or political party lists for Members of Parliament.

The petitioners claimed that the impugned provision was unconstitutional for violating various articles of the Constitution such as articles 10(2), 24, 27, 38(3) and 56 on the national values and principles of governance, limitation of rights and fundamental freedoms, equality and freedom from discrimination, political rights and minority and marginalized groups respectively. The respondents argued that the consolidated petitions were res judicata, that the impugned provision enjoyed the presumption of constitutionality and that there was no evidence to show that the impugned provision was unconstitutional.

Held

1. The doctrine of res-judicata was a jurisdictional issue. It went to the root of a dispute and had to be considered at the earliest opportunity. The decisions in John Harun Mwau v Independent Electoral and Boundaries Commission & another [2013] eKLR and Johnson Muthama v Minister for Justice and Constitutional Affairs & another [2012] eKLR did not deal with section 22(1)(b)(i) of the Elections Act which was the subject of the consolidated petitions. The consolidated petitions challenged an amendment passed in 2017 whereas the earlier decisions dealt with some other amendments passed earlier on.

2. The issues in the consolidated petitions were non-existent before 2017. It could only be illogical to sustain an argument that the non-existent matter was settled way before it arose. The only forum which presented itself for a possible adjudication of the issues raised in the consolidated petitions was the case in Okiya Omtatah Okoiti & Another v Attorney General & Another, Petition No. 593 of 2013 [2014] eKL. However, the court declined jurisdiction and the matter was not fully and finally determined. The consolidated petitions were not res judicata.

3. Article 119 of the Constitution was not intended to take away the right of a party to question the constitutionality of an Act of Parliament, or indeed any action taken by the Legislature, guaranteed under articles 22 and 258 of the Constitution. Article 119 could not also be taken as ousting the jurisdiction of the court under article 165(3)(d) of the Constitution to determine any question respecting the interpretation of the Constitution, including the question whether any law was inconsistent with or in contravention of the Constitution, or under article 165(3)(d)(iii), to determine any matter relating to constitutional powers of State organs in respect of county governments and any matter relating to the constitutional relationship between the levels of Government.

4. The petitioners contended that the National Assembly in passing the amendment that resulted to the impugned section 22(1)(b)(ii) of the Elections Act did not act within the Constitution. That was very different from the Parliament’s power to reconsider and possibly amend or repeal the impugned provision. In any event, there was no proposition that the decision of Parliament on the public petitions presented before Parliament concerning the constitutionality of section 22(1)(b)(i) of the Elections Act was binding on the court. Courts had to remain vigilant and cautious when wading through such waters and ensure that the courts did not infringe upon the doctrine of separation of powers. The contention that the consolidated petitions were caught up by the doctrine of ripeness failed and was dismissed.

5. The Constitution was a document sui generis. It was the ultimate source of law in the land. It commanded superiority and dominance in every aspect and its interpretation as of necessity had to be in a manner that all other laws bowed to. As provided by article 259, the Constitution should be interpreted in a manner that promoted its purposes, values and principles; advanced rule of law, human rights and fundamental freedoms and permitted development of the law and contributed to good governance. The spirit and tenor of the Constitution had to preside and permeate the process of judicial interpretation and judicial discretion.

6. The Constitution had to be interpreted broadly, liberally and purposively so as to avoid the austerity of tabulated legalism. The entire Constitution had to be read as an integrated whole and no one particular provision destroying the other but each sustaining the other as to effectuate the great purpose of the instrument (the harmonization principle). Those principles were not new and also applied to the construction of statutes.

7. There were other important principles which applied to the construction of statues which, also applied to the construction of a constitution such as;

8. The dominant perception at the time of constitution-making was that such the deconcentration of powers would open up the scope for political self-fulfillment, through an enlarged scheme of actual participation in governance mechanisms by the people thus giving more fulfilment to the concept of democracy.

9. According to the Constitution, it was not wrong for a statute to limit a right or fundamental freedom. However, what stood out was the requirement that the limitation had to pass the test in article 24. In other words, a permissible limitation had to be reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom. In determining whether a statute passed such a test, the Constitution provided several factors to be considered. Some of them were captured in article 24(1).

10. The 2019 Kenya Population and Housing Census Report (the Report) was part of the evidence in the consolidated petitions. The Report was not in any way controverted neither was there any other contradictory evidence. Since the Report was a public document and which remained uncontested, and the court adopted it as admissible evidence in accordance with Part IV of the Evidence Act, Cap. 80 of the Laws of Kenya. With such uncontroverted evidence, the impugned provision would have adverse effects on the representation of the people at the constituency level. Indeed, unless the contrary was proved, which was not, the impugned provision had the effect of rendering some sub-counties without representation in Parliament.

11. Section 3 of the Kenya National Qualifications Act gave the guiding principles of the national framework as, among others, to promote access to and equity in education, quality and relevance of qualifications, evidence-based competence, and flexibility of access to and affordability of education, training assessment and qualifications. Sections 3, 4 and 6 of the Act revealed the position that the law recognised other modes of qualifications further to the convectional ones. The law established the manner in which relevant qualifications could be awarded to a person. Such qualifications could, in appropriate instances, be equated to convectional degrees. There was, therefore, a law which attained the same purpose as the impugned provision.

12. The danger posed by the impugned provision was that it tended to disregard any other qualification, but for a university degree. It, therefore, rendered the provisions of the National Qualifications Act inapplicable in the election of Members of Parliament. The National Qualifications Act accorded a less restrictive means to achieve the very purpose aimed at by the impugned provision. The National Qualifications Act did not constrict the number of those who could contest for the positions of Members of Parliament to convectional degrees’ holders, but widened the cage to a holder of any other relevant qualification. The National Qualifications Act recognised the truism that a person could, through other qualifications, attain an equivalent of a university degree. The impugned provision was irrational, unreasonable and unjustifiable in an open and democratic society.

13. Although the Petitioners did not state the average cost of obtaining a degree qualification in Kenya, the cost was not within the reach of the majority of Kenyans. The prevailing situation which the court took judicial notice of was that most Kenyans were literary surviving from hand to mouth with the wealthy few increasing their insatiable appetite for more by the day. Subjecting all the candidates for the positions of Members of Parliament to a minimum of university degrees at once, therefore, highly prejudiced the rights and fundamental freedoms of those who were not able to directly acquire the university degrees.

14. It was submitted that the covid-19 pandemic interfered with the university academic programmes such that there were those students who were to graduate before 2022, but for the pandemic. If such a group of persons was to be left out on account of the impugned provision, then they stood unfairly discriminated against and yet the effects of the pandemic were way far beyond the world’s control. Such a class of university students would stand discriminated if the impugned provision stood.

15. The impugned provision did not augur well with several constitutional provisions. For instance, it did not pass the test of limitation in article 24 of the Constitution. The impugned provision was, hence, an affront to the Constitution. Further, the impugned provision offended article 27 of the Constitution to the extent that it, unfairly and without justification, discriminated on the basis of educational qualifications.

16. The impugned provision failed to treat every person equal before the law. Whereas the law recognised equivalent qualifications, the impugned provision outrightly disregarded that and firmly settled for only convectional university degrees. The impugned provision also fails to take into account the category of the people who, while already admitted into the university, could not graduate before 2022 as a result of the effects of the global covid-19 pandemic.

17. Article 38(3) of the Constitution was infringed to the extent that the impugned provision placed unreasonable restrictions to the exercise of political rights. The impugned provision likewise failed to take into account the dictates in article 56 of the Constitution regarding the rights of the minority and marginalised groups.

18. The impugned provision was not well thought out. To equate the academic qualifications of all elective positions in Kenya at par, without any differentiation, without regard to the different attending responsibilities and by disregarding the different remuneration and benefits, the impugned provision ran contra several provisions of the Constitution. There was the need for the impugned provision to be relooked at, at least with a view of taking into account the need for differentiated qualifications and in keeping with the prevailing and targeted social, economic and educational realities in Kenya.

19. Participation of the people was a national value and principle of governance that was introduced in Kenya by article 10 of the Constitution. All the respondents as well as the interested party did not seriously contest the claim that there was no public participation in the process towards the enactment of the impugned provision. However, the 3^rd and 4^th respondents contended that on receipt of the Bill, the same was committed to the Committee on Justice and Legal Affairs and that the Committee called for and received memoranda from the National Gender and Equality Commission, Kenya National Commission on Human Rights, Kenya Law Reform Commission and Centre for Multi-Party Democracy.

20. Public participation was an irreducible minimum in the process of enacting any legislation. Parliament had to always strictly adhere to the requirement of and carry out adequate public participation for any of its legislations to gain legitimacy. For Parliament to have come up with an enactment in the nature of the impugned provision, there was need for elaborate and comprehensive public participation and stakeholder engagement.

21. There was need for Parliament to consider national statistics, to consult with experts in devolution and educational matters and to generally be alive to the truism that the impugned provision had to always be in tandem with the various realities in Kenya. Parliament was then to balance all that with the right to representation. Unfortunately, Parliament chose to ignore all that and the Senate only received presentations from some few entities which in any case the manner of invitation was not disclosed. Given the appalling state of affairs, there was no meaningful public participation towards the enactment of the impugned provision. The impugned provision fell short of the constitutional requirement under article 10(2)(a) of the Constitution.

22. Section 22 of the Elections Act was omitted and it had to have been for good reason. The then law was unsettled since the provision was being challenged in court and before Parliament and as such there was need to avoid confusion in the qualifications, at least pending the resolution of the issue.

23. As the impugned provision had been rendered unconstitutional and the rest of the provisions cited in the Gazette Notices rightly so captured the qualifications, the need for issuance of a corrigendum did not arise.

24. [Obiter] As I come to the end of this issue, it must be clear that I am not fronting the position that university educational qualifications or their equivalent are not necessary for those seeking the candidature of Members of Parliament, not at all! The reality is that Kenya is a member of the international community and has so far taken several steps and programmes in attaining some of the globally agreed standards. Such include the effort in attaining the sustainable development goals (SDGs) as well as political rights through various initiatives including, but not limited to, execution of international covenants. Therefore, a time is soon catching up with us when the dictates of global demands and trends will make a university degree qualification or its equivalent an inevitable necessity in every elective position.

Consolidated petitions partly allowed; no order as to costs.

Orders:

Declared Unconstitutional in 2013.

Commission for the Implementation of the Constitution v Attorney General & another

Civil Appeal No 351 of 2012

Azangalala, Kiage & J. Mohammed, JJA

Download the Decision

Brief Facts

The Appellant instituted a suit in the High Court challenging the constitutionality of section 34(9) of The Elections Act on the grounds that it was inconsistent with various articles 90, 54(2)55, 97 (1) (c), 98 (1) (b) (c) and (d), and 177 (1) (b) and (c)of the Constitution. Section 34(9) permitted the inclusion of a name of any Presidential or Deputy Presidential candidate for nomination to Parliament. The High Court dismissed the Appellant’s suit. Aggrieved by the Trial Court’s decision, the Appellant filed the instant suit.

Held

It is abundantly clear to us that far from attaining the true object of protecting the rights of the marginalized as envisioned by the constitution, the inclusion of Presidential and Deputy Presidential candidates in Article 34(9) of the Elections Act does violence to all reason and logic by arbitrary and irrational superimposition of well-heeled individuals on a list of the disadvantaged and marginalized to the detriment of the protected classes or interests.

Having arrived at that conclusion we are satisfied that the learned judge misdirected himself in his interpretation and treatment of the question of “special interests” as captured in the five grounds of appeal filed and argued before us. The upshot is that this appeal succeeds and we declare Section 34(9) of the Elections Act to be invalid and void.

Declared Unconstitutional in 2017. 

 

Peter Solomon Gichira v Independent Electoral and Boundaries Commission & another

Constitutional Petition No 234 of 2017

G V Odunga, J

Download the Decision

 

Brief Facts

According to the Petitioner he was cleared by the Office of the Registrar of Political Parties and an Independent Presidential Candidate and his symbol approved. It was his view that he fulfilled the requirement for the collection of signatures from each of the Twenty Four (24) Counties which is above 48,000 supporters as required by the law and what was remaining was the presentation thereof to the Commission.

However, on 17th May, 2017 the Commission through a notice on Social Media indicated that they would only receive signatures in (a) Microsoft excel and that the same should be for voters/supporters not affiliated to any political party.

It was contended by the petitioner that he had taken the arduous process of collecting signatures in 24 Counties around the country and that the submission of the documents in Microsoft excel ignores the fact that it was not a condition when the Commission issued the petitioner with the forms; that most counties where the petitioner collected signatures even wards in Kenya, there is no electricity leave alone photocopy machines; and that it is not prudent to demand the same names in a new format without signatures. It was the Petitioner’s case that being nominated by voters not members of a political party is absurd and unconstitutional since the Commission and the Registrar of Political Parties have not compiled a list of voters who are not members of any political party hence the conditions and obstacles at the instant stage are not practical and infringe on his right to contest.

 

Held

Section 29 of the Elections Act has attempted to limit the fundamental freedom of association especially in political sphere so as to derogate from its core and essential content. To say section 29 of the Act was made in deference to clear dichotomy in the Constitution as to the pathways for those eligible to contest to follow in my view cannot be correct. By introducing such conditions as nomination by  members of the candidate’s political party or in case of an independent candidate by non-members of any political party, when the Constitution only talks about registered voters, cannot by any stretch of imagination be said to an implementation of the provisions of the Constitution.

Declared Unconstitutional in 2013.

 

Commission for the Implementation of the Constitution v Attorney General & another

Civil Appeal No 351 of 2012           

Azangalala, Kiage & J. Mohammed, JJA

Download the Decision

 

Brief Facts

The Appellant instituted a suit in the High Court challenging the constitutionality of section 34(9) of The Elections Act on the grounds that it was inconsistent with various articles 90, 54(2)55, 97 (1) (c), 98 (1) (b) (c) and (d),  and 177 (1) (b) and (c)of the Constitution. Section 34(9) permitted the inclusion of a name of any Presidential or Deputy Presidential candidate for nomination to Parliament. The High Court dismissed the Appellant’s suit. Aggrieved by the Trial Court’s decision, the Appellant filed the instant suit.

 

Held

It is abundantly clear to us that far from attaining the true object of protecting the rights of the marginalized as envisioned by the constitution, the inclusion of Presidential and Deputy Presidential candidates in Article 34(9) of the Elections Act does violence to all reason and logic by arbitrary and irrational superimposition of well-heeled individuals on a list of the disadvantaged and marginalized to the detriment of the protected classes or interests.   

Having arrived at that conclusion we are satisfied that the learned judge misdirected himself in his interpretation and treatment of the question of “special interests” as captured in the five grounds of appeal filed and argued before us. The upshot is that this appeal succeeds and we declare Section 34(9) of the Elections Act to be invalid and void.

Declared Unconstitutional in 2017.

 

Independent Electoral & Boundaries Commission v Maina Kiai, Khelef Khalifa, Tirop Kitur, Attorney-General, Katiba Institute & Coalition for Reforms & Democracy [2017] eKLR

Appeal 105 Of 2017

Makhandia A, Ouko W, Kiage P, M’inoti K, and Murgor A, JJA

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Brief Facts

The instant appeal arose from the judgment and decree of a three-judge bench of the High Court delivered on April 7, 2017. The judgment was rendered in a constitutional petition filed by the 1st, 2nd and 3rd Respondents respectively, against the Independent Electoral & Boundaries Commission (IEBC), the Appellant, and the Attorney-General, the 4th respondent.

The petition was filed pursuant to article 165(3) (d) of the Constitution of Kenya, 2010 and sought declarations regarding the constitutionality of provisions of sections 39(2) and (3) of the Elections Act and Regulations 83(2) and 87(2)(c) of the Election (General) Regulations, 2012. Upon hearing the parties, the High Court held that it had jurisdiction to hear and determine the petition; that the issues raised in the petition were not res judicata and declared that sections 39(2) and (3) of the Elections Act and Regulations 83(2) and 87(2)(c) of the Election (General) Regulations, 2012 were unconstitutional and therefore null and void.

Aggrieved by the decision of the High Court, the IEBC filed the instant decision on grounds that the High Court misapprehended the law regarding the constitutional and statutory requirements for declaration of the result of the presidential elections. The Appellant also claimed that the High Court erred in declaring section 39(2) and (3) of the Act and regulations 83(2) and 87 (2) unconstitutional, null and void; erred in holding that it had jurisdiction to hear and determine the petition; and that the High Court erred in holding that the dispute was not res judicata.

 

Held

The High Court annulled Section 39(2) and (3) of the Elections Act and regulations 83(2) and 87(2)(c) of the Elections (General) Regulations  on April 7, 2017. One would have expected the concerned institutions, including the IEBC, to either comply with the determination of the court or if aggrieved, to challenge it in this Court as the Appellant did within two weeks on April 24, 2017. Instead, 14 days following the delivery of the judgment impugned in this appeal, the Appellant  issued a gazette supplement, being Legal Notice No. 72 of April 21, 2017, which made drastic amendments to the Elections (General) Regulations 2012, whose effect was clearly to render impotent and circumvent the declaration by the High Court of the inconsistency with the Constitution of section 39(2) and (3) of the Elections Act and regulations 83(2) and 87(2)(c) of the Elections (General) Regulations.

Form 34C was the one to be used in place of Form 37 for the final declaration of the result of election of the President at the national tallying centre. The new regulation 87 of the Elections (General) Regulations specified that upon receipt of Form 34A from the constituency returning officers the Chairperson of the Appellant was to verify the results against Forms 34A and 34B received from the constituency returning officer at the national tallying centre. The controversial regulations 83(2) and 87(2) of the Elections (General) Regulations were not affected by the amendments, and the object was not difficult to see. The High Court had found those regulations to be inconsistent with the Constitution: it was in bad faith for the Appellant to re-enact them while pursuing the instant appeal.

The purpose for which section 39(2) and (3) of the Elections Act and regulations 83(2) and 87(2)(c) of the Elections (General) Regulations were promulgated or made have the effect of infringing constitutional principles of transparency, impartiality, neutrality, efficiency, accuracy and accountability. Sections 39(2) and (3) of the Elections Act and regulations 83(2) and 87(2) (c) of the Election (General) Regulations were declared to be unconstitutional, null and void.

 

Declared Unconstitutional in 2015.

 

The Union of Civil Servants & 2 Others v Independent Electoral and Boundaries Commission & Another,

High Court at Nairobi,

Petition No. 281 of 2014 & Petition No. 70 of 2015 (Consolidated)

I Lenaola, J

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Brief facts

Petition No.281 of 2014 was about the constitutionality or otherwise of Section 43(5) of the Elections Act, 2011 which provided that a public officer must resign six months before a by- election date if he wished to contest such an election.  Further, that the said law unfairly barred such an officer from lawfully contesting for a position in a by-election because it was practically impossible to meet its expectations. They also alleged that Section 43(5) of the Elections Act was discriminatory as read with Section 43(6) if applied in General Elections regarding public officers.  Counsel opposed the claim that the petition was barred by the doctrine of res judicata submitting that the instant petition raised different issues as compared to those in Charles Omanga & Another v Independent Electoral and Boundaries Commission & Another (Charles Omanga), Evans Gor Semelang’o v Independent Electoral and Boundaries Commission & Another (Gor Semelang’o) and Patrick Muhiu Kamilu v Independent Electoral and Boundaries Commission & Another (Patrick Muhiu). That the question of constitutionality or otherwise of section 43(5) of the Elections Act vis-à-vis Articles 27 and 38(3)(c ) of the Constitution in the context of all Parliamentary and County Assembly by-elections has never been canvassed or adjudicated upon in the aforesaid cases or in any other case.

Petition No.70 of 2015 raised the same issues as Petition No.281 of 2015 save that the Petitioner was a public officer serving in the National Treasury until his resignation on 9th February 2015.  He averred that he was desirous of contesting the Kabete Constituency by-election scheduled for 4th May 2015 and he was apprehensive that because of the existence of Section 43(5) of the Elections Act, his rights under Article 38(3) of the Constitution were at the risk of being violated.

 

Held

There was no justification for denying a public officer the right to contest a vacant seat in a by-election if he had resigned as soon as a vacancy had occurred and that was as soon as the Speaker of either House of Parliament had given notice of the vacancy to the IEBC under article 101(4)(a) of the Constitution.  To hold otherwise would be to promote an absurdity that was never intended by the drafters of the Constitution.

Declared Unconstitutional in 2017.

 

Kenneth Otieno v Attorney General & Independent Electoral & Boundaries Commission

Petition No 127 of 2017

High Court, at Nairobi

Pauline Nyamweya, Mumbi Ngugi, Enock C Mwita, JJ

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Brief Facts

The Petitioner sought to challenge sections 6, 6A, 8A and 44 of the Elections Act. He said that the provisions which were amended or introduced by the Elections Laws (Amendment Act), contained radical, irrational and impractical changes to the electoral process. He alleged that those provisions introduced timelines which were contrary to the constitutional timelines provided under articles 101(1), 136(2), 177(1)(a) and 180(1) of the Constitution. At the hearing of the Petition, the Petitioner abandoned the challenge to the constitutionality of section 6 of the Elections Act and only questioned sections 6A, 8A and 44 of the Elections Act.

Section 6A of the Elections Act, gave voters 30 days to verify biometric data and that verification was to be done at polling stations at least 60 days before the general elections. The Petitioner contended that the provision was a stringent timeline which could obstruct a simple and transparent voting process envisaged by the Constitution. He also contended that section 6A(1) of the Elections Act was unconstitutional and contravened articles 38(3), 82(2) and 83(3) of the Constitution as the requirement to verify biometric data could limit the rights of members of the public as well as persons with disability who could not travel to their respective polling stations for verification. The Petitioner also said that the provision failed to recognize those who did not have fingerprints or had fingerprints which were distorted by the nature of the work that they did.

The Petitioner further stated that section 6A(3)(b) which required online publication of the register of voters was unconstitutional and it contravened article 83(3) and 38(3) of the Constitution given that the rural population could not access the internet and computers. He further stated that the register published online could fail to be out in a timely manner and it could lock out persons who were not aware of other modes of verifying their details.

According to the Petitioner, section 8A of the Elections Act, which required the IEBC to procure a reputable firm to conduct an audit of the register of voters within 30 days of the coming into force of that section, was impractical. The Petitioner stated that the stringent timeline could cause the IEBC to appoint the audit firm in a manner that was not transparent or competitive.

Under section 44 of the Elections Act, the IEBC was required to test, verify and deploy the electronic electoral system at least sixty days before the general election. Under section 44(7) that technology was to be procured at least 120 days before the general election. The Petitioner contended that the use of technology to the exclusion of any other processes was without regard to the imperatives of article 81(e) of the Constitution, which provided for free and fair elections.

The Petitioner also challenged the establishment of a technical committee to oversee the adoption of technology by IEBC under section 44(8) of the Elections Act. He also said that it was not clear what agencies, institutions or stakeholders would constitute the technical committee. The Petitioner said that the technical committee would undermine the independence of the IEBC.

 

Held

Section 44(8) provided for the establishment of a technical committee to oversee the adoption of technology in the electoral process and implement the use of such technology. The technical committee was to comprise of such members and officers of the IEBC and such other relevant agencies, institutions or stakeholders as the IEBC considered necessary. Under Article 88(2) of the Constitution, certain persons were prohibited from being members of the IEBC. The use of general words such as “relevant agencies, institutions or stakeholders” left room for inclusion of persons expressly excluded under Article 88(2) of the Constitution in the technical committee. The composition of the technical committee and the functions given to it threatened the structural independence of the IEBC.

Section 44(8) of the Elections Act could be used to involve governmental, political or other partisan influences in the implementation of the electronic electoral processes contrary to article 249(2) of the Constitution. The effect of section 44(8) of the Elections Act contravened Articles 88 and 249(2) of the Constitution with respect to the independence of IEBC and it was therefore unconstitutional.

Declared Unconstitutional in 2017.

 

Katiba Institute & another v Attorney General & another

Constitutional Petition No. 209 of 2016 [Formerly Kisumu Petition Number 9 of 2016]

K Kimondo, G V Odunga, E C Mwita, JJ

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Brief Facts

The petition revolved around article 104 of the Constitution which bestowed upon voters the right to recall their representatives. The foundation of the petition was that the impugned statutes (sections 45, 46, 47 and 48 of the Elections Act, 2011 and sections 27, 28 and 29 of the County Governments Act, 2012 providing for the recall of a member of Parliament and a county assembly member respectively) ran contrary to the constitutional right of citizens to recall their elected representatives. The Petitioners’ case was that the grounds for recall in the two statutes were meaningless or superfluous; or, that they failed to provide a practical and effective procedure; or, that they made it impossible for citizens to exercise the right of recall and that they were already recognized by section 24 (2) of the Elections Act.

The 1st Respondent contended that the petition offended the doctrine of presumption of constitutionality of a statute passed by parliament; secondly, that the Petitioners had not reached the threshold to declare the statutes unconstitutional; thirdly, that the jurisdiction of the court under article 261 of the Constitution had been prematurely invoked; fourthly, that the petition offended the  doctrine of separation of powers; fifthly, that the prayers in the petition would defeat the very purpose of article 104 of the Constitution; sixthly, that the Petitioners had misconstrued the obligations placed upon the specific Respondents regarding the initiation, formulation and enactment of legislation; and, lastly, that the 1st Respondent discharged his responsibility upon passage of the statutes. It was the Respondent’s argument that unsuccessful candidates were barred from initiating a recall to prevent potential abuse of the process and that the high threshold of votes required for a recall were meant to give effect to political rights under article 38 of the Constitution.

The 2nd Respondent argued that the Petitioners failed to rebut the presumption of constitutionality of the impugned statutes and that they presented no evidence of ever trying to initiate a recall motion; or, having been obstructed by the impugned provisions.

 

Held

In this regard, the effect of sections 45 (6) of the Elections Act and section 27 (6) of the County Governments Act is to limit the rights of those who unsuccessfully contested an election from initiating a recall petition. As we have held, Article 104 of the Constitution does not provide for such limitation. In our view the distinction created by the legislature between the incumbent and the person who contested and lost an election is not founded on an intelligible differentia; and, that differentia has no rational

relation to the object sought to be achieved by Article 104 of the Constitution. To the extent, therefore, that Parliament enacted provisions not contemplated under Article 104 (2) of the Constitution. Sections 45(6) of the Elections Act and section 27(6) of the County Governments Act are unconstitutional as Parliament in enacting the same was not exercising its sovereign power in accordance with the Constitution as prescribed in Articles 1(1), (3)(a) and 93(1) of the Constitution.

 

 

Monica Munira Kibuchi & 6 others v Mount Kenya University; Attorney General (Interested Party) [2021] eKLR

Petition No 94 of 2016

Employment and Labour Relations Court at Nairobi

M. Mbaru, J. Abuodha and L. Ndolo, J

July 30, 2021

Brief facts

The petitioners interviewed and were appointed on various dates in January 2016 by the 1st respondent. The petitioners were employed under a probationary contract. On or about April 2016, the respondent embarked on a process of investigating how the petitioners were recruited without disclosing the same to the respondents. Consequently, on the date the probation period was to end, the respondent terminated the employment of the petitioners.

Aggrieved the petitioners filed the instant petition and sought for section 42(1) of the Employment Act that provided that persons under probationary contracts were not privy to notification and hearing before termination on grounds of misconduct under section 41 was unconstitutional and they sought to be compensated for unfair termination of unemployment.

Issues

Held:

1. The Employment and Labour Relations Court, just like the High Court and Environment and Land Court had jurisdiction to determine constitutional questions arising within the context of their respective jurisdictions as delimited under article 165(5) of the Constitution.

2. A probationary employee ought to be heard before the contract was terminated. The Canadian position seemed to be that unless the contract provided for it, an employer could terminate a probationary contract without a hearing or assigning a reason. Kenya and Canada were former British colonies where the Common Law position for a long time was that there was no obligation on an employer to assign any reason for termination of employment, including contracts which had been confirmed after successful probation. All an employer needed to do was to invoke the termination clause and issue a notice as stipulated in the contract or offer payment in lieu of notice. Perhaps and it was more probable than not, that the Common Law principle played heavily in the minds of the drafters of the Employment Act while drafting section 42(1) of the Act and its eventual legislation.

3. Article 47 of the Constitution conferred on every person the right to administrative action that was among others, reasonable and procedurally fair. Further, if a fundamental freedom of a person had been or was likely to be adversely affected by administrative action, the person had the right to be given written reasons for the action. Proponents of termination of probationary contracts without subjecting employees to hearing had not only relied on the exclusionary provisions of section 42(1) of the Employment Act but had also justified the exclusion on the grounds that during probation period, an employee was under trial to match the skill-sets represented during the interview with the actual job performance. That position was implicit under section 42(2) which provided that probationary period shall not be more than six months but it may be extended for a further period of not more than six months, with the agreement of the employee.

4. Practice showed that in the majority of cases, an employee on probation was usually engaged with the management on issues of performance and other issues contained in the probationary employment contract. Therefore, the stipulation that for the period of probation to be extended, the concurrence of the employee had to be sought, implied some consultation had to take place and issues of concerning warranting extension, discussed.

5. Section 41 of the Employment Act provided that an employer was to before dismissing an employee on grounds of misconduct, poor performance and so on, explain to the employee the reason for which the employee was considering termination and that the employer would before terminating the employment of such employee consider any representation such employee and or his representative could make. Under Section 2 of the Employment Act, an employee was defined to mean a person employed for wages or salary and included an apprentice and indentured learner. Although the Act defined a probation contract in relation to the duration of the contract it did not segregate or isolate a person employed under a probationary contract from the general definition of an employee. Therefore, a reading of section 41 together with the implicit provisions of section 42(2) rendered illogical the provisions of section 42(1).

6. It did not make sense to accord an apprentice and indentured learner who were included in the definition of an employee under section 2, the procedural benefits of section 41 but deny the same to an employee simply because they held a probationary contract.

7. Labour rights were part of the Bill of Rights by virtue of article 41 of the Constitution. Article 24 of the Constitution prohibited the limitation of a right or a fundamental freedom in the Bill of Rights except by law and then only to the extent that the limitation was reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom

8. Apart from life and land ownership, employment ranks among the most emotive issues in a person’s life. Failure to secure a job and or loss of one has a direct relationship with a person’s confidence, dignity and place in society. Any legislation therefore which intended to limit or qualify a labour right, ought to be to the extent that the limitation or qualification was reasonable and justifiable in an open and democratic society. There was no reasonable and justifiable cause in the exclusion of an employee holding a probationary contract from the procedural safeguards contained in section 41 of the Employment Act.

9. Section 42(1) insofar as it excluded an employee holding a probationary contract from the provisions of section 41 of the Employment Act, was inconsistent with articles 41 and 47 of the Constitution hence null and void.

10. The respondent was not liable for terminating the services of the petitioners, without according them a hearing as stipulated under section 41 of the Act. The respondent honestly believed and applied the law as it was prior to the pronouncements contained in the instant judgment. It would be unjust to condemn the respondent for applying the law that was enacted by Parliament even if that law was inconsistent with the Constitution. The respondent could not be faulted for applying the impugned law enacted. The court would not declare that in terminating the petitioners’ probationary contracts, the respondent violated their constitutional rights and Section 41 of the Employment Act since the respondent relied on the provisions of Section 42(1) of the Act as enacted by Parliament, which expressly excluded persons holding probationary contracts from the provisions of section 41. As such, no order for compensation could be made.

11. [Obiter] Courts of the Commonwealth h the inherent power to issue common law declarations of unconstitutionality when Parliament legislates against constitutional norms. While it is conceded that declaration of incompatibility against an Act of Parliament does not impugn its legal validity until it is repealed or amended by Parliament, it is necessary to emphasize the need for the Attorney General to review and where in concurrence, initiate necessary legislative repeal or amendment of the statute or sections thereof declared unconstitutional. The Court is aware that several statutes or sections thereof have been declared unconstitutional by the Courts in our judicial hierarchy yet no corresponding legislative amendment or repeal has followed. They therefore remain booby traps to citizens who may not be aware that the Courts have pronounced them invalid.

Petition partly allowed:

Orders

Declared Unconstitutional in 2014.

 

Nelson Ogeto Mogaka & 15 others v Geothermal Development Company Limited

Industrial Court, at Nakuru

Cause 178 & 280 of 2013 (consolidated)

Byram Ongaya J

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Brief Facts

The Claimants were employed by the Respondent as either skilled or unskilled labourers. The Claimants were terminated under the same circumstances.  On April 26, 2011, the Respondent introduced a written fixed term contract which was dated April 4, 2011 but delivered to the Claimants for acceptance on April 26, 2011. The Claimants were asked to backdate the contract by indicating that they had signed it on January 31, 2011. The fixed term contract stated that the contract of employment would be on temporary terms effective from January 31 to April 29, 2011and that the management reserved the right to terminate the contract permanently depending on the Claimants’ performance.”

After signing the contracts the Claimants were called to a meeting on and told that the materials had run out and they were to go home to be recalled when the materials became available. The Claimants were never recalled by the Respondent hence the dispute leading to the filing of the instant Cause.  The 3 months in the contract that was signed were to lapse on April 29, 2011 whereas the claimants’ termination was on April 7, 2011. The Claimants sought for a declaration that the temporary contracts of employment were illegal and void among other orders.

 

Held:

The court has considered the submissions.  First, the court upholds previous holdings of the court that section 45(3) of the Employment Act that an employee who has been continuously employed by his employer for a period not less than thirteen months immediately before the date of termination shall have the right to complain that he has been unfairly terminated is unconstitutional as per Linus Barasa Odhiambo-Versus- Wells Fargo Limited, Industrial Cause No. 275 of 2012 at Nairobi

2. Energy Act, 2006 (repealed) - Section 64(4) (b) / Energy Act, 2019- section 168

Michael Kasamani and another v Republic

High Court at Kakamega

D S Majanja, J

Brief Facts

The appellants were convicted of vandalism of electrical apparatus contrary to section 64(4)(b) of the Energy Act, 2006 and sentenced to pay a fine of Kshs 5,000,000/- or to serve 10 years in imprisonment.

They appealed against the conviction and sentence contending that the prosecution failed to prove its case beyond reasonable doubt and that the evidence against them was inconsistent, fabricated and uncorroborated. In addition, it was alleged that the charge against them was defective and that their respective fundamental rights to a fair trial protected under article 50 of the Constitution of Kenya, 2010 (Constitution) were violated.

Held

1. Section 134 of the Criminal Procedure dealing with the framing of charges stated that every charge would contain, and would be sufficient if it contained, a statement of the specific offence or offences with which the accused person was charged, together with such particulars as could be necessary for giving reasonable information as to the nature of the offence charged.

2. The charge as framed was lucid, it disclosed the offence which the appellants were charged and it was one of vandalism contrary to section 64(4)(b) of the Energy Act (repealed). It met the terms of section 134 of the Criminal Procedure. Any errors did not detract from the substance of the charges as the facts or particulars for which the appellants were charged were clearly laid out. Further, an error concerning the 2^nd appellant’s residence or failure to stamp the charge sheet was not fatal to the charge as he was not thereby prejudiced nor was a failure of justice occasioned.

3. There was no doubt that the electric poles were vandalized as confirmed by PW 1, PW 2, PW 4 and PW 5. PW 1 who arrived at the scene found a post lying on the ground and saw a pick up speed off with another pole while PW 2 saw a stump and a fallen pole. Both witnesses confirmed that the stump and pole were the ones photographed by PW 4. Although the witnesses did not talk of aluminium conductors, that was not fatal to the charge. The term aluminium conductors referred to the electric wire which was vandalized as a result of cutting the poles. Therefore, the prosecution proved that 2 poles and aluminium conductors were vandalized.

4. The key witness, PW 1 placed both appellants at the locus in quo. He saw them organizing how to carry the post. There was a power saw and a pick-up which sped-off with one pole. There was nothing emerging from the testimony of PW 1 to show that he was lying or motivated by spite. Furthermore, the incident took place at daytime hence diminishing the opportunity for mistaken identity and both appellants were arrested at the scene. The appellants’ defences when considered alongside the positive evidence of identification were an afterthought.

5. The offence of vandalism under section 64(4)(b) of the Energy Act, 2006 attracted a penalty prescribed of a fine of not less than five million shillings, or a term of imprisonment of not less than five years, or to both such fine and imprisonment. The sentence imposed by the trial court was the mandatory minimum sentence under the Energy Act 2006.

6. Mandatory minimum sentences had been under attack as it had been held that the mandatory death sentence prescribed for the offence of murder by section 204 of the Penal Code was unconstitutional as the mandatory nature deprived courts of their legitimate jurisdiction to exercise discretion not to impose the death sentence in an appropriate case; and that a mandatory sentence failed to conform to the tenets of fair trial that accrue to the accused person under article 50 of the Constitution. Enactment of a mandatory death sentence was a legislative intrusion into the judicial realm. Thereafter, the Court of Appeal applied the same principles in several cases where it held that the mandatory minimum sentences under the Sexual Offences Act were unconstitutional.

7. The inescapable conclusion was that the mandatory minimum sentences under the Energy Act, 2006 had to suffer the same fate as the Sexual Offences Act hence the mandatory minimum sentence prescribed under section 64 was unconstitutional. The Energy Act, 2006 was repealed by the Energy Act, 2019 which re-enacted the same offence and penalty at section 168.

8. Section 354 of the Criminal Procedure Code provided for the powers of the court upon hearing an appeal if it considered that there was no sufficient ground for interfering, to dismiss the appeal or it could, under subsection 3(b), in an appeal against sentence, increase or reduce the sentence or alter the nature of the sentence. The offence of vandalism of the works of licensee was a serious matter as it affected a broad swathe of people and amounted to economic sabotage.

9. The trial court in imposing the sentence had the benefit of Social Inquiry Reports prepared by the Probation Department. As regards the 1^st appellant, the report showed that he had been charged with vandalism of electric poles in other cases at the Mumias Magistrates Court and had committed the subsequent act when he was out on bond. While the 2^nd appellant was an employee of the Kenya Power and Lighting Company and had been hired on contract until he committed acts of vandalism and was charged at the Mumias Magistrates Court. Given the propensity of the appellants to commit the same offences, a non-custodial sentence or a fine was out of the question.

County Assembly Forum & 6 others v Attorney General & 2 others; Senate of the Republic of Kenya (Interested Party) [2021] eKLR
Constitutional Petition E229, E225, E226, E249 & 14 of 2021 (Consolidated)
High Court at Nairobi
AC Mrima, J
October 15, 2021
Download the Decision

Brief facts
The instant petitions variously challenge the constitutionality of the requirement of a degree qualification for a person to be nominated as a candidate for election to the office of a Member of a County Assembly in Kenya as set out in section 22(1)(b)(ii) of the Elections Act (the impugned provision). The petitioners variously argued that the limitation imposed by the impugned provision failed the tests in article 24 of the Constitution of Kenya, 2010 (the Constitution) on the limitation of fundamental rights and freedoms since it was not reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom. The petitioners also contended that the impugned provision was discriminatory. 
The respondents and interested party challenged the petition on the basis of the doctrine of res judicata in respect to three decisions. They were Johnson Muthama -vs- Minister for Justice and Constitutional Affairs & Another (2012) eKLR, John Harun Mwau -vs- Independent Electoral and Boundaries Commission & Another (2013) eKLR and Okiya Omtatah Okoiti & Another -vs- Attorney General & Another (2020) eKLR.  The respondents also conteded that the court did not have the jurisdiction to determine the matter on accord to the doctrine of ripeness. In particular the respondents contended that the petitioners had not exhausted the right to petition Parliament to consider any matter within its authority) and as such the matter was not ripe for the High Court to question the constitutionality of the impugned provision. 
Held

Petition allowed.
Orders
i. A declaration was issued that section 22(1)(b)(ii) of the Elections Act was unconstitutional and in violation of article 10(2)(a) of the Constitution for failure to undertake public participation.
ii. A declaration was issued that section 22(1)(b)(ii) of the Elections Act was unconstitutional and in violation of articles 24, 27, 38(3) and 56 of the Constitution.
iii. An order was issued that section 22(1)(b)(ii) of the Elections Act was inoperational, of no legal effect and void ab initio. The requirement that a person had to possess a degree from a university recognized in Kenya to qualify to be a Member of a County Assembly was nullified.
iv. No order as to costs as the matter was public interest litigation.

Free Kenya Initiative & 17 others v Independent Electoral & Boundaries Commission & 5 others; Kenya National Commission on Human Rights & another (Interested Party) (Constitutional Petition E160 of 2022 & Petition E219, E225 & 12 of 2022 (Consolidated)) [2022] KEHC 10217 (KLR) (Constitutional and Human Rights) (5 July 2022) (Judgment)

AC Mrima, J

Brief facts

The consolidated petitions challenged the regulations 18(2)(c), 24(2)(c), 28(2)(c) and 36(2)(c) of the Elections (General) Regulations, 2012 (as amended in 2017)(impugned regulations) that required independent candidates to supply copies of the identification documents of their supporters. The petitioners contended that the impugned regulations were unnecessary and served no meaningful purpose other than to frustrate independent candidates. They contended that the regulations were discriminatory as no other elective post was subjected to such a requirement. They also contended that the impugned regulations violated on one’s right to vie for a political seat without unreasonable restrictions.  

The petitions also contended that the impugned regulations, in requiring independent candidates to supply copies of the ID Cards of their supporters, violated on the right to privacy of their supporters. The petitioners challenged the manner in which the regulations were passed, citing a lack of public participation.

Held

 

Petitions partly allowed.

Orders

 

 

Sumba & 4 others v Independent Electoral & Boundaries Commission & another (Constitutional Petition E435 of 2022) [2022] KEHC 13196 (KLR) (Constitutional and Human Rights) (30 September 2022) (Judgment)

AC Mrima, J

Brief facts
The petition sought to scrutinize the constitutionality of the statutory requirements in transfer of registration by voters. The 1st to 5th petitioners desired to transfer their voter registration from their previous polling stations as registered in the general election of 2017 to other polling stations. The petitioners were, however, turned down by the respective registration clerks and instead, were asked to lodge their applications before the 1st respondent’s (Independent Electoral and Boundaries Commission (IEBC)) constituency offices. It was contended that the registration centers were only registering new voters and could not handle voter transfers. The petitioners contended that they were called upon to comply with regulation 13C of the Elections (Voter Registration of Voters) Regulations 2012, (the impugned regulation).
Aggrieved the petitioners filed the instant petition. They contended that the impugned regulation unreasonably disenfranchised them and other eligible voters in the mass registration, hence, unconstitutional.
Held

Petition allowed.
Orders

Kenya Bankers Association v Attorney General & another; Central Bank of Kenya (Interested Party) [2019] eKLR

High Court at Nairobi   

J A Makau, J

Download the Decision

Brief Facts:

The memorandum of objects and reasons of the Finance Bill, 2018(the Bill) was to formulate the proposals announced in the budget for 2018/2019 relating to liability, and collection of taxes and matters incidental thereto and sought to amend various laws including the Banking Act. The Bill was first read in the 2^nd respondent’s House and committed to the Departmental Committee on Finance and National Planning (the Committee) which carried out public participation on the Bill. However, section 63 of the Finance Act was not included in the Bill at the time of gazettement and first reading of the Finance Bill, 2018. Thereafter, the Bill underwent debate during the second reading and new clauses introduced to the Bill at that stage.

One of the proposed amendments was to require the banks, whenever a customer was opening an account, should be compelled to indicate who their next of kin was. The Bill was passed to become the Finance Act, 2018.  Aggrieved by the 2^nd respondent’s actions, the petitioner filed the instant petition. The petitioner averred that the amendments violated the right to privacy and were therefore unconstitutional. The petitioner contended that the 2^nd respondent acted ultra vires to its constitutional mandate by introducing substantive amendments to the Banking Act during the 3^rd reading and enacting legislation without public participation.

Held:

1.       The petitioner was a corporate body duly registered under the laws of Kenya composed of 47 members all of which were commercial banks and microfinance banks.  In light of articles 22 and 258 of the Constitution, the petitioner was within its rights to file the instant petition and had the requisite locus standi to do so.

2.       Article 23 of the Constitution gave the Court jurisdiction to hear and determine matters involving violation of fundamental rights under the bill of rights. The Court further had jurisdiction, in accordance with article 165 of the Constitution to hear and determine applications for redress of a denial, violation or infringement of, or threat to a right or fundamental freedom in the bill of rights; in any proceedings brought under article 22 of the Constitution, where a Court could grant appropriate relief. Further article 165 (3) (d) of the Constitution gave the Court jurisdiction to determine the question whether a right or fundamental freedom in the bill of rights had been denied, violated, infringed or threatened.

3.       In the instant petition, the petitioner sought interpretation of articles 24 and 31(c) of the Constitution and section 31 (2) and (3) of the Banking Act by introduction of section 31A of the Banking Act. The instant petition was premised on the jurisdiction of the Court to interpret the Constitution. The instant dispute, being a question as to whether the impugned amendment was inconsistent with or in contravention of the Constitution, the suit fell squarely within the purview of article 165(3) (d) of the Constitution. The Court had jurisdiction to determine the instant dispute.

4.       Whereas the legislative authority vested with the 2^nd respondent, where a question arose as to the interpretation of the Constitution and whether enactment of legislation was inconsistent with the Constitution or was in contravention of the Constitution, the Court was constitutionally empowered to determine such an issue.  The Constitution was the supreme law of Kenya pursuant to article 2(1) and (2) of the Constitution and bound all persons. The Judiciary had to be firm and apply the Constitution, whenever an issue arose as to the constitutionality of any act done or threatened by either the Executive or the Legislature, it had to act decisively.

5.       The Judiciary was vested with the power to interpret the Constitution, to safeguard, protect and promote its provisions as provided under article 165(3) of the Constitution.  It also had the duty and obligation to boldly intervene in actions of other arms of Government and state organs where it was alleged or shown that the Constitution had either been violated or was threatened with violation. That was a sacred and lonely path that the Judiciary was called upon to always take and remain firm in discharging its mandate.  To succeed one did not have to look at the left or right in looking for justice for Kenya but straight forward.

6.       The courts in interpretation of the Constitution, were guided by the general principle that there was a rebuttable presumption that legislation was constitutional, therefore the onus of rebutting the presumption vested on those who alleged the legislation’s status. In determining the constitutionality of a statute or statutory provisions, the court had to look at the object and purpose of the impugned statute or statutory provision.

7.        When it came to interpretation of the Constitution, article 259(1) of the Constitution was the foundation of the interpretation of the Constitution.  It lay down the guidelines as follows: - the values and principles of the Constitution thus; the rule of law; human rights and fundamental freedoms, development of the law and good governance had to permeate the process of constitutional interpretation.  It had to be holistic interpretation; so as to promote its purpose, values and principles and contribute to rule of law and good governance.

8.       Section 31A of the Banking Act imposed upon banks or financial institutions to maintain a register containing particulars of the next of kin of all customers and any bank that contravened the said section was liable upon conviction for each count in default to a fine not exceeding one million shillings. The purpose or the effect of section 63 of Finance Act implementation infringed a right guaranteed by the Constitution. The requirement under section 63 of the Finance Act for banks and financial institutions to maintain a register of next of kin was not justifiable nor did it have a rational connection with the intended purpose of the Finance Act whose purpose was to amend the law relating to various taxes and duties and for matters incidental thereto but not to ensure that the abandoned property was returned to its true owner and within a reasonable period. 

9.       Section 63 of Finance Act, 2018 was derogation from the core normative content of the right to privacy. The implementation of section 63 of the Finance Act infringed on a right guaranteed by the Constitution. The section in question was therefore unconstitutional and contradicted article 31(c) of the Constitution and section 31(2) of the Banking Act to the extent that it breached the right of privacy as provided in article 31(c) of the Constitution and section 31(2) of the Banking Act.

10.    Section 63 of the Finance Act had not attempted to define who the next of kin was or the particulars of the next of kin that should be obtained and what was to be done in relation to keeping such records or data. The section was mute and did not provide clarity on how the corporate clients were to be handled. It also did not give distinction between individual persons and legal persons.  The section was equally silent on how minors could be treated and did not indicate as to whether minors could be listed as next of kin. Section 63 of the Finance Act and consequently section 31A of the Banking Act was not only ambiguous but vague.

11.    Vagueness of a statute amounted to invalidity of a statute. The enactment of section 63 of the Finance Act was void for vagueness as a citizen would not be able to know in advance what the legal consequences that flew from the impugned section of the Finance Act were. The members of the petitioner were unable to know what was regulated and the manner of that regulation. Section 63 of Finance Act and consequently section 31A of the Banking Act lacked certainty; it was confusing due to being imprecise and vague.

12.    Article 94 of the Constitution vested legislative authority in Parliament and therefore the 2^nd respondent was allowed to amend a legislative proposal as the bill went through the various stages of enactment of legislation such that the final statute passed by the 2^nd respondent and which the President assented to was different from the Bill published at the first instance. Once a Bill was published and read in the 2^nd respondent’s House, it went through first reading, second reading, committee stage and third reading and the purpose of all those stages of the reading of a Bill was to allow the members of the 2^nd respondent who represented different constituencies of the electorate to negotiate on their behalf and represent their varying interests.

13.    The Constitution recognized that a House of Parliament could amend bills and hence article 124 of the Constitution allowed Parliament to make Standing Orders to provide for its procedures for conducting House business. The Constitution recognized that a House of Parliament could amend Bills and hence article 124 allowed Parliament to make Standing Orders to provide for its procedures for conducting House business. Pursuant to standing order 133 of the 2^nd respondent’s Standing Orders, during the legislative process, amendments to the Bill could be moved during the committee stage. The averment that every amendment moved had to undergo the process of public participation would negate and undermine the legislative process. However, where a major amendment was introduced and where it was contrary to the purpose of the Bill the position could be different.

14.    Both Houses of Parliament could exercise their legislative will by enacting laws and amending existing laws as well as bills which were before the House. There was nothing unconstitutional where the 2^nd respondent chose to amend a legislative proposal from the initial form; because as a bill went through debate and public participation, the House could co-opt proposed amendments and drop some clauses as the House deemed fit so long as the amendments were minor and did not alter the purpose of the Bill.

15.    The 2^nd respondent conducted public participation on the Finance Act and took the views of the public into account as well as the views of all members of the 2^nd respondent as representatives of various constituencies before introduction of clause 57A of the Bill. Clause 57A as introduced was contrary to the objects and reasons for seeking to amend the Banking Act; at a time of adoption of the proposed amendments, the petitioner, a key stakeholder was denied an opportunity to participate in the enactment of the impugned amendments in contravention of the provisions of article 118 of the Constitution.

16.    There was no public participation in the enactment of the impugned section. The alleged amendment was not a minor amendment but a major or substantive amendment which was against the purpose of the Bill and which required public participation. The passed legislation contained unreasonable provision which provisions were punitive as members of the petitioner were liable to pay one million shillings for each account in default.

17.     What was introduced as clause 57A of the Finance Bill was not what was in the Bill at the time the Bill underwent public participation and upon amendment of the Bill, it introduced a substantive amendment affecting the rights of the petitioners, it was therefore mandatory for the 2^nd respondent to have resubmitted the Bill to the public to obtain their views.  That was not a minor amendment such as adding a comma and full stop.  There was no public participation in the major enactment of section 63 of the Finance Act and the 2^nd respondent violated article 10(2) and article 118 of the Constitution in introducing clause 57A during the committee of the whole house stage.

Declared Unconstitutional in 2012.

 

Kenya Bus Service Ltd and another v Minister for Transport and 2 Others

Civil Suit No. 504 Of 2008

High Court at Nairobi

D S Majanja, J

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Brief Facts

The Plaintiffs filed the instant suit complaining that the Minister of Transport by publishing Legal Notice No. 161 of 2003 acted in a manner that caused it substantial loss and damages as they were required to re-fabricate their vehicles and install speed governors to comply with the law. The Plaintiffs’ claim was that the said legal notice was subsequently quashed by the High Court and that they are entitled to full indemnity for consequential loss and damage for complying with the defective legal notice.

The Defendants filed a Statement of Defence denying the allegations and stated that they would at the earliest opportunity raise a preliminary objection on a point of law that the suit was bad in law as it contravened express and mandatory provisions of both the Companies Act and the Government Proceedings Act. One of the main issues for determination was the constitutionality of section 13(A) of the Government Proceedings Act and section 3(1) of the Public Authorities Limitation Act.

 

Held

Viewed against the prism of the Constitution, it also becomes evident that section 13A of the GPA provides on impediment to access to justice. Where the state is at the front, left and centre of the citizen’s life, the law should not impose hurdles on accountability of the Government through the courts. An analysis of the various reports from Commonwealth which I have cited clearly demonstrate that the requirement for notice particularly where it is strictly enforced as a mandatory requirement diminishes the ability of the citizen to seek relief against the government. It is my finding therefore that section 13A of the Government Proceedings Act as a mandatory requirement violates the provisions of the Article 48.

 

Mugure & 2 others v Higher Education Loans Board (Petition E002 of 2021) [2022] KEHC 11951 (KLR) (Civ) (19 August 2022) (Judgment)

Neutral citation: [2022] KEHC 11951 (KLR)

A Mabeya, J

Brief facts

The petitioners were beneficiaries of the Higher Education Loans Board’s (the respondent) loan to finance their undergraduate studies. The petitioners’ case was that they borrowed loans from the respondent to facilitate their undergraduate studies and that the respondent had been charging exorbitant interest and penalties which often grew beyond double the principal amounts owed thereby making repayment difficult. The petitioners prayed for among other orders, declarations that; by imposing interest amounts and penalties that exceed the principal amount, the respondent was in contravention of articles 43 (1)(e) and (f) of the Constitution of Kenya, 2010 (Constitution) and section 44(A)(1) and (2) of the Banking Act; that section 15(2) of the Higher Education Loans Board Act (HELB Act) was unconstitutional to the extent that it led to interest rates and charges becoming equal to or more than the principal amounts.

Held

Petition allowed with each party to bear own costs. 

Orders

Kenya Revenue Authority v Waweru & 3 others; Institute of Certified Public Accountants & 2 others (Interested Parties) (Civil Appeal E591 of 2021) [2022] KECA 1306 (KLR) (2 December 2022) (Judgment)
Neutral citation: [2022] KECA 1306 (KLR)

DK Musinga, HA Omondi & KI Laibuta, JJA

Brief facts
The Finance Bill, 2020 included an amendment to the Income Tax Act at section 12D, introducing the minimum tax. The amendment provided for the minimum tax at the rate of 1% of the gross turnover. To implement the impugned amendment, the appellant published Guidelines on Minimum Tax whose central feature was the definition of gross turnover. Aggrieved by the amendment to the legislation, two petitions were instituted by the 1st and 2nd respondents at the trial court.

The petitions sought declarations that: section 12D of the Income Tax Act was illegal and contrary to the provisions of articles 10, 27, 40, and 46 of the Constitution of Kenya, 2010 (Constitution) and that under section 3 as read with section 15 of the Income Tax Act, the taxable income was the net income after deduction of expenditure wholly and exclusively incurred in the production of that income. The appellant, the 3rd and 4th respondents opposed the petition and argued that the process of the enactment of the impugned legislation met the constitutional and procedural threshold; that it did not create any ambiguity; and that it was not discriminatory.

The trial court declared section 12D of the Income Tax Act null and void as it violated article 201(b) of the Constitution; and that failure to comply with the Statutory Instruments Act, rendered the Guidelines on Minimum Tax void. Accordingly, the trial court granted an order of prohibition restraining the implementation, administration or enforcement of the contested amendment on the following grounds: that the imposition of the tax had the potential of subjecting people to double taxation and that the amendment unfairly targeted businesses which were in genuine loss making positions, to pay taxes from their capital rather than from their profits while placing thriving businesses at an advantage. Aggrieved, the appellant filed the instant appeal.

Held:

Appeal dismissed; judgment of the High Court upheld.
Order
Each party to bear their own costs of the appeal

Declared Unconstitutional in 2016.

J Harrison Kinyanjui v Attorney General & Another

Constitutional Petition No. 74 Of 2011

High Court, at Nairobi

Mwongo PJ, Ngugi,Korir,Odunga and Onguto JJ

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Brief Facts

The Petitioner sought to challenge the forwarding of one name each for the position of Chief Justice and Deputy Chief Justice pursuant to a recruitment exercise that was undertaken by the Judicial Service Commission (JSC) in the year 2011.

He contended that JSC could not lawfully recommend and present only one nominee for the respective positions of the Chief Justice and the Deputy Chief Justice to the President for appointment since to do so would in effect amount to a concluded decision on their appointment and that would curtail the powers of the President and Parliament to constitutionally deliberate on the choice of whom to appoint to such posts.

It was further contended that the JSC contravened article 166(1)(a) of the Constitution by constituting itself as the appointing authority, inasmuch as it left no room for either Parliament to debate the prospective and competing qualified persons and for the President to finally approve. The Petitioner’s contention was that the President’s role was that of the appointing authority and was not a ceremonial role merely of receiving the names from the Commission and forwarding them to the National Assembly for rubberstamping but was given a leeway under the amendments introduced by Statute Law (Miscellaneous Amendment) Act, 2015 to the Judicial Service Act requiring the JSC to recommend three names for position of Chief Justice to the President. Amendment of which was made during the pendency of the instant petition.

The Petitioner urged the Court, pursuant to the transitional clauses of the provisions of section 24(2) of the 6th Schedule to the Constitution to rule that the said amendments were valid.

The Petitioner further sought, inter-alia, a declaration that the Judicial Service Commission was bound under article 10(b) of the Constitution of Kenya to apply the principle of transparency, democracy, fairness and good governance to present at least 3 nominees to the President of the Republic of Kenya for appointment to the position of the Chief Justice and Deputy Chief Justice.

Held:

Whereas in this petition the effect of the orders sought amount to the validation of the amendments to section 30(3) of the Judicial Service Act, 2011 vide the Statute Law (Miscellaneous Amendments) Act, 2015, Petition No. 3 of 2016 – Law Society of Kenya vs. The Attorney General & Others - sought that the same amendments be annulled. We have already found in the said Petition that the said amendments were unconstitutional. We therefore adopt our findings in the said petition with respect to the issue whether the Commission ought to be obliged to forward three names to the President for the purposes of appointment of the Chief Justice and the Deputy Chief Justice and hold that the Judicial Service Commission is not obliged to forward three names to the President for the purposes of appointment of the Chief Justice and the Deputy Chief Justice. We also adopt the same in so far as the constitutionality of the amendment to section 30(3) of the Judicial Service Act, 2011 vide the Statute Law(Miscellaneous Amendments) Act, 2015 is concerned.

In our view, the Judicial Service Act operationalises the Constitution. It is not permitted to expand the scope of the constitutional provisions outside what the Constitution itself provides… To enact a provision that compels the Commission to forward a certain number of names, in our view, amounts to an abridgement of the wide discretionary powers conferred upon the Commission by the Constitution. In our view, Parliament cannot purport to limit or restrict discretionary powers conferred by the Constitution unless the Constitution itself empowers Parliament to do so.

Simon Rotich Ruto v Judicial Service Commission & another [2019] eKLR

Employment and Labour Relations Court at Nairobi

B Ongaya, J

Brief facts

The petitioner was serving as a Senior Principal Magistrate in the Judiciary. He was interdicted from duty on January 17, 2015 for being habitually drunk during working hours. His interdiction was, however, lifted on July 8, 2015, and the petitioner was sternly warned against involving himself in acts of gross misconduct or conducting himself in a manner that did not portray proper decorum of an officer of the court.

On September 2, 2016, the Chief Registrar of the Judiciary accused the petitioner of reporting for duty while under influence of alcohol forcing his removal from the cause list. The petitioner, in a written reply, denied the charge. On January 19, 2016, the Chief Registrar informed the petitioner that the Judicial Service Commission Human Resource Management Committee (the Committee) had deliberated his response to the show cause notice and directed the petitioner to attend a disciplinary hearing before the Committee on January 25, 2016. At the hearing, the petitioner admitted to have been drunk during office hours and while attending to court users in his chambers. The petitioner further admitted that he had a drinking problem but was undergoing treatment. On February 9, 2017, the Judicial Service Commission dismissed the petitioner in a letter signed by the Chief Justice.

Aggrieved, the petitioner filed the instant petition and sought various declarations, inter alia, that the Chief Registrar of the Judiciary (2^nd respondent) had no jurisdiction under the law to draw and commence a charge and interdiction of a judicial officer. He also asked the court to find that the proceedings leading to his dismissal were unprocedural, illegal and unconstitutional for contravening articles 171(2)(c) and 236(b) of the Constitution and section 32 (3) of the Judicial Service Act.

Held

Declared Unconstitutional in 2017.

 

Okiya Omtatah Okoiti v Communications Authority of Kenya & 21 others

Petition No 45 of 2016

High Court, at Nairobi

G V Odunga, J

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Brief Facts

The facts of this petition, according to the petitioner herein, Okiya Omtatah Okoiti, are that on Saturday, February 06, 2016, national newspapers carried news items stating that the Authority’s Board of Directors had allegedly been disbanded by the CS who purported to have withdrawn appeals pending in the Court of Appeal which were filed severally by the Authority and by the 1^st – 7^th Interested Parties. It was averred that the alleged withdrawal of the appeals is a nullity in law since neither the Authority and the 1^st – 6^th Interested Parties approved the action. Further and in particular:

a. There is no resolution of the independent Board of the Authority approving the withdrawal.

b. There is no resolution of the by the 1^st – 6^th Interested Parties approving the withdrawal.

c. Matters concerning public law cannot be withdrawn by a party without the endorsement of a judge.

d. The application purported to have been withdrawn had already been heard and determined and orders were issued, which vested rights in the 1^st to 6^th and 12^th Interested Parties.

e.On 26^th February 2016, the 1^st to 6^th Interested Parties filed Civil Appeal No. 35 of 2016 which is pending in the Court of Appeal.

According to the Petitioner, the purported withdrawal of the two appeals violates the independence of the Authority as provided for in Article 34(5) of the Constitution and in section 5A(1) of the Kenya Information and Communications Act (hereinafter, “the KICA”) and the rights of the Authority and the 1^st – 6^th Interested Parties to a fair trial contrary to Article 25(c), 48, and 50(1) of the Constitution.

 

Held

The amendments introduced to Kenya Information and Communications Act through the Statute Law (Miscellaneous Amendments) Act had an impact on Article 34(5) of the Constitution. An amendment that has an impact on either the letter or the spirit of the Constitution however remotely cannot be termed as “minor non-controversial and generally house-keeping amendments”.

Declared Unconstitutional in 2016.

 

Geoffrey Andare v Attorney General & 2 others

High Court, at Nairobi

Mumbi Ngugi J

Petition 149 of 2015

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Brief Facts

The Petitioner was charged with an offence under section 29 of the Kenya Information and Communications Act, KICA. The said provision criminalised any person who improperly used licensed telecommunication system either to sends a message or other matter that was grossly offensive or of an indecent, obscene or menacing character. The Petitioner had allegedly posted a message in the social media described to have been grossly offensive electronic mail within the meaning of section 29 of the KICA.  The message described to have been annoying to the claimant in a criminal case implicated the claimant to have been sleeping with young girls before awarding them scholarship opportunities to go to school. The Petitioner in certain words had described the claimant’s acts as shameful.

While the charges were ongoing against the Petitioner sought to challenge the constitutionality of section 29 on the grounds that its wordings were vague, offensive to his freedom of expression thus unconstitutional, and that the said section did not have elements of criminal offences (mens rea and actus reus) and as such the offence created therein was not prosecutable.

 

Held

Section 29 imposes penal consequences in terms which I have found to be vague and broad, and in my view, unconstitutional for that reason.

 

Senate of the Republic of Kenya & 4 others v Speaker of the National Assembly & another;Attorney General & 7 others (Interested Parties) [2020] eKLR

High Court at Nairobi

J Ngaah, AK Ndung’u & TM Matheka, JJ

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Brief facts

On diverse dates between the years 2017 and 2019, the National Assembly passed a total of 23 Acts of Parliament without the participation of the Senate and unilaterally forwarded 15 others to the Senate without complying with article 110(3) of the Constitution of Kenya, 2010, (Constitution). Aggrieved, the Senate in July 2019 filed the instant petition seeking, amongst others, the nullification of the Acts passed or amended by the National Assembly without reference to the Senate. The Council of County Governors also filed its own petition contending that the amendments by the National Assembly to section 4 of the Kenya Medical Supplies Authority Act, No. 20 of 2013 without regard to the Senate was unconstitutional and asked for the nullification of those amendments. Owing to similarity of constitutional issues between the two petitions, the petition by the Council of County Governors was consolidated with the instant petition.

The Speaker of the Senate had sought the Supreme Court’s opinion on the import of article 110(3) of the Constitution in Supreme Court Advisory Opinion No. 2 of 2013, In the matter of the Speaker of the Senate and another v Attorney General and 4 others [2013] eKLR (Reference No. 2 of 2013). In that Advisory Opinion, the Supreme Court held that the consideration of Bills to be passed by Parliament was not a unilateral exercise exclusive to either of the two Houses; rather, the Speakers of both houses had to engage and consult and to the extent that the Speaker of the National Assembly had proceeded in passing the Division of Revenue Bill without such consultation or engagement, he had acted against the Constitution and in particular, article 110(3).

Held

1. There were no specific rules of procedure that had been prescribed for filing, service and other appurtenant procedural aspects of constitutional petitions filed outside article 22 of the Constitution on enforcement, protection of rights and fundamental freedoms. That meant that while the Chief Justice was mandated to make rules providing for court proceedings under article 22 and indeed such rules had been made, there were no similar rules that had been made for proceedings on enforcement of other constitutional provisions outside those envisaged under article 22.

2. In the absence of any express provision barring a party from invoking the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013, (Mutunga Rules) such a party was properly entitled to invoke them in any petition other than a petition filed under article 22 of the Constitution to the extent that they were applicable. Rule 3(8) of the Mutunga Rules gave the court the inherent power to make such orders as were necessary in order to meet the ends of justice.

3. Article 159(2)(d) of the Constitution prodded the court to exercise its judicial authority bearing in mind, amongst other principles, that justice was to be administered without undue regard to procedural technicalities. Failure to file a notice of appointment of advocate would be such a procedural technicality. It was reasonable to allow the 1st to the 3rd petitioners’ lead counsel and the rest of the counsel whom he was leading to continue acting for the 1st to the 3rd petitioners.

4. While Order 9 rule 7 of the Civil Procedure Rules required that a party to give notice of appointment of an advocate, where one had been appointed, failure to do so in constitutional petitions such as the instant one, was a mere procedural lapse that was curable under the inherent powers of the court. Needless to say, each case depended on its specific circumstances.

5. The applicable principles on the doctrine of res judicata were found in section 7 of the Civil Procedure Act. The rule or doctrine of res judicata served the salutary aim of bringing finality to litigation and afforded parties closure and respite from the spectre of being vexed, haunted and hounded by issues and suits that had already been determined by a competent court. It was designed as a pragmatic and common sensical protection against wastage of time and resources in an endless round of litigation at the behest of intrepid pleaders hoping, by a multiplicity of suits and fora, to obtain at last, outcomes favourable to them. Without it, there would be no end to litigation, and the judicial process would be rendered a noisome nuisance and brought to disrepute or calumny.

6. Article 110(3) of the Constitution was considered in Nation Media Group and 6 others v Attorney General and 9 others [2016] eKLR (Nation Media Group case) but the interpretation given by the court was restricted to the two Acts of Parliament that were in issue; viz the Kenya Media Act 2013 and the Kenya Information and Communication (Amendment Media) Act 2013. The court reasoned that since the two Acts of Parliament did not concern counties, the Senate needed not have been involved in their legislation. The two Acts were not directly and substantially in issue in the instant petition; as a matter of fact, neither of them had been faulted on any ground.

7. The doctrine of res judicata would not apply in the instant case because, while the petitioners could have been party to the Nation Media Group case, the subject of the dispute in the instant petition was not as prominent in the previous suit and, as the issues singled out by the Supreme Court for determination in the instant suit suggested, the crucial aspect of finality on determination of a previously litigated subject for res judicata to apply was lacking. To be precise, the extent of the legislative roles of the two Houses of Parliament and the manner in which those roles ought to be undertaken in light of article 110(3) of the Constitution could not be said to have been conclusively determined in the Nation Media Group case.

8. Humanity Action Knowledge Integrity in Africa Trust (HAKI Africa) v Attorney General & others and Kenya National Commission on Human Rights (KNHCR) and 2 others, Constitutional Petition No. 134 of 2019, Association of Insurance Brokers of Kenya v Cabinet Secretary for National Treasury & Planning & 2 others, Petition No. 288 of 2019 and Okiya Omtatah Okoiti v Speaker of the National Assembly, & others, Petition No. 454 of 2019 were filed after the instant petition had been filed. It was those cases that were filed after the instant petition was filed that would fall on the wrong side of the sub judice rule. The doctrine of sub judice prohibited courts from entertaining and adjudicating upon matters pending before courts of competent jurisdiction. The doctrine was codified in section 6 of the Civil Procedure Act.

9. For the doctrine of sub judice to apply the following principles ought to have been present:

a) There had to exist two or more suits filed consecutively.

b) The matter in issue in the suit or proceedings had to be directly and substantially the same.

c) The parties in the suits or proceedings had to be the same or had to be parties under whom they or any of them claimed and they had to be litigating under the same title.

d) The suits had to be pending in the same or any other court having jurisdiction in Kenya to grant the relief claimed.

Those conditions had not been met and thus the court had jurisdiction to dispose of the instant petition.

10. The central outstanding issue of concern was the proper interpretation of article 110 of the Constitution with specific reference to the legislative functions of the two Houses of Parliament. That question had, at one point caught the attention of the Supreme Court in Council of Governors and 47 Others v Attorney general and 6 others [2019] eKLR. The respondents in that case raised a preliminary objection that the issues raised in the reference were issues pending for determination in various petitions pending before the court. One of the petitions that were singled out as pending for determination was the instant petition. In a ruling on the preliminary objection, the Supreme Court spelt out 12 issues that ought to be determined by the court in the instant petition. Those issues were set out in the ruling as follows:

a) Whether a speaker of a House of Parliament had to first seek the concurrence of the speaker of the other House of Parliament as to whether a Bill was one that concerned counties, and if it was, whether it was a special or an ordinary Bill, before the Bill could be introduced for consideration in the originating House.

b) Whether it was mandatory and a condition precedent for any Bill that was published by either House to be subjected to a joint concurrence process to determine, in terms of article 110(3) of the Constitution, whether the Bill was a special or ordinary Bill and that such determination was not dependent on a question arising as to whether the Bill concerned counties.

c) Whether the provisions of article 110(3) of the Constitution were couched in mandatory terms and was a condition precedent before any House of Parliament could consider a Bill.

d) Whether a speaker could unilaterally make a decision as to whether a Bill did or did not concern counties and whether a question as to whether the bill was one that concerned counties did or did not arise.

e) Whether any Bill or delegated legislation that provided for, or touched on, the mandate or the powers of Parliamentary Service Commission had to be considered by the Senate as it directly affected the Senate’s ability to undertake its constitutional mandate including its ability to consider Bills that affected counties.

f) Whether the Appropriation Bill 2019 was unconstitutional, null and void for violating the provisions of articles 110(3), 218 and 222 of the Constitution.

g) Whether articles 3, 115, 131(2) and 259 of the Constitution imposed a constitutional and legal obligation on both Speakers of Parliament, prior to submitting a Bill for assent, had to demonstrate compliance with the procedure set out under articles 109 to 115 of the Constitution.

h) Whether standing order 143(2) to (6) of the National Assembly Standing Orders were inconsistent with the legislative process of Bills concerning counties set out in articles 109(4), 110 t0 113, 122 and 123 of the Constitution and therefore null and void.

i) Whether where Speakers of both Houses concurred that a Bill was one that concerned counties, pursuant to article 109(4) of the Constitution, the Bill had to be passed in accordance with articles 110 to 113, 122 and 123 of the Constitution and the Standing Orders of both Houses and was not subject to article 114 of the Constitution.

j) Whether or not it was a money Bill where the contents of a Bill affected the functions and finances of a county within the meaning of article 114(3) of the Constitution.

k) Whether where a Bill dealt with financial matters and such matters affected the finances and functions of county governments pursuant to article 110(1)(c), the Bill was one concerning county governments and had to be considered by Senate.

l) Whether an Act of Parliament constituted an Act that had complied with the legislative process required by both Houses by participation of both Speakers as required under article 110(3) of the Constitution and the Bill concerned counties by consideration in the Senate as required in the Constitution.

11. Article 109 of the Constitution established the legislative power of Parliament and, it laid out the manner in which that power was to be exercised. Article 110 of the Constitution, on the other hand, was particular about Bills concerning County Governments; it defined a Bill concerning County Governments and also prescribed the procedure for the enactment of such a Bill into law. To an objective reader, article 110(3) of the Constitution would appear to be so clear that no one would expect a dispute over its interpretation, particularly, on the role of the Speakers of the two Houses of Parliament in resolving any question as to whether a Bill was one concerning counties and, if it was, whether it was a special or ordinary Bill and, the timing of such a determination.

12. A fundamental element in the scaffolding structure for the constitutional principles and values, was the institutional scheme of bicameralism in the legislative arrangement; and that was the dual-chamber set-up in the institutions of law-making. The Constitution provided for a bicameral system, with each unit playing its role as prescribed.

13. The business of considering and passing of any Bill was not to be embarked upon and concluded before the two Chambers, acting through their Speakers, addressed and found an answer for a certain particular question: What the nature of the Bill in question was. The two Speakers, in answering that question, had to settle three sub-questions before a Bill that had been published, went through the motions of debate, passage, and final assent by the President. The sub-questions were:

a) Whether the Bill concerned county governments and if it was, whether it was a special or an ordinary bill.

b) Whether the Bill did not concern county governments.

c) Whether it was a money Bill.

14. In answering the questions to determine the nature of a Bill, the Speakers had to consider the content of the Bill. They had to reflect upon the objectives of the Bill. That, by the Constitution, was not a unilateral exercise and on that principle, it was obvious that the Speaker of the National Assembly by abandoning all engagement or consultation with the Speaker of the Senate, and proceeding as he did, had acted contrary to the Constitution and its fundamental principles regarding the harmonious motion of State institutions.

15. Neither Speaker could, to the exclusion of the other, determine the nature of a Bill: for that would inevitably result in usurpations of jurisdiction, to the prejudice of the constitutional principle of the harmonious interplay of State institutions. The Senate, though entrusted with a less expansive legislative role than the National Assembly, stood as the Constitution’s safeguard for the principle of devolved government. That purpose would be negated if the Senate were not to participate in the enactment of legislation pertaining to the devolved units, the counties [article 96(1), (2) and (3)].

16. From a broad purposive view of the Constitution, the intent of the drafters, as regards the exercise of legislative powers, was that any disagreement as to the nature of a Bill should be harmoniously settled through mediation. An obligation was thus placed on the two Speakers, where they could not agree between themselves, to engage the mediation mechanism. They would each be required each to appoint an equal number of members, who would deliberate upon the question, and file their report within a specified period of time. It was also possible for the two Chambers to establish a standing mediation committee, to deliberate upon and to resolve any disputes regarding the path of legislation to be adopted for different subject-matters.

17. The Supreme Court’s opinion was not just an opinion. Rather, it was an opinion with the force of law and which bound all and sundry including all State organs not least, the two August Houses. Concurrence of the Speakers of the two Houses was a mandatory preliminary step in the legislative process.

18. Any law passed without compliance with article 110(3) of the Constitution was unconstitutional. Article 2 of the Constitution not only asserted the supremacy of the Constitution but it also, in the same vein, removed any doubt on constitutionality of a law enacted contrary to the Constitution. Of particular relevance was article 2(4) that any law or any act or omission in contravention of the Constitution was invalid. The actions of the National Assembly to pass the impugned laws without reference to the Senate contrary to article 110(3) fell into that category of laws that article 2(4) frowned upon, they were simply unconstitutional.

19. Under the repealed standing order no. 121(2), before the publication of a Bill, the Speaker of the National Assembly was required to communicate to the Speaker of the Senate his determination whether the Bill concerned county governments and if it was, whether it was a special or an ordinary Bill. The rationale behind sending the Bill to the Speaker of the Senate was to seek his concurrence in accordance with article 110(3) of the Constitution.

20. The National Assembly amended standing order no. 121, and it was clear from the amended version that the intention of the National Assembly was to exclude the Speaker of the Senate from the exercise of determination of whether a Bill was a Bill concerning county governments and if so whether it was an ordinary or special Bill. That amendment was mischievous because the Supreme Court in its interpretation of article 110(3) of the Constitution stated that under that article, it was incumbent upon both Speakers of the National Assembly and the Senate to concur and that it was not a question for determination by either of them to the exclusion of the other.

21. The effect of the amendment to standing order no. 121 was not only to circumvent the opinion of the Supreme Court but it was clearly inconsistent with article 110(3). It was inconceivable that the National Assembly could purport to supplant clear provisions of the Constitution with its own Standing Orders. To the extent that the amendment of the standing order no. 121 was inconsistent with the Constitution it was unconstitutional.

22. Bills originating from the Senate were, like any other Bill, subject to the same legislative process outlined in article 110 (3) of the Constitution and it was not up to the Speaker of the National Assembly to arrogate to himself the task of determining whether such Bills were money Bills or not and to the extent that standing order no. 143(2) to (6) purported to give him such powers, it was also unconstitutional.

23. The expression “any matters touching on county governments” should be so interpreted as to incorporate any national-level process bearing a significant impact on the conduct of county governments. There was no definite definition of what Bills concerning county governments meant and, each case had to be determined on the basis of its peculiar circumstances.

24. Considering the timing of the cross petition and the issues raised in it, the cross petition was filed to obfuscate the fundamental issue raised in the petition, which was, the extent of the legislative functions of the two Houses of Parliament.

25. Kenya’s legislative bodies bore an obligation to discharge their mandate in accordance with the terms of the Constitution, and they could not plead any internal rule or indeed, any statutory scheme, as a reprieve from that obligation. The Constitution vested the legislative authority of Kenya in Parliament. Such authority was derived from the people. That position was embodied in article 94(1) of the Constitution. Article 94(1) also imposed upon Parliament the duty to protect the Constitution and to promote the democratic governance of Kenya.

26. Article 93(2) of the Constitution provided that the National Assembly and the Senate would perform their respective functions in accordance with the Constitution. While the legislative authority lay with Parliament, the same was to be exercised subject to the dictates of the Constitution. While Parliament was within its general legislative mandate to establish procedures of how it conducted its business, it had to abide by the prescriptions of the Constitution. It could not operate besides or outside the four corners of the Constitution.

27. The court would not question each and every procedural infraction that could occur in either of the Houses of Parliament. The court could not supervise the workings of Parliament. The institutional comity between the three arms of Government had to not be endangered by the unwarranted intrusions into the workings of one arm by another. However, where a question arose as to the interpretation of the Constitution, the court could not invoke institutional comity to avoid its constitutional duty.

Last updated on November 13, 2020

Declared Unconstitutional in 2018.

Dennis Kabuaya Mucheke v Kenya National Examinations Council & 2 others
Petition No 487 of 2017
E C Mwita, J
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Kenya Information and Communication Act 1998- section 6 as amended by Statute Law (Miscellaneous Amendment) Act No. 18 of 2018

Okiya Omtatah Okoiti & 4 others v Attorney General & 4 others; Council of Governors & 4 others (Interested Parties) [2020] eKLR

Petition 163 of 2019

High Court at Nairobi

P. Nyamweya, Mumbi Ngugi & W. Korir, JJ

January 30, 2020

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Brief facts

The petitioners challenged the constitutionality of amendments made to various statutes vide the Statute Law (Miscellaneous Amendments) Act, 2018 (the impugned Act). They argued that the amendments were unconstitutional and therefore invalid, null and void. The reasons they advanced were that the manner in which the amendments were effected violated various constitutional provisions. In particular, they argued that the impugned Act introduced substantive amendments which ought to have been done through stand-alone Bills and was an abuse of the proper purpose of miscellaneous amendment Bills. It was also, in their view, in contempt of court for disregarding precedents that prohibited use of miscellaneous amendments to effect substantive amendments in the law.

The petitioners further argued that the enactment of the impugned Act was in violation of the constitutional principle that required participation of the public in the enactment of legislation. It was their case that the period of seven (7) days   given to the public to participate in the process of amendment was so short that no meaningful participation would have taken place in view of the fact that there were 69 pieces of statutes contained in the Bill.  They urged the court to declare the entire impugned Act unconstitutional, null and void.

Issues:

i.  Whether the court’s inquiry into the constitutionality of actions undertaken by Parliament would amount to violation of the doctrine of separation of powers.

ii. Whether the suing of the speakers of the Senate and National Assembly in their personal capacity resulted in a misjoinder of the speaker of the National Assembly and Senate.

iii. Whether courts had restricted parliament from effecting substantive changes to legislation through an omnibus amendment bill

iv.  Whether the process of enactment of the Statute Law (Miscellaneous Amendment) Act No. 18 of 2018 as an omnibus bill constituted contempt of court.

v.  Whether the enactment of the impugned Act required the participation of the senate.

vi. Whether the fact that some of the statutes amended by the impugned Act had previously been amended or passed with the participation of the Senate meant that those laws concerned county governments.

vii. Whether the collection of biometric data, Deoxyribonucleic acid (DNA) data, Global Positioning System (GPS) data and any other information required under National Integrated Identity Management System (NIIMS) as per the impugned amendment would amount to violation of the right to privacy.

viii. Whether the amendment to the Kenya Information and Communications Act which vested the power of appointment of the board of the Communication Authority of Kenya solely on the President and the Cabinet Secretary violated the Constitution.

ix.  Whether the legislative process leading to the enactment of the Statute Law (Miscellaneous Amendment) Act No. 18 of 2018 rendered the whole Act unconstitutional.

Held:

1. Failure to comply with the laid down mechanism for the passing of legislation could lead to invalidation of statutes by courts. Legislation had to conform to the constitution in terms of both its content and the manner in which it was adopted. Failure to comply with manner and form requirements in enacting legislation would render the legislation invalid and courts had the power to declare such legislation invalid. Courts not only had a right but also a duty to ensure that the law-making process prescribed by the constitution was observed. If the conditions for law-making processes were not complied with, it had the duty to say so and declare the resulting statute invalid.

2. Parliament could only successfully raise the defence of separation of powers or parliamentary privilege by proving compliance with the Constitution and the law. Anything done by Parliament outside the confines of the Constitution and the law attracted the attention and action of the High Court. Article 165(3) (d) of the Constitution gave the High Court the constitutional authority to conduct an inquiry into the constitutionality of the decisions and actions of the legislature.

3. The court’s fidelity to the Constitution and by extension to the people of Kenya, from whom its mandate emanated, could not be shaken by isolated reference to the doctrine of separation of powers. The Constitution had to be read as a whole, and while it recognized the doctrine of separation of powers, it also mandated the court to determine whether any action undertaken by Parliament violated the Constitution or the law. While the court respected the roles of the other arms of government, it had to faithfully exercise its constitutional mandate of enforcement and protection of the Constitution.

4.  In determining whether an impugned legislation or action was unconstitutional, the provisions of the Constitution had to be interpreted purposively in line with article 259(1) of the Constitution and other principles of constitutional interpretation. The Constitution should be interpreted in a holistic manner that entailed reading one provision alongside other provisions, and considering the historical perspective, purpose, and intent of the provisions in question. A holistic interpretation of the constitution called for the investigation of the historical, economic, social, cultural and political background of the provision in question.

5. A person claiming constitutional infringement had to give sufficient notice of the violations to allow their adversary to adequately prepare their case and to save the court from embarrassment on issues that were not appropriately phrased as justiciable controversies. The proper test under the Constitution of Kenya, 2010 was whether a petition as stated raised issues which were too insubstantial and so attenuated that a court of law properly directing itself to the issue could not fashion an appropriate remedy due to the inability to concretely fathom the constitutional violation alleged.

6. The test neither demanded mathematical precision in drawing constitutional petitions nor required talismanic formalism in identifying the specific constitutional provisions which were alleged to have been violated. The test was a substantive one and inquired whether the complaints against the respondents in a constitutional petition were fashioned in a way that gave proper notice to the respondents about the nature of the claims being made so that they could adequately prepare their case.

7. There was nothing in article 226 (5) of the Constitution that suggested that an office holder should be sued in their personal capacity for executing official duties. The 4th and 5th respondents were sued in connection with the performance of their duties. There was no basis for suing them in their personal capacities.  The protection accorded to parliamentary business by article 117 of the Constitution could only be understood to mean that the actions of the Speakers of the two Houses of Parliament were immune from court action. The protection extended to the 4th and 5th respondents was equated to that given to judges in the execution of their judicial duties. In addition, the petitioners had not tendered any evidence to show that the 4th and 5th respondents acted in bad faith as they had alleged. The naming of the 4th and 5th respondents in the petition was not warranted.

8. The National Assembly had improved the manner in which it deployed the use of omnibus bills in its legislative business. The decisions relied on by the petitioners to assert that omnibus Bills should not be used to effect substantive amendments to statute were made in different circumstances and they could only be applied with necessary modification, taking into account the prevailing parliamentary practices.

9. The targeted amendments were conveyed in a single Bill; however, the individual statutes were flagged out and committed to the relevant Departmental Committee for consideration and collection of public views. That information was relayed to the public when they were invited through the newspaper adverts to present their views on the Bill. It could not be concluded that the use of an omnibus bill to effect the amendments ipso facto impeded public participation. However, the use of an omnibus bill to effect amendments to several Acts of Parliament was likely to hinder the participation of the people in the legislative process. Depending on the number of the proposed amendments, the time given might not be sufficient. That was not the same as saying that public participation was not conducted or that it was inadequate.

10. The Law Society of Kenya V Attorney General & Another [2016]eKLR was one of the court decisions relied upon by the petitioners in support of the assertion that courts had decreed that omnibus Bills should not be used to effect substantive amendments to statute. The words used in the judgment were, “the procedure ought to avail only in cases of minor non-controversial amendments.” In the same judgment the court held that omnibus amendments in the form of Statute Law Miscellaneous legislations ought to be confined only to minor non-controversial and generally house-keeping amendments. The key word used by the court was ought and not shall. The court was saying that it would be the proper thing or practice for Parliament to avoid using a miscellaneous amendment Bill to effect substantive changes to statutes. It was therefore incorrect to say that the court held that Parliament should not use omnibus Bills to effect substantive changes to legislation. That would amount to saying that the courts could micromanage the operations of Parliament.

11. Parliament gave reasons why it found the procedure convenient in certain circumstances. There was no constitutional or legal provision that prescribed the manner in which omnibus Bills should be used by Parliament. The law only provided that Bills would be used to enact laws without stating when and where an omnibus Bill or a stand-alone Bill should be used. The manner in which omnibus Bills were used previously could have impinged on public participation and even affected the quality of the debates in Parliament. However, each amendment though carried in one “bus” was given individual attention throughout the legislative process.  The use of a miscellaneous amendment Bill to pass the impugned Act had not offended the Constitution or the National Assembly Standing Orders.

12. One of the mandates of the 2nd respondent was to offer Parliament advice on the reform and review of legislation but the legislative power lay with Parliament. Consequently, if there was any breach of a court order, the 2nd respondent could not be blamed for such violation. It was not demonstrated by the petitioners that the 2nd respondent had coercive powers over Parliament and failed to exercise those powers in the enforcement of court orders. Similarly, the Attorney General had the constitutional mandate to advice the national government on matters of law. He could not direct Parliament on how to conduct its legislative business. The petitioners’ assertion that the 1st, 2nd and 4th respondents acted in contempt of court was not sustainable.

13. Standing Order 117 of the National Assembly Standing Orders required every Bill to be accompanied by a Memorandum of Objects and Reasons and prescribed what such Memorandum should contain. Both the Statute Law (Miscellaneous Amendment) (No. 12) Bill, 2018 and Statute Law (Miscellaneous Amendment) (No. 13) Bill, 2018, were accompanied by a Memorandum of Objects and Reasons. There was no basis for the allegation made by the petitioners that the Bills were illegally published for want of such a memorandum.

14. The errors pointed out by the petitioners were generally minor infractions of the rules of the House which would not merit the attention of the court. Those were the kind of errors, not unexpected in matters performed by human beings that may be made by state organs in the discharge of their duties. The majority of the mistakes had not prejudiced the right of the members of the public to participate in the legislative process. The court could not superintend the day to day operations of other State organs as doing so would amount to interfering with the mandates of those State organs.

15. While Parliament was within its general legislative mandate to establish procedures of how it conducted its business, it had always to abide by the prescriptions of the Constitution. The court could not question each and every procedural infraction that might occur in either of the Houses of Parliament. The court could not supervise the workings of Parliament. The institutional comity between the three arms of government should not be endangered by the unwarranted intrusions into the workings of one arm by another.

16. Although there was no mention of any proposed amendment to the Public Finance Management Act (PFMA) in the newspaper advertisement of May 7, 2018 and in the impugned Bill, the impugned Act ended up amending section 24 of the PFMA by introducing section 2A.  That particular amendment was effected without following the procedure required by the Standing Orders 114 to 139 of the National Assembly, on the introduction of legislative proposals in Bills, their first reading, second reading, committal to the Committee stage and third reading. The amendment to the PFMA was not subjected to public participation. It failed to meet the edict of the Constitution requiring Bills to be enacted in accordance with the procedures in the Standing Orders and the requirement that Parliament involved the public in its legislative business in articles 109 and 118(1) of the Constitution. The amendment to section 24 of the PFMA by introducing section 2A therein made by Statute Law (Miscellaneous Amendment) Act No. 18 of 2018 was unconstitutional, null and void.

17. The legislative process begun from policy formulation stage, and the sponsor of legislation, who had the background information was a different entity from Parliament. Placing the onus on Parliament alone in that respect would be impracticable and unreasonable. In addition, there were opportunities to engage citizens at various stages of the legislative process, and those could be coordinated by various actors who were responsible for the process at any given stage, including during the content development of a Bill. Therefore, there were roles to be played by the executive, civil society and Parliament as actors in the various stages of the development of a Bill.

18. The time that was available for public participation had to be considered in light of all the legislative process. Evidence adduced suggested that the public was aware of the Bill from April 10, 2018 when it was published, and could have participated from that date. The purpose of publication of the Bill in that regard was to notify the public and invite representations through the elected members or direct submission of memoranda and petitions. It was not entirely correct to state that the members only had the seven days indicated in the advertisement of May 7, 2018 to present their views. Even after expiry of the seven days, the doors were not closed for members of the public to participate, as there was still opportunity to participate during the committee hearings as shown in Standing Order 127. There was participation by the 3rd petitioner even after expiry of the time stated in the advertisement.

19. There were efforts made by the National Assembly in facilitating public participation when using the omnibus bill mechanism in the Statute Law (Miscellaneous Amendments) Bill 2018. The legislature intended to carry amendments on the targeted Acts without the use of the term “minor”. From the advertisement of May 7, 2018, it was clear that each Act targeted for amendment was linked to the relevant committee. Only a part of the amendments and not all of them were subject to stakeholder engagement in the Committees. Coupled with the fact that there was sufficient time availed to the public to give their views on the amendments, public participation in the circumstances of the petition was sufficient.

20. The jurisdiction of the Senate could not be extended to each and every legislation passed by the National Assembly. To hold to the contrary would render article 110 of the Constitution redundant since it was difficult to think of any law that did not touch on counties. Although the Fourth Schedule to the Constitution had not given a wide array of functions to the counties, it was incumbent upon the person who alleged non-compliance with article 110 of the Constitution to demonstrate that the law in question was one that concerned county governments.

21.  By virtue of article 110(1), a Bill concerned county governments if it contained provisions affecting the functions and the powers of a county government; relates to election of members of a county assembly or a county executive; or affected finances of a county government. It was incumbent upon a person who claimed that the Senate was not involved in the enactment of a particular law to show that the impugned Act concerned county governments. The petitioners failed to discharge that duty. The fact that some of the statutes amended by the impugned Act had previously been amended or passed with the participation of the Senate did not necessarily mean that those laws concerned county governments.

22.  An agreement between the Speakers of the two Houses of Parliament that a Bill concerned county governments could still be subjected to litigation in order for the court to determine whether the decision of the Speakers was correct. The petitioners had not rebutted the 3rd respondent’s averment that amendments to Acts concerning county governments were lumped together in Statute Law (Miscellaneous Amendments) Bill, 2018 (National Assembly Bill No. 13) for separate debate and transmission to the Senate for consideration. The statutes proposed for amendment in the Bill were entirely different from the 69 Acts that were amended through the impugned National Assembly Bill No. 12 of 2018. The National Assembly was alive to the role of the Senate in the enactment of Bills concerning county governments and that was why it set aside the amendments which it believed touched on county functions and proposed amendments to those Acts through National Assembly Bill No. 13 of 2018.

23. The petitioners listed a number of statutory provisions in paragraph 70 of their petition which were amended by the impugned Act, and which they alleged violated or threatened to violate constitutional rights. Those included the amendments to section 13 of the Oaths and Statutory Declarations Act, section 81(1) and 1A of the Civil Procedure Act, section 4 of the Probation of Offenders Act, section 3(2) of the Housing Act, section 49A of the Law of Succession Act, various sections of the Traffic Act, section 12(2) of the Kenya Roads Board Act, section 113(6) of the Industrial Property Act, section 6 of the Copyright Act , various sections of the Biosafety Act, section 10 of the Competition Act, section 6(1)(a) of the National Authority for the Campaign Against Alcohol and Drug Abuse Act, and various sections of the Kenya Law Reform Commission Act and of the National Drought Management Authority Act. Other than making averments on the same, the petitioners had not demonstrated the manner in which those provisions violated the stated rights. Accordingly, they failed to discharge the burden imposed on them and the amendments could not be held unconstitutional.

24. Article 31 of the Constitution guaranteed a general right to privacy, and in addition also guarded against specific infringements of privacy, including unnecessary revelation of information relating to family or private affairs. The right to privacy was expressly acknowledged in international and regional covenants on fundamental rights and freedoms. It was provided for under article 12 of the Universal Declaration on Human Rights, article 17 of the International Convention on Civil and Political Rights, article 8 of the European Convention on Human Rights and article 14 of the African Charter on Human and Peoples’ Rights. The scope of the right to privacy was incapable of definition, and could be described as a bundle or continuum of rights which had a variety of justifications.

25.  Information privacy included the rights of control that a person had over personal information. Such personal information would in the first place concern information which closely related to the person and was regarded as intimate, and which a person would want to restrict the collection, use and circulation thereof. Examples include information about one’s health. But other information about that person could also be considered private and hence protected under the right to information privacy, even if that information related to their presence or actions in a public place or a place accessible for the public.  Such information over which individuals had an interest to keep private also included information and data about their unique human characteristics, which allowed them to be recognized or identified by others, as  it was information about one’s body and about one’s presence , image and identity, in both private and public places.

26. Article 31(c) of the Constitution had to be understood in the context that it protected against the unnecessary revelation of information relating to family or private affairs of an individual. Private affairs were those matters whose disclosure would cause mental distress and injury to a person and there was need to keep such information confidential. Taken in that context, the right to privacy protected the very core of the personal sphere of an individual and basically envisaged the right to live one’s own life with minimum interference.  The right also restricted the collection, use of and disclosure of private information.

27. The applicable test in determining whether there was an invasion or violation of the right to privacy essentially involved an assessment as to whether the invasion was unlawful. The presence of a ground of justification (such as statutory authority) meant that an invasion of privacy was not wrongful. Under the Constitution, by contrast, a two-stage analysis had to be employed in deciding whether there was a violation of the right to privacy. First the scope of the right had to be assessed to determine whether law or conduct had infringed the right. If there was an infringement it had to be determined whether it was justifiable under the limitation clause.

28. Specifically as regards a determination of whether there was a violation of the right to informational privacy, the court ought to take into account the fact;

a.  whether the information was obtained in an intrusive manner,

b. whether it was about intimate aspects of an applicants’ personal life;

c. whether it involved data provided by an applicant for one purpose which was then used for another purpose; and

d. Whether it was disseminated to the press or the general public or persons from whom an applicant could reasonably expect that such private information would be withheld.

29. Biometric data, by its very nature, provided information about a given person, and was therefore personal information that was subject to the protection of privacy in article 31 of the Constitution. The Data Protection Act, No 24 of 2019 adopted at section 2 the definition of personal data that was in the European Union’s General Data Protection Regulations (GDPR), namely, any information which was related to an identified or identifiable natural person. The unique attributes and identifiers that were included in the definition of biometric data as defined in section 3 of the Registration of Persons Act, GPS coordinates, and the data collected by NIIMS as evidenced by the NIIMS data capture form, clearly fell within the above definition of personal data.  The qualification of biometric data as personal had important consequences in relation to the protection and processing of such data, and as such invited a risk of violation of the right to privacy in the event of inadequate protection measures.

30. The main utility of biometric data was with regard to identification of a natural person. Therefore, the only relevant consideration as regards the necessity of biometric data was its utility with respect to the authentication or verification of a person. The article 29 Data Protection Working Party in its Working Document on Biometrics identified the necessary qualities required of biometric data for purposes of authentication and verification were that the data should have attributes that were: 

a. universal, in the sense that the biometric element exists in all persons;

b.  unique, in that the biometric element had to be distinctive to each person, and

c. permanent, in that the biometric element remained permanent over time for each person, and a data subject was in principle  not able to change  those characteristics

The biometric attributes required by the impugned amendments met those criteria, as most of them were universal and unique to the data subjects.

31. Unlike other biometric characteristics, the technique used in DNA identification, which was a DNA comparison process, did not allow for the verification or identification to be done “in real time”, the comparison was also complex, required expertise, and took time. Given the nature and the amount of personal information contained in cellular samples, their retention per se had to be regarded as interfering with the right to respect for the private lives of the individuals concerned. That only a limited part of that information was actually extracted or used by the authorities through DNA profiling and that no immediate detriment was caused in a particular case would not change that conclusion. DNA profiles contain a more limited amount of personal information extracted from cellular samples in a coded form. The limitations observed on the use of DNA equally applied, to the Kenyan situation, given the concession by the respondents of their inability to process DNA information for the entire population.

32. The necessity of GPS monitors in identification was even less evident, given the risk they posed to the right to privacy. The privacy implications and risks arising from the use of GPS monitors was that the devices could be used to track and monitor people without their knowledge. GPS monitoring generated  a  precise,  comprehensive  record  of  a  person’s  public  movements  that  reflected  a  wealth  of  detail  about their  familial,  political,  professional,  religious,  and  sexual associations. Disclosed  in  GPS  data  would  be  trips  the  indisputably  private  nature  of  which  took  little  imagination  to  conjure. The  Government  could  store  such  records  and  efficiently  mine  them  for  information  years  into  the  future.    And  because  GPS  monitoring  was  cheap  in comparison to conventional surveillance techniques and, by design, proceeds surreptitiously, it would evade the ordinary checks  that  constrain  abusive  law  enforcement  practices.

33. Other than the DNA and GPS coordinates, information to be collected by NIIMS pursuant to the impugned amendments was necessary and was therefore not unconstitutional.

34.  Judicial notice of the fact that the Data Protection Act 24 of 2019 was enacted and the law contained therein was taken. The protection of personal data depended largely on a legal, regulatory and institutional framework that provided for adequate safeguards, including effective oversight mechanisms. That was especially the case with NIIMS, whereby a vast amount of personal data was accessible to the state, and data subjects at the time had limited insight into and control over how information about them and their lives was being used.

35. The Data Protection Act had included most of the applicable data protection principle, however, the Registration of Persons Act was not one of the Acts to which the Data Protections Act applied as part of the consequential amendments.  That notwithstanding, since one of the objectives of the Act was the regulation of the processing of personal data, whose definition included biometric data collected by NIIMS, it also applied to the data collected pursuant to the impugned Act. There were a number of areas in the Data Protection Act that required to be operationalised by way of regulations, including circumstances when the Data Commissioner may exempt the operation of the Act, and may issue data sharing codes on the exchange of personal data between government departments. Those regulations were necessary, as they would have implications on the protection and security of personal data.

36. Once in force, data protection legislation had to be accompanied by effective implementation and enforcement. The implementation of the Data Protection Act 24 of 2019 required an implementation framework to be in place, including the appointment of the Data Commissioner, and registration of the data controllers and processors, as well as enactment of operational regulations. Therefore, there was in existence a legal framework on the collection and processing of personal data, adequate protection of the data required the operationalisation of that legal framework.

37. The respondents explained the measures they put in place to ensure the safety of the data collected by NIIMS and the security of the system, including the encryption of the data and restricted access. However, there was no specific regulatory framework that governed the operations and security of NIIMS. The legal framework on the operations of NIIMS was inadequate, and posed a risk to the security of data that would be collected in NIIMS.

38. Article 34 of the Constitution guaranteed freedom of the press and of the media. Article 34(5) made specific provision with respect to the body that would be charged with the responsibility of setting media standards, and which would monitor and regulate compliance with those standards. The CAK was the body mandated to set and regulate compliance with media standards in Kenya. Thus, the CAK was the body established to perform the functions of media regulation which was expressly provided for by the Constitution.  Unlike other boards of state corporations, it was the only state body which the Constitution expressly sought to shield from partisan interests. The body that was in charge of media regulation, according to the Constitution, had to be free of government control and of control by political or other interests.

39. Previously, the appointment of members of the CAK Board was to be conducted through a process provided for under section 6B, then repealed by the impugned Act. The impugned amendments had done away with the elaborate process under section 6B and vested the powers of appointment in the President and the Cabinet Secretary. Those changes in the law did not accord with article 34(5) of the Constitution. The input of civil society and of the media was essentially removed from the process of appointment of the chairperson and members of the Board of the regulator established under legislation intended by the Constitution to set and regulate and monitor compliance with media standards.

40. The body established, under the amendments made under the impugned Act, would then comprise of appointees of the Executive. A body whose Chair was appointed by the President, whose Board was made up of Principal Secretaries in government, and the rest of whose members were appointed by the Cabinet Secretary, Ministry of Information, Communication and Technology, himself a presidential appointee, could not be considered an independent body contemplated under article 34(5).

41. A media regulator that was controlled by government, as would be the case should the appointment of the Board of CAK be left to the process set out in section 6 of KICA as amended by the impugned Act, would pose a serious threat of violation of the right to freedom of expression and of the media guaranteed under article 34, and would be in conflict with article 34(5). The impact of such a situation on democracy could not be contemplated. Section 6 of KICA as amended by Statute Law (Miscellaneous Amendment) Act No. 18 of 2018 was unconstitutional, null and void.

42. The petitioners had not demonstrated how the amendments to the Children Act by the impugned law violated the Constitution. The petitioners instead challenged the constitutionality of the Child Welfare Society Order (Legal Notice No. 58 of May 21, 2014). However, the challenge was not one of the matters raised in the petition. Parties were bound by their pleadings, and a matter that was not in the pleadings could not be introduced at the submission stage and the court be called upon to make a determination thereon. Accordingly, the issues raised could not be addressed.

Children Act-Sections 2 (b), 27 (2), 94 (1), 102 (1), 158 (4) (b) & (c)

&

Law of Succession Act-Sections 3 (2) & (3) Birth & Deaths Registration Act-Section 12

NSA & another v Cabinet Secretary for, Ministry of Interior and Coordination of National Government & another [2019] eKLR
High Court at Kakamega
J Njagi, J

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Brief Facts:

The petitioners challenged discrimination by the law on children born out of wedlock and unmarried women on the basis of birth, sex and marital status.

The 1st petitioner averred that she was cohabiting with one PM as a result of which they were blessed with two issues, EA and NF, out of wedlock. She averred that she had serious challenges getting the name of the father of the children inserted in the children’s birth certificates as he had declined to have his name inserted therein and thus denied the minors identity; that EA was issued with a birth certificate which had markings xxx on the place meant for the father’s name and that NT was yet to be issued with one. The 1st petitioner contended that the law required consent of the father before his name was inserted in the children’s birth certificates which according to her was discriminatory and violated her constitutional rights and that of the children to equal protection before the law, equality, dignity, a name, parental care and protection and equal responsibility of father and mother to provide for them.

 The petitioners contended that the language in some sections of the Children Act were discriminatory to children born out of wedlock and to unmarried mothers. They also contended that section 12 of the Birth and Deaths Registration Act and sections 3(2) and 3(3) of law of Succession Act were discriminatory to children born out of wedlock.

Held:

1.  The High Court had inherent power and constitutional jurisdiction to interpret the Constitution of Kenya, 2010 (Constitution), the Bill of  Rights and other laws on principles premised by article 3, 10, 20(3),(4) and (5), 21, 24, 159, 165(3)(b) and ( d), 258, 259 and 260 of the Constitution.

2.  The Constitution should be interpreted in a manner that promoted its purposes, values and principles, advanced the rule of law, human rights and fundamental freedoms in the Bill of Rights, and that contributed to good governance. Article 159(2)(e) of the Constitution mandated the Court, in exercising its judicial authority, to protect and promote the purpose and principles of the Constitution.

3.  The Constitution of a nation was not simply a statute which mechanically defined the structures of government and the relationship between the government and the governed. It was a mirror reflecting the national soul; the identification of ideals and aspirations of a nation; the articulation of the values bonding its people and disciplining its government. The spirit and the tenor of the Constitution had to preside and permeate the processes of judicial interpretation and judicial discretion.

4.  The provisions of the Constitution had to be read as an integrated whole, without any one particular provision destroying the other but each sustaining the other.

5.  There was a general presumption that every Act of Parliament was constitutional. The burden of proving the contrary rested upon any person who alleged otherwise. The Constitution qualified that presumption with respect to statutes which limited or were intended to limit fundamental rights and freedoms. Under the provisions of article 24 there could be no presumption of constitutionality with respect to legislation that limited fundamental rights: it had to meet the criteria set under article 24.

6.  In determining whether an Act of Parliament is unconstitutional, consideration had to be given to the objects and purpose of the legislation.

7.  In interpreting the Constitution, the court would be guided by the general principles that;

a.  the Constitution was a living instrument with a soul and consciousness of its own as reflected in the preamble and fundamental objectives and directive principles of state policy. Courts had to therefore endeavor to avoid crippling it by construing it technically or in a narrow spirit. It had to be construed in tune with the lofty purposes for which its makers framed it. So construed, the instrument became a solid foundation of democracy and the rule of law. A timorous and unimaginative exercise of judicial power of constitutional interpretation left the Constitution a stale and sterile document;

b.  the provisions touching fundamental rights had to be interpreted in a broad and liberal manner, thereby jealously protecting and developing the dimensions of those rights and ensuring that the people enjoyed their rights, the young democracy not only functioned but also grew, and the will and dominant aspirations of the people prevailed. Restrictions on fundamental rights had to be strictly construed.

8.  A party alleging violation of a constitutional right or freedom had to demonstrate that their fundamental right had been impaired, infringed or limited. Once a limitation had been demonstrated, then the party which would benefit from the limitation had to demonstrate a justification for the limitation. The State, in demonstrating that the limitation was justifiable, had to demonstrate that the societal need for the limitation of the right outweighed the individual’s right to enjoy the right or freedom in question.

9.  Article 53 of the Constitution was the reference point as far as the rights of children were concerned. It was the yardstick by which laws relating to children were to be measured. The plain meaning of the article was that fathers and mothers had equal responsibility to a child they bore, and that responsibility was not left to the volition of the man or woman.  The bottom line was that both of them had to take responsibility. \

10. In determining whether a law was inconsistent with the Constitution so as to make the said law invalid, a court needed to lay the article of the Constitution which was invoked beside the statute which was challenged and to decide whether the latter squared with the former.

11. The Children Act No. 8 of 2001 was enacted before the promulgation of the Constitution. There had been no review of the Act to align it with the Constitution. Some of the provisions of the Act were inconsistent with the Constitution.

12. Section 2(b) of the Children Act gave a father the discretion of choosing whether a child was to be his relative or not. A reading of the section had the meaning that if a father did not acknowledge paternity of a child or had not been contributing to the maintenance of the child, that child could not be considered to be a relative of the father. It also meant that children born inside wedlock had an automatic right to be the relatives of their fathers while those born outside wedlock had no such  right. That was discriminatory on the children born outside wedlock on the ground of birth. That violated the right of equal treatment before the law to children born outside wedlock. The definition was against the spirit of article 53 of the Constitution and offended the principle of the best interests of the child, which the constitution placed at a higher pedestal than that of the father or mother.

13. It was in the best interest of a child for the child to be recognized as a relative of his father’s relatives whether the child’s parents were married to each other or not. The definition of ‘relative’ in section 2(b) of the Children Act was in contravention of articles 27(1) of the Constitution which provided for equal treatment before the law and article 27(4) that barred discrimination on the ground of birth.  

14. Section 24(1) and (2) of the Children Act placed equal responsibility for a father and mother who were married either before or after a child’s birth. That section was in line with article 53(1) of the Constitution on equal responsibility of the father and mother whether they were married to each other or not. It had not been shown that the section was in contravention of the Constitution.

15. Section 26 of the Children Act provided for parental responsibility agreements which agreements could only be vitiated like any other contract. There was nothing wrong in having parental responsibility agreements in so far as they were not in conflict with the Constitution and relevant statutes.

16. Section 27(1) of the Children Act provided for transmission of parental responsibility to a father and mother who were married or had subsequently married after the birth of the child. The section provided for the doctrine of survivorship in case of death of either parent where responsibility of the child was transferred to the surviving parent. There was nothing wrong with that provision as a surviving parent continued to have responsibility towards their child.

17. Section 27(2) of the Children Act provided for transmission of parental responsibility of unmarried parents when either parent died. It provided that the father could only take up responsibility after the death of the mother if he had acquired parental responsibility. That was against the principle of equal responsibility of parents under article 53(1) (e) of the Constitution which right could not be qualified for reason that the father had or had not acquired parental responsibility. Parental responsibility was automatic and self-activating on parents upon the birth of a child and fathers could not have the discretion of either accepting or rejecting that responsibility. It also meant that a parent who had not acquired parental responsibility could not do so after the death of the other parent. The section was therefore discriminatory to unmarried fathers on ground of marital status contrary to the provisions of article 27(4) of the Constitution.

18. Section 94 (1) of the Children Act implied that parents of children born out of wedlock had to assume parental responsibility before they could be ordered to pay maintenance towards their children. A parent could not opt out of parental responsibility. The section was in contravention of article 53 (1)( e) of the Constitution which commanded equal responsibility of the mother and father to provide for the child whether they were married to each other or not.

19. Section 102(1) of the Children Act  was inconsistent with the Constitution in so far as the father of a child born out of wedlock needed to ‘acquire parental responsibility’ for them to take up parental responsibility of the child upon the death of a mother. The Court reiterated the automation of parental responsibility upon birth of a child, and the said responsibility was not left to the discretion of either the father or mother. The section was in contravention of article 53 (1) (e) of the Constitution.

20. Section 158 4(b) of the Children Act was inconsistent with the Constitution in that in adoption proceedings it only provided for the consent of the parent or guardian of the mother of the child where the mother of a child born out of wedlock was a child but did not provide for the consent of the parents or guardian of the father where the father was a child. That was discriminatory on such fathers in that their parents or guardian were not required to give consent in adoption proceedings. The section was in contravention of articles 27(1) and 27 (4) of the Constitution on equality before the law.

21. Section 158 4(c) of the Children Act was inconsistent with the Constitution in so far as the father of a child born out of wedlock needed to ‘acquire parental responsibility’ for them to take up parental responsibility and be regarded as a father for purposes  of consenting to the adoption of the child.  The section was discriminatory on fathers who had not acquired parental responsibility. The section had the implication of treating fathers differently based on whether one had acquired parental responsibility which was against the spirit of article 27(1) on equal treatment before the law.

22. Sections 3(2) and 3(3) of the Law of Succession Act were inconsistent with the Constitution in so far as a child born out of wedlock was regarded as such if the father had expressly recognized or in fact accepted as a child of his own or for whom he had voluntarily assumed permanent responsibility. A parent’s responsibility to their child was mandatory and not discretionary.  The section was in contravention of article 53 (1)(e) of the Constitution which required parents to provide for their children whether they were married or not.

23. Section 12 of the Births and Deaths Registration Act was invalidated in L.N.W v Attorney General & 3 others [2016] eKLR. The instant Court was agreeable to the reasoning of the Court in that matter. Section 12 was inconsistent with article 27 and 53 of the Constitution.

24. When the High Court in L.N.W v Attorney General & 3 others [2016] eKLR invalidated the provisions of section 12 of the Births and Deaths Registration Act, it directed the Registrar of Deaths and Births to within 14 days put into place mechanisms to facilitate the entry into the birth register of names of  the father of children born outside wedlock.  That was the proper way to go.  Before such names were entered into the register there had to be some regulations in place.  The petitioner did not inform the court whether such regulations had been put into place.  An order for birth certificate to be issued to the children of the 1^st respondent indicating the name of their father could not issue before the law was amended to cater for that.

25. The mandate of the Court was to ascertain whether a law was inconsistent with the constitution or not.  The court did not supervise other courts of equal jurisdiction.  The instant Court could not issue prohibitory orders on other judges of the High Court.  Even though the Court had powers to supervise the Magistrates’ Courts, it could not issue orders that would be difficult to supervise or implement. 

26. The impugned sections of the Births and Deaths Registration Act, the Children Act and the Law of Succession Act should be amended to align them with the Constitution of Kenya 2010.

Law Society of Kenya v Attorney General & 2 others [2019] eKLR

Court of Appeal at Nairobi

P N Waki, D K Musinga, & P O Kiage, JJA

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Brief facts

The appellant lodged a petition in the High Court challenging amendments made in the Statute Law (Miscellaneous Amendments) Act No 12 of 2012 on the grounds that the 1^st respondent had purported to make substantive amendments to various Acts contrary to the ordinary usage of a Statute Law (Miscellaneous Amendments) Act. They argued that that a Statute Law (Miscellaneous Amendments) Bill was only used to make minor amendments to the Law, to consolidate various minor amendments to remove anomalies, or to repeal unnecessary enactments. The appellant urged the High Court to, inter alia, declare the Statute Law (Miscellaneous Amendments) Act No 12 of 2012 unconstitutional. After considering the petition, the High Court found it unmeritorious and dismissed it, prompting the appellant to file the instant appeal.

The challenged amendments affected certain provisions of the Law Society of Kenya Act and the Advocates Act. In particular, sections 13(1)(e), 32A, 32B, 55 and 57(1) of the Advocates Act were amended. The effect of those amendments were to remove the responsibility of vetting magistrates from the Judges and Magistrates Board to the Judicial Service Commission; replace the Advocates’ Disciplinary Committee with an Advocates’ Disciplinary Tribunal; empower the Chief Justice to make recommendations on the remuneration of a category of lawyers known as in-house Counsel; and, permitted advocates practising within the East African community and the commonwealth to be admitted to practice law in Kenya.

The appellant argued that the trial court misdirected itself by, inter alia, failing to appreciate that the amendments contained in the Statute Law (Miscellaneous Amendment) Act, 2012, sought to introduce substantive amendments to the law, and the amendments ought to have been subjected to public participation prior to being passed into law.

The respondents opposed the appeal and maintained that the  Statute Law (Miscellaneous Amendments) Act No 2012, did not bring any substantive amendments to the Acts mentioned therein and urged the Court to dismiss the appeal.

Held

1.   A Statute Law (Miscellaneous Amendments) Bill was meant to be an Act of Parliament to make minor amendments to statute law. From ordinary use, the word minor meant something that was of less importance, insignificant even. Substantive law meant the part  of  the  law  that  created,  defined,  and regulated  the   rights  and   duties,   and  powers of parties. As such, the amendments introduced by a Statute Law (Miscellaneous Amendments) Bill ought not to create, define, regulate or confer any powers to any parties, for if they did, they would not be said to be minor or inconsequential.

2.   A committee was defined as an individual or a body to which others have committed or delegated a particular duty, or who have taken on themselves to perform it, in the expectation of their act being confirmed by the body they profess to represent or to act for. On the other hand, a tribunal meant a court or other adjudicatory body. The term committee signified something part of and subordinate to a higher authority to which it reported. That was the case with the Advocates Disciplinary Committee’s relationship to the appellant. A tribunal had a more important, self-directive or autonomous adjudicative connotation to it. As such, the trial court erred in stating that the amendment was merely cosmetic and did not change the substance of the Advocates Act nor interfered with the powers of that body. That was more so when the role of the Attorney General in determining remuneration for the members of the established Tribunal was considered. The appellant’s apprehensions regarding the appearance of the Tribunal being beholden to the Attorney General were not idle.

3.   On the amendment to the Advocates Act which opened up the Kenyan market to foreign advocates, the trial court held that section 11 of the Advocates Act had already provided for the practice and regulation of foreign advocates. The High Court erred in not observing the finer details of the amendments and in not appreciating the text, context and effect that rendered them substantive. The amendments had an effect on the business of the appellant and its membership. Moreover, it undermined the independence of the appellant, something that the Court could not countenance.

4.   There was mischief in the 1^st respondent’s argument that the State needed to have some level of control over the discipline of advocates. It already had the Advocates Complaints Commission under its control. That was enough state control. There was no legitimate purpose to be served by further control through legislative measures clearly cultivated to undermine the independence of the appellant.

5.   On the issue of public participation, the High Court failed to appreciate the mandatory provisions in section 5 of the Statutory Instruments Act which required consultations before making statutory instruments that had a direct or substantial indirect effect on business or restricted competition with persons who were likely to be affected by the proposed instrument. The High Court ought to have found in favour of the appellant based on the claim made on the lack of public participation.

6.   It was an error for the trial court to require the appellant to prove the negative–that there was no public participation, for once it stated there was no public participation, the burden shifted to the respondents to show that there was. Much weight had been placed on public participation because it was the only way to ensure that the legislature would make laws that were beneficial to the mwananchi, not those that adversely affected them. Additionally, the onus was on the Parliament to take the initiative to make appropriate consultations with the affected people. It was therefore misdirection for the High Court to hold that the appellant had the responsibility to prove that the consultations did not happen.

7.   The 1^st respondent was not possessed of an unfettered or carte blanche leeway to table legislation that was detrimental to the people of Kenya or a section of the citizenry. It ought to follow due process which included consultation with stakeholders. The Constitution established that mechanism to enable the Legislature to make laws that were reasonable, having sought and obtained the views of the people. That was the essence of an accountable limited government and the shift from the supremacy of Parliament to the sovereignty of the people birthed by the Constitution.

8.   The Legislature overreached in passing substantive amendments in an un-procedural non-participatory manner, through the Statute Law (Miscellaneous Amendments) Act No of 2012. Parliament’s passing of the challenged amendments was not in keeping with the constitutional bounds of its power and the same ought to be struck down.

Ripples International v Attorney General & another; FIDA (Interested Party) (Constitutional Petition E017 of 2021) [2022] KEHC 13210 (KLR) (29 September 2022) (Judgment)
Neutral citation: [2022] KEHC 13210 (KLR)

EM Muriithi, J

 
Brief facts
The petitioner filed the instant petition and contended that various provisions to wit Law of Succession Act (the Act) had brought inequalities based on gender and violated the rights of women, girls and vulnerable members of the society by preventing them from enjoying the fruits borne by the progressive Constitution of Kenya, 2010 (Constitution). The inequalities had been brought about by the unequal treatment of women when compared to their male counterparts within the same provisions of the Act.
The petitioner sought to challenge the constitutionality of sections 32, 35(1)(b), 36(1)(b) and 39(1)(a) and (b) of the Act. The petitioner contended that the exceptions created by sections 32 and 33 of the Act were problematic since they denied the people of Kenya, especially women and the girl child of Kenya the right to property, food, shelter and the much-needed gender equality and even equal protection from adverse customary practices. The petitioner further contended that section 39 of the Act was discriminatory against women, in that it gave exclusive right, in intestacy to a father of a deceased who left no surviving spouse or children to inherit all the property of the deceased.

Held

Petition partly allowed.
Orders

Declared Unconstitutional in 2018.

Machakos County Finance Act, 2018
Simeon Kioko Kitheka & 18 others v County Government of Machakos & 2 others [2018] eKLR
Petition No. 9 of 2018
G V Odunga, J
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Brief Facts:
The 2nd Respondent (the County Assembly of Machakos) enacted the Machakos Finance Act, 2017 (the Act). The Act provided for Sand Harvesting/ Transportation Cess. The 2nd Respondent through a letter dated September 26, 2017, invited the Petitioners to attend foras at various venues all of which were to take place on September 29, 2017 from 11.00 am to 2.00pm in order to discuss the Machakos Finance Bill (the Bill). The Petitioners contended that the Bill availed by the 2nd Respondent for the public participation was markedly different from the Act as the rates that were provided in the Bill were as for the previous year thus the Petitioners’ contention that no public participation was carried on in respect of the Act. The Petitioners sought, among other orders, that the Act be declared unconstitutional.

Held:
1.    Looking at the Bill and the Act, it was clear that the Act did not exactly reflect what was contained in the Bill. For example whereas in the Bill the sand permit per 7 tonne Lorry per trip was indicated as Kshs 1,300 uniformly, the Act stated that sand permit per 7 tonne lorry per trip was Kshs 5000.00. It was not clear at what stage the amount in the Bill that was the subject of public participation was altered in terms of the amount payable in respect of the sand permit per 7 tonne Lorry per trip. The onus was on the law making authority to show that there was public participation in the process and that the end product reflected that process.
2.    Where there was a break in the process and the end product was a monster that was completely strange to what was presented to the public as seemed to be the case in the instant case. In the absence of any reasonable justification, the Court had to find that the product was a not result of the public participation and had to proceed to declare it to be so. For any amendments to be introduced on the floor of the Assembly subsequent to public participation, the amendments had to be the product of the public participation and ought not to be completely new provisions which were neither incorporated in the Bill as published nor the outcome of the public input.
3.     By introducing totally new and substantial amendments to the Act which were not in the Bill, the Assembly not only set out to circumvent the constitutional requirements of public participation but mischievously short-circuited and circumvented the letter and the spirit of the Constitution. Its action amounted to a violation of articles 10 and 196 of the Constitution. The substitution of the sum of Kshs 1,300 as indicated in the Bill with that of Kshs 5,000 in respect of the sand permit per 7 tonne Lorry per trip was improper and unlawful.
4.    The Bill of Rights had been or was threatened with contravention, to avoid to enforce the Bill of Rights on the ground that the supplicant for the orders had not set out with reasonable degree of precision that of which he complained had been infringed and the manner in which they were alleged to be infringed. Where the Court could glean from the pleadings the substance of what was complained, to dismiss the Petition on the ground of lack of precision would amount to the Court shirking from its constitutional duty of granting relief to deserving persons and to sacrifice the constitutional principles and the dictates of the rule of law at the altar of procedural issues. Where there was a conflict between procedural dictates and constitutional principles especially with respect to the provisions relating to the Bill of Rights, the latter ought to prevail over the former.

Tukero ole Kina v Attorney General & another [2019] eKLR

High Court at Malindi

R Nyakundi, J

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Brief Facts

The petitioner filed the instant petition seeking a declaration that section 66(1) of the Marriage Act, 2014 (the Act) was unconstitutional, null and void for running afoul of among other attendant rights and freedoms such as article 27 of the Constitution of Kenya, 2010 (the Constitution) on the right to equality and freedom from discrimination. Section 66 (1) of the Act provided that a party to a civil marriage could not petition the court for the separation of the parties or for the dissolution of the marriage unless three years had elapsed since the celebration of the marriage.

Held:

1. The Court was constitutionally mandated under article 23(1) of the Constitution of Kenya, 2010 (the Constitution) to hear and determine applications for redress of a denial, violation or threat to a right or fundamental freedom in accordance with article 165 of the Constitution. When the violation or threat stemmed from a clause contained in a statute, it behooved the court to lay side by side the impugned provision of statute and articles of the Constitution it was alleged to have offended and see whether the former squared with the latter.

2. Article 2 of the Constitution ordained the Constitution as the supreme law of the land and further avowed that any law that failed to resonate with the Constitution was invalid to the extent of its inconsistency. Article 10 of the Constitution on the other hand was premised on the basis that the national values and principles were binding to all and ought to be considered when enacting, applying and interpreting any law. Those principles, especially as they related to the instant petition included human dignity, equity, social justice, inclusiveness, equality, human rights, non-discrimination and protection of the marginalized.

3. The spirit and tenor of the Constitution ought to reverberate throughout the approach towards the interpretation of the Constitution in relation to the question at hand. In addition, the interpretation ought to be holistic rather than restrictive. In construing the impugned provisions, the Court was enjoined to go further than avoiding an interpretation that clashed with the constitutional values, purposes and principles. The Court had to also seek a meaning of the provisions that promoted constitutional purposes, values, principles, and which advanced rule of law, human rights and fundamental freedoms in the Bill of Rights. The interpretation ought to permit development of the law and contribute to good governance. The purposes and principles of the Constitution as required by the provisions of article 159 (e) of the Constitution had to be promoted and protected.

4. There was a very heavy burden cast on any person challenging the validity of any piece of legislation since there was a presumption that the legislature understood and correctly appreciated the needs of the people and that its laws were directed to problems made manifest by experience. The court would only declare a statute invalid if it conflicted with the Constitution and so the onus was on anyone seeking to impugn a statute to show that in the circumstances which existed at the time it was passed, the legislation violated rights enshrined in the Constitution.

5. The presumption of constitutionality of a statute was rebuttable. Parliament could not evade a constitutional restriction by a colourable device. In order to rebut the presumption, the court would have to be satisfied that Parliament in so declaring was either acting in bad faith or had misinterpreted the provisions of the Constitution under which it purported to act.

6. The principle of separation of powers developed as a political idea and was intended to enhance liberty and restrict tyranny by ensuring that all power in a governance system was not concentrated in the same person or group of persons. According to the classical doctrine of the separation of powers, the power of enacting laws (legislative power) should be separated from the power of administering the State (executive power) and the power of interpreting and applying the laws to particular cases (judicial power). However, constitutions adhering to that doctrine such as Kenya do not typically keep the branches of Government entirely separate. The doctrine allowed for each of the three branches of Government to have some involvement in, or control over, the acts of the other two. That partial mixture of mutually controlling powers was known as a system of checks and balances.

7. The doctrine of proportionality stated that all laws enacted by the legislature and all actions taken by any arm of the State, which impacted a constitutional right, ought to go no further than was necessary to achieve the objective in view. The test of proportionality stipulated that the nature and extent of the State’s interference with the exercise of the right had to be proportionate to the goal it sought to achieve. Put differently, proportionality involved the court taking into consideration both the purpose and effect of the legislation.

8. Both purpose and effect were relevant in determining constitutionality; either an unconstitutional purpose or an unconstitutional effect could invalidate legislation. All legislation was animated by an object the legislature intended to achieve. That object was realized through impact produced by the operation and application of the legislation. Purpose and effect respectively, in the sense of the legislation’s object and its ultimate impact, were clearly linked, if not indivisible. Intended and achieved effects had been looked to for guidance in assessing the legislation’s object and thus the validity.

9. It was the duty of the Court to scrutinize allegations of rights infringement, that duty was germane to the edicts of constitutional interpretation and was no way a usurpation of the mandate of Parliament. Where the purpose or the effect of an impugned provision went against the grain of the Constitution, or where there was no discernible link between the legislation and the purpose, then the Court could not shirk its constitutional fiat to call the offending provision into question.

10. In determining discrimination, the guiding principles were clear:

a. The first step was to establish whether the law differentiated between different persons.

b. The second step entailed establishing whether that differentiation amounted to discrimination.

c. The third step involved determining whether the discrimination was unfair.

Section 66(1) of the Act denied parties desirous of dissolving their union under the umbrella of civil marriage the opportunity to do so unless and until a three year period had lapsed since the celebration of that union. That was prima facie discriminatory.

11. Whether or not the discrimination was unfair could be assessed by considering the following:

a. Whether the provision differentiated between people or categories of people. If so, whether the differentiation could stand a rational connection to a legitimate purpose. If it did not then there was a violation of the Constitution. Even if it bore a rational connection, it could nevertheless amount to discrimination.

b. Whether the differentiation amounted to unfair discrimination, that required a two-stage analysis: -

i. Firstly, whether the differentiation amounted to discrimination. If it was on a specified ground, then discrimination would have been established. If it was not on a specified ground, then whether or not there was discrimination would depend upon whether, objectively, the ground was based on attributes and characteristics which had the potential to impair the fundamental human dignity of persons as human beings or to affect them adversely in a comparably serious manner.

ii. If the differentiation amounted to discrimination, whether it amounted to unfair discrimination, if it had been found to have been on a specified ground, then the unfairness would be presumed. If on an unspecified ground, unfairness would have to be established by the complainant. The test of unfairness focused primarily on the impact of the discrimination on the complainant and others in his or her situation. If, at the end of that stage of the enquiry, the differentiation was found not to be unfair, then there would be no violation.

c. If the discrimination was found to be unfair then a determination would have to be made as to whether the provision could be justified under the limitations clause of the Constitution.

12. The discrimination in the instant case was on an unspecified ground, it was upon the complainant to establish the same. The test for that focused primarily on the impact of the discrimination on the situation of the complainant. The policy argument fronted by the respondents as a basis for the differential treatment of persons desirous of dissolving a marriage fell short, a cursory observation of the underpinnings of that argument revealed that the same was wholly based on the position in England. Further reliance was placed on the position in Singapore. However, scarce effort was expended by the respondents to prove that in passing the impugned provision, the drafters of the Act paid any mind to public policy. If the imposition of the three year limitation was indeed a public policy consideration, all the parliamentary draughts men had to do was to express their said intention uniformly across all the regimes of marriage contemplated under the Act. After all, it was provided in section 3 (3) of the Act that all marriages had the same legal status. None of the following questions were answered to the Court’s satisfaction or answered at all by the respondents:

a. Why there was no such limit imposed on the four other regimes of marriage envisioned under the Act.

b. What informed the decision to pick three years and not two or four?

c. The reasoning that was used to arrive at the conclusion that the three year period was sufficient enough to make a fledgling marital union stable.

13. The position of civil marriage as one of the five regimes recognised in Kenya could not be understated. Christian Marriages as per section 17 of the Act were restricted to parties that professed the Christian faith. Per section 43(1) of the Act, customary marriage was entered into in observance of the customs of the communities of one or both of the parties. Respectively, sections 46 and 48 of the Act dictated that only parties that professed the Hindu or Islamic faith could enter into such unions. Inverse to the foregoing was the position of civil marriages, there was no limitation as to creed or community. All that was required was the intention of consenting adults. The umbrella of civil marriages sheltered not only the persons that did not fit the specific restrictions of faith and community but also persons that though having those options, for one reason or the other chose to celebrate a civil marriage.

14. It was clear that not only did the three year limit affect a wide classification of people but also that the respondents’ notion that, that wide category could simply resort to the other available regimes of marriage recognised under the law was patently false. The only logical conclusion left to draw was that the decision to limit the presentation of petitions for separation and dissolution of civil marriages until after the lapse of three years since the celebration of the union was arbitrary and with no backing whatsoever. Section 66(1) of the Act was discriminatory and in violation of article 27(4) of the Constitution to the extent that it arbitrarily limited parties that had celebrated a union under the auspices of a civil marriage to a three year wait period before such a union could be dissolved.

15. The right to form a marriage union should not be subjected to such restrictions as could be presented by law that infringed on the fundamental rights and freedoms. A look at the provisions of section 66(1) of the Act as enacted by the Legislature and assented to, read together with other relevant provisions on forms of systems of marriage the aforesaid provision attaching a three year limit amounted to discrimination and a violation to the right on equality in terms of article 27 of the Constitution.

16. By imposing the three year limitation, the impugned section had the effect of forcefully keeping parties in a situation they no longer wished to be part; so that while section 66 (2) of the Act contemplated cruelty and exceptional depravity as a ground for dissolution of marriage, a petition could not be entertained until the time limit was reached. That prima facie was a case of an affront to a person’s human dignity preserved by article 28 of the Constitution.

17. By parties being unreasonably proscribed from enjoying the right to petition for a divorce before the lapse of three years, their right to access to justice guaranteed under article 48 of the Constitution was infringed upon.

18. The petitioner had amply rebutted the presumption of constitutionality of the Act. From scanning the length and breadth of the Hansard Reports and the material presented by the respondents, there was no evidence of a discussion on the effect of section 66(1) of the Act and neither was there any evidence on efforts to seek out stakeholders views and comments from the public at large who were affected by the imposition of the three year limit. In view of the impact of section 66(1) on the public, it was prudent for the National Assembly to actively engage the public. Had such an exercise been undertaken, the likelihood of the impugned provision being retained would have been minimal.

19. The only part of section 66(1) of the Act that was unconstitutional was the three year period pre-requisite. It would have been possible for section 66(1) to be enacted without the offending requirement. Striking it down would not be a disservice to the operation of the entire section 66 of the Act and neither would it jeopardise the application of the rest of the Act.

Declared Unconstitutional in 2017.

 

Kenya Ferry Services Limited v Mombasa County Services & 2 others

Constitutional Petition no 9 of 2016

M J A Emukule, J

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Brief Facts

The main issue raised by both the Petitioner and the Respondent was the division of the functions of the National and County Governments under the Fourth Schedule to the Constitution of Kenya, 2010 and in particular Part II which conferred upon the County Governments the function of county transport, including under paragraph 5(e), the function of operating ferries and harbors, excluding, the regulation of international and national shipping and matters related thereto.  The second issue raised concerned the concomitant question of division of assets between the National and County Governments.

Whereas the Petitioner contended that as an agency of the National Government, it was responsible for ferry services, and matters related thereto, the Respondent’s reply was that ferries and harbors was a function of the County Government.  It did not concern itself with the regulation of international and national shipping and matters related thereto.

The Respondent’s claimed that being a County Government created under article 6(1) of the Constitution of Kenya, 2010 (the Constitution), it was vested with power under the Fourth Schedule to the Constitution, and in particular sub-paragraph 5(e) of the Constitution, to manage transport and parking within the County of Mombasa, including the management of bus termini and collection of necessary fees and further, to license, collect revenue and other charges from businesses and other commercial enterprises and to issue permits at a fee for advertisement in all forms including bill boards, banners, display screens or advertisement branded on the vehicles to be created and displayed. The Respondent also claimed that the Petition herein was fatally defective and ex facie incompetent, bad in law on the ground that the Petition was filed without the Petitioner’s authority and that there was no resolution by the Petitioner’s Board approving the institution of the Petition.  On the contract between the Petitioner and the Interested Parties, (M/S My Space Properties Limited and Nova Media Limited) the Respondent contended that these were invalid because they were not executed under seal. It was also the Respondent’s contention that the Petitioner was operating a bus/matatu termini, hawkers’ stalls and outdoor advertising illegally because the said functions were devolved. On the loss of revenue, the Respondent claimed that it never demanded the handover of its properties or facilities but were concerned that the Petitioner’s actions had led to inefficiencies in the management of the ferries.  In other words, the Respondent said that it took over the said function from the Petitioner to enable the Petitioner concentrate on ferry operations, and also suggested that it could give assistance to the Petitioner to discharge its duties.

The Respondent contended that it took over the functions of the Petitioner on February 8, 2016 in a bid to restore order and increase efficiency in and around Likoni Ferry, and that it did so peacefully and without any altercation, because it was the responsibility of the Respondent to regulate and manage road transport, including Likoni channel. The Respondent also denied the subventions by the national government to the Petitioner as pleaded in paragraph 7 to the Petition, and other sources of revenue as pleaded in paragraphs 7, 8 and 9 of the Supporting Affidavit. The Respondent also denied the application or relevance of the letter dated February 24, 2016 by the Transitional Authority to the resolution of the dispute raised by the Petition herein. For all those reasons the Respondent urged the Court to dismiss the Petition herein with costs to the Respondent.

 

Held

It was not a polite expression to employ in matters of Judgment, but “gang-ho” tactics by the Respondents were contrary to the clear provisions of the Constitution such as article 189(2) where Governments at the National and County Government were bound to cooperate, and 189(3), any disputes between governments including national and county levels of government were required to settle any disputes between them by negotiations through alternative dispute resolution mechanisms, including negotiation, mediation and arbitration.  It needed no reminder that under article 187(2) (b) of the Constitution, constitutional responsibility for the performance of the function or exercise of the power remained with the Government to which it was assigned by the Fourth Schedule.  Transport and communications, including in particular “marine navigation” was a matter assigned to the National Government under paragraph 18(f) of the Fourth Schedule to the Constitution.

The conclusion reached by the Chairman of the Transition Authority in his letter dated February 24, 2016 to the Respondents’ Governor was justified. The actions of the Respondent in taking over the Petitioner’s facilities which support its activities were against the letter and spirit of the Constitution of Kenya, 2010, and were therefore unconstitutional.

The Mombasa Port Authority Bill and Mombasa Ports and Habours Bill 2014 were inconsistent with the provisions of Articles 201 and 209(5) of the Constitution of Kenya, 2010, and were and would consequently be null and void in terms of Article 2(4).

Declared Unconstitutional in 2017.

 

SDV Transami Kenya Limited & 19 others v Attorney General & 3 others

Constitutional Petition No 76 of 2012

(Formerly Nairobi Petition 291 of 2011)

Edward M Muriithi, J

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Brief facts

The Cabinet Minister for Transport published Legal Notice No 112 of 2011 which provided for Regulations known as Merchant Shipping (Maritime Service Providers) Regulations, 2011 for the control, regulation and oversight of the maritime service in Kenya. The Legal Notice was published in the Kenya Gazette dated September 9, 2011. The Petitioners said that the Regulations had the effect of violating their rights including the right to equal protection of the law, right to association and right to property. They sought a declaration to the effect that the Regulations were invalid.

The Petitioners stated that Regulation 5(1) which required 51% Kenya shareholding in a maritime service provider, was discriminatory and unconstitutional and it denied foreigners equal protection of the law. It was therefore said to contrary to article 27 of the Constitution and the Foreign Investment Protection Act. They also said that the regulation violated their rights to property by denying them the right to freely own shareholding interests and to own a maritime service provider.

The Petitioners also complained that Regulation 7(1) compulsorily required them to be members of an association. They said that it was contrary to their right to be at liberty to join or not to join an association. Furthermore, the Petitioners said that the effect of regulations 5, 7, 11, 13, 15, 17, 18 and 19 was to give the Kenya Maritime Authority arbitrary, unchecked and unreasonable powers including unnecessary control of trade, unspecified required standards and qualifications among others. They said that those powers contravened their rights to fair administrative action. Also, the Petitioners averred that regulations 17 and 18 were inconsistent with the right to privacy as they sought to compel the Petitioners and Maritime Service Providers to provide information relating to their confidential business affairs in matters that only concerned them and their customers but not the Kenya Maritime Authority or the State.

Regulation 11 required 60% of management staff of a maritime service provider to have unspecified educational qualifications within five years of the commencement date.  If implemented as drafted, the Petitioner argued that it would force them to lay off their employees in order to recruit new ones who held the unspecified educational qualifications.  The Petitioners also stated that the Regulations introduced stringent, grossly disproportionate and oppressive punishment for minor infractions of regulatory procedures which were a threat to freedom and security of the person. For example, they said that a failure to give notification of a change in directorship would attract a penalty of Kshs. 10 million and/or a prison sentence of 3 years.

The Petitioner also stated that the Regulations entailed limitations on their fundamental rights and freedoms and those limitations were unlawful. The rights which were unlawfully limited, according to the Petitioners, included the right to property, freedom from discrimination, right to privacy, right to fair administrative action and right to protection of the law. Lastly, the Petitioners added that the Regulations were ultra vires the Merchant Shipping Act 2009 and went contrary to the provisions of other statues including the Companies Act.

In their response, the Respondents stated that the Regulations were made within the legal authority provided under the Merchant Shipping Act 2009. They were made for the control, regulation and orderly development of merchant and shipping industry and were reasonable in light of the weak pre-existing legal framework. The Respondents said that the regulatory framework was intended to be one in which the service providers could aggressively pursue their interests in an orderly, fair and efficient manner that promoted, among other things, fair competition, high standards of professional and ethical conduct, the attainment of the highest possible standards of competence, and qualifications among respective maritime service providers, in the wider interests of a stable and sustainable maritime services sector.

The Respondents also argued that the 1st Petitioner did not have the authority to swear an affidavit on behalf of the other Petitioners. They therefore sought the expunction of the 2nd to 20th Petitioners from the proceedings.

 

Held

The Regulations did not meet the formal constitutional validity requirements under Article 24(2) of the Constitution. They were therefore null and void to the extent that they purported to limit rights and freedoms in the Bill of Rights in contravention of Article 24 of the Constitution. The failure to lay the Regulations before Parliament without unreasonable delay as was required under Section 34 of the Interpretation and General Provisions Act would mean that the Regulations were a nullity. That would not prevent the making of new rules and regulations by the authority which was authorized to make them.

 

 

Dock Workers Union & 2 others v Attorney General & 2 others; Kenya Ports Authority & 4 others (Interested Parties) [2019] eKLR

High Court at Mombasa

E K Ogola, A Mabeya & M Thande, JJ

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Brief Facts

The petitioners averred that the Merchant Shipping Act, 2009 (the Act) imposed restrictions on ship owners from providing certain services set out in section 16 of the Act. The 3^rd respondent passed Statute Law (Miscellaneous Amendments) Bill , 2019 (the Bill) which was presented to the President for assent. However, in exercise of his powers, the President by way of a memorandum referred the Bill back to the 3^rd respondent for reconsideration and expressed his reservations on the provisions relating to the Act, powers granted to the 2^nd respondent in regard to granting exemptions to shipping lines owned by the Government.  Subsequently, the 3^rd respondent acceded to the President’s recommendation and passed the Bill.  The President assented to the Bill thereby introducing section 16(1A).

The petitioners contended that the Government had entered into a Memorandum of Understanding (MOU) between the 2^nd respondent and the 2^nd interested party, whereby the latter was granted rights to manage and operate the Container Terminal Two (CT2).  The petitioners were aggrieved by the new amendments to the Act, and took issue with the manner in which the Government purported to enter into the MOU.  They alleged that the amendments and the MOU were done contrary to the Constitution of Kenya, 2010(Constitution), and threatened violation of the fundamental rights and freedoms of the petitioners and the people of Mombasa County in general. The petitioners prayed for a declaration that the MOU was illegal and unconstitutional and a declaration that the amendments to the Act vide the Statue Law (Miscellaneous Amendments) Act, 2019 was illegal and unconstitutional among other orders.

Held

1.      It was evident from the proceedings that the two main criteria that would influence the justiciability of the petition were;

a.       whether there was a clear constitutional commitment and mandate to a particular division of the High Court to make a decision on the issue; and

b.      even where such a constitutional mandate existed, whether the nature of the issue and dispute was such that it was more effectively resolved in the constitutional petition.  

Regarding the first criteria, the court was the constitutionally mandated organ with jurisdiction to adjudicate and make final decisions in two specific aspects, namely the violation and protection of human rights and freedoms, and the constitutionality of laws and actions of State organs.  Under article 23(1) of the Constitution jurisdiction was conferred upon the court in accordance with article 165 of the Constitution, to hear and determine applications for redress of a denial, violation or infringement of, or a threat to, a right or fundamental freedom in the Bill of Right.

2.      The doctrine of separation of power was not a bar to the court inquiring into the process by which legislation was arrived at. Courts would interfere with actions of other State organs where it was alleged that they were either acting illegally or in violation or threatened violation of the Constitution. The petitioners had alleged that the respondents had violated certain articles of the Constitution. That being the basis of the petition, there could be no better forum than the court, by virtue of article 165(3) of the Constitution, where the actions of the respondents could be questioned.

3.       The court had the power to enquire into the constitutionality of the actions of the 3rd respondent, notwithstanding the doctrine of separation of powers and the privilege of debate accorded to its members and its proceedings. That was fortified by the principle of the supremacy of the Constitution and that every State organ, the 3rd respondent included, had to operate within the strict confines of the Constitution. The organ to ascertain that fact was the court. In so doing, the court would be executing its mandate under article 165 (3) of the Constitution.

4.      Under article 10(2) of the Constitution, democracy and participation of the people was one of the national values and principles of governance. On the other hand, article 118 of the Constitution enjoined Parliament to facilitate public participation and involvement in its legislative business and committees. The centrality of public participation in the legislative functions of the 3rd respondent could not be gainsaid. Article 118 required that the 3rd respondent facilitates public participation in its legislative functions. It should not only ensure that the general public was informed of any intended legislation, but had to be involved and participate in the same. There had to be deliberate steps by the 3rd respondent to achieve that constitutional imperative.

5.      One of the stakeholders was the Coast Parliamentary group who urged the Committee to hold its sessions on public participation in Mombasa that was not heeded.  The period of 6 days given for the submission of memoranda was too short in the circumstances of the case.  The timelines given were not adequate and it was not demonstrated that there was any serious urgency to justify the short period of 6 days.  The consultative meeting held at Sun Africa Hotel, was a ministerial briefing by the 2nd respondent and did not amount to public participation. There should be adequate time to enable public participation. Even parliamentary timelines should not be allowed to defeat the crucial constitutional principle of public participation. The parliamentary timelines and standing orders should give way to compliance with the constitutional dictate.

6.       The notice calling for submission of memoranda in respect of the Statute Law (Miscellaneous Amendments) Bill, 2019 (the Bill) did not contain the nature and effect of the proposed amendments, the necessary information was lacking. The notice published in the dailies of April 10, 2019 did not contain any information regarding the proposed amendments to enable; knowledge as to what was contained therein and any meaningful participation in the proposed amendments.

7.      It was not necessary to submit the President’s reservations and recommendation under article 115 of the Constitution to public participation. That was borne by article 115(2) which limited the procedure to part 4 of Chapter 8 of the Constitution. Public participation to parliamentary legislation was under article 118 of the Constitution which was under part 5 of Chapter 8 of the Constitution.

12.   A look at the amendment effected by section 16(1A) of the Act, it was evident that the same could not be said to have been minor or non-controversial. It was substantive in nature and had far reaching effects on maritime operations in Kenya. The change in policy through legislation would have required robust debate in the National Assembly accompanied by effective and satisfactory public participation through a substantive separate independent bill. The 3rd respondent should not have included the impugned amendment in the omnibus Statute Law (Miscellaneous Amendments) Bill, 2019, the amendment could not stand.

13.   The doctrine of separation of powers was central to the Constitution. The three arms of Government that was the Executive, Legislature and the Judiciary were all bound by the doctrine. Although the arms of Government were interdependent, forming one unitary Government, each was independent, had a specific mandate and none should encroach on the territory of the others.

14.   The formulation and implementation of policy were within the province of the Executive. The right of the Executive to formulate policy was anchored in the Constitution. Courts generally had no role in policy formulation and implementation. Courts could however intervene and interfere with the Executive’s role where the rights of individuals were denied, violated or infringed or threatened as provided in article 23(1) of the Constitution. The Constitution was the supreme law of the land and the Executive had to carry out its mandate within the limits prescribed by the Constitution. Where the Executive acted outside those limits, the courts were mandated by the Constitution to inquire into the constitutionality of the Executive’s actions.  

15.   The Executive had the mandate to improve port operations and should have the unfettered discretion and be free to engage with any party and enter into strategic partnerships and collaborations for the purpose of improving its performance in the maritime sector. However, that had to be done within the confines of the Constitution.

Declared Unconstitutional in 2014.

 

Okiya Omtatah Okoiti & 3 others v Attorney General & 5 Others [2014] eKLR

High Court, at Nairobi

Petition Number 227 of 2013

I Lenaola, M Ngugi, W K Korir JJ

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Brief Facts 

On March 1, 2013 through a Special Issue of the Kenya Gazette, the Salaries and Remuneration Commission (SRC) (3rd Respondent) published the remuneration of various categories of state officers. The gazette notice specifically dealt with the remuneration of Members of Parliament (the Senate and the National Assembly). The Members of the National Assembly were aggrieved by the terms set for them on their remuneration and benefits by the 3rd Respondent and they immediately put into place mechanisms for setting aside the decision of the 3rd Respondent as contained in the notice. This culminated in a resolution by the National Assembly to nullify all the notices contained in the Special Gazette Issue. The resolution was communicated to the 3rd Respondent through a letter with a Certificate signed by the Clerk to the National Assembly annexed to it.

 

Held

The remuneration and benefits of the members of the 11th Parliament and any other Parliament coming into existence thereafter can only be determined by the SRC. The National Assembly Remuneration Act Cap 5 is therefore unconstitutional and no longer serves any purpose in the statute books of this country. We therefore agree with the petitioners and find and hold that the said Act of Parliament is unconstitutional.

Fopa Association Kenya Suing through its Officials Humphrey Kimani Njuguna – Chairman & Kinoti Gatobu – Secretary v Attorney General & 3 others; County Assemblies Forum & another (Interested Parties) [2019] eKLR

High Court at Nairobi

J.A Makau, J

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Brief Facts:

The petitioner was an association whose membership comprised former members of parliament, both Senate and National Assembly, former Governors, Speaker and members of County Assembly. The respondents were the stakeholders, who were directly affected by the orders sought or had mandate over the issue the subject matter of the petition.

The petitioner’s complaint was against the laws that barred former members of parliament, Governors and County Assemblies from recruitment as commissioners of the National Land Commission, National Police Service Commission or any other government agency solely on the basis of them having been elected or having stood for election in the preceding five (5) years. The petitioner contended the provision of section 8(3) (c) of the National Land Commission Act and National Police Service Commission Act section 5(5) (a) that barred its members from being recruited in the commissions violated the Constitution and were therefore null and void.

It was the contention of the respondents that the impugned section of the National Land Commission Act and the National Police Service Commission Act were necessary to maintain independence and impartiality of the commission. They added that the impugned sections advanced a compelling public interest to manage independence of the commissions free from political persuasions effectively as opposed to individual interest of persons who would be looking for an opportunity to maintain their political party allegiance and continue to serve in independent commissions. It was thus submitted by the respondents that such scenario went against the spirit, purpose and intention of the legislation to establish fiercely independent institutions. It was further urged that the provision satisfied the ethos set out under article 24 of the Constitution in that the limitation was provided under the law and that the same was reasonably justifiable in modern democratic society.

Held:

1. The provisions complained of did not have support from the constitutional provisions of article 67 and article 246 which established the National Land Commission and National Police Service Commission, respectively. In enacting the impugned provisions no consideration was given to their impact on the rights and fundamental freedoms in the Bill of rights. The impugned provisions departed and derogated from the national values of human dignity, equity, social justice, inclusiveness, equality, human rights and non-discrimination as provided by article 10(2) (b) of the Constitution.
2. The impugned sections did not comply with mandatory provision of article 24 of the Constitution as they failed to expressly indicate that certain rights and freedoms were being curtailed. The limitation had not been demonstrated to be reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom. No reasonable reason was given for such limitation nor was there justification for the same.
3. The impugned sections violated the petitioner’s right of equality before the law, right to equal opportunities in political, economic and social spheres under article 27 of the Constitution. They also violated the right of inherent dignity and the right to have the dignity respected and protected, freedom to association under article 36 of the Constitution, the right for every citizen to make political choices, right to fair labour practices under article 41 of the Constitution and economic and social rights as provided for under article 43.
4. The petitioner’s constitutional rights had been violated, infringed and contravened without the existence of a reasonable and justifiable limitation, as provided under article 24 of the Constitution, to the extent of banning a citizen who vied for parliamentary seat, County Assembly and Governor’s positions from qualifying for recruitment in the National Land Commission and National Police Service Commission.
5. The impugned sections of the National Land Commission Act and National Police Service Commission Act, indirectly deprived the citizens of their constitutional rights to vie for election. It was a threat to the expansion of democracy as it would mean that an electoral contestant or winner would subsequently for a period of 5 years become unfit to hold public office simply due to the fact of having contested in that election. The limitation was unreasonable and unjustifiable. It was unjustified to lump together electoral contestants with felons, bankrupts and constitutional violators.
6. The import of section 8(3) (c) of the National Land Commission Act and section 5(5) (a) of the National Police Service Commission Act was that those who had exercised their constitutional and democratic rights to vie for constitutional elections were now demonized for subsequent 5 years for no offence but for exercising their constitutional and democratic right to take part in contesting for an elective post.
7. The impugned provisions of the two statutes violated the petitioner’s rights to property, rights to equality, dignity, social-economic rights, non-discrimination or any other right for that matter. The petitioner’s members could apply for other public offices that did not have restrictions but the restrictions relating to membership in those two commissions were unreasonable and unjustified. Allowing the petitioner’s members to vie for the recruitment in the two commissions was not a right to occupy and hold the office but to exercise their constitutional rights to vie for recruitment. Whether they would succeed or not was another issue as they would have exercised their constitutional rights.
8. The offending provisions of the two statutes complained of were discriminative to the petitioner’s members; they degraded their dignity and deprived them their social and economic rights and freedoms. The impugned provisions would curtail the number of those seeking electoral political positions and deal a major blow to democracy and constitutional space which was still in its emerging stage in Kenya. There was no logical explanation as to why some of the petitioner’s members had successfully joined the independent policy oversight authority and not the other two.
9. The impugned provisions were a grave violation to the fundamental rights of the petitioner’s members as well as all other contestants of public elections. The impugned provision if let to stand would be a serious threat to democratic space in the country.

Okiya Omtatah Okoiti v Attorney General & another [2018] eKLR

Petition No. 385 of 2018

W A Okwany, J
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Brief Facts

In November 2018 the 2nd Respondent embarked on the process of recruiting persons for appointment as commissioners of the National Cohesion and Integration Commission (NCIC). Aggrieved by the 2nd respondent’s actions, the petitioner filed the instant petition. The petitioner contended that the said recruitment by the 2nd Respondent contravened the constitutional principle of separation of powers and that section 17(1)(a) and (b) of the National Cohesion and Integration Commission (the Act) and the procedure for nominating commissioners by the National assembly under the first schedule of the Act were unconstitutional. The petitioner also contended that recruitment of persons to be appointed to public office was the preserve of the Public Service Commission (PSC) and the executive, and not Parliament

Held

1. A holistic reading of articles 260 of the Constitution on the interpretation of the meaning of the words public office, public officer and public service showed that NCIC was a public office whose appointment of commissioners fell within the purview of the Public Service Commission(PSC) under article 234(2)(a)(ii) of the Constitution. NCIC was a commission like any other commission established under article 250 of the Constitution and the argument that NCIC was a sui generis body that was subject to a different set of rules from other commissions was misguided and bereft of any constitutional backing.

2. Article 95 of the Constitution was clear and specific on the role of the National Assembly and nowhere in that article was the National Assembly given the mandate to make appointment of the commissioners of the NCIC. The impugned section of the Act was not consistent with the provisions of article 95 of the Constitution. Articles 2(4) and 165(3) (d)(i) of the Constitution gave the Court the power to invalidate any law, act or omission that was inconsistent with the Constitution.

3. The Constitution did not set out the timelines within which any law could be challenged or declared unconstitutional. Section 7(1) of the sixth schedule of the Constitution was categorical that all law in force before the effective date continued to be in force and had to be construed with alterations, adaptations, qualifications and exceptions necessary to bring it into conformity with the Constitution.

4. The impugned Act having been enacted in 2008 prior to the promulgation of the Constitution ought to be construed in conformity with the Constitution and the mere fact that the law had been in operation for a long period of time did not preclude the Court from declaring the said law unconstitutional if it was found to be inconsistent with the Constitution. The petition should serve as a wake-up call to the Legislature to take urgent measures to amend the impugned sections of the Act so as to make them compliant with the Constitution bearing in mind the critical role that the NCIC was supposed to play in Kenya’s young and fragile democracy.

5. When any of the state organs stepped outside its mandate, the Court would not hesitate to intervene when called upon to do so. The Court was vested with the power to interpret the Constitution and to safeguard, protect and promote its provisions as provided for under article 165(3) of the Constitution. The Court had an obligation to intervene in actions of other arms of Government and State organs where it was alleged or demonstrated that the Constitution had either been violated or threatened with violation. The doctrine of separation of powers did not preclude the Court from intervening and arresting a violation of the Constitution by any arm of the Government.

6. The Court had the power to enquire into the constitutionality of the actions of the National Assembly notwithstanding the privilege of debate accorded to its members and its proceedings. The Constitution was the supreme law of Kenya and Parliament had to function within the limits prescribed by the Constitution. In cases where it had stepped beyond what the law permitted it to do, it could not seek refuge in or hide behind the twin doctrines of parliamentary privilege and separation of powers to escape judicial scrutiny.

7. The doctrine of separation of powers had to be read in the context of the constitutional framework and where the adoption of the doctrine would militate against the constitutional principles the doctrine had to bow to the dictates of the spirit and the letter of the Constitution.

Declared Unconstitutional in 2016.

 

Kenya Human Rights Commission v Non-Governmental Organisations Co-Ordination Board

Petition 495 of 2015

Onguto J

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Brief Facts

The Respondent had issued a press statement stating that it had carried out a forensic audit of the Non-Governmental Organizations (NGOs) registered under the Non-Governmental Organizations Co-ordination Act, 1990, (the Act). According to the Respondent, the audit had established that some NGOs had failed, refused, neglected and/or declined to account for the funds they received despite numerous reminders issued to them by the Board. The Respondent further stated that it had with immediate effect initiated the de-registration process of the non-compliant  NGOs, forwarded the list of all deregistered NGOs to the Central Bank of Kenya and the Kenya Bankers Association to freeze bank accounts of the deregistered NGOs. The Respondent also forwarded the list to the Financial Reporting Centre and the Directorate of Criminal Investigations for further investigations and possible prosecutions. The petitioner being among the non-compliant NGOs launched a petition challenging the actions of the Board. The petitioner contented that the Respondent’s actions were unconstitutional and had adversely affected their operations. The Petitioner claimed that the Respondent’s actions had violated its rights to fair administrative action under article 47 of the Constitution and to fair hearing under article 50. He also sought for an award for damages for injury caused.

 

Held

From the above provision, it can be inferred that, the Board does not have to give an explanation for its decision except where an aggrieved NGO appeals. Thereafter, the Minister would then request from the Council written comments on which an appeal has been submitted. If an NGO does not appeal the decision to the Board, then no written comments will be given by the Board. Section 19(2) however cannot override the provisions of Article 47 which dictate that written reasons be availed.

 

Declared Unconstitutional in 2015.

 

Joshua Muindi Maingi v National Police Service Commission & 2 Others

High Court of Kenya at Nyeri,

Petition No 2 of 2015

B Ongaya, J

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Brief Facts

The Petitioner was subject to criminal proceedings in Anti-Corruption Case No. 2 of 2012 in the Chief Magistrate’s Court at Nyeri. The petitioner in that case was charged with 7 counts under the Anti-Corruption and Economic Crimes Act. The charges included corruptly soliciting for a benefit contrary to section 39(3)(a) as read with section 48(1) of the Act; corruptly receiving a benefit contrary to section 39(3) (a) as read with section 48(1) of the Act; and concealing evidence contrary to section 66(1)(c) as read with section 66(2) of the same Act.

The Trial Court found that the evidence could not sustain a conviction on all counts as the petitioner was given the benefit of doubt and was acquitted under section 215 of the Criminal Procedure Code on all the 7 counts.After the acquittal the petitioner wrote to the 3rd respondent asking for the lifting of the suspension in accordance with section 62(3) of the Anti-Corruption and Economic Crimes Act. The 3rd Respondent lifted the interdiction and directed the petitioner  to report back on duty awaiting further instructions.

At a later date the petitioner was notified to show-cause why he should not be removed from the service pursuant to the provision of Cap 20 Section 35(a) of the Service Standing Orders. The Petitioner thereafter brought a petition before the High Court seeking inter-alia,declaration that the act of the respondent in serving the petitioner with a notice to show cause and initiating removal proceedings from the Kenya Police Service based on the concluded anti-corruption case was in breach of the petitioner’s constitutional rights under articles 27(1) (2) and (3), 28, 41 and 50 of the Constitution and that the same was null and void for all intents and purposes.

 

Held

Turning back to provisions of section 88(4) of the National Police Service Act, the court finds, and as understood by the respondents in their submissions, that the section empowers the National Police Service Commission to retry police officers in what is called disciplinary action and without due regard (i.e. notwithstanding) acquittal or conviction by the criminal court. The court finds that to that extent section 88(4) is unconstitutional as it offends clear provisions of Article 50(2) (o) of the Constitution. The court considers that the petitioner is entitled to the declaration that section 88(4) of the National Police Service Act is unconstitutional in so far as it empowers the National Police Service Commission to retry police officers in a disciplinary process with respect to acts or omissions the officers may have been acquitted or convicted by the court in criminal proceedings as the section is inconsistent with Article 50 (2)(o) of the Constitution and the section is null and void to the extent of that inconsistency. While making that finding, the court holds that where the court at the end of the criminal hearing has acquitted or convicted a police officer the Commission or the person or authority exercising powers of disciplinary control over the officer is thereby bound by the acquittal or conviction and the officer need not be subjected to a retrial in an administrative disciplinary process(under the section referred to as “disciplinary action”) which essentially would be unconstitutional; all that needs to be done is imposition of appropriate punishment in view of the conviction; or resumption of duty or reinstatement or continuation in employment in line with the acquittal by the criminal court.

Declared unconstitutional in 2011.

Republic v The Public Procurement Administrative Review Board & 2 others ex parte Hyosung Ebara Company Limited [2011] eKLR

Misc. Civil Application No. 362 of 2010

D. Musinga, J

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Brief Facts:

The ex parte Applicant filed the instant Application seeking orders of certiorari quashing the decision of the Public Procurement Administrative Review Board, order of mandamus compelling the 2^nd Respondent to tender afresh the Supply Installation and commission of main line pump sets line 1 third pump and to process the tenders strictly in accordance with section 2 and 66 of the Public Procurement and Disposal Act, 2005 and rule 52 of the Regulations made thereunder.

But if I may briefly revisit the provisions of Section 100(4) aforesaid, although it appears that the intention of the Legislature was to ensure that judicial review proceedings relating to public procurement are disposed of expeditiously, and in any event within thirty days from the date of filing, I think that provision is unconstitutional. The Constitution requires the court to render substantial justice in all matters that come before it. Determination of some of the disputes can take a very long time, even where the court is ready and able to determine them much faster. The speed at which matters are resolved is dependent on many factors. There are instances where the parties cannot file all the necessary pleadings, submissions and authorities and argue the case within the given period of time, as was the case herein. It would amount to abdication of its constitutional mandate for a court to fail to give its determination simply because the hearing has lasted more than thirty days from the date the matter was filed.

Declared Unconstitutional in 2014.

 

William Omondi v Independent Electoral & Boundaries Commission & 2 others [2014] eKLR

High Court, at Nairobi

Petition No. 288 of 2014

I Lenaola, J

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Brief Facts

The Petitioner, (Hon. William Omondi) was a former Member of Parliament for Kasarani Constituency and had expressed his decision and intention to vie for the Mathare Constituency by-elections as an independent candidate. He applied for clearance from the Registrar of Political Parties to enable him vie in the said by-election but the Registrar declined to issue the clearance certificate because the Petitioner had allegedly violated section 14(3) of the Political Parties Act of 2011. Subsequently, the Independent, Electoral and Boundaries Commission (the IEBC) wrote to the Petitioner and stated that he had not met the requirements to enable him vie for the Mathare Constituency by-election because he had allegedly contravened the said section 14(3) of the Political Parties Act as read with Regulation 15 of the Elections (General) Regulations 2012, section 33 of the Elections Act and article 85 of the Constitution. The Petitioner, being dissatisfied with the above decisions, filed the Petition seeking inter alia a declaration that the IEBC's decision to deny him the right to contest the Mathare Constituency by-election was a violation of his fundamental rights and freedoms and for an order that the IEBC do admit him to contest in the said by-election.

 

Held

It is clear to me that reading the above Article alongside Article 85 of the Constitution, Section 33 of the Elections Act and Sections 14(2) and 14(3), Section 14(3) grants the Registrar no powers to declare that although the Petitioner’s resignation had taken effect on 21st January 2013, the mere lack of notification to her within three days of such resignation invalidates his candidature. To that extent only, then Section 14(3) is unconstitutional and I so declare.

Johnstone Muthama v Director of Public Prosecutions & 2 others; Japhet Muriira Muroko (Interested Party)

High Court at Nairobi

JW Lesiit, L Kimaru & JM Mativo, JJ

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Brief Facts

On September 23, 2015, at a Public Rally at Uhuru Park, Nairobi, the petitioner made utterances in opposition to policies of the Government.  Following the petitioner’s utterances, the Cabinet Secretary for Interior and Coordination (2^nd respondent) released an official statement on September 24, 2015, in defence of the government of the day. The petitioner contended that the said statement was read to mean that the petitioner was a security risk to the Republic as a result of his utterances. The petitioner claimed that the 2^nd respondent’s statement was widely circulated by print and electronic media thereby ensuring that all knew of the 2^nd respondent’s intentions and directives.

The petitioner also contended that on September 24, 2015, Dennis Waweru, Moses Kuria and Johnson Sakaja (then Members of Parliament for Dagoretti South Constituency and Gatundu South and then Senator for Nairobi County respectively) issued statements in public demanding for the petitioner to be investigated, arrested and prosecuted for his utterances.

Subsequently the petitioner was arrested and charged under section 96(a) of the Penal Code for incitement to violence. The petitioner contended that the Director of Public Prosecutions (DPP) and the Inspector General of Police (IGP) were illegally directed and issued with instructions to arrest and charge the petitioner; actions which violated the independent offices of the DPP and IGP under the Constitution. He also contended that the IGP and DPP had not acted independently in arresting and charging him for his utterances.

The petitioner sought for the provisions of section 96(a) of the Penal Code was unconstitutional to the extent that it shifted the legal and evidential burden of proof to an accused person before the prosecution had discharged its legal burden of proof hence violating the constitutionally entrenched rights to a fair trial, to be presumed innocent, to remain silent, not to testify during the proceedings or give self-incriminating evidence and the right to privacy.

Held

1.    A notable distinction between section 322 of the Penal Code (handling of stolen goods) and section 96(a) of the Penal Code was that section 322, like other penal statutes stipulated the ingredients of the offence, which had to be proved by the prosecution before the evidential burden of proof shifted to an accused person to explain what the prosecution had established. In the first instance, it was only necessary for the prosecution to establish that the property was stolen and that it was found in the possession of the accused. The accused was thereupon liable to be convicted unless he proved that he had reasonable cause for believing that the property was not stolen. Section 322 therefore, introduced a departure from the common law by imposing on the accused the burden of adducing evidence to establish the reasonableness of his or her subjective belief, albeit innocent, acquisition or receipt of stolen goods.

2.    The meaning of the phrase “knowing or having reason to believe” in section 322 of the Penal Code would depend on the circumstances. In many cases, an explanation by the accused of the manner in which the goods were acquired would be sufficient to meet the burden. Courts approached the question whether an excuse was reasonable in the context of the character and background of the accused, the nature of the goods found in his or her possession, and the manner in which they were acquired

3.    Section 119 of the Evidence Act suggested that the court could presume the existence of any fact, which it thought likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case. Differently put, section 119 referred to presumption of likely facts. Those were an inference that could be drawn regarding natural events, human conduct and the common course of natural events.  The court could infer from what it could see not perceive.  If a person was caught with stolen goods, it was presumed that he stole them or that he knew who stole them.  If they could not adequately explain how they came to possess stolen goods, then the incumbent of proof was on them to say how the owner came to lose the goods.

4.    Under section 111 and 119 of the Evidence Act, presumptions of facts were inferences that could be drawn upon the establishment of a basic fact. The basic facts had to be established before the presumption could come into play. The court could presume the existence of any fact, which it thought likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case.

5.    The phrase "the burden of proof whereof shall lie upon him" as used in section 96(a) of the Penal Code shifted the burden of proof to an accused person before the basic facts had been established. That excluded it from the scope of section 111 and 119 of the Evidence Act. The basic facts in the instant case would be the ingredients of the offence as stated in the charge sheet, which had to be proved by the prosecution before the evidential burden shifted to an accused person. The impugned section fell under the category of provisions referred to as “reverse onus” provisions. These were provisions, which shifted the burden to an accused person where the law deemed it appropriate in the circumstances where the proven facts were within the special knowledge of the accused.

6.    The Constitution of Kenya, 2010 was inspired by the South African Constitution.  Accordingly, South African court decisions on the issue under consideration affecting similar provisions of their Constitution would offer useful guidance. However, the decisions were persuasive.  In that regard, the South African Constitutional Court had held that reverse onus provisions infringed the right of an accused person to be presumed innocent as envisaged in section 25(3)(c) of the South African Constitution, the equivalent of article 50 of the Constitution of Kenya, 2010.  It held that the function and effect of the presumption was to relieve the prosecution of the burden of proving all the elements of the offence with which the accused was charged.

7.    Section 96(a) of the Penal Code shifted both the legal burden and the evidential burden of proof to an accused person even before the prosecution discharged its burden of proof.

8.    A consequence of the value system introduced by the Constitution was that the freedom of the individual may not lightly be taken away. Section 96 of the Penal Code also infringed the right to silence guaranteed under article 50(2)(i) of the Constitution. Like the presumption of innocence, the right to silence was firmly rooted in both the Constitution and the common law and statute and was  inextricably linked to the right against self-incrimination and the principle of non-compellability of an accused person as a witness against himself at his trial. The presumption of innocence protected the fundamental liberty and human dignity of every person accused of criminal conduct. It ensured that until the State proved an accused person’s guilt beyond a reasonable doubt, he or she could not be convicted. The right was vital to an open and democratic society committed to fairness and social justice.

9.    As a basic component of the right to a fair trial, the presumption of innocence, inter alia, meant that the burden of proof in a criminal trial lay on the prosecution and that the accused had the benefit of the doubt. The presumption of innocence had to in addition be maintained not only during a criminal trial vis-à-vis the accused, but also in relation to a suspect or accused throughout the pre-trial phase.

10.  Article 27 of the Constitution provided for the right to equality before the law and freedom from discrimination. The claim of direct or indirect unfair discrimination implicated the right to equality. The principle of equality attempted to make sure that no member of society should be made to feel that they were not deserving of equal concern, respect and consideration and that the law or conduct complained of was likely to be used against them more harshly than others.

11.  Discrimination meant treating differently, without any objective and reasonable justification, persons in similar situations. The Constitution prohibited unfair discrimination. Unfair discrimination was differential treatment that was demeaning. That happened when a law or conduct, for no good reason, treated some people differently or as inferior or less deserving of respect than others. It also occurred when a law or conduct perpetuated or did nothing to remedy existing disadvantages and marginalization. Unfair discrimination principally meant treating people differently in a way, which impaired their fundamental dignity as human beings.

12.  A prosecution was not to proceed if there was no reasonable prospect of a conviction being secured. That basic criterion was the cornerstone of the uniform prosecution policy adopted worldwide. The decision whether or not to prosecute was the most important step in the prosecution process. In every case, great care must be taken in the interests of the victim, the suspected offender and the community at large to ensure that the right decision was made. A wrong decision to prosecute or, conversely, a wrong decision not to prosecute, tended to undermine the confidence of the community in the criminal justice system. That was what was referred to public interest.

13.  It had never been the rule in Kenya that suspected criminal offences had to automatically be the subject of prosecution. There had to be sufficient evidence to mount a prosecution. In addition, a significant consideration was whether the prosecution was in the public interest. The resources available for prosecution action were finite and were not to be wasted pursuing inappropriate cases, a corollary of which was that the available resources had to be employed to pursue those cases worthy of prosecution. The initial consideration in the exercise of discretion was whether the evidence was sufficient to justify the institution or continuation of a prosecution.

14.  A prosecution should not be instituted or continued unless there was admissible, substantial and reliable evidence that a criminal offence known to the law had been committed by the accused. The decision as to whether there was a reasonable prospect of conviction required an evaluation of how strong the case was likely to be when presented in court. It had to take into account such matters as the availability, competence and credibility of witnesses and their likely impression on the arbiter of fact, and the admissibility of any alleged confession or other evidence. The petitioner had not addressed those crucial considerations.

15.  When evaluating the evidence regard should be had to the following matters:-

a)    were there grounds for believing the evidence may be excluded bearing in mind the principles of admissibility at common law and under statute?

b)   If the case depended in part on admissions by the suspect, were there any grounds for believing that they were of doubtful reliability having regard to the age, intelligence and apparent understanding of the suspect?

c)   Did it appear that a witness was exaggerating, or that his or her memory was faulty, or that the witness was either hostile or friendly to the suspect, or may be otherwise unreliable?

d)   Did a witness have a motive for telling less than the whole truth?

e)   Whether the prosecution would be perceived as counter-productive, for example, by bringing the law into disrepute?

f)    Whether the alleged offence was of considerable public concern; and

g)   the necessity to maintain public confidence in the criminal justice system?

As a matter of practical reality the proper decision in most cases would be to proceed with a prosecution if there was sufficient evidence available to justify a prosecution.

16.  No material was placed before the court to enable the court reach a conclusion that the DPP treated similar cases and circumstances differently so as to conclude that there was selective application of the law in respect of the petitioner. In any event, the individuals referred to by the petitioner were not parties to these proceedings and therefore it would be uncalled for, for the instant court to comment on the merits or otherwise of the individual circumstances. No abuse of discretion had been established in the instant case.

 

Declared Unconstitutional in 2017.

 

Jacqueline Okuta & another v Attorney General & 2 others

Petition No 397 of 2016

High Court, at Nairobi

J.M Mativo, J

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Brief Facts

The petition was triggered by the arraignment of the first petitioner in Kwale Criminal Case No. 532 of 2016 and the second petitioner in Nairobi Milimani Criminal Case No. 549 of 2016 whereby each petitioner was charged with the offence of criminal defamation   under section 194 as read with section 36 of the Penal Code for allegedly making and or publishing allegedly defamatory statements of and concerning the complainant in the said cases.

The petitioners concern was the constitutionality of the criminal defamation law in section 194 of the Penal Code. It was their case that the said section unjustly violated the freedom of expression by imposing sanctions on the civil wrong of defamation.  The petitioners correctly averred that the constitution was the supreme law of the land and any law that was inconsistent with the constitution was void to the extent of the inconsistency, and any act or omission in contravention of the constitution was invalid.

 

Held

The exercise of certain rights (such as the right to a fair trial, freedom from arbitrary imprisonment, freedom of movement, freedom of expression, freedom of religion or the right to participate in public decision-making) was integral to citizenship in a democratic society. The protection of fundamental rights against arbitrary or excessive infringements was an essential feature of constitutional government, which was recognized both in international human rights law and in many national constitutions.  Nevertheless, relatively few rights could be enjoyed in absolute terms. Most rights were subject to limitations that were necessary and reasonable in a democratic society for the realization of certain common good such as social justice, public order and effective government or for the protection of the rights of others.   The principal issue for determination was the constitutionality of criminal defamation provided under section 194 of the Penal Code. Freedom of expression was secured under article 33 of the Constitution and for it to be limited, the limitation must fall within the scope and ambit of the provisions of article 24 of the constitution. 

Public Order Act - Section 5
Law Society of Kenya v Attorney General & another [2021] eKLR
Constitutional Petition E327 of 2020
High Court at Nairobi
AC Mrima, J
August 18, 2021
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Brief facts
The petitioner challenged the constitutionality of section 5 of the Public Order Act and the directives issued by the National Security Advisory Committee (NSAC). The petitioners questioned the legal existence of NSAC and the legality of its power to direct the 2nd respondent (the Inspector General of the National Police Service) in the enforcement of the Public Health (Covid-19 Restrictions of Movement of Persons and Related Measures) Rules, 2020, the Public Order Act and the National Cohesion and Integration Act. The petitioners stated that the directives by NSAC were a culmination of decisions made between March 15, 2020 and October 8, 2020 which were discriminatorily and selectively enforced and implemented by the 2nd respondent for purposes of combating the spread of Covid-19. The effect of those directives, according to the petitioner, was to limit the rights and freedoms of Kenyans as recognized under the Constitution.
The petitioners accused the respondents of using section 5 of the Public Order Act to supress divergent opinions, limit freedom of expression and restrict freedom of association. The petitioners also complained that section 5 of the Public Order Act limited the rights and freedoms of opinion, expression, media, association, assembly, demonstration and campaigning for a political cause by preconditioning the exercise of those rights and freedoms to the issuance of a notice to a police officer, who was empowered to decline to grant permission for the exercise of those rights, without providing good reasons for the refusal as required under article 47 of the Constitution. The constitutionality of section 5 of the Public Order Act was also question on grounds that it permitted a police officer to disperse a peaceful meeting or procession.
The 1st respondent stated that the impugned directives were issued to ensure safety, peace and to order the attainment of national security. The 1st respondent added that the petition sought to usurp the policy preferences of the National Executive in favour of the value judgments of the court and that was contrary to the principle of separation of powers. The Attorney General (the 1st respondent) explained that section 5 of the Public Order Act provided limitations on the enjoyment of constitutional rights which were reasonable and justifiable.
On his part, the 2nd respondent stated that the directives of NSAC were lawful governmental measures meant to combat the spread of Covid-19 and they were enforced in public interest.

Held

Prisons Act- Section 46(1)(ii) Kenneth Otieno Odhiambo & 4 others v Republic

High Court at Kisumu

T W Cherere, J

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Brief facts:

The petitioners challenged section 46 of the Prisons Act on grounds that it discriminated against offenders in the enjoyment of the remission of a third of the sentence imposed. Under the said section 46 certain prisoners including those sentenced to life imprisonment or detention at the President's pleasure were not entitled to remission.

Held:

1. Under article 50(2)(p) of the Constitution, every accused person had the right to a fair trial including the right to the benefit of the least severe of the prescribed punishments, if the prescribed punishment for the offence changed between the time of the commission of the offence and the time of sentencing.

2. Section 46(1)(ii) of the Prisons Act, which excluded prisoners sentenced to imprisonment for life or for an offence under section 296(1) of the Penal code or to be detained at the President's pleasure from remission was inconsistent with article 50(2)(p) of the Constitution on account of being discriminatory. Consequently, the petitioners were entitled to benefit from remission unless they were lawfully excluded under sections 46(3) and 46(4) of the Prisons Act.

Public Finance Management Act- Amendments to Section 24 introducing sub-section 2A made by Statute Law (Miscellaneous Amendment) Act No. 18 of 2018

  

Okiya Omtatah Okoiti & 4 others v Attorney General & 4 others; Council of Governors & 4 others (Interested Parties) [2020] eKLR

Petition 163 of 2019

High Court at Nairobi

P. Nyamweya, Mumbi Ngugi & W. Korir, JJ

January 30, 2020

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Brief facts:

The petitioners challenged the constitutionality of amendments made to various statutes vide the Statute Law (Miscellaneous Amendments) Act, 2018 (the impugned Act). They argued that the amendments were unconstitutional and therefore invalid, null and void. The reasons they advanced were that the manner in which the amendments were effected violated various constitutional provisions. In particular, they argued that the impugned Act introduced substantive amendments which ought to have been done through stand-alone Bills and was an abuse of the proper purpose of miscellaneous amendment Bills. It was also, in their view, in contempt of court for disregarding precedents that prohibited use of miscellaneous amendments to effect substantive amendments in the law.

The petitioners further argued that the enactment of the impugned Act was in violation of the constitutional principle that required participation of the public in the enactment of legislation. It was their case that the period of seven (7) days   given to the public to participate in the process of amendment was so short that no meaningful participation would have taken place in view of the fact that there were 69 pieces of statutes contained in the Bill.  They urged the court to declare the entire impugned Act unconstitutional, null and void.

Issues:

i. Whether the court’s inquiry into the constitutionality of actions undertaken by Parliament would amount to violation of the doctrine of separation of powers.

ii. Whether the suing of the speakers of the Senate and National Assembly in their personal capacity resulted in a misjoinder of the speaker of the National Assembly and Senate.

iii. Whether courts had restricted parliament from effecting substantive changes to legislation through an omnibus amendment bill

iv. Whether the process of enactment of the Statute Law (Miscellaneous Amendment) Act No. 18 of 2018 as an omnibus bill constituted contempt of court.

v. Whether the enactment of the impugned Act required the participation of the senate.

vi. Whether the fact that some of the statutes amended by the impugned Act had previously been amended or passed with the participation of the Senate meant that those laws concerned county governments.

vii. Whether the collection of biometric data, Deoxyribonucleic acid (DNA) data, Global Positioning System (GPS) data and any other information required under National Integrated Identity Management System (NIIMS) as per the impugned amendment would amount to violation of the right to privacy.

viii. Whether the amendment to the Kenya Information and Communications Act which vested the power of appointment of the board of the Communication Authority of Kenya solely on the President and the Cabinet Secretary violated the Constitution.

ix. Whether the legislative process leading to the enactment of the Statute Law (Miscellaneous Amendment) Act No. 18 of 2018 rendered the whole Act unconstitutional.

Held:

1. Failure to comply with the laid down mechanism for the passing of legislation could lead to invalidation of statutes by courts. Legislation had to conform to the constitution in terms of both its content and the manner in which it was adopted. Failure to comply with manner and form requirements in enacting legislation would render the legislation invalid and courts had the power to declare such legislation invalid. Courts not only had a right but also a duty to ensure that the law-making process prescribed by the constitution was observed. If the conditions for law-making processes were not complied with, it had the duty to say so and declare the resulting statute invalid.

2. Parliament could only successfully raise the defence of separation of powers or parliamentary privilege by proving compliance with the Constitution and the law. Anything done by Parliament outside the confines of the Constitution and the law attracted the attention and action of the High Court. Article 165(3) (d) of the Constitution gave the High Court the constitutional authority to conduct an inquiry into the constitutionality of the decisions and actions of the legislature.

3. The court’s fidelity to the Constitution and by extension to the people of Kenya, from whom its mandate emanated, could not be shaken by isolated reference to the doctrine of separation of powers. The Constitution had to be read as a whole, and while it recognized the doctrine of separation of powers, it also mandated the court to determine whether any action undertaken by Parliament violated the Constitution or the law. While the court respected the roles of the other arms of government, it had to faithfully exercise its constitutional mandate of enforcement and protection of the Constitution.

4. In determining whether an impugned legislation or action was unconstitutional, the provisions of the Constitution had to be interpreted purposively in line with article 259(1) of the Constitution and other principles of constitutional interpretation. The Constitution should be interpreted in a holistic manner that entailed reading one provision alongside other provisions, and considering the historical perspective, purpose, and intent of the provisions in question. A holistic interpretation of the constitution called for the investigation of the historical, economic, social, cultural and political background of the provision in question.

5. A person claiming constitutional infringement had to give sufficient notice of the violations to allow their adversary to adequately prepare their case and to save the court from embarrassment on issues that were not appropriately phrased as justiciable controversies. The proper test under the Constitution of Kenya, 2010 was whether a petition as stated raised issues which were too insubstantial and so attenuated that a court of law properly directing itself to the issue could not fashion an appropriate remedy due to the inability to concretely fathom the constitutional violation alleged.

6. The test neither demanded mathematical precision in drawing constitutional petitions nor required talismanic formalism in identifying the specific constitutional provisions which were alleged to have been violated. The test was a substantive one and inquired whether the complaints against the respondents in a constitutional petition were fashioned in a way that gave proper notice to the respondents about the nature of the claims being made so that they could adequately prepare their case.

7. There was nothing in article 226 (5) of the Constitution that suggested that an office holder should be sued in their personal capacity for executing official duties. The 4th and 5th respondents were sued in connection with the performance of their duties. There was no basis for suing them in their personal capacities.  The protection accorded to parliamentary business by article 117 of the Constitution could only be understood to mean that the actions of the Speakers of the two Houses of Parliament were immune from court action. The protection extended to the 4th and 5th respondents was equated to that given to judges in the execution of their judicial duties. In addition, the petitioners had not tendered any evidence to show that the 4th and 5th respondents acted in bad faith as they had alleged. The naming of the 4th and 5th respondents in the petition was not warranted.

8. The National Assembly had improved the manner in which it deployed the use of omnibus bills in its legislative business. The decisions relied on by the petitioners to assert that omnibus Bills should not be used to effect substantive amendments to statute were made in different circumstances and they could only be applied with necessary modification, taking into account the prevailing parliamentary practices.

9. The targeted amendments were conveyed in a single Bill; however, the individual statutes were flagged out and committed to the relevant Departmental Committee for consideration and collection of public views. That information was relayed to the public when they were invited through the newspaper adverts to present their views on the Bill. It could not be concluded that the use of an omnibus bill to effect the amendments ipso facto impeded public participation. However, the use of an omnibus bill to effect amendments to several Acts of Parliament was likely to hinder the participation of the people in the legislative process. Depending on the number of the proposed amendments, the time given might not be sufficient. That was not the same as saying that public participation was not conducted or that it was inadequate.

10. The Law Society of Kenya V Attorney General & Another [2016]eKLR was one of the court decisions relied upon by the petitioners in support of the assertion that courts had decreed that omnibus Bills should not be used to effect substantive amendments to statute. The words used in the judgment were, “the procedure ought to avail only in cases of minor non-controversial amendments.” In the same judgment the court held that omnibus amendments in the form of Statute Law Miscellaneous legislations ought to be confined only to minor non-controversial and generally house-keeping amendments. The key word used by the court was ought and not shall. The court was saying that it would be the proper thing or practice for Parliament to avoid using a miscellaneous amendment Bill to effect substantive changes to statutes. It was therefore incorrect to say that the court held that Parliament should not use omnibus Bills to effect substantive changes to legislation. That would amount to saying that the courts could micromanage the operations of Parliament.

11. Parliament gave reasons why it found the procedure convenient in certain circumstances. There was no constitutional or legal provision that prescribed the manner in which omnibus Bills should be used by Parliament. The law only provided that Bills would be used to enact laws without stating when and where an omnibus Bill or a stand-alone Bill should be used. The manner in which omnibus Bills were used previously could have impinged on public participation and even affected the quality of the debates in Parliament. However, each amendment though carried in one “bus” was given individual attention throughout the legislative process.  The use of a miscellaneous amendment Bill to pass the impugned Act had not offended the Constitution or the National Assembly Standing Orders.

12. One of the mandates of the 2nd respondent was to offer Parliament advice on the reform and review of legislation but the legislative power lay with Parliament. Consequently, if there was any breach of a court order, the 2nd respondent could not be blamed for such violation. It was not demonstrated by the petitioners that the 2nd respondent had coercive powers over Parliament and failed to exercise those powers in the enforcement of court orders. Similarly, the Attorney General had the constitutional mandate to advice the national government on matters of law. He could not direct Parliament on how to conduct its legislative business. The petitioners’ assertion that the 1st, 2nd and 4th respondents acted in contempt of court was not sustainable.

13. Standing Order 117 of the National Assembly Standing Orders required every Bill to be accompanied by a Memorandum of Objects and Reasons and prescribed what such Memorandum should contain. Both the Statute Law (Miscellaneous Amendment) (No. 12) Bill, 2018 and Statute Law (Miscellaneous Amendment) (No. 13) Bill, 2018, were accompanied by a Memorandum of Objects and Reasons. There was no basis for the allegation made by the petitioners that the Bills were illegally published for want of such a memorandum.

14. The errors pointed out by the petitioners were generally minor infractions of the rules of the House which would not merit the attention of the court. Those were the kind of errors, not unexpected in matters performed by human beings that may be made by state organs in the discharge of their duties. The majority of the mistakes had not prejudiced the right of the members of the public to participate in the legislative process. The court could not superintend the day to day operations of other State organs as doing so would amount to interfering with the mandates of those State organs.

15. While Parliament was within its general legislative mandate to establish procedures of how it conducted its business, it had always to abide by the prescriptions of the Constitution. The court could not question each and every procedural infraction that might occur in either of the Houses of Parliament. The court could not supervise the workings of Parliament. The institutional comity between the three arms of government should not be endangered by the unwarranted intrusions into the workings of one arm by another.

16. Although there was no mention of any proposed amendment to the Public Finance Management Act (PFMA) in the newspaper advertisement of May 7, 2018 and in the impugned Bill, the impugned Act ended up amending section 24 of the PFMA by introducing section 2A.  That particular amendment was effected without following the procedure required by the Standing Orders 114 to 139 of the National Assembly, on the introduction of legislative proposals in Bills, their first reading, second reading, committal to the Committee stage and third reading. The amendment to the PFMA was not subjected to public participation. It failed to meet the edict of the Constitution requiring Bills to be enacted in accordance with the procedures in the Standing Orders and the requirement that Parliament involved the public in its legislative business in articles 109 and 118(1) of the Constitution. The amendment to section 24 of the PFMA by introducing section 2A therein made by Statute Law (Miscellaneous Amendment) Act No. 18 of 2018 was unconstitutional, null and void.

17. The legislative process begun from policy formulation stage, and the sponsor of legislation, who had the background information was a different entity from Parliament. Placing the onus on Parliament alone in that respect would be impracticable and unreasonable. In addition, there were opportunities to engage citizens at various stages of the legislative process, and those could be coordinated by various actors who were responsible for the process at any given stage, including during the content development of a Bill. Therefore, there were roles to be played by the executive, civil society and Parliament as actors in the various stages of the development of a Bill.

18. The time that was available for public participation had to be considered in light of all the legislative process. Evidence adduced suggested that the public was aware of the Bill from April 10, 2018 when it was published, and could have participated from that date. The purpose of publication of the Bill in that regard was to notify the public and invite representations through the elected members or direct submission of memoranda and petitions. It was not entirely correct to state that the members only had the seven days indicated in the advertisement of May 7, 2018 to present their views. Even after expiry of the seven days, the doors were not closed for members of the public to participate, as there was still opportunity to participate during the committee hearings as shown in Standing Order 127. There was participation by the 3rd petitioner even after expiry of the time stated in the advertisement.

19. There were efforts made by the National Assembly in facilitating public participation when using the omnibus bill mechanism in the Statute Law (Miscellaneous Amendments) Bill 2018. The legislature intended to carry amendments on the targeted Acts without the use of the term “minor”. From the advertisement of May 7, 2018, it was clear that each Act targeted for amendment was linked to the relevant committee. Only a part of the amendments and not all of them were subject to stakeholder engagement in the Committees. Coupled with the fact that there was sufficient time availed to the public to give their views on the amendments, public participation in the circumstances of the petition was sufficient.

20. The jurisdiction of the Senate could not be extended to each and every legislation passed by the National Assembly. To hold to the contrary would render article 110 of the Constitution redundant since it was difficult to think of any law that did not touch on counties. Although the Fourth Schedule to the Constitution had not given a wide array of functions to the counties, it was incumbent upon the person who alleged non-compliance with article 110 of the Constitution to demonstrate that the law in question was one that concerned county governments.

21. By virtue of article 110(1), a Bill concerned county governments if it contained provisions affecting the functions and the powers of a county government; relates to election of members of a county assembly or a county executive; or affected finances of a county government. It was incumbent upon a person who claimed that the Senate was not involved in the enactment of a particular law to show that the impugned Act concerned county governments. The petitioners failed to discharge that duty. The fact that some of the statutes amended by the impugned Act had previously been amended or passed with the participation of the Senate did not necessarily mean that those laws concerned county governments.

22. An agreement between the Speakers of the two Houses of Parliament that a Bill concerned county governments could still be subjected to litigation in order for the court to determine whether the decision of the Speakers was correct. The petitioners had not rebutted the 3rd respondent’s averment that amendments to Acts concerning county governments were lumped together in Statute Law (Miscellaneous Amendments) Bill, 2018 (National Assembly Bill No. 13) for separate debate and transmission to the Senate for consideration. The statutes proposed for amendment in the Bill were entirely different from the 69 Acts that were amended through the impugned National Assembly Bill No. 12 of 2018. The National Assembly was alive to the role of the Senate in the enactment of Bills concerning county governments and that was why it set aside the amendments which it believed touched on county functions and proposed amendments to those Acts through National Assembly Bill No. 13 of 2018.

23. The petitioners listed a number of statutory provisions in paragraph 70 of their petition which were amended by the impugned Act, and which they alleged violated or threatened to violate constitutional rights. Those included the amendments to section 13 of the Oaths and Statutory Declarations Act, section 81(1) and 1A of the Civil Procedure Act, section 4 of the Probation of Offenders Act, section 3(2) of the Housing Act, section 49A of the Law of Succession Act, various sections of the Traffic Act, section 12(2) of the Kenya Roads Board Act, section 113(6) of the Industrial Property Act, section 6 of the Copyright Act , various sections of the Biosafety Act, section 10 of the Competition Act, section 6(1)(a) of the National Authority for the Campaign Against Alcohol and Drug Abuse Act, and various sections of the Kenya Law Reform Commission Act and of the National Drought Management Authority Act. Other than making averments on the same, the petitioners had not demonstrated the manner in which those provisions violated the stated rights. Accordingly, they failed to discharge the burden imposed on them and the amendments could not be held unconstitutional.

24. Article 31 of the Constitution guaranteed a general right to privacy, and in addition also guarded against specific infringements of privacy, including unnecessary revelation of information relating to family or private affairs. The right to privacy was expressly acknowledged in international and regional covenants on fundamental rights and freedoms. It was provided for under article 12 of the Universal Declaration on Human Rights, article 17 of the International Convention on Civil and Political Rights, article 8 of the European Convention on Human Rights and article 14 of the African Charter on Human and Peoples’ Rights. The scope of the right to privacy was incapable of definition, and could be described as a bundle or continuum of rights which had a variety of justifications.

25. Information privacy included the rights of control that a person had over personal information. Such personal information would in the first place concern information which closely related to the person and was regarded as intimate, and which a person would want to restrict the collection, use and circulation thereof. Examples include information about one’s health. But other information about that person could also be considered private and hence protected under the right to information privacy, even if that information related to their presence or actions in a public place or a place accessible for the public.  Such information over which individuals had an interest to keep private also included information and data about their unique human characteristics, which allowed them to be recognized or identified by others, as it was information about one’s body and about one’s presence , image and identity, in both private and public places.

26. Article 31(c) of the Constitution had to be understood in the context that it protected against the unnecessary revelation of information relating to family or private affairs of an individual. Private affairs were those matters whose disclosure would cause mental distress and injury to a person and there was need to keep such information confidential. Taken in that context, the right to privacy protected the very core of the personal sphere of an individual and basically envisaged the right to live one’s own life with minimum interference.  The right also restricted the collection, use of and disclosure of private information.

27. The applicable test in determining whether there was an invasion or violation of the right to privacy essentially involved an assessment as to whether the invasion was unlawful. The presence of a ground of justification (such as statutory authority) meant that an invasion of privacy was not wrongful. Under the Constitution, by contrast, a two-stage analysis had to be employed in deciding whether there was a violation of the right to privacy. First the scope of the right had to be assessed to determine whether law or conduct had infringed the right. If there was an infringement, it had to be determined whether it was justifiable under the limitation clause.

28. Specifically as regards a determination of whether there was a violation of the right to informational privacy, the court ought to take into account the fact;

a. whether the information was obtained in an intrusive manner,

b. whether it was about intimate aspects of an applicants’ personal life;

c. whether it involved data provided by an applicant for one purpose which was then used for another purpose; and

d. Whether it was disseminated to the press or the general public or persons from whom an applicant could reasonably expect that such private information would be withheld.

29. Biometric data, by its very nature, provided information about a given person, and was therefore personal information that was subject to the protection of privacy in article 31 of the Constitution. The Data Protection Act, No 24 of 2019 adopted at section 2 the definition of personal data that was in the European Union’s General Data Protection Regulations (GDPR), namely, any information which was related to an identified or identifiable natural person. The unique attributes and identifiers that were included in the definition of biometric data as defined in section 3 of the Registration of Persons Act, GPS coordinates, and the data collected by NIIMS as evidenced by the NIIMS data capture form, clearly fell within the above definition of personal data.  The qualification of biometric data as personal had important consequences in relation to the protection and processing of such data, and as such invited a risk of violation of the right to privacy in the event of inadequate protection measures.

30. The main utility of biometric data was with regard to identification of a natural person. Therefore, the only relevant consideration as regards the necessity of biometric data was its utility with respect to the authentication or verification of a person. The article 29 Data Protection Working Party in its Working Document on Biometrics identified the necessary qualities required of biometric data for purposes of authentication and verification were that the data should have attributes that were: 

a. universal, in the sense that the biometric element exists in all persons;

b. unique, in that the biometric element had to be distinctive to each person, and

c. permanent, in that the biometric element remained permanent over time for each person, and a data subject was in principle not able to change those characteristics

The biometric attributes required by the impugned amendments met those criteria, as most of them were universal and unique to the data subjects.

31. Unlike other biometric characteristics, the technique used in DNA identification, which was a DNA comparison process, did not allow for the verification or identification to be done “in real time”, the comparison was also complex, required expertise, and took time. Given the nature and the amount of personal information contained in cellular samples, their retention per se had to be regarded as interfering with the right to respect for the private lives of the individuals concerned. That only a limited part of that information was actually extracted or used by the authorities through DNA profiling and that no immediate detriment was caused in a particular case would not change that conclusion. DNA profiles contain a more limited amount of personal information extracted from cellular samples in a coded form. The limitations observed on the use of DNA equally applied, to the Kenyan situation, given the concession by the respondents of their inability to process DNA information for the entire population.

32. The necessity of GPS monitors in identification was even less evident, given the risk they posed to the right to privacy. The privacy implications and risks arising from the use of GPS monitors was that the devices could be used to track and monitor people without their knowledge. GPS monitoring generated a precise, comprehensive record of a person’s public movements that reflected a wealth of detail about their familial, political, professional, religious, and sexual associations. Disclosed in GPS data would be trips the indisputably private nature of which took little imagination to conjure. The Government could store such records and efficiently mine them for information years into the future.    And because GPS monitoring was cheap in comparison to conventional surveillance techniques and, by design, proceeds surreptitiously, it would evade the ordinary checks that constrain abusive law enforcement practices.

33. Other than the DNA and GPS coordinates, information to be collected by NIIMS pursuant to the impugned amendments was necessary and was therefore not unconstitutional.

34. Judicial notice of the fact that the Data Protection Act 24 of 2019 was enacted and the law contained therein was taken. The protection of personal data depended largely on a legal, regulatory and institutional framework that provided for adequate safeguards, including effective oversight mechanisms. That was especially the case with NIIMS, whereby a vast amount of personal data was accessible to the state, and data subjects at the time had limited insight into and control over how information about them and their lives was being used.

35. The Data Protection Act had included most of the applicable data protection principle, however, the Registration of Persons Act was not one of the Acts to which the Data Protections Act applied as part of the consequential amendments.  That notwithstanding, since one of the objectives of the Act was the regulation of the processing of personal data, whose definition included biometric data collected by NIIMS, it also applied to the data collected pursuant to the impugned Act. There were a number of areas in the Data Protection Act that required to be operationalised by way of regulations, including circumstances when the Data Commissioner may exempt the operation of the Act, and may issue data sharing codes on the exchange of personal data between government departments. Those regulations were necessary, as they would have implications on the protection and security of personal data.

36. Once in force, data protection legislation had to be accompanied by effective implementation and enforcement. The implementation of the Data Protection Act 24 of 2019 required an implementation framework to be in place, including the appointment of the Data Commissioner, and registration of the data controllers and processors, as well as enactment of operational regulations. Therefore, there was in existence a legal framework on the collection and processing of personal data, adequate protection of the data required the operationalisation of that legal framework.

37. The respondents explained the measures they put in place to ensure the safety of the data collected by NIIMS and the security of the system, including the encryption of the data and restricted access. However, there was no specific regulatory framework that governed the operations and security of NIIMS. The legal framework on the operations of NIIMS was inadequate, and posed a risk to the security of data that would be collected in NIIMS.

38. Article 34 of the Constitution guaranteed freedom of the press and of the media. Article 34(5) made specific provision with respect to the body that would be charged with the responsibility of setting media standards, and which would monitor and regulate compliance with those standards. The CAK was the body mandated to set and regulate compliance with media standards in Kenya. Thus, the CAK was the body established to perform the functions of media regulation which was expressly provided for by the Constitution.  Unlike other boards of state corporations, it was the only state body which the Constitution expressly sought to shield from partisan interests. The body that was in charge of media regulation, according to the Constitution, had to be free of government control and of control by political or other interests.

39. Previously, the appointment of members of the CAK Board was to be conducted through a process provided for under section 6B, then repealed by the impugned Act. The impugned amendments had done away with the elaborate process under section 6B and vested the powers of appointment in the President and the Cabinet Secretary. Those changes in the law did not accord with article 34(5) of the Constitution. The input of civil society and of the media was essentially removed from the process of appointment of the chairperson and members of the Board of the regulator established under legislation intended by the Constitution to set and regulate and monitor compliance with media standards.

40. The body established, under the amendments made under the impugned Act, would then comprise of appointees of the Executive. A body whose Chair was appointed by the President, whose Board was made up of Principal Secretaries in government, and the rest of whose members were appointed by the Cabinet Secretary, Ministry of Information, Communication and Technology, himself a presidential appointee, could not be considered an independent body contemplated under article 34(5).

41. A media regulator that was controlled by government, as would be the case should the appointment of the Board of CAK be left to the process set out in section 6 of KICA as amended by the impugned Act, would pose a serious threat of violation of the right to freedom of expression and of the media guaranteed under article 34, and would be in conflict with article 34(5). The impact of such a situation on democracy could not be contemplated. Section 6 of KICA as amended by Statute Law (Miscellaneous Amendment) Act No. 18 of 2018 was unconstitutional, null and void.

42. The petitioners had not demonstrated how the amendments to the Children Act by the impugned law violated the Constitution. The petitioners instead challenged the constitutionality of the Child Welfare Society Order (Legal Notice No. 58 of May 21, 2014). However, the challenge was not one of the matters raised in the petition. Parties were bound by their pleadings, and a matter that was not in the pleadings could not be introduced at the submission stage and the court be called upon to make a determination thereon. Accordingly, the issues raised could not be addressed.

Thuranira & 4 others v Attorney General & 2 others; Registrar of Political Parties & 3 others (Interested Party) (Petition E043, E057 & E109 of 2022) [2022] KEHC 482 (KLR) (Constitutional and Human Rights) (20 April 2022) (Judgment)
Petition E043, E057 and E109 of 2022
High Court at Nairobi
EN Maina, DO Ogembo and HI Ong'udi, JJ
April 20, 2022
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Brief facts
The petitioners challenged the legality of the Political Parties (Amendment) Act, 2022 (the Act) that was assented to on January 27, 2022 on multiple grounds. Among them were the grounds that there was no sufficient public participation undertaken as the stakeholders were not consulted, that the Act was discriminatory, that the Act was unconstitutional for taking away the auditor general’s constitutionally awarded role of auditing and reporting on the accounts of political parties funded from public funds; and that the Act was vague, ambiguous and uncertain.

Held

Petition partly allowed.
Orders

Mbae v Speaker, County Assembly of Nakuru & another; others (Interested Party) (Constitutional Petition E004 of 2022) [2022] KEHC 3313 (KLR) (7 July 2022) (Judgment)
Neutral citation: [2022] KEHC 3313 (KLR)

JM Ngugi, HK Chemitei & TM Matheka, JJ

 
Brief facts
The petitioner was a sitting member of the County Assembly of Nakuru County (the County Assembly). He filed the instant petition seeking among others; a declaration that to the extent that section 14 of the Political Parties Act required a sitting member of the County Assembly and the National Assembly to resign from their respective seats as a precondition to moving from one political party to another for purposes of an election within the timelines set by the law and the Independent Electoral and Boundaries Commission (IEBC) for such change of membership ahead of a general election, that section was unconstitutional; and a reading in order in section 14 that a Member of Parliament or a county assembly who resigned from one political party to the other on the last day of the times lines set by the law and the IEBC for purposes of participation in a general election needed not thereby resign from and/or lose his seat by reason of such change of party membership.The petition was centered on an alleged unconstitutionality of section 14 of the Political Parties Act in light of articles 194(1) of the Constitution of Kenya, 2010 (Constitution) articles 38 and 101(4)-(5) of the Constitution as read together. In particular, the petitioner was aggrieved by the 1st respondent's interpretation of the material provisions. The 1st respondent as the Speaker of the County Assembly of Nakuru (the Speaker) interpreted article 194 as read together with section 14 as revealed in the communication made to the Nakuru County Assembly on February 22, 2022 (the impugned communication). The petitioner argued that the Speaker fell into error when he read article 194(1)(e) of the Constitution in isolation to require that any time a member of the County Assembly resigned from the party that sponsored him or her, the office of the member of the County Assembly fell vacant. Instead, the petitioner argued, when read together with articles 38 and 101(4)-(5) of the Constitution, article 194(1)(e) did not mandate that such a seat of the member of the County Assembly would fall vacant at the end of the electoral cycle when a by-election could not be held by virtue of article 101(5) of the Constitution. According to the petitioner, that was the necessary interpretation to preserve and promote the objects, purposes and principles of the Constitution.
Held
1. Article 194(1)(e) of the Constitution was Kenya’s constitutionalized anti-defection or party-hopping law. In many countries throughout the world, anti-defection or party-hopping laws required any elected Member of Parliament or representative who left the party in which he or she was elected to also leave his or her seat in the legislative body and seek a new mandate from the electorate. The aim of the law was to instill party discipline by preventing political defections which could be prompted by reward of office or other similar unprincipled considerations. As was textually clear, article 194(1)(e) stipulated that a member of the county assembly who defected or changed his or her party from the one that sponsored him or her to the county assembly would lose his or her seat: the seat would become vacant upon such defection or switch of parties.
2. The legislation contemplated in article 194(2) as well as article 92(c), (d), (e) and (i) of the Constitution was the Political Parties Act, No. 11 of 2011 aimed at clarifying the party-hopping clause as well as effectuating the regulation of political parties. Articles 101(4) and (5) of the Constitution described what happened when a vacancy arose whether by resignation of a member or through defection or death. While the two provisions spoke directly about vacancies in the National Assembly and the Senate, they applied mutatis mutandis to vacancies in the county assemblies. 
3. The locus standi to a request for an advisory opinion vested on the National Government, any State organ, or any county government. The petitioner was not any of those. The petitioner could not be denied access to the court for the determination of the matters raised as it was a right that was guaranteed under article 48 of the Constitution. The original jurisdiction to determine issues of the interpretation and implementation of the Constitution and of threats to rights and fundamental freedoms, was vested in the High Court under article 165 of the Constitution. 
4. The petitioner had set out the specific set of facts that gave rise to the petition. He had pointed out the effect of the impugned communication and his understanding of the overall effect of the implementation of section 14 of the Political Parties Act. More importantly he had pointed out the threat to his rights as an elected member of county assembly and to his constituents.
5. It was not sufficient for a party to cursorily state in its submissions that a matter should have been submitted for an advisory opinion; a party ought to demonstrate from the set of facts how the matter was not suitable for that court, which was clothed with the constitutional mandate to interpret the Constitution. The petitioner had demonstrated that that was a matter for constitutional interpretation and not one suitably amenable to a request for an advisory opinion as envisaged by article 163(6) of the Constitution.
6. The provisions of article 2 of the Constitution were plain that the Constitution was the supreme law of Kenya and bound all. Its validity/legality could not be the subject of a challenge before the court or any State organ, the petition was not a challenge to any part of the Constitution. It was, instead, a call for the court to exercise its interpretive jurisdiction granted by article 165 of the Constitution to give an interpretation of the Constitution that harmonized articles 38, 101, and 194 of the Constitution in light of the interpretive commands given to the court by articles 4(2), 10, 19, 20 and 259 of the Constitution. 
7. There was a penumbral and apparent conflict capable of judicial interpretive resolution between article 38 of the Constitution (on political rights of citizens) on the one hand and articles 101 and 194 of the Constitution as read together with section 14 of the Political Parties Act (aimed at achieving political parties’ discipline and overall good governance through a vibrant multi-party system) on the other hand. 
8. The petitioner was not asking for any part of the Constitution to be declared unconstitutional. It was also a well-established principle of constitutional interpretation that each constitutional provision sustained the other and none was greater than the other. That was what had been popularly known as the harmonization principle. 
9. The facts of the petition were precise and the articles of the Constitution at issue specifically identified. The petition had described the factual issues and defined the legal issues at stake sufficiently to both notify the respondents the case at bar and to enable the determination by the court without the embarrassment which could be caused by vagueness.
10. The canons of constitutional interpretation divined by the Constitution and developed by the court’s decisional law included that: 

11. Articles 194(1)(e) and 103(1)(e) of the Constitution served the important constitutional value of instilling party discipline. The element of party discipline anticipated by the provisions of the Constitution was a two-edged sword: on one hand it worked to instill discipline on the party and its elected members to the county assembly; on the other hand, it was considered a boon to the electorates as it enhanced democracy both in the party and in the county assembly. 
12. Knowing how political parties were managed, the Constitution gave room to the dissatisfied and or disgruntled member(s) to make a choice of either staying in the party or opting out. It would for instance have been completely undemocratic to deny the members their democratic space if they did not have the opportunity to bolt out when dissatisfied with the party they used during the general election. 
13. The Political Parties Act did not allow dual membership in political parties by an individual. The democratic space provided ensured that a member of the county assembly was either loyal to his sponsoring party or if not he conscientiously resigned from the party, otherwise, the member was deemed to have resigned from the political party. The other purpose of articles 194(1)(e) and 101(4) and (5) of the Constitution was the right to political representation. 
14. Articles 194(1)(e) and 101(4) and (5) of the Constitution ensured that even if an elected member resigned from the party and thus lost his or her seat his electorate would have another chance of electing a new representative within 90 days as provided by the Constitution. It would violate the political rights of the electorate for the affected ward to be left with no representative for the remainder of the term in the event that their representative resigned from the political vehicle used during the election. The Constitution, however, contained the rider that no by-election should be conducted within three months to the general elections.
15. Articles 194(1)(e) and 101(4) and (5) of the Constitution enhanced the right to freedom and association. Article 38 of the Constitution provided for political rights, including the right to make political choices by forming, participating in, and campaigning for a political party. It also provided for the right to free, fair, and regular elections based on universal suffrage and the free expression of the will of the electors as well as the right to be registered as a voter, to vote, to be a candidate for public office, or office within a political party and to hold office if elected. Those eternal rights were sacrosanct and at all costs had to be enhanced and protected especially in Kenya’s young multi-party democracy. 
16. One could suggest that the provision of the law had checkmated politicians who meant to frustrate the growth of political parties. Put another way, the road map of resigning from the political party had enough checks and balances to ensure that it was only those members of the county assembly that were serious who would want to take that route. 
17. From history, Kenyans intended that;

18. The Constitution explicitly envisioned that the only time that a by-election would not be held was the ninety days before a general election ring-fenced to ensure that the IEBC had sufficient time and resources to prepare for the general elections. The constitutional intention was that no ward, constituency or county would remain unrepresented in the county assembly or Parliament for more than ninety days. A purposeful reading of the Constitution was, therefore, one that cohered the disparate provisions of the Constitution to yield that result.
19. A purposeful reading of the Constitution was one that harmonized articles 194, 101 and 38 of the Constitution. Such a construction of the Constitution would optimally do at least four things at the same time; 

20. The constitutional interpretation proposed by the Speaker failed to achieve the four-fold goal of purposeful interpretation. Conversely, the interpretation suggested by the petitioner did. That was because, in addition to the constitutional history;

21. The constitutional interpretation preferred by the Speaker in the impugned communication would result in situations where a ward electorate was left unrepresented for a period of more than 180 days at the county assembly. That was because there could be no by-election in the period of 90 days immediately preceding the general elections by dint of article 101(5) of the Constitution. The interpretation suggested by the Speaker in the impugned communication would, therefore, harm wards affected by members of county assemblies who chose or were compelled to switch parties within 180 days to the general elections. That was because such wards would remain unrepresented for the entire period of 180 days preceding the general elections.
22. The effect of the constitutional interpretation suggested by the Speaker, the constitutional conundrum it led to and the suggested alternative constitutional construction could be stated in the following series of twelve deductive statements:

23. What section 19 of the County Governments Act meant was that while section 14(2) of the County Governments Act insulated the validity of county assembly proceedings and actions despite there being a vacancy, the county assembly had to meet the quorum threshold in order to function or for its proceedings to be valid. In other words, if members of the county assembly resigned in big enough numbers to dip below the statutory third, then the county assembly would no longer be legally quorate and would be incapable of transacting business. The consequence would be that all the functions of the county assembly would come to a standstill.
24. It could be gleaned from section 14 of the County Governments Act that county assemblies were essentially run through committees. Therefore, since the County Assembly was generally run by committees, should there be mass resignation of members at the tail end of the electoral cycle, many committees or sub-committees would be paralyzed further compounding the Assemblies’ problems.  
25. The incidence of mass resignations leading to mass vacancies in county assemblies if the interpretation assigned to the impugned communication held sway was more than a fantastical possibility; it was a plausible probability. The consequences and implications for such a probable event were so dire for the functioning of the County that the petitioner was right to invoke article 258 of the Constitution which obligated the court to act where there was a credible threat of violation of the Constitution. The probability of quorum hitched in the whole County Assembly as well as the various committees of the Assembly constituted sufficient, cogent threat of violation of the Constitution to warrant the court to prefer an interpretation of the constitutional provisions which was more in line with the Constitution’s overall purposes, objects and principles. 
26. The constitutional interpretation taken in the impugned communication failed to cohere and harmonize all the constitutional provisions. In particular, that interpretation needlessly privileged article 194 of the Constitution and sought to have it trump over article 38 of the Constitution. That interpretation had the inimical effect of potentially harming both the ward electorate of a resigning member of the County Assembly (by leaving the ward unrepresented in the County Assembly for a period of up to 180 days – and beyond the constitutionally sanctioned maximum 90 days) as well as the whole County (by paralysing the operations and functions of the County Assembly or its committees should there be mass resignations dipping the numbers below a third of the members of the County Assembly). 
27. The only interpretation that was constitutionally sound as derived from a faithful application of the canon of constitutional interpretation applicable in Kenya was one that avoided the constitutional harm by reading the Constitution holistically and in a way that aggrandized its purposes, objects and principles. That interpretation was one that would ensure that a ward, constituency or county would not remain unrepresented in the County Assembly, National Assembly or Senate for a period exceeding 90 days. Differently put, the constitutionally-compliant interpretation was one that did not automatically tie the switching of political parties to loss of seats in the final 180 days immediately before a general election. 
28. The constitutionally-compliant interpretation was not the one taken by the impugned communication and section 14 of the Political Parties Act. Therefore, both the impugned communication and section 14 were constitutionally deficient. 
29. The interpretation to article 194(1)(e) of the Constitution as read with section 14 of the Political Parties Act taken by the Speaker in the impugned communication negated and derogated from the objects and purposes of articles 101(4) and 38 of the Constitution in view of the outer limits set in article 101(5) of the Constitution and in view of the theory of constitutional interpretation commanded by article 259(1)(d) as read together with articles 4(2); 10; 19; and 20 of the Constitution.
30. To cure the unconstitutionality inherent in section 14 of the Political Parties Act, the court had jurisdiction to read in a proviso to section 14 of the Political Parties Act to provide that a vacancy did not arise after the last day for changing parties set by IEBC before a general election or within the 180 days preceding a general election so as to bring that statute in line with the Constitution. The instant matter was a proper case for reading in to save the legislative scheme from a declaration of unconstitutionality. Besides, the curative measure suggested was not fundamentally at odds with the intent of the legislation in question. 
Petition allowed.
Orders

Coalition for Reforms and Democracy (CORD) v Attorney General; International Institute for Legislative Affairs & another (Interested Parties) [2019]eKLR

High Court at Nairobi

P Nyamweya, J M Mativo, & W A Okwany, JJ

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Brief fact:

The petition challenged the exercise of presidential powers of referral of Bills back to Parliament. The petitioner averred that the President exceeded the powers conferred and contemplated under article 115(1)(b) of the Constitution by his proposals to delete, insert, and amend clauses on various Bills referred back to Parliament.

Specifically, the petitioners challenged the presidential reservations made in; the Public Audit Bill, 2014; Retirement Benefits (Deputy President and Designated State Officers) Bill, 2013; Ethics and Anti-Corruption Commission (Amendment) Bill, 2015; Central Bank of Kenya (Amendment) Bill, 2014; Kenya Information and Communication (Amendment) Bill, 2013; The Public Procurement and Disposal (Amendment) Bill, 2013; Statute Law Miscellaneous (Amendment) Bill, 2014; National Flag, Emblems and Names (Amendment) Bill, 2013; and, the Police Service Commission (Amendment) Bill, 2013. They sought a declaration that the President’s unilateral proposals to strike out, insert, amend or delete provisions of the impugned Bills was unconstitutional for being ultra vires, an invasion of the powers of the National Assembly and a breach of the doctrine of separation of powers.

The petitioners also challenged the constitutional validity of section 4 of the Retirement Benefits (Deputy President and Designated State Officers) Act, 2015 on grounds that the section limited political rights under article 38 of the Constitution and violated the right to equality and freedom from discrimination protected under article 27 of the Constitution. The petitioner sought an order of mandamus to compel the respondent to pay the terminal retirement benefits of the former Prime Minister and former Vice President in accordance with the said Act.

Held

1. Section 4(1) and (2) of the Retirement Benefits (Deputy President and Designated State Officers) Act (the Act), set out two circumstances where the National Assembly might, on a motion supported by the votes of not less than half of the members thereof, resolve that an entitled person, surviving spouse or children, as the case may be, should not receive any benefits conferred under the Act. The first set of circumstances fell under the grounds listed in paragraphs 4(1)(a) to (c) of the section, which addressed instances of alleged misconduct or illegal conduct on the part of an entitled person. The second set of circumstances was described in section 4(1)(d) and section 4(2) which covered alleged subsequent engagement of an entitled person in either political party activities or appointment to a remunerated political or public office.

2. When the constitutionality of legislation or any act or omission was in issue, the court was under a duty to examine the objects and purport of the legislation, the act or omission and to read the provisions of the legislation, the conduct or omission so far as was possible, in conformity with the Constitution.

3. The Act defined “benefits” to mean pension and other retirement benefits conferred by the Act. A benefit was an advantage or profit gained from something, payment made by the state or an insurance scheme to someone entitled to receive it. Therefore, a retirement benefit or pension was an entitlement.

4. The fact that a retirement benefit was an entitlement had also received a constitutional underpinning. Article 43(1)(e) of the Constitution provided that every person had the right to social security. Article 151 of the Constitution also provided that the retirement benefits payable to a former President and a former Deputy President, the facilities available to and the privileges enjoyed by them, could not be varied to their disadvantage during their lifetime.

5.  Article 160(4) of the Constitution also provided that subject to article 168(6), the remuneration and benefits payable to, or in respect of a judge should not be varied to the disadvantage of that judge, and the retirement benefits of a retired judge should not be varied to the disadvantage of the retired judge during the lifetime of that retired judge. Article 168(6) applied to judges on suspension who were entitled to half pay during the period of the suspension.

6. The impugned sections gave the National Assembly the mandate of determining, by a motion supported by not less than half of the members, whether an entitled person should be paid the benefits.  To the extent that that section 4(1) and (2) of the Act gave the National Assembly, which enacted the law, the responsibility of determining the circumstances under which an entitled person would or would not be paid a retirement benefit, it offended the doctrine of separation of powers. That was because it conferred to the National Assembly the role of legislating, interpreting and implementing the law. That provision created a situation whereby when a question arose as to whether an entitled person should be paid, the same was referred back to the National Assembly to determine the question. Implementation of laws was a function of the executive while interpreting the law was a function of the judiciary.

7. To the extent that the impugned section conferred on the National Assembly, a legislative body, the mandate of debating and determining whether the persons eligible for the retirement benefits qualify to be paid in accordance with the said provisions, it out-rightly offended the doctrine of separation of powers which rendered it constitutionally invalid.

8. The impugned section purported to interfere with the retirement benefit entitlements, which were expressly protected by article 151(3) and 160(4) of the Constitution with respect to a Deputy President, the Chief Justice and Deputy Chief Justice, which could not be varied to their disadvantage during their lifetime. To that extent, the impugned provision, therefore, failed the constitutionality test.

9. Gratuity, pension and retirement benefits were hard-earned benefits of an employee and the right to receive pension or a retirement benefit was in the nature of property. That right to property could not be taken away without the due process of law. Article 40(1) of the Constitution protected the right to private property. It guaranteed the right of every person individually or in association with others to acquire and own property subject to article 65 of the Constitution.

10. To the extent that the impugned provision gave the National Assembly power to deprive an entitled person the right to property without due process, the same was arbitrary and therefore unconstitutional. It violated the right to a fair administrative action guaranteed under article 47 of the Constitution and the Fair Administrative Action Act, the right to a fair hearing under article 50, and the principles of natural justice. The impugned section simply provided for the National Assembly to pass a motion supported by not less than a half of the members thereof. It did not provide for the affected person to be afforded an opportunity to be heard.

11. Rights or retirement benefits accrued to any person under the law could not therefore be diminished or eliminated because once an individual had attained eligibility for a retirement benefit; the benefit was afforded constitutional protection. Even in jurisdictions where there was no explicit constitutional protection for public pension benefits, promissory estoppel and principles of contract law would be applied to protect reasonable pension expectations.

12. Generally, constitutional provisions had been construed to protect retirement benefits. Where a statute established a retirement plan for government employees who contributed toward the benefits and performed services while the statute was in effect, the statute became part of the contract of employment so that an attempt to amend the statute violated the Constitution. A retirement plan for government employees became a part of an employee's contract of employment if the employee contributed at any time any amount toward the benefits. If the employee performed services during the effective dates of the legislation, the benefits were constitutionally vested, precluding their legislative repeal as to the employee, regardless of whether or not the employee would be able to retire on any basis under the plan. A retirement benefit was in the nature of property and that it enjoyed constitutional protection and even where the Constitution did not expressly provide so, courts were willing to find that it was constitutionally protected, and could not be arbitrarily taken away.

13. Even though article 151(3) and 160(4) of the Constitution only mentioned the president, deputy president, and judges, retirement benefits of all employees were in the nature of property within the meaning and context of article 40(1) of the Constitution, and therefore it enjoyed constitutional protection and could not be taken away arbitrarily. On that ground alone, the impugned provision suffered constitutional invalidity.

14. The right created under article 38 of the Constitution in favour of citizens of Kenya to participate in political rights was a basic feature of democracy. It provided for the freedom to make political choices and the right to be a candidate for a public office or political office. The latter was part of the basic structure of a democratic state and also of public service. That would mean that restrictions on political rights could only be justified under the tests provided in article 24 of the Constitution. A restriction of the political rights of an entitled person would not be justifiable nor would it be reasonable in a democratic state. It would be inimical to human dignity and fundamental rights.

15. Article 27 of the Constitution guaranteed the right to equality and freedom from discrimination. Equality of rights under the law for all persons, male or female, was basic to democracy and commitment to human rights. The right to equal treatment, and the right not to be discriminated against, were rights vested in individuals. The constitutional freedom to vote and run for office or participate in political processes, as an aspect of article 38, was an individual freedom. Any action that specifically barred a citizen from participating in the democratic process was unconstitutional unless it could be justified under the limitation clause. The right or freedom to vote, join a political party, and the right or freedom to stand for office were conceptually inseparable, as they formed equally integral parts of the democratic process.

16. Section 4(1) and (2) of the Act differentiated between persons. The impugned provisions clearly denied the entitled persons their retirement benefits in the stated circumstances, which did not apply to other retirement benefits beneficiaries. It also restricted their political activity unlike the case for other Kenyan citizens. To the extent that the entitled persons would in the stated circumstances lose their retirement benefits and right to political participation, they would be positively discriminated against.

17. Once an allegation of unfair discrimination based on any of the listed grounds in article 27 of the Constitution was made and established, the burden laid on the respondent to prove that such discrimination did not take place or that it was justified. In the instant case, the respondent did not attempt to discharge that burden. The impugned section offended the provisions of articles 27 and 38 of the Constitution to the extent that the provisions not only denied a certain category of employees their retirement benefits, but it also sought to limit their rights to political participation.

18.  A reading of section 4 of the Act left no doubt that it was not only vague and ambiguous for want of certainty, but it was also retrospective in its application;

a. section 4(1)(b) of the Act simply provided that an employee should not be entitled to a benefit if he was guilty of gross misconduct. The provision did not specify what constituted gross misconduct, nor did it specify whether the alleged gross misconduct was relevant if it occurred before, during or after retirement.

b.       section 4(1)(a) of the Act did not specify whether the alleged violation of the Constitution occurred before, during or after the retirement.

c.        section 4(1)(c) disentitled retirement benefits of an employee who after leaving office was convicted of an offence and sentence to three or more years. The section was retrospective in application by seeking to take away a lawful entitlement, which would have accrued long before the alleged conviction and had no connection with the alleged offence or misconduct. It also offended the rule against double jeopardy by denying an entitled person his or her lawful benefits in addition to the punishment that would be imposed.

19. Certainty was generally considered to be a virtue in a legal system while legal uncertainty was regarded as a vice. Uncertainty undermined both the rule of law in general and the law’s ability to achieve its objective. Accordingly, sections 4(1)(a), (b) and (c) of the Retirement Benefits (Deputy President and Designated State Officers) Act, 2015 was also void for ambiguity and uncertainty.

20. An order of mandamus would issue to compel a person or body of persons who had failed to perform the duty to the detriment of a party who had a legal right to expect the duty to be performed. Mandamus was a judicial command requiring the performance of a specified duty which had not been performed. Originally a common law writ, mandamus had been used by courts to review administrative action. Its chief use was to compel the performance, when refused, of a ministerial duty. It was also employed to compel action, when refused, in matters involving judgment and discretion, but not to direct the exercise of judgment or discretion in a particular way, nor to direct the retraction or reversal of action already taken in the exercise of either.

21.  The order of mandamus was an equitable remedy that served to compel a public authority to perform its public legal duty. It was a remedy that controlled procedural delays. For an order of mandamus to issue, a party seeking it had to establish that;

a.        there was a public legal duty to act;

b.       the duty was owed to the applicant;

c.        there was a clear right to the performance of that duty. The applicants had satisfied all the conditions precedent; demanded for performance prior to coming to court; afforded the respondent a reasonable time to comply with the demand, unless it was an outright refusal; and there had been express refusal or an implied refusal through unreasonable delay;

d.       there was no other adequate remedy available to the applicants;

e.        the order sought was of some practical value or effect;

f.        there was no equitable bar to the relief sought; and,

g.       on a balance of convenience, the mandamus should issue.

22.  In the instant case, the petitioner had not satisfied the conditions for the grant of an order of mandamus. There was no evidence adduced to show that a demand was ever made requesting the alleged terminal retirement benefits payment. In addition, there was nothing to demonstrate that there had been express refusal, or an implied refusal through unreasonable delay to pay the alleged amounts. Mandamus could only issue where it was clear that there was wilful refusal or implied refusal, and or unreasonable delay.

 

Okiya Omtatah Okoiti & 4 others v Attorney General & 4 others; Council of Governors & 4 others (Interested Parties) [2020] eKLR

Petition 163 of 2019

High Court at Nairobi

P. Nyamweya, Mumbi Ngugi & W. Korir, JJ

1/30/2020

 

Download the Decision

 

Brief facts:

The petitioners challenged the constitutionality of amendments made to various statutes vide the Statute Law (Miscellaneous Amendments) Act, 2018 (the impugned Act). They argued that the amendments were unconstitutional and therefore invalid, null and void. The reasons they advanced were that the manner in which the amendments were effected violated various constitutional provisions. In particular, they argued that the impugned Act introduced substantive amendments which ought to have been done through stand-alone Bills and was an abuse of the proper purpose of miscellaneous amendment Bills. It was also, in their view, in contempt of court for disregarding precedents that prohibited use of miscellaneous amendments to effect substantive amendments in the law.

The petitioners further argued that the enactment of the impugned Act was in violation of the constitutional principle that required participation of the public in the enactment of legislation. It was their case that the period of seven (7) days   given to the public to participate in the process of amendment was so short that no meaningful participation would have taken place in view of the fact that there were 69 pieces of statutes contained in the Bill.  They urged the court to declare the entire impugned Act unconstitutional, null and void.

 

Issues:

i. Whether the court’s inquiry into the constitutionality of actions undertaken by Parliament would amount to violation of the doctrine of separation of powers.

ii. Whether the suing of the speakers of the Senate and National Assembly in their personal capacity resulted in a misjoinder of the speaker of the National Assembly and Senate.

iii. Whether courts had restricted parliament from effecting substantive changes to legislation through an omnibus amendment bill

iv. Whether the process of enactment of the Statute Law (Miscellaneous Amendment) Act No. 18 of 2018 as an omnibus bill constituted contempt of court.

v. Whether the enactment of the impugned Act required the participation of the senate.

vi. Whether the fact that some of the statutes amended by the impugned Act had previously been amended or passed with the participation of the Senate meant that those laws concerned county governments.

vii. Whether the collection of biometric data, Deoxyribonucleic acid (DNA) data, Global Positioning System (GPS) data and any other information required under National Integrated Identity Management System (NIIMS) as per the impugned amendment would amount to violation of the right to privacy.

viii. Whether the amendment to the Kenya Information and Communications Act which vested the power of appointment of the board of the Communication Authority of Kenya solely on the President and the Cabinet Secretary violated the Constitution.

ix. Whether the legislative process leading to the enactment of the Statute Law (Miscellaneous Amendment) Act No. 18 of 2018 rendered the whole Act unconstitutional.

 

Held:

1. Failure to comply with the laid down mechanism for the passing of legislation could lead to invalidation of statutes by courts. Legislation had to conform to the constitution in terms of both its content and the manner in which it was adopted. Failure to comply with manner and form requirements in enacting legislation would render the legislation invalid and courts had the power to declare such legislation invalid. Courts not only had a right but also a duty to ensure that the law-making process prescribed by the constitution was observed. If the conditions for law-making processes were not complied with, it had the duty to say so and declare the resulting statute invalid.

2. Parliament could only successfully raise the defence of separation of powers or parliamentary privilege by proving compliance with the Constitution and the law. Anything done by Parliament outside the confines of the Constitution and the law attracted the attention and action of the High Court. Article 165(3) (d) of the Constitution gave the High Court the constitutional authority to conduct an inquiry into the constitutionality of the decisions and actions of the legislature.

3. The court’s fidelity to the Constitution and by extension to the people of Kenya, from whom its mandate emanated, could not be shaken by isolated reference to the doctrine of separation of powers. The Constitution had to be read as a whole, and while it recognized the doctrine of separation of powers, it also mandated the court to determine whether any action undertaken by Parliament violated the Constitution or the law. While the court respected the roles of the other arms of government, it had to faithfully exercise its constitutional mandate of enforcement and protection of the Constitution.

4. In determining whether an impugned legislation or action was unconstitutional, the provisions of the Constitution had to be interpreted purposively in line with article 259(1) of the Constitution and other principles of constitutional interpretation. The Constitution should be interpreted in a holistic manner that entailed reading one provision alongside other provisions, and considering the historical perspective, purpose, and intent of the provisions in question. A holistic interpretation of the constitution called for the investigation of the historical, economic, social, cultural and political background of the provision in question.

5. A person claiming constitutional infringement had to give sufficient notice of the violations to allow their adversary to adequately prepare their case and to save the court from embarrassment on issues that were not appropriately phrased as justiciable controversies. The proper test under the Constitution of Kenya, 2010 was whether a petition as stated raised issues which were too insubstantial and so attenuated that a court of law properly directing itself to the issue could not fashion an appropriate remedy due to the inability to concretely fathom the constitutional violation alleged.

6. The test neither demanded mathematical precision in drawing constitutional petitions nor required talismanic formalism in identifying the specific constitutional provisions which were alleged to have been violated. The test was a substantive one and inquired whether the complaints against the respondents in a constitutional petition were fashioned in a way that gave proper notice to the respondents about the nature of the claims being made so that they could adequately prepare their case.

7. There was nothing in article 226 (5) of the Constitution that suggested that an office holder should be sued in their personal capacity for executing official duties. The 4^th and 5^th respondents were sued in connection with the performance of their duties. There was no basis for suing them in their personal capacities.  The protection accorded to parliamentary business by article 117 of the Constitution could only be understood to mean that the actions of the Speakers of the two Houses of Parliament were immune from court action. The protection extended to the 4^th and 5^th respondents was equated to that given to judges in the execution of their judicial duties. In addition, the petitioners had not tendered any evidence to show that the 4^th and 5^th respondents acted in bad faith as they had alleged. The naming of the 4^th and 5^th respondents in the petition was not warranted.

8. The National Assembly had improved the manner in which it deployed the use of omnibus bills in its legislative business. The decisions relied on by the petitioners to assert that omnibus Bills should not be used to effect substantive amendments to statute were made in different circumstances and they could only be applied with necessary modification, taking into account the prevailing parliamentary practices.

9. The targeted amendments were conveyed in a single Bill; however, the individual statutes were flagged out and committed to the relevant Departmental Committee for consideration and collection of public views. That information was relayed to the public when they were invited through the newspaper adverts to present their views on the Bill. It could not be concluded that the use of an omnibus bill to effect the amendments ipso facto impeded public participation. However, the use of an omnibus bill to effect amendments to several Acts of Parliament was likely to hinder the participation of the people in the legislative process. Depending on the number of the proposed amendments, the time given might not be sufficient. That was not the same as saying that public participation was not conducted or that it was inadequate.

10. The Law Society of Kenya V Attorney General & Another [2016]eKLR was one of the court decisions relied upon by the petitioners in support of the assertion that courts had decreed that omnibus Bills should not be used to effect substantive amendments to statute. The words used in the judgment were, “the procedure ought to avail only in cases of minor non-controversial amendments.” In the same judgment the court held that omnibus amendments in the form of Statute Law Miscellaneous legislations ought to be confined only to minor non-controversial and generally house-keeping amendments. The key word used by the court was ought and not shall. The court was saying that it would be the proper thing or practice for Parliament to avoid using a miscellaneous amendment Bill to effect substantive changes to statutes. It was therefore incorrect to say that the court held that Parliament should not use omnibus Bills to effect substantive changes to legislation. That would amount to saying that the courts could micromanage the operations of Parliament.

11. Parliament gave reasons why it found the procedure convenient in certain circumstances. There was no constitutional or legal provision that prescribed the manner in which omnibus Bills should be used by Parliament. The law only provided that Bills would be used to enact laws without stating when and where an omnibus Bill or a stand-alone Bill should be used. The manner in which omnibus Bills were used previously could have impinged on public participation and even affected the quality of the debates in Parliament. However, each amendment though carried in one “bus” was given individual attention throughout the legislative process.  The use of a miscellaneous amendment Bill to pass the impugned Act had not offended the Constitution or the National Assembly Standing Orders.

12. One of the mandates of the 2^nd respondent was to offer Parliament advice on the reform and review of legislation but the legislative power lay with Parliament. Consequently, if there was any breach of a court order, the 2^nd respondent could not be blamed for such violation. It was not demonstrated by the petitioners that the 2^nd respondent had coercive powers over Parliament and failed to exercise those powers in the enforcement of court orders. Similarly, the Attorney General had the constitutional mandate to advice the national government on matters of law. He could not direct Parliament on how to conduct its legislative business. The petitioners’ assertion that the 1^st, 2^nd and 4^th respondents acted in contempt of court was not sustainable.

13. Standing Order 117 of the National Assembly Standing Orders required every Bill to be accompanied by a Memorandum of Objects and Reasons and prescribed what such Memorandum should contain. Both the Statute Law (Miscellaneous Amendment) (No. 12) Bill, 2018 and Statute Law (Miscellaneous Amendment) (No. 13) Bill, 2018, were accompanied by a Memorandum of Objects and Reasons. There was no basis for the allegation made by the petitioners that the Bills were illegally published for want of such a memorandum.

14. The errors pointed out by the petitioners were generally minor infractions of the rules of the House which would not merit the attention of the court. Those were the kind of errors, not unexpected in matters performed by human beings that may be made by state organs in the discharge of their duties. The majority of the mistakes had not prejudiced the right of the members of the public to participate in the legislative process. The court could not superintend the day to day operations of other State organs as doing so would amount to interfering with the mandates of those State organs.

15. While Parliament was within its general legislative mandate to establish procedures of how it conducted its business, it had always to abide by the prescriptions of the Constitution. The court could not question each and every procedural infraction that might occur in either of the Houses of Parliament. The court could not supervise the workings of Parliament. The institutional comity between the three arms of government should not be endangered by the unwarranted intrusions into the workings of one arm by another.

16. Although there was no mention of any proposed amendment to the Public Finance Management Act (PFMA) in the newspaper advertisement of May 7, 2018 and in the impugned Bill, the impugned Act ended up amending section 24 of the PFMA by introducing section 2A.  That particular amendment was effected without following the procedure required by the Standing Orders 114 to 139 of the National Assembly, on the introduction of legislative proposals in Bills, their first reading, second reading, committal to the Committee stage and third reading. The amendment to the PFMA was not subjected to public participation. It failed to meet the edict of the Constitution requiring Bills to be enacted in accordance with the procedures in the Standing Orders and the requirement that Parliament involved the public in its legislative business in articles 109 and 118(1) of the Constitution. The amendment to section 24 of the PFMA by introducing section 2A therein made by Statute Law (Miscellaneous Amendment) Act No. 18 of 2018 was unconstitutional, null and void.

17. The legislative process begun from policy formulation stage, and the sponsor of legislation, who had the background information was a different entity from Parliament. Placing the onus on Parliament alone in that respect would be impracticable and unreasonable. In addition, there were opportunities to engage citizens at various stages of the legislative process, and those could be coordinated by various actors who were responsible for the process at any given stage, including during the content development of a Bill. Therefore, there were roles to be played by the executive, civil society and Parliament as actors in the various stages of the development of a Bill.

18. The time that was available for public participation had to be considered in light of all the legislative process. Evidence adduced suggested that the public was aware of the Bill from April 10, 2018 when it was published, and could have participated from that date. The purpose of publication of the Bill in that regard was to notify the public and invite representations through the elected members or direct submission of memoranda and petitions. It was not entirely correct to state that the members only had the seven days indicated in the advertisement of May 7, 2018 to present their views. Even after expiry of the seven days, the doors were not closed for members of the public to participate, as there was still opportunity to participate during the committee hearings as shown in Standing Order 127. There was participation by the 3^rd petitioner even after expiry of the time stated in the advertisement.

19. There were efforts made by the National Assembly in facilitating public participation when using the omnibus bill mechanism in the Statute Law (Miscellaneous Amendments) Bill 2018. The legislature intended to carry amendments on the targeted Acts without the use of the term “minor”. From the advertisement of May 7, 2018, it was clear that each Act targeted for amendment was linked to the relevant committee. Only a part of the amendments and not all of them were subject to stakeholder engagement in the Committees. Coupled with the fact that there was sufficient time availed to the public to give their views on the amendments, public participation in the circumstances of the petition was sufficient.

20. The jurisdiction of the Senate could not be extended to each and every legislation passed by the National Assembly. To hold to the contrary would render article 110 of the Constitution redundant since it was difficult to think of any law that did not touch on counties. Although the Fourth Schedule to the Constitution had not given a wide array of functions to the counties, it was incumbent upon the person who alleged non-compliance with article 110 of the Constitution to demonstrate that the law in question was one that concerned county governments.

21. By virtue of article 110(1), a Bill concerned county governments if it contained provisions affecting the functions and the powers of a county government; relates to election of members of a county assembly or a county executive; or affected finances of a county government. It was incumbent upon a person who claimed that the Senate was not involved in the enactment of a particular law to show that the impugned Act concerned county governments. The petitioners failed to discharge that duty. The fact that some of the statutes amended by the impugned Act had previously been amended or passed with the participation of the Senate did not necessarily mean that those laws concerned county governments.

22. An agreement between the Speakers of the two Houses of Parliament that a Bill concerned county governments could still be subjected to litigation in order for the court to determine whether the decision of the Speakers was correct. The petitioners had not rebutted the 3^rd respondent’s averment that amendments to Acts concerning county governments were lumped together in Statute Law (Miscellaneous Amendments) Bill, 2018 (National Assembly Bill No. 13) for separate debate and transmission to the Senate for consideration. The statutes proposed for amendment in the Bill were entirely different from the 69 Acts that were amended through the impugned National Assembly Bill No. 12 of 2018. The National Assembly was alive to the role of the Senate in the enactment of Bills concerning county governments and that was why it set aside the amendments which it believed touched on county functions and proposed amendments to those Acts through National Assembly Bill No. 13 of 2018.

23. The petitioners listed a number of statutory provisions in paragraph 70 of their petition which were amended by the impugned Act, and which they alleged violated or threatened to violate constitutional rights. Those included the amendments to section 13 of the Oaths and Statutory Declarations Act, section 81(1) and 1A of the Civil Procedure Act, section 4 of the Probation of Offenders Act, section 3(2) of the Housing Act, section 49A of the Law of Succession Act, various sections of the Traffic Act, section 12(2) of the Kenya Roads Board Act, section 113(6) of the Industrial Property Act, section 6 of the Copyright Act , various sections of the Biosafety Act, section 10 of the Competition Act, section 6(1)(a) of the National Authority for the Campaign Against Alcohol and Drug Abuse Act, and various sections of the Kenya Law Reform Commission Act and of the National Drought Management Authority Act. Other than making averments on the same, the petitioners had not demonstrated the manner in which those provisions violated the stated rights. Accordingly, they failed to discharge the burden imposed on them and the amendments could not be held unconstitutional.

24. Article 31 of the Constitution guaranteed a general right to privacy, and in addition also guarded against specific infringements of privacy, including unnecessary revelation of information relating to family or private affairs. The right to privacy was expressly acknowledged in international and regional covenants on fundamental rights and freedoms. It was provided for under article 12 of the Universal Declaration on Human Rights, article 17 of the International Convention on Civil and Political Rights, article 8 of the European Convention on Human Rights and article 14 of the African Charter on Human and Peoples’ Rights. The scope of the right to privacy was incapable of definition, and could be described as a bundle or continuum of rights which had a variety of justifications.

25. Information privacy included the rights of control that a person had over personal information. Such personal information would in the first place concern information which closely related to the person and was regarded as intimate, and which a person would want to restrict the collection, use and circulation thereof. Examples include information about one’s health. But other information about that person could also be considered private and hence protected under the right to information privacy, even if that information related to their presence or actions in a public place or a place accessible for the public.  Such information over which individuals had an interest to keep private also included information and data about their unique human characteristics, which allowed them to be recognized or identified by others, as  it was information about one’s body and about one’s presence , image and identity, in both private and public places.

26. Article 31(c) of the Constitution had to be understood in the context that it protected against the unnecessary revelation of information relating to family or private affairs of an individual. Private affairs were those matters whose disclosure would cause mental distress and injury to a person and there was need to keep such information confidential. Taken in that context, the right to privacy protected the very core of the personal sphere of an individual and basically envisaged the right to live one’s own life with minimum interference.  The right also restricted the collection, use of and disclosure of private information.

27. The applicable test in determining whether there was an invasion or violation of the right to privacy essentially involved an assessment as to whether the invasion was unlawful. The presence of a ground of justification (such as statutory authority) meant that an invasion of privacy was not wrongful. Under the Constitution, by contrast, a two-stage analysis had to be employed in deciding whether there was a violation of the right to privacy. First the scope of the right had to be assessed to determine whether law or conduct had infringed the right. If there was an infringement it had to be determined whether it was justifiable under the limitation clause.

28. Specifically as regards a determination of whether there was a violation of the right to informational privacy, the court ought to take into account the fact;

a. whether the information was obtained in an intrusive manner,

b. whether it was about intimate aspects of an applicants’ personal life;

c. whether it involved data provided by an applicant for one purpose which was then used for another purpose; and

d. Whether it was disseminated to the press or the general public or persons from whom an applicant could reasonably expect that such private information would be withheld.

29. Biometric data, by its very nature, provided information about a given person, and was therefore personal information that was subject to the protection of privacy in article 31 of the Constitution. The Data Protection Act, No 24 of 2019 adopted at section 2 the definition of personal data that was in the European Union’s General Data Protection Regulations (GDPR), namely, any information which was related to an identified or identifiable natural person. The unique attributes and identifiers that were included in the definition of biometric data as defined in section 3 of the Registration of Persons Act, GPS coordinates, and the data collected by NIIMS as evidenced by the NIIMS data capture form, clearly fell within the above definition of personal data.  The qualification of biometric data as personal had important consequences in relation to the protection and processing of such data, and as such invited a risk of violation of the right to privacy in the event of inadequate protection measures.

30. The main utility of biometric data was with regard to identification of a natural person. Therefore, the only relevant consideration as regards the necessity of biometric data was its utility with respect to the authentication or verification of a person. The article 29 Data Protection Working Party in its Working Document on Biometrics identified the necessary qualities required of biometric data for purposes of authentication and verification were that the data should have attributes that were: 

a. universal, in the sense that the biometric element exists in all persons;

b. unique, in that the biometric element had to be distinctive to each person, and

c. permanent, in that the biometric element remained permanent over time for each person, and a data subject was in principle  not able to change  those characteristics

The biometric attributes required by the impugned amendments met those criteria, as most of them were universal and unique to the data subjects.

31. Unlike other biometric characteristics, the technique used in DNA identification, which was a DNA comparison process, did not allow for the verification or identification to be done “in real time”, the comparison was also complex, required expertise, and took time. Given the nature and the amount of personal information contained in cellular samples, their retention per se had to be regarded as interfering with the right to respect for the private lives of the individuals concerned. That only a limited part of that information was actually extracted or used by the authorities through DNA profiling and that no immediate detriment was caused in a particular case would not change that conclusion. DNA profiles contain a more limited amount of personal information extracted from cellular samples in a coded form. The limitations observed on the use of DNA equally applied, to the Kenyan situation, given the concession by the respondents of their inability to process DNA information for the entire population.

32. The necessity of GPS monitors in identification was even less evident, given the risk they posed to the right to privacy. The privacy implications and risks arising from the use of GPS monitors was that the devices could be used to track and monitor people without their knowledge. GPS monitoring generated  a  precise,  comprehensive  record  of  a  person’s  public  movements  that  reflected  a  wealth  of  detail  about their  familial,  political,  professional,  religious,  and  sexual associations. Disclosed  in  GPS  data  would  be  trips  the  indisputably  private  nature  of  which  took  little  imagination  to  conjure. The  Government  could  store  such  records  and  efficiently  mine  them  for  information  years  into  the  future.    And  because  GPS  monitoring  was  cheap  in comparison to conventional surveillance techniques and, by design, proceeds surreptitiously, it would evade the ordinary checks  that  constrain  abusive  law  enforcement  practices.

33. Other than the DNA and GPS coordinates, information to be collected by NIIMS pursuant to the impugned amendments was necessary and was therefore not unconstitutional.

34. Judicial notice of the fact that the Data Protection Act 24 of 2019 was enacted and the law contained therein was taken. The protection of personal data depended largely on a legal, regulatory and institutional framework that provided for adequate safeguards, including effective oversight mechanisms. That was especially the case with NIIMS, whereby a vast amount of personal data was accessible to the state, and data subjects at the time had limited insight into and control over how information about them and their lives was being used.

35. The Data Protection Act had included most of the applicable data protection principle, however, the Registration of Persons Act was not one of the Acts to which the Data Protections Act applied as part of the consequential amendments.  That notwithstanding, since one of the objectives of the Act was the regulation of the processing of personal data, whose definition included biometric data collected by NIIMS, it also applied to the data collected pursuant to the impugned Act. There were a number of areas in the Data Protection Act that required to be operationalised by way of regulations, including circumstances when the Data Commissioner may exempt the operation of the Act, and may issue data sharing codes on the exchange of personal data between government departments. Those regulations were necessary, as they would have implications on the protection and security of personal data.

36. Once in force, data protection legislation had to be accompanied by effective implementation and enforcement. The implementation of the Data Protection Act 24 of 2019 required an implementation framework to be in place, including the appointment of the Data Commissioner, and registration of the data controllers and processors, as well as enactment of operational regulations. Therefore, there was in existence a legal framework on the collection and processing of personal data, adequate protection of the data required the operationalisation of that legal framework.

37. The respondents explained the measures they put in place to ensure the safety of the data collected by NIIMS and the security of the system, including the encryption of the data and restricted access. However, there was no specific regulatory framework that governed the operations and security of NIIMS. The legal framework on the operations of NIIMS was inadequate, and posed a risk to the security of data that would be collected in NIIMS.

38. Article 34 of the Constitution guaranteed freedom of the press and of the media. Article 34(5) made specific provision with respect to the body that would be charged with the responsibility of setting media standards, and which would monitor and regulate compliance with those standards. The CAK was the body mandated to set and regulate compliance with media standards in Kenya. Thus, the CAK was the body established to perform the functions of media regulation which was expressly provided for by the Constitution.  Unlike other boards of state corporations, it was the only state body which the Constitution expressly sought to shield from partisan interests. The body that was in charge of media regulation, according to the Constitution, had to be free of government control and of control by political or other interests.

39. Previously, the appointment of members of the CAK Board was to be conducted through a process provided for under section 6B, then repealed by the impugned Act. The impugned amendments had done away with the elaborate process under section 6B and vested the powers of appointment in the President and the Cabinet Secretary. Those changes in the law did not accord with article 34(5) of the Constitution. The input of civil society and of the media was essentially removed from the process of appointment of the chairperson and members of the Board of the regulator established under legislation intended by the Constitution to set and regulate and monitor compliance with media standards.

40. The body established, under the amendments made under the impugned Act, would then comprise of appointees of the Executive. A body whose Chair was appointed by the President, whose Board was made up of Principal Secretaries in government, and the rest of whose members were appointed by the Cabinet Secretary, Ministry of Information, Communication and Technology, himself a presidential appointee, could not be considered an independent body contemplated under article 34(5).

41. A media regulator that was controlled by government, as would be the case should the appointment of the Board of CAK be left to the process set out in section 6 of KICA as amended by the impugned Act, would pose a serious threat of violation of the right to freedom of expression and of the media guaranteed under article 34, and would be in conflict with article 34(5). The impact of such a situation on democracy could not be contemplated. Section 6 of KICA as amended by Statute Law (Miscellaneous Amendment) Act No. 18 of 2018 was unconstitutional, null and void.

42. The petitioners had not demonstrated how the amendments to the Children Act by the impugned law violated the Constitution. The petitioners instead challenged the constitutionality of the Child Welfare Society Order (Legal Notice No. 58 of May 21, 2014). However, the challenge was not one of the matters raised in the petition. Parties were bound by their pleadings, and a matter that was not in the pleadings could not be introduced at the submission stage and the court be called upon to make a determination thereon. Accordingly, the issues raised could not be addressed.

 

 

Declared Unconstitutional in 2013.

Commission on Administrative Justice v Attorney General & Law Society of Kenya (Interested Party)

Petition No 284 of 2012

High Court, at Nairobi

I Lenaola, J

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Brief Facts:

The Commission on Administrative Justice (the Petitioner) filed a petition challenging the constitutionality of sections 16(1) & (2)(b) and 23(2) of the Supreme Court Act, 2011, submitting that those sections were ultra vires the provisions of article 163 of the Constitution.

The Petitioner contended that section 16(1) & (2)(b) of the Supreme Court Act purported to unilaterally and unconstitutionally extend the appellate jurisdiction of the Supreme Court to include areas where the Court was satisfied that the matter was in the interest of justice and where substantial miscarriage of justice may have occurred, which were situations that were not contemplated by the Constitution. The Petitioner submitted that as a matter of fact the Constitution only recognized a matter of general public importance as the basis for admission of an appeal for hearing by the Supreme Court.

The Petitioner further took issue with the composition of the bench of the Supreme Court for purposes of its proceedings, arguing that whereas the Supreme Court Act under section 23(2) provided that any two or more judges of the Supreme Court may act as the Court, the Constitution provided for a composition of five judges. The Petitioner submitted that the unwritten principle was that at no time should the Supreme Court have an even number of judges, and that to that extent any legislation that created a bench of two judges in the Supreme Court was unconstitutional.

The petitioner finally submitted that once the substantive provisions of an Act were declared unconstitutional, any rule(s) that was made pursuant to those provisions should suffer the same fate:

Held:

Section 16(2) used the word ‘or’ denoting that ‘substantial miscarriage of justice’ as an alternative to proof of ‘a matter of general public importance’ as a criteria for leave to appeal to the Supreme Court. From the reading of section 16 of the Supreme Court Act, the addition of the words ‘a substantial miscarriage of justice’ granted the Supreme Court an extra criteria and jurisdiction to hear and determine applications for leave to appeal to that court. In that instance, section 16(2)(b) was unconstitutional.

Judicial Service Commission v Attorney General & Another

Interested Party; Jacqueline Akinyi Okeyo Manani [2019] eKLR

High Court at Nairobi

J. A Makau, J

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Brief Facts:

A vacancy occurred in the Salaries and Remuneration Commission (SRC) relating to a member representing the Judicial Service Commission (JSC). The petitioner, on January 15, 2018, advertised in the local media inviting applications from persons qualified to be nominated for the position. The JSC upon receipt of the applications, considered all the applications, with a view to determine compliance with the constitutional provisions and the Salaries and Remuneration Commission Act. The petitioner voted the interested party as its nominee to the 2^nd respondent.

Meanwhile on April 4, 2018 the President assented to the Statute Law (Miscellaneous Amendments) Act, 2018 which had a commencement date of May 21, 2018.  The Act amended some of the provisions of the Salaries and Remuneration Commission Act, 2011 amongst other statutes.  It was out of such an amendment that the petitioner contended, that the amendments to the Salaries and Remuneration Commission Act, introduced through the Statute Law (Miscellaneous Amendment) Act were unconstitutional as they were not subjected to public participation.

It was 1^st respondent’s contention, that the petition did not disclose any violation of the Constitution or any written law. He said that the petitioner read article 230 in isolation to article 250(4) and 250(11) of the Constitution.  The 1^st respondent added that the constitutional petition was grossly misconceived, a non-starter and the orders prayed for were outrightly misplaced.  That the jurisdiction of the High Court had not been invoked properly and the matter was not justifiable to the extent that there was no real or substantial controversy. 

Held:

1.       The duty of the Court when the constitutionality of a statutory provision was challenged was to lay the article of the Constitution which was invoked beside the statute which was challenged and decide whether the latter squared with the former.

2.       The impugned amendment required the nominating body to interview the applicants and forward the names of two qualified persons of opposite gender to the cabinet secretary for onward transmission to the President as opposed to the provisions of article 230 (2) (b) of the Constitution which required the President to appoint one person each nominated by the nominating bodies. The statutory provision was null and void and of no effect in law.

3.       The amended section required the President to nominate the members of the commission and forward the names to the National Assembly for vetting and approval.  That was contrary to article 230 of the Constitution as the said article had not provided for vetting and approval of the nominees by National Assembly.  The same violated article 230 of the Constitution as the President assumed the nominating body’s power to nominate their respective representatives and was therefore unconstitutional.

4.       The constitutional provision was clear as to the composition, the mode of nomination and appointment of the members of the Salaries and Remuneration Commission. The challenged statutory provision contravened article 230 of the Constitution hence, it was unconstitutional and impractical to implement.

5.       Article 230 should not be confused with article 250 of the Constitution when it comes to appointments of members of the commission as the two provisions were clearly different. Article 230 of the Constitution did not provide for the nomination of 2 persons by the President.  That was totally different from article 250(2) of the Constitution.  There was a clear difference between a commission established under article 250 and article 230 of the Constitution and as such any attempt to intermarry the two was contrary to the Constitution. Provisions of article 250 could not be used in the appointment of members of a commission under article 230.

6.       From the provisions of article 230 of the Constitution, there was provision for appointment of a chairperson and one person, each appointed by the listed bodies thereto, who were not members or employees of the listed bodies.  There was no provision for male or female for gender balance and that had to be deliberate as the nominees were representatives of other institutions and demanding the application of criteria that was contrary to the clear provision of the Constitution would amount to interference with the independence of the Salaries and Remuneration Commission and the Judiciary.

7.       Whether or not legislation operated retrospectively depended on the intention of the enacting body as manifested by the legislation. In seeking to ascertain the intention behind the legislation, the courts were guided by certain rules of construction and one of these rules was, that if the legislation affected substantive rights, it would not be construed to have retrospective effect unless a clear intention to that effect was manifested.  Whereas, if it affected procedure only, prima facie, it operated retrospectively unless there was a good reason to the contrary.  The rule of construction was one of the factors to which regard had to be given in order to ascertain that intention.

8.       From the construction of the impugned sections, the provisions of the legislation could not per se be said to affect procedure only nor could it be said that the intention of the enacting body was to have it operate retrospectively. The legislation, as it was, affected substantive rights, and as such it could not be construed in to have retrospective effect unless a clear intention to that effect was manifested.  The general rule for non-criminal legislation was that all statutes other than those which were declaratory or which related only to matters of procedure or evidence were prima facie prospective and retrospective was not to be given to them, unless it was expressly stated so in clear words or by virtue of necessary implication. Where legislation was contrary to the Constitution it could not have any retrospective effect.  Therefore, the amendments to the Salaries and Remuneration Commission Act could not apply retrospectively.

9.         Public participation was one of the national values and principles of governance that bound all state organs, state officers, public officers, and all persons. It was applicable whenever any of them applied or interpreted the Constitution, enacted or interpreted any law, or made or implemented public policy decisions. The amendments introduced to the Salaries and Remuneration Commission Act were not minor amendments as suggested by the respondent as they substantially altered the core substance of the legislation and as such re-enactment, the principle of public participation had to apply. 

10.     The burden of proof that there was public participation lay with the respondents to demonstrate that there was public participation.  No evidence was adduced to demonstrate that there was public participation in relation to the substantive amendments and that was contrary to article 10 of the Constitution.

Ombati v Chief Justice & President of the Supreme Court & another; Kenya National Human Rights and Equality Commission & 2 others (Interested Party) (Petition E242 of 2022) [2022] KEHC 11630 (KLR) (Constitutional and Human Rights) (17 August 2022) (Judgment)

Neutral citation: [2022] KEHC 11630 (KLR)

Petition E242 of 2022

High Court at Nairobi

M Thande, J

August 17, 2022

Brief facts

The petitioner challenged the constitutionality and legality of the Supreme Court (Presidential Election Petition) (Amendment) Rules, 2022 (the impugned Rules). The petitioner challenged the process through which the impugned Rules were promulgated. The petitioner contended that the impugned Rules were a statutory instrument within the meaning of the Statutory Instruments Act. The petitioner also contended that the Supreme Court breached the principle of separation of powers by promulgating the impugned Rules, a role set aside for the Legislature. Lastly the petitioner contended that the impugned Rules were promulgated without public participation and thus were null and void. 

Held

Petition partly allowed.

Orders

i          Declaration issued that the Supreme Court (Presidential Election Petition) (Amendment) Rules, 2022 were not a statutory instrument within the meaning of the Statutory Instruments Act.

ii         Declaration issued, that the Supreme Court (Presidential Election Petition) (Amendment) Rules, 2022 were unconstitutional for want of public participation.

iii       Declaration issued that the Supreme Court (Presidential Election Petition) (Amendment) Rules, 2022 were unconstitutional for usurping the legislative power of Parliament.

iv        Order of certiorari issued that quashed the Supreme Court (Presidential Election Petition) (Amendment) Rules, 2022.

v         No order as to costs.

John Mbaabu & another v Kenya Revenue Authority [2020] eKLR

Petition No. 6 of 2019

High Court at Chuka

RK Limo, J

June 17, 2020

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Brief facts:
The petitioners claimed that their vehicles were seized by the respondent in June 2019. The plaintiffs claimed that despite repeated demands for the release of the detained motor vehicles, the respondent had ignored, refused and/or   neglected to release the motor vehicles and that as a result of the seizures, they had suffered and continued to suffer loss of use of the vehicles. The plaintiffs claimed that at the time of the seizure of the motor vehicles, the offices/agents of the respondent failed to serve them with any notice and that no reason had been given by the respondent for the seizures and detention of the motor vehicles.

 The petitioners submitted that the seizure and detention of their motor vehicles was an infringement and violation of their right to acquire and own property. They further contended that their rights for a fair trial were infringed stating that they   had a right to be informed of any charge against them with sufficient detail to answer. The petitioners prayed for among others orders that; a declaration be issued that their constitutional rights of having their property not arbitrary seized had been violated and infringed by the respondent; and a declaration that the petitioners’ constitutional right to acquire and own property had been infringed and or violated by the respondents.

Held
1. Under sections 44 of the Tax Procedure Act, 2015, the Commissioner General of the Kenya Revenue Authority (Commissioner) was allowed and mandated by law to seize any goods for which excise duty had not been paid. The respondent had an obligation to the seize of excisable goods (liquor) transported by the   petitioners. The owner of the goods had not gone to the respondent’s premise to claim the goods or   dispute the tax obligations to the tax collector. Section 44 however applied only to excisable goods not the vessels ferrying the goods.

2. Section 2 of Excise Duty Act, 2015, gave what constituted excisable goods and the list provided under the First Schedule of that Act included alcoholic drinks. From regulation 32 of Excise Duty (Excisable Goods Management System) Regulations 2017, the respondent had some legal backing to justify the seizures of the petitioner’s motor vehicle.

3. The notices of seizure exhibited by the respondent were directed at Hakim Agencies and the notices were also in respect to seized goods which were assorted alcoholic drinks and not the motor vehicles. Section 44 of the Tax Procedures Act did not relate to vehicles or vessels used to ferry the excisable goods. Section 44(5) dealt with the question of service of the seizure notice and gave the Commissioner the leeway of not effecting service if after reasonable inquiries it was unable to locate the owner of the goods for purposes of service.

4.  The notices of seizure were regularly issued and duly served on the persons who had custody and or control of goods immediately before the seizure on June 11, 2019 and June 18, 2019 respectively. The respondent could not be faulted in so far as the excisable goods or uncustomed goods were concerned.  However, in regard to seizures of the petitioners’ vehicles, there was no notice served and section 44 of the Tax Procedures Act was silent on notices to the owners of seized motor vehicles. There was no legal requirement obligating the respondent to issue notice to the owner of a motor vehicles(s) seized under regulations 32 of Excise Duty (Excisable Goods Management System) Regulations 2017. 

5. Whereas regulation 30 of Excise Duty (Excisable Goods Management System-EGMS) Regulations created various offences in relation to uncustomed goods, the respondent had not preferred any charges against anyone in regard to seizure of the petitioners’ lorries. They had cast any aspersions on the culpability of the petitioners or their drivers in relation to breaking/breaching any law.

6. The respondents had not provided the crucial link or means (if at all) between the petitioners and seized unexcisable goods which could have in  the very least showed their responsibility under section 15 of Excise Duty Act, 2015. The seizure of the motor vehicles was done without any notice to the petitioners who were the registered owners of the seized motor vehicles.  The respondent averred that the lorry and pick up seized were branded Hakim Agencies but they had not annexed any evidence to demonstrate that.

7. The petitioners’ ownership of the seized motor vehicles had been demonstrated by the exhibits of copies of logbooks which were prima facie proof of ownership. The respondent had not contested the issue of ownership of the seized motor vehicles or demonstrated any link to the required standard in law between the uncustomed goods and the petitioners other than the fact that they were found transporting the same.  The respondent however had not preferred any charges against them or anyone for commission of any   offence in regard to ferrying or conveying of uncustomed goods.

8. Seizing and selling of someone’s legitimate property at the whims of a commissioner without giving the owner(s) a chance to be heard was arbitrary and ran afoul the constitution of an open and democratic society such as Kenya because:

a.      One of the fundamental rights and freedoms under article 25(c) of Constitution was a right to a fair trial and one of the tenets of fair trial under article 50 of the Constitution was a right to be heard and it included a right to be informed of any charge with sufficient detail to answer to it.

b.      One of the cardinal rules of natural justice was a right to be heard.  That meant that a person should not be penalized by decisions affecting their rights unless they had been given a prior notice and a fair opportunity to be heard. That tenet was entrenched under article 47 of the Constitution which dealt with fair administrative action.

9. The petitioners’ motor vehicles were seized and they were not given a chance to be heard courtesy of regulations 32 and 33 of Excisable Goods Management System Regulations, 2017, that did not provide for a chance to be heard. Any provisions of law that allowed or gave power to an entity, a State officer or any public officer to take adverse action or steps without according the concerned/affected person a chance/opportunity to be heard was draconian and unconstitutional. Such a provision flew in the face of the tenets of natural justice which were entrenched in the Constitution.

10. A right to a fair trial under article 25 of the Constitution could not be limited by the impugned regulations 32 and 33 of Excisable Goods   Management System Regulations and to the extent that the provisions breached the right to be heard, it was inconsistent with articles 25, 47 and 50 of the   Constitution and to that extent the provisions were a nullity and void.

11. The respondent’s action in seizing the motor vehicles could not pass the test of reasonableness or procedural fairness because it was arbitrary, unfair and extreme in whatever angle one views the same for someone’s property to be seized and told that the same would be disposed at the pleasure of the Commissioner or to put it aptly "in the manner that the commissioner may consider fit."

12. The respondent’s defence of statutory authority did not absolve the respondent from blame because of the provisions of section 3 of the Fair Administration Action Act which applied to all State and none State agencies including the respondent. It could not avoid the clear dictate of the law and its action in the seizure of the petitioners’ motor vehicles was a violation of the cited constitutional rights of the petitioners. 

13. The dispute raised had nothing to do with tax obligation by the Respondents in respect to transportation of goods. Section 44 of Tax Procedures Act did not apply to transporters. Furthermore, section 15 of Excise Duty Act, 2015, which dealt with activities requiring a licence did not include transportation of excisable goods.  That lacuna in law needed to be addressed through legislative interventions before the respondent contemplated future actions.

14. The respondent had failed to demonstrate that the petitioners had any tax obligation in respect of the goods they were found carrying and having failed to do so it could not hide under the existence of an alternative dispute resolution mechanism under section 51 of the Tax Procedures Act which did not apply to the respondent’s dispute. 

15. The court was well placed to entertain and determine the instant matter and there was no basis in law to refer the constitutional question raised to any other forum.  The mandate of the court as provided under article 165 of the Constitution was well spelt out and it included the jurisdiction to determine the instant matter. The petitioners given the circumstances really had no other avenue to seek redness other than the instant court.

16. There was no wrong without a remedy and one of the remedies to address the petitioners’ losses was an award of damages. The petitioners had suffered loss because their motor vehicles had been detained for almost a year thereby depriving them of use and income from the motor vehicles. Proof of loss was imperative and a party could not just plug a figure from the air and claim it.

Kinoti & 7 others v Chief Magistrates Court Milimani Law Courts & 4 others; Sanga & 2 others (Interested Parties)
 
AC Mrima, J
 
 
Brief facts
The National Police Service through the officer-in-charge of Muthaiga police station commenced criminal proceedings against the petitioners in Nairobi (Milimani) Chief Magistrate’s Court Criminal Case No 1333 of 2019 (the criminal case). The charges in the criminal case related to offences under the tax laws in Kenya. Dissatisfied with the entirety of their prosecution, the petitioners lodged the instant petition. They contended that the charge sheet instituting the criminal charges emanated from the Director of criminal investigations, the 3rd respondent (the DCI) whereas the Constitution of Kenya, 2010 (Constitution) required all criminal prosecutions to originate from the Director of Public Prosecutions, the 1st respondent (DPP). 
The petitioners argued that since the charges related to the enforcement and administration of the tax laws of Kenya and the East African Community region, the DCI lacked the mandate and expertise to undertake investigations and/or administer and enforce the tax laws of Kenya and the East African Community region. Simultaneously filed with the petition was an application seeking interim conservatory orders halting any further proceedings of the criminal case pending inter-partes hearing of the application as well as the petition. The court stayed proceedings and hearing of the criminal case pending inter-partes hearing and determination of the application. 
The petitioners posited that the all the evidence collected pursuant to the investigations conducted by the DCI was illegally obtained in contravention of article 50(4) of the Constitution and consequently could not be relied upon by the DPP in charging them. The petitioners claimed that the DPP’s purported appointment of public prosecutors from the Kenya Revenue Authority (KRA) vide gazette notice No 3523 of 2021 (the impugned gazette notice) under section 85 of the Criminal Procedure Code was unconstitutional. The petitioners thus sought among others; a declaration that the role of a complainant, an investigator and a prosecutor could not be combined into one hand in the criminal justice system; a declaration that a charge sheet in criminal proceedings could not be instituted by the Kenya police and a charge sheet could not be signed by police officers; and a declaration that section 107 of the Tax Procedures Act, 2015 (the impugned provision) was unconstitutional.
Held

Petition and application partly allowed; each party was to bear its own costs.
Orders

Association of Kenya Insurers (AKI) v Kenya Revenue Authority & 2 others; Insurance Regulatory Authority (IRA) & another (Interested Parties) [2021] eKLR
Neutral citation number: [2021] KEHC 402 (KLR)
High Court at Nairobi (Milimani courts)
Petition 201 of 2020
JA Makau, J
December 16, 2021
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Brief facts:
The petitioners filed the instant petition seeking among others; that the court should declare that paragraph 10 of Part II of the First Schedule to the Value Added Tax Act as amended by the Tax Laws (Amendment) Act, 2020 (VAT Act) was unconstitutional. In April 2020, amendments to VAT Act amending paragraph 10 of Part II of the First Schedule to the VAT Act came into operation. The petitioner and 2nd interested party challenged the process and substance of the impugned legislation. They contended that the impugned amendments were unconstitutional because the National Assembly failed to facilitate meaningful participation and genuinely consider public views in its enactment. The petitioner further averred that they were discriminated against by the respondents’ actions.The petitioner contended that the impugned amendment was introduced at a time when the Government was giving tax incentives to Kenyans to cushion them against the adverse effects of the Covid–19 pandemic on the economy. They further argued that the effect of the impugned amendment was that instead of the petitioner enjoying the tax incentives, it had been subjected to additional tax burdens. The respondents opposed to the petition and filed grounds of opposition and claimed that the impugned amendment made to paragraph 10 of Part II of the First Schedule to the Value Added Tax Act, 2013 to remove insurance agency and brokerage services from the list of Value Added Tax (VAT) services effective April 25, 2020 enjoyed the general presumption of constitutionality. The respondents also claimed that there was meaningful public participation prior to the promulgation of the impugned Act.

Held:

Petition allowed; each party to bear its own costs.

Order

Victim Protection Act- Section 9(1) (e)

Joseph Nduvi Mbuvi v Republic

High Court at Machakos

G V Odunga, J

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Brief Facts:
The application for revision arose from the Senior Resident Magistrate Court ruling, in which the Court placed the applicant on his defence and directed the applicant to supply the prosecution with the witness statements and any other evidence the defence intended to rely on at the defence hearing. The Court went further and made orders geared towards compelling the defence witnesses to record their statements and furnish the prosecution therewith within 14 days.

Held:
1. Article 50(2) of the Constitution which provided for an accused person’s right to be informed in advance of the evidence the prosecution intended to rely on, and to have reasonable access to that evidence. That right could only be exercised by the accused person.

2. The prosecution could not rely on article 50(2) of the Constitution as a basis for seeking to be informed in advance of the evidence the accused intended to rely on and to have access to it. That right could only be exercised against those who had unlimited capacity and resources to deprive individual Kenyans of their life, liberty and security of the person. It was the state that had the capacity to deprive individuals of their rights guaranteed under the Constitution. Therefore, the Court had to rigorously enforce, against the state, the fundamental rights and freedoms of the individual guaranteed by the Constitution.

3. There should be no question of reciprocal rights, or a level playing or any such theory as between the accused person and the state. No statute should give the state such privileges, and the Constitution, did not give the prosecution such powers. Additionally, those rights should not be given through the inherent power of the Court.

4. Whereas article 50(1) of the Constitution provided for fair hearing generally, that right could not be stretched to confer upon the prosecution the right to be informed in advance of the evidence the accused intended to rely on, and to have reasonable access to that evidence or reciprocity of statements.

5. Article 50(9) of the Constitution empowered the Parliament to enact legislation providing for the protection, rights and welfare of the victims of offences. On the other hand, section 9(1)(e) of the Victim Protection Act provided that a victim had a right to be informed in advance of the evidence the prosecution and defence intended to rely on, and to have reasonable access to that evidence. The rights of victims should not be extended to encompass the right to be informed in advance of the evidence that the accused intended to rely on and to access it.

6. There was a presumption of innocence that the Constitution bestowed upon an accused person, there could be no case that an accused person would be expected to disclose in advance. To the extent therefore that section 9(1)(e) of the Victim Protection Act expected that an accused would in advance inform the victim of the evidence he intended to rely on, and to give reasonable access to that evidence, the provision clearly contravened both the spirit and the letter of the Constitution and to that extent it was null and void.

Declared Unconstitutional in 2018.

Attorney General v Law Society of Kenya & another

Civil Appeal No 133 of 2011

Court of Appeal, at Nairobi

Waki, Makhandia & Ouko, JJ.A)

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Brief facts:

At the High Court, the 1^st Respondent challenged sections 4, 7(1), 10(4), 16, 23(1), 25(1), 25(3), 52(1), 52(2) and 58(2) of the Work Injuries Benefits Act of 2007 and stated that they were unconstitutional. The High Court found that the said sections were unconstitutional. The Appellant lodged an appeal at the Court of Appeal to challenge the High Court's decision. The Court of Appeal held that section 7 (in so far as it provided for the Minister’s approval or exemption) and 10 (4) of the Work Injuries Benefits Act 2007 were inconsistent with the Constitution (repealed) and the Constitution of Kenya 2010.

Held

In a free market economy the Government can dictate to employers from which insurer they must take the policy. It cannot micro-manage the implementation of the Act. The Legislature having enacted the enabling laws, the role of the Executive is limited to ensuring compliance with the law. Presently, we think there are sufficient regulatory measures under section 3 of the Insurance Act which establishes the Insurance Regulatory Authority (IRA) with the mandate of licensing, regulating, supervising and general administration of insurance company’s affairs. Of significance to us is the fact that, like the learned Judge, we are satisfied that the requirement that the insurer be approved by the Minister went against section 80 of the former Constitution, for such a requirement would limit the right to freedom of association. The provision would also be in contravention of Article 36 of the current Constitution on freedom of association.

Section 52 of the Work Injuries Benefits Act 2007 gave an objector a right to appeal without giving an affected party a corresponding right. There was no reason in an adversarial system for only one party to have a right of appeal. The provision appeared to be a drafting error and it was not inconsistent with the Constitution, it could be remedied via a legislative amendment.

Law Society of Kenya v Attorney General & another [2019] eKLR

Supreme Court of Kenya

D K Maraga, CJ & P; M Ibrahim, S Wanjala,  S N dung’u  & I Lenaola, SCJJ

Brief facts

The High Court declared sections 4, 7(1) and (2), 10(4), 16, 21(1), 23(1), 25(1) and (3), 52(1) and (2), and 58(2) of the Work Injuries Benefit Act, 2007 (WIBA) for contravening certain sections of the repealed Constitution. The Attorney General (1st respondent) was aggrieved by that decision and appealed against it. The Court of Appeal allowed the appeal only to the extent that it set aside the High Court orders  declaring sections 4, 16, 21(1), 23(1), 25(1) and (3), 52(1) &(2) and 58(2) of the Act  to be inconsistent with the repealed Constitution and the 2010 Constitution. It however found that section 7 of WIBA, in so far as it provided for the Minister’s approval or exemption of insurers, and section 10(4) thereof were inconsistent with both the repealed Constitution and the Constitution of Kenya, 2010. The Court of Appeal found that the High Court had intended to nullify section 7(4) of WIBA instead of section 4.

Aggrieved by the Court of Appeal’s decision, the petitioner/appellant filed the instant appeal and sought various orders including setting aside the entire order of the Court of Appeal and affirming the High Court decision.

Held

1.  There existed principles that underlined the determination of constitutional validity of a statute or its provisions because it was the function of the courts to test ordinary legislation against the Constitution. At the forefront of those principles was a general but rebuttable presumption that a statutory provision was consistent with the Constitution. The party alleging inconsistency had burden of proving such a contention. Therefore, in construing whether statutory provisions offended the Constitution, courts ought to subject the same to an objective inquiry as to whether or not they conformed to the Constitution. Further, it had to be presumed that the legislature understood and appreciated the needs of the people and the laws it enacted were directed to problems which were made manifest by experience and that the elected representatives enacted laws which they considered reasonable for the purpose for which they were enacted. Presumption, therefore, was in favour of the constitutionality of an enactment.

2.  To fully comprehend whether a statutory provision was constitutional or not, its true essence ought to be considered. As such, there should be a determination of the purpose and effect of a statutory provision. Intention was construed by scrutinising the language used in the provision which inevitably disclosed its purpose and effect. It was the task of a court to give a literal meaning to the words used and the language of the provision ought to be taken as conclusive unless there was an express legislative intention to the contrary. In seeking for the purpose of a statute or its provision, therefore, it was legitimate to identify the mischief sought to be remedied. The historical background of the legislation was one of the factors to consider in that regard as it allowed the provision(s) to be understood within the context of the grid of other related provisions and the Constitution as a whole.

3.  WIBA defined itself as an Act of Parliament to provide for compensation to employees for work related injuries and diseases contracted in the course of their employment and for connected purposes. Its historical context was relevant to understand its purpose. In May 2001, the Attorney General appointed a tripartite taskforce comprising of members from the government, the Central Organisation of Trade Unions (COTU) representing the trade unions, and the Kenya Federation of Kenya Employers (FKE) representing the employers. Its terms of reference were, inter alia, to consolidate existing labours and to make recommendations on proposals for reform or amendment of labour laws to ensure that they were consistent with the conventions and recommendations of the International Labour Organisation to which Kenya was a party.

4.  The taskforce proposed five new statutes, one being the Work Injury Benefits Act (WIBA). WIBA was meant to provide for compensation to employees for injuries suffered and occupational diseases contracted in the course of employment. Until the enactment of WIBA, the Workmen’s Compensation Act (repealed) was the only Act of Parliament enacted to provide for compensation for injuries suffered by a worker in the course of his or her employment. WIBA also sought to provide for insurance of employees and related matters. It further incorporated the 1998 International Labour Organisation Declaration on Fundamental Principles and Rights at Work ensuring basic human values vital to social and economic development.

5.  While the repealed Workmen’s Compensation Act only provided for compensation to workers for injuries suffered in the course of their employment, WIBA provided for compensation to employees for work related injuries and diseases contracted in the course of their employment and for connected purposes. WIBA also made it compulsory for every employer to provide an insurance cover for all their employees against bodily injury, disease or death sustained and arising out of and in the course of their employment. Therefore, it was evident that WIBA’s purpose was a noble one. It was meant to offer protection to employees should they get injured or contracted disease(s) in the course of their duties. In addition, its reach was far wider than its predecessor, the Workmen’s Compensation Act.

6.  Paragraph 7 of the Sixth Schedule to the 2010 Constitution provided that all law in force immediately before the effective date continued in force and should be construed with the alterations, adaptations, qualifications and exceptions necessary to bring it into conformity with the 2010 Constitution. Therefore, all legislation prior to the year 2010 were not necessarily rendered unconstitutional, they ought, in their application and interpretation, to be brought into conformity with the 2010 Constitution. The impugned sections of WIBA ought to be addressed in that context.

7.  A plain reading of section 16 of WIBA would reveal that its intention was not to limit access to courts but to create a statutory mechanism where any claim by an employee under the Act was subjected, initially, to a process of dispute resolution starting with an investigation and award by Director of Occupational Safety and Health Services (the Director). Thereafter, under section 52 of WIBA an appeal mechanism to the Industrial Court (defunct) was provided. Where the Constitution or any other law established an organ, with a clear mandate for the resolution of a given genre of disputes, no other body could lawfully usurp such power, nor could it append such organ from the pedestal of execution of its mandate. To hold otherwise, would be to render the constitutional provision inoperable, a territory into which no judicial tribunal, however daring, would dare to fly.

8.  Section 16 of WIBA could not be read in isolation so as to create the impression that it curtailed the right to immediately access the courts, because by looking at its intention, the purpose it fulfilled was apparent. That purpose was revealed in section 23 of WIBA which called for initial resolution of dispute via the Director and that could be deemed as an alternative dispute resolution mechanism. Where one was still aggrieved by the decision of the Director, section 52 of the Act allowed him or her to seek redress in a court process. In the circumstances, access to justice could not be said to have been denied.

9.  By granting the Director authority to make inquiries that were necessary to decide upon any claim or liability in accordance with WIBA, the jurisdiction of the High Court to deal with constitutional questions and violations that could arise from such claims under article 165 of the 2010 Constitution was not ousted at all. Similarly, the appellate mechanism to the Industrial Court, in the circumstances, could not be legitimately questioned. The Director’s inquiries were also essentially preliminary investigations. Such mechanisms, set out by statute ought to be left to run their full course before a court intervened. Not only did that simplify procedures to ensure that courts focus on substantive rather than procedural justice, it also potentially addressed the problem of backlog of cases, enhanced access to justice, encouraged expeditious disposal of disputes, and lowered the costs of accessing justice.

10. The Director was in essence performing quasi-judicial functions under section 23 of WIBA and by dint of article 165(6) of the 2010 Constitution fell under supervisory jurisdiction of the High Court. The Director’s actions and decisions, even without review or appeal, were therefore still subject to the over-riding authority of the High Court.

11. With regard to section 52 of WIBA, both the High Court and the Court of Appeal correctly determined that it was not the intention of the Legislature to limit appeals from a decision of the Director to the Industrial Court but was a case of unrefined drafting. Accordingly, such inelegance should be left to the Attorney General to take appropriate action.

12.  Ouster clauses were provisions in the Constitution or a statute that took away or purported to take away the jurisdiction of a competent court of law. They denied the litigant any judicial assistance in the relevant matter, and at the same time denied the courts the scope for making any arbitral contribution with respect to the relevant matter. In short, ouster clauses curtailed the jurisdiction of the courts, as the relevant matter was rendered non-justiciable before the courts. Section 16 of WIBA could not be read in isolation because if read with sections 23 and 52 of the Act, the Act provided for legal redress to the Industrial Court (replaced with the Employment and Labour Relations Court) and therefore judicial assistance could be sought by aggrieved parties from decisions of the Director and the court could make a determination with respect to all relevant matters arising from those decisions. Therefore, it could not be the case that section 16 of WIBA amounted to an ouster clause. It was merely facilitative of what could eventually end up in court.

13. Considering the nature and extent of the limitation placed under section 16 of the Act, it did not permanently limit the right to access courts by an aggrieved party. It was only the initial point of call for decisions in workers’ compensation. When read in whole with section 23 and 52 of the Act, a party was not left without access to justice nor did employees or employers have to result to self-help mechanisms. The section allowed the use of alternative dispute resolution mechanisms to be invoked before one could approach a court. That system had been operational without complaint from employees for over a decade. There was no reason to interfere with an already efficient system. As such, sections 16, 23, and 52(1) of WIBA could not be said to be inconsistent with the former Constitution or the 2010 Constitution.

14. A thorough perusal of WIBA established that section 21(1) did not exist. Section 21 dealt with the notice of an accident by an employee to an employer. Section 21 was never contested at the High Court. The High Court erroneously reproduced a non-existent section 21(1) in its judgment. Accordingly, as the Court of Appeal found, the High Court erred in law by declaring it inconsistent with the former Constitution. What the High Court pointed out as being section 21(1) and (3) of WIBA were actually the provisions of section 25(1) and (3) of WIBA. That section provided that an employee who sought compensation or who had been compensated had to submit to a medical examination when required by the Director or the employer.

15. Discrimination entailed the unjust or prejudicial treatment of different categories of people in the same circumstances. There was no prejudicial treatment in the manner medical examinations were conducted as provided by section 25(1) and (3). That was so because, firstly, while the Director could designate a medical practitioner to examine an employee, he or she was a neutral adjudicating party who acted neither for the employer nor for an employee in doing so. Secondly, and as a safeguard against the Director’s arbitrary use of that power, the employer, with the approval of the Director, could refer the employee to its own medical practitioners. Lastly, an employee, at his or her own expense, was at liberty to have a medical practitioner of his or her choice present at the time of the examination. Therefore, the effect of section 25 of WIBA was to ensure that the medical examination and the ensuing report was objective, fair, accurate and sound. That section consequently secured the interests of both employees and employers, advanced equality and did not accord differential treatment to any party. Thus, it could not be said to contravene either the former Constitution or the 2010 Constitution.

16. The Legislative practice where a new judicial forum was created to replace an existing system was meant to ensure finalization of all pending proceedings before the forum where they were commenced. For instance, upon the establishment of the Employment and Labour Relations court (ELRC), section 33 of the ELRC Act provided that all pending proceedings should continue to be heard and determined by the Industrial Court until the ELRC came into operation or if and when the Chief Justice or Chief Registrar of the Judiciary so directed. Prior to the enactment of WIBA, litigation relating to work-injuries had gone on and a number of suits had progressed up to decree stage; some were still being heard; while others were still at the preliminary stages. All such matters were being dealt with under the then existing and completely different regimes of law. Claimants in those pending cases had legitimate expectation that upon the passage of the Act their cases would be concluded under the judicial process which they had invoked. However, were it not for such legitimate expectation, WIBA not being unconstitutional and being an even more progressive statute, it was best that all matters were finalized under its section 52.

17. Retrospective operation of statutes was not illegal per se or in contravention of the Constitution. Indeed, section 58(2) of WIBA clearly expressed the intention that the Act should apply retrospectively. The effect of section 58(2) of WIBA was not to take away the right to legal process, extinguish access to the courts and to take away property rights without due process. Even if so, all matters pending resolution under the previous legal regime were to be continued under WIBA and there was no evidence of denial of any right by that fact alone. Indeed, courts and quasi-judicial tribunals had routinely applied the law in such a manner as to protect existing rights. Therefore, while the Court of Appeal correctly held that a party had the legitimate expectation to have a dispute resolved under the invoked legal regime, there was nothing unconstitutional in WIBA being applied in a manner that was consistent with its provisions but taking into account the invoked legal regime.

18.  The petitioner/appellant was a collectivity of advocates and whose statutory mandate included ensuring the fair administration of justice. It could well be said however that its members filed the original petition to protect its members who practice law in our courts and might not have audience before the Director. That matter was unimportant and while costs followed the event, there was no reason to burden the petitioner with costs as the dispute related to a wide pool of citizens called employees and employers. Public interest would thus preclude an order of costs against the petitioner.

19.  On June 10, 2019, while the instant matter was awaiting determination by the Court, the High Court at Mombasa in the case of Juma Nyamawi Ndungo & 5 others v Attorney General; Mombasa Law Society (Interested Party), Constitutional Petition No. 196 of 2018 [2019] eKLR, rendered a decision whose issues included a determination on the constitutionality of WIBA. The High Court in that decision failed to take judicial notice of the pendency of the instant appeal despite being aware of it. That court ought to have acknowledged the hierarchy of the courts and await for the Supreme Court to pronounce itself before rendering itself, if at all. That judgment had created unnecessary confusion in the application of WIBA and could not be allowed to stand as it could be or was contrary to the instant decision. Therefore, the findings and orders expressed in that judgment should be read in the context of the decision of the Court of Appeal and the instant decision.

Juma Nyamawi Ndungo & 4 others v Attorney General; Mombasa Law Society (Interested Party)

High Court at Mombasa

E K Ogola, J

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Brief facts

The petitioners sought a determination relating to various constitutional issues. The first was on whether Magistrates Courts had jurisdiction to entertain claims for compensation for bodily harm arising from negligence and breach of duty at the workplace. The second was on whether the Director appointed under the Work Injury Benefits Act or any other officer appointed under the Employment Act could exercise judicial authority relating to injuries suffered at work due to negligence. Lastly, the petitioner challenged the constitutionality of various sections of the Work Injury Benefits Act including sections 10, 16, 23, 26, 28, 30, 33, 37, 51, 53(2) (d), 58(2) and the first schedule of the Act.

In the case of Attorney General v Law Society of Kenya & another [2017] eKLR, inter alia, the Court of Appeal set aside the High Court's finding that sections 4, 16, 21(1), 23(1), 25(1) (3), 52(1) (2) and 58 (2) of the Work Injury Benefits Act were unconstitutional. The Court of Appeal, however declared that sections 7 (in so far as it provided for the Minister’s approval or exemption) and 10(4) of the Work Injury Benefits Act were unconstitutional. When the High Court made its decision on constitutionality, the repealed Constitution was in effect and the decision meant that Magistrates’ Courts could handle claims of workplace injury. In the aftermath of the Court of Appeal decision, issued after the promulgation of the Constitution of Kenya 2010, most Magistrates’ Courts declined to deal with workplace injury claims, on grounds that they did not have the requisite jurisdiction to handle them.

The petitioners were aggrieved that their cases on workplace injury which were pending before Magistrates Courts were stopped arbitrarily. Under section 58 of the Work Injury Benefits Act, the Work Injury Benefits Act had retrospective effect and section 53 of the Act established the Director who had a dispute resolution role. The net effect was that claims that were already pending before court would have to be filed afresh before the Director. Majority of the claims affected by those provisions dated back to a period in excess of 11 years meaning that they failed to meet the one year limitation period provided under section 26 of the Work Injury Benefits Act.

The petitioners argued that the retrospective application of the Work Injury Benefits Act undermined article 159 of the Constitution which provided for substantive justice and property rights recognized under article 40 of the Constitution. They said that the test of reasonability and substantive justice demanded that what was done pursuant to the legal regime that subsisted at the time the claims were lodged in court be deemed as legal.

The petitioner said that the office of the Director was yet to be operationalized and aside from the Director and his assistants being appointees of the Executive, the relevant statute did not provide for their qualifications or mode of appointment. Further the petitioner stated that the Director and his assistants, as appointees of the Executive, had the authority to receive complaints, investigate them and ultimately adjudicate over them in breach of the doctrine of separation of powers. A further allegation was that it was discriminatory for part V of the Work Injury Benefits Act to have compensation for pain and suffering as compensation that would be based on one’s income.

In general, the petitioners alleged that under the circumstances, their rights to access to justice, property, a fair trial, non-discrimination and equality and human dignity were violated.

Held

1. Article 10 (1) (a) and 2 of the Constitution which provided for the national values and principles of governance would guide the Court in interpreting the Constitution. The Constitution was a living document, with a soul and a conscience of its own, and courts had to endeavour to avoid crippling it by construing it technically or in a narrow spirit but construe it with the lofty purposes for which its makers framed it.
2. Article 159(1) of the Constitution provided that judicial authority was derived from the people and vested in and had to be exercised by the courts and tribunals established by or under the Constitution. Judicial authority was the constitutional authority vested in courts and judges to hear and decide justiciable cases and to interpret and enforce or void, statutes when disputes arose over their scope or constitutionality.
3. The doctrine of separation of powers would not allow Parliament to transfer discretion to determine the severity of the punishment to be inflicted upon an individual member of a class of offenders, from the judiciary to any executive body which was not appointed under chapter VII of the Constitution.
4. Under the Constitution, judicial authority could only be exercised by courts and independent tribunals. No other entity, including the Director as established under the Work Injury Benefits Act had judicial authority.
5. Section 53 (1) of the Work Injury Benefits Act created the office of the Director of Work Injury Benefits. Section 53(2) (d) and (e) gave him the power to receive reports on accidents and carry out investigations into such accidents and ensure injured employees were compensated. In an adversarial system, investigation was not a judicial function, and neither was it the duty of court to ensure that all employees who suffered at the work place were compensated.
6. Under section 53(2) (e) of the Work Injury Benefits Act, the Director's functions included adjudicating over injury cases and assessing damages. Those functions were purely judicial functions.
7. Section 16 and 53 (2) (d) and 53 (2) (e) of the Work Injury Benefits Act entailed a usurpation of judicial power by the executive and were therefore unconstitutional. Additionally, sections 10, 23, 26, 28, 30, 33, 37, 51, 53 (2) (d), 53 (2) (e), 58 (2) and the first schedule to the Work Injury Benefits Act were unconstitutional as they promoted the exercise of judicial powers by the Director who was neither an independent tribunal nor a court.
8. Pursuant to section 29(3) of the Employment & Labour Relations Court Act, various gazette notices were issued to grant jurisdiction to Magistrates’ Courts to hear and determine employment disputes. However, the subordinate courts downed their tools in work injury related claims. Even if those courts were to decline jurisdiction under the Work Injury Benefits Act, they would still have jurisdiction to entertain work injury related disputes under the Employment and Labour Relations Court Act. 
9. The doctrine of implied repeal was to the effect that where provisions of one Act of Parliament were inconsistent or repugnant to the provisions of an earlier Act, the later Act would abrogate the inconsistency in the earlier one. Section 35 of the Employment and Labour Relations Court Act provided that its provisions would take precedence over any other law that subsisted before its enactment on the issues set out in section 29 of the Act.  The Employment and Labour Relations Court Act, which gave the Magistrates’ Courts jurisdiction in employment and labour relations disputes, had to, under the provisions of rule 7 of part 2 of the sixth schedule of the Constitution, prevail over the provisions of the Work Injury Benefits Act that seemed to deny Magistrates’ Courts jurisdiction. 
10. Under the doctrine of separation of powers each arm of government would perform its task independently and would enjoy safeguards against encroachment by another arm. There were three arms of government in the Constitution, namely; the Executive, the Judiciary and the Legislature.
11. To the extent that the provisions of the Work Injury Benefits Act, in particular sections 16 and 53(2)(d) , sought to transfer judicial power to the Executive, or an entity that was neither a tribunal nor a court, they violated the constitutional doctrine of separation of powers and were therefore unconstitutional.
12. In granting the Magistrates’ Court the jurisdiction to deal with labour and employment issues, the Legislature as set out in Nairobi Branch v Malindi Law Society C. A. No. 287 of 2016, was acting within its mandate under the Constitution.  Therefore the Magistrates’ Court Act and the Employment and Labour Relations Court Act conferred upon subordinate courts the jurisdiction to try and to determine labour related disputes.
13. The petitioners’ rights to property as recognized in article 40 of the Constitution were violated.  The petitioner had causes of action which had been lodged in court and causes of action had been recognized as property rights because of the expected outcome of compensation.
14. The refusal by Magistrates’ Courts to determine work injury claims violated the petitioners’ rights of access to justice as recognized in article 48 of the Constitution. The Magistrates’ Courts were distributed everywhere in Kenya and the provisions of section 29 of the Employment and Labour Relations Court Act were enacted specifically to promote the right of access to justice.
15. The rights to a fair trial as recognized in article 50(1) of the Constitution required a fair and public hearing before a court or an independent and impartial tribunal. The office of the Director of Work Injury Benefits created under section 53 (1) of the Work Injury Benefits Act was not such a body and a trial before that Director violated the right to a fair trial.
16. The petitioners' rights to have their cases heard and determined without delays as provided for in article 159 (2) (b), were violated. Delays had been occasioned by unnecessary confusion relating to the applicable legal regime.
17. It was costly and expensive for the petitioners to look for the Director whose offices were unknown. Article 159 (2) (a) on the right of the petitioners to have their cases heard and determined without discrimination based on their status was violated.