Failure to show that political campaign contributions were expended for campaign purposes leads to the contributions being considered as income and thereby chargeable to tax
Commissioner Investigations and Enforcement v Kidero
Income Tax Appeal E028 of 2020
High Court at Nairobi
DAS Majanja, J
February 4, 2022
Reported by Kakai Toili
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Tax Law – taxes – taxable income - political campaign funds - whether political campaign funds received by a taxpayer were taxable - whether it was enough for a taxpayer to show that money received was campaign funds for the said money to be exempt from income tax - what was the effect of failure to keep records of transactions to assist in tax assessment – Income Tax Act, Cap 470, section 54A.
Jurisdiction – jurisdiction of appellate courts – jurisdiction to interfere in matters of facts of a trial court or tribunal - when could an appellate court interfere in matters of facts of a trial court or tribunal.
The appellant (the Commissioner) conducted an audit of the respondent’s financial and business affairs for the income period of January 2011 to December 2015 and communicated its findings to the respondent in which the Commissioner assessed the respondent’s tax liability at Kshs 680,903,503.00 inclusive of penalties and interest. The respondent formally objected to the findings and the Commissioner responded by the objection decision dated December 21, 2016 in which it reviewed the respondent’s tax liability to Kshs 427,269,795.00 inclusive of penalties and interest.
The Commissioner disallowed the sum of KES. 423,000,000.00, which the respondent stated were political campaign contributions on the ground that the respondent did not provide a breakdown of how and when those funds were banked in his personal account, EK Center account as well as the MPESA till number. That in the absence of that breakdown, it was not possible for the Commissioner to assume that all these monies were deposited in the respondent’s account for it to deduct the same.
The Commissioner also brought to charge Kshs 74,000,000.00 on account of one of the properties of the respondent, Vista Investments Limited, on the ground that it was not possible to determine its source of funding and was therefore taxed as an undeclared source of income. The respondent explained that it was a Kshs 62,000,000.00 loan received from Family Bank Limited through his lawyers and Kshs 14,000,000.00 shareholder’s loan from Gem Apartment Limited in which he was a shareholder. The Commissioner rejected that explanation because the he did not provide documents in support of the shareholder’s loan. Aggrieved by the Commissioner’s decision, the respondent filed an appeal at the Tax Appeals Tribunal (the Tribunal) which was allowed. Being dissatisfied with that decision, the Commissioner filed the instant appeals.
- Whether it was enough for a taxpayer to show that money received was campaign funds for the said money to be exempt from income tax.
- When could an appellate court interfere in matters of facts of a trial court or tribunal?
- Whether political campaign funds received by a taxpayer were taxable.
- What was the effect of failure to keep records of transactions to assist in tax assessment?
- The interpretation or construction of the Constitution, statute or regulations made thereunder or their application to the sets of facts established by the trial court amounted to matters of law. The court’s engagement with the facts was limited to background and context and to satisfy itself, when the issue was raised, whether the conclusions of the trial court were based on the evidence on record or whether they were so perverse that no reasonable tribunal would have arrived at them. The court could not be drawn into considerations of the credibility of witnesses or which witnesses were more believable than others; by law that was the province of the trial court.
- The court would only intervene in matters of facts where the conclusions of the tribunal were not supported by any evidence. In carrying out that duty, the court was entitled to scrutinize all the evidence on record and to satisfy itself of the correctness of the tribunal’s decision in line with the statutory prescriptions.
- In the absence of the clear words from the statute, political campaign funds received by a taxpayer were not taxable. The political campaigns were a means of expression and participation in the fundamental act of democracy and such funds were not intended for the personal benefit of the tax payer. It was for the latter reason that the taxpayer had to demonstrate that the money received by him as political campaign funds were declared and used as such. Any sum not declared as political campaign funds and used for political campaign purposes would ultimately be considered income and therefore taxable.
- In line with section 56(1) of the Tax Procedures Act (TPA), the tax payer bore the burden of proving that assessment made by the Commissioner was incorrect. That also fit in with the principles of the law of evidence that he who asserted had to prove encapsulated in sections 107 of the Evidence Act. In addition, the receipt of such political campaign funds and their use was a matter within the taxpayer’s peculiar knowledge hence under section 112 of the Evidence Act, the taxpayer bore the burden proving that the receipts were not taxable income.
- The burden imposed on the taxpayer did not exist in a vacuum, it also buttressed by the obligation on the taxpayer to maintain records. Section 54A of the Income Tax Act (ITA) was augmented by section 23(1)(B) of the TPA which imposed a duty on the taxpayer to keep records required under any law so as to enable the person’s tax liability to be readily ascertained.
- The duty imposed on the taxpayer to keep records and the provisions on the burden of proof all went to support the Kenyan tax collection regime which was centered on a system of self- assessment. That system relied on the taxpayer making full and good faith disclosures in their tax declaration and affairs and hence empower the Commissioner to demand documents from time to time when investigating the affairs of a taxpayer. Whether the taxpayer had provided sufficient evidence to meet the threshold of proof required to discharge its burden depended on the nature of the subject or transaction and the circumstances of the case bearing in mind the duty placed on the taxpayer to keep records.
- Section 3 of the ITA imposed charge on tax on income accrued in and derived from Kenya but whether money received by the taxpayer was income, the Commissioner was entitled to seek information and use it in order to establish whether money in the hands of the taxpayer constituted income subject to tax. If the Commissioner was satisfied that the money constituted taxable income, the burden was on the taxpayer to show otherwise.
- All that was necessary was for the appellant to prove that the impugned amount was indeed campaign funds as declared. That was consistent with the principles of the burden of proof and duty of the taxpayer to keep appropriate records. It was not enough to show that the money was received was campaign funds but that the money was expended for political campaign purposes. If the taxpayer did not show that the money was received as political campaign contributions and then expended for the political campaign purposes, then it had to be considered income and thereby chargeable to tax.
- It did not matter whether there were campaign finance rules or regulations that provided for keeping of records for that purpose, it was the obligation of the taxpayer to keep records that enable the Commissioner assess his tax liability. The enactment of Contributions and Spending Limits for Political Parties and Candidates for Purposes of the General Elections Schedules to be held on August 9, 2022, Gazette Notice No. 8024 dated August 9, 2021 and subsequent regulations would assist in that regard but that issue had to be approached from the position of the law as it existed in the ITA and TPA.
- The list provided by the respondent showed names and telephone numbers of persons who the respondent alleged contributed to his political campaign. It did not show how much the respondent collected from each donor much less that he collected Kshs 423,000,000.00 from the people named on the lists. One of the key activities of a political campaign was to fundraise and one would expect that in the ordinary course of its business, it would at least keep records of its donors.
- The Tribunal accepted the respondent’s submission that when fundraising in Kenya or harambee, people were called upon to give voluntary contributions often from their taxed income without any records of the same and furthermore, there was no requirement for the taxpayer to produce each and every record. The Tribunal’s finding was inconsistent with the taxpayer’s obligation to maintain records particularly where it was clear that the respondent was commingling his personal funds and political campaign funds.
- Whether the taxpayer had discharged the burden of proof depended of the facts and circumstances. The Commissioner requested for proof that the money received was political campaign donations. That was not a case where the respondent was being asked to account for its spending where it was understandable that some forms of spending could not be documented. In the lists provided, the respondent took the trouble to list the names of prospective donors and their telephone numbers. It showed that the respondent called each of the persons on the list hence it was difficult to accept that he was unable to document the contributions from each donor.
- The Commissioner requested the respondent for specific documents related to payment made by cheque to EK Centre and through the MPESA till number. Such payments would be clearly documented given the channel of donations which the respondent admitted he received payments. In addition, the Commissioner requested a breakdown of how much money the respondent received per month but that was not provided. Yet, on the other hand, the respondent provided a single page summary statement of income and expenditure for the entire period of the campaign. Such a summary had to have been made from some primary documents which the respondent ought to have produced to support his case.
- The respondent failed to discharge his burden as the evidence on record could not support such a conclusion reached by the Tribunal. Consequently, the Tribunal erred in imposing on the Commissioner the burden of disproving the respondent’s contention that the Kshs 423,000,000.00 was election campaign contributions when he had not provided sufficient evidence to surmount his obligation to establish the source of income.
- Apart from article 201 of the Constitution, article 27 of the Constitution protected the right of equality and prohibited discrimination. There was no basis for the allegation of discrimination. The Commissioner exercised discretionary authority to conduct in-depth audit of individual taxpayers. There was no suggestion that the Commissioner did not act within its power to conduct an audit of the respondent. A review of the record and evidence showed the Commissioner acted fairly, granted and accorded the respondent an opportunity to present his case and respond to queries. Indeed, in some instances, the Commissioner accepted the respondent’s explanation and certain matters were settled. Since no basis for discrimination had been established, there was no basis for the Commissioner to justify its treatment of the respondent.
- The letter from the Family Bank Ltd dated December 20, 2016 showed and confirmed that a loan was advanced to Gem Apartments by Family Bank and the loan proceeds forwarded to the advocates. The second letter which the respondent relied on was the letter from the advocates which only confirmed that the advocates received money on account of Gem Apartments and in accordance with the client’s instructions paid out the money to the respondent in the four installment. A careful reading of that letter did not state that money was paid to the respondent on account of a loan to enable him purchase shares in Vista Limited. Further, no explanation was forthcoming from the respondent about the variance in the two figures and the lack of documentation to support the loan.
- Under section 54A of the ITA, the taxpayer had a duty to maintain records to support its transactions. Those records were those expected in the ordinary course of business. In the letter dated December 1, 2016, the Commissioner requested the respondent to provide loan agreements to show that the Kshs 74,000,000.00 received from the advocates was received as a loan. The respondent did not produce any document showing that it had taken a loan and purchased shares in a company. It also did not proffer an explanation why the loan amount advanced by the related party through Family Bank was less than the amount ultimately transferred to his account by the advocates.
- It was not an answer to a request for documents to state that a contract loan agreement was not one required to be in writing under the Law of Contract Act. In the same vein, a party purchasing shares in company would execute a share transfer, pay stamp duty on the share transfer, obtain a share certificate to and be registered as a shareholder which could be evidenced by a CR-12.
- The discharge of the burden of proof would depend on the nature of the transaction and the facts of the case. It was the respondent who was under audit and it was him who took out a loan to purchase shares and received Kshs 74,000,000.00 transferred to his account by the advocates. He therefore had to discharge the burden of showing that he took out a loan to purchase shares or otherwise take the risk of the money received being charged to tax as the Commissioner did. The Tribunal erred in coming to the conclusion that the Commissioner should have addressed its demand to Vista Investments Limited.
- The issue of penalties was raised in the submissions before the Tribunal as it was not a ground of appeal in the memorandum of appeal dated January 20, 2017. Consequently, in the statement of facts dated February 17, 2017, the Commissioner did not deal with the issue of penalties substantively. That was contrary to section 13(6) of the Tax Appeal Tribunals Act, 2013 which provided that, the appellant would, unless the Tribunal ordered otherwise, be limited to the grounds stated in the appeal or the documents to which the appeal related.
- In the letter dated October 4, 2016 setting out the tax investigation findings, the Commissioner claimed penalties. In its objection to the consequential assessments, which also demanded penalties, the respondent did not raise any complaint about the penalties hence when the Commissioner confirmed the assessments in its decision dated December 21, 2016, the respondent did not deal with issue of penalties in its appeal. The Tribunal erred in adjudicating on a matter which was not subject of the appeal.
- The respondent failed to discharge his burden as the evidence on record could not support the conclusions reached by the Tribunal. Consequently, the Tribunal erred in imposing on the Commissioner the burden of disproving the respondent’s contention that the Kshs 423,000,000.00 was election campaign contributions when he had not provided sufficient evidence to surmount his obligation to establish that source of income.
- The respondent failed to discharge the burden of showing that he received the sum of Kshs 74,000,000.00 as a loan to first purchase a property and then purchase shares as the same was without supporting evidence. The respondent was not discriminated against and the Tribunal erred in adjudicating on the issue of the Commissioner levying penalties when a criminal case was ongoing against the respondent as that was an issue that was not subject of the appeal.
Appeal allowed; each party to bear its costs.
- The judgment of the Tax Appeals Tribunal dated March 6, 2017 was set aside.
- The Commissioner’s objection decision dated December 21, 2016 was affirmed.
Case Updates Issue 030/21-22
Annual Subscriptions Paid by a Supplier and Distributor of Copyrighted Items Could Be Deemed as Royalties That Would Be Liable for Deductions of Withholding Tax.
Seven Seas Technologies Limited v Commissioner of Domestic Taxes  KEHC 358 (KLR)
Income Tax Appeal 8 of 2017
High Court at Nairobi
MW Muigai, J
December 10, 2021
Reported by Ribia John
Intellectual Property Law – copyrights – licences – licence to distribute copyrighted items - what was the nature and scope of a licence under copyright law - what rights did a licence under copyright law confer - whether a licence that was granted vide an end user licence agreement was a licence which transferred an interest in all or any rights of the copyright - Copyright Act, Act No.12 of 200, sections 2, 30 and 33
Tax Law – withholding tax – withholding tax on royalties – what constituted royalty payments in copyrighted items – whether annual subscriptions paid by a supplier and distributor of copyrighted items could be deemed as royalties that would be liable for deductions of withholding tax – whether the supplier/vendor of a copyrighted item could be said to be commercially exploiting the copyright in the copyrighted item by buying and selling the copyrighted item – whether withholding tax should be taxed on payments made for purchase of software and licences - Income Tax Act, CAP. 470, sections 2 and 35; Organization for Economic Co-operation and Development (OECD) Model Tax Convention on Income and on Capital, paragraphs 13.1 and 14.4 of article 12
The appellant, a distributor of computer software licences, filed memorandum of appeal against the decision of the Tax Appeals Tribunal Judgment. The tribunal held that the appellant, in distributing software, acquired rights to copyright in software which it commercially exploited and ought to pay withholding tax. Aggrieved, the appellant filed the instant appeal on grounds that the tribunal erred in its decision that withholding tax applied on payments for copyrighted material purchased by the appellant for purposes of distribution. The appellant claimed that the tribunal erred in failing to consider that the appellant was a vendor of copyrighted material and not the user of a copyright and in that regard did not receive any right to exploit the copyright and as such was not liable to pay withholding tax. The appellant also urged the court to find that the payment for a distribution licence did not amount to payment of royalty.
- What was the nature and scope of a licence under copyright law?
- What rights did a licence under copyright law confer?
- Whether a licence that was granted vide an end user licence agreement was a licence in terms of section 30 of the Copyright Act (a licence which transferred an interest in all or any rights of the copyright)
- Whether annual subscriptions paid by a supplier and distributor of copyrighted items could be deemed as royalties that would be liable for deductions of withholding tax
- Whether the supplier/vendor of a copyrighted item could be said to be commercially exploiting the copyright in the copyrighted item by buying and selling the copyrighted item.
- whether withholding tax should be taxed on payments made for purchase of software and licences. Read More...
Relevant Provisions of the Law
Copyright Act, Act No.12 of 2001
(1) In this Act, unless the context otherwise requires—
“licence” means a lawfully granted licence permitting the doing of an act controlled by copyright;
3. Assignment and licences
(1) Subject to this section, copyright shall be transmissible by assignment, by licence, testamentary disposition, or by operation of law as movable property.
Income Tax Act, CAP. 470
(1) In this Act, unless the context otherwise requires—
"royalty" means a payment made as a consideration for the use of or the right to use—
(a) any copyright of a literary, artistic or scientific work; or
(b) any cinematograph film, including film or tape for radio or television broadcasting; or
(c) any patent, trade mark, design or model, plan, formula or process; or
(d) any industrial, commercial or scientific equipment,or for information concerning industrial, commercial or scientific equipment or experience, and any gains derived from the sale or exchange of any right or property giving rise to that royalty;
Deduction of tax from certain income
(1) Every person shall, upon payment of any amount to any non-resident person not having a permanent establishment in Kenya in respect of—
(b) a royalty or natural resource income;
Organization for Economic Co-operation and Development (OECD) Model Tax Convention on Income and on Capital.
Paragraphs 13.1 and 14.4 of article 12
13.1 Payments made for the acquisition of partial rights in the copyright (without the transferor fully alienating the copyright rights) will represent a royalty where the consideration is for granting of rights to use the program in a manner that would, without such licence, constitute an infringement of copyright. Examples of such arrangements include licences to reproduce and distribute to the public software incorporating the copyrighted program, or to modify and publicly display the program. In these circumstances, the payments are for the right to use the copyright in the program (i.e. to exploit the rights that would otherwise be the sole prerogative of the copyright holder).
14.4 Arrangements between a software copyright holder and a distribution intermediary frequently will grant to the distribution intermediary the right to transactions, the rights acquired in relation to the copyright are limited to those necessary for the commercial intermediary to distribute copies of the software program. In such transactions, distributors are paying only for the acquisition of the software copies and not to exploit any right in the software copyrights. Thus, in a transaction where a distributor makes payments to acquire and distribute software copies (without the right to reproduce the software), the rights in relation to these acts of distribution should be disregarded in analyzing the character of the transaction for tax purposes. Payments in these types of transactions would be dealt with as business profits in accordance with Article 7. This would be the case regardless of whether the copies being distributed are delivered on tangible media or are distributed electronically (without the distributor having the right to reproduce the software), or whether the software is subject to minor customization for the purposes of its installation.
- The court would determine whether payments made by the respondent to the card companies constituted royalty by considering the terms of the statute, written agreements, and the totality of the relationship between the respondent and card companies, including actual dealings between parties.
- Licence had been defined under section 1 of the Copyright Act as lawfully granted licence permitting the doing of an act controlled by copyright. The licence that was granted vide an end user licenseagreeemnt was not a licence in terms of section 30 of the Copyright Act which transferred an interest in all or any rights but a licence that imposed restrictions or conditions for the use of computer software. What was licenced by the foreign, non-resident supplier to the distributor and resold to the end user or directly supplied to the resident end user was in fact the sale of a physical object which contained an embedded computer program and was therefore sale of goods. The parties ought to have established from the agreements documents, relationship of the parties’ and totality of the circumstances of the matter, whether the software purchased by the appellant was a copy right or copy righted article in a sale of goods or licence.
- A licence was a grant of authority to do a particular thing, it enabled a person to do lawfully what he could not otherwise lawfully do. A licence did not, in law, confer a right. It only prevented that from being unlawful which, but for the licence, would be unlawful. It amounted to a consent or permission by an owner of copyright that another person should do an act which, but for that licence, would involve an infringement of the copyright of licensor. A licence gave no more than the right to do the thing the thing actually licenced to be done. It transferred an interest to a limited extent, whereby the licencee acquired an equitable right only in the copyrighted article. The appellant paid for software and licence to access the medium in the software. Whether the payment/consideration was royalty would depend on whether, the payment was to copyright holder or that the licence purchased on the software was unrestricted and unlimited and it conferred right to use the copyright.
- The software lease agreement between the parties on purchase/sale of software and/or Licences was presented and detailed the terms of the licence as continuous as long as the software existed but subject to certain conditions and terms set out in the Schedule. That was why the court upheld the payment of lease was royalty based on the terms of the agreement.
- The agreement would shed more light on the legal questions. Whereas it was not denied that there were distinctions of copy right and copyright embedded article and where licences were purchased it did not automatically amount to assignment of the copyright it depended on the terms of the agreement between the parties on the outcome of the audit by the respondent. The audit revealed annual subscription and payment for licences. The software purchase agreement stipulated the end user or licencee was the appellant. The agreement did not set restrictions or limitations of the licence.
- Copyright was transmittable by licence, that payment of licence fees as consideration of the right to use software fell within the definition of a royalty. However, an agreement would spell out the terms of any right to use or reproduce the copyright work or the licence was to access copyrighted article. The annual subscriptions of licences did not confirm payment as royalty as defined referred to some device, formula or contraption which the user applied to make something else and in return for that advantage, the user had to pay the original creator of the capital asset.
- In the absence of the software sales agreement signed between Callidus Software Inc and the respondent, a software supply contract had no restrictions. The terms of the licence were not stipulated so as to confirm whether rights were transferred or it was only for the purposes of accessing software or not. Secondly, if the licence was restricted for software to be used internally only or for resale without transfer. It had not been proved that funds paid to Callidus Software Inc were royalty so as to attract withholding tax.
- The appellant was primarily into the business of provision of integrated business and technology solution procured from various enterprise resource planning software manufacturers and developers. The software procured was mainly sold to end users who were their clients, and the appellant was merely a distributor of the software in Kenya.
- International guidelines were part of the law in respective countries but were international best practices that guided in interpretation of laws and regulated the international business transactions. The tribunal erred in concluding that by buying and selling computer software, which was a copyrighted item, the appellant was commercially exploiting the copyright in that copyrighted item. Contrary to the above definition of a licence, and in the absence of the agreement(s) that set out the terms of the licence, in the instant case the appellant was a vendor of a copyrighted item and was therefore copyright was not transmissible.
- The principles and processes were subject to proof which from the facts of the matter remain contested. The issue of the appellant having purchased copyright or copyrighted article was debatable and the issue of the licence transferred a right to the appellant or merely facilitated the access to software was also unproven.
- The Organization for Economic Co-operation and Development (OECD) Model Tax Convention on Income and on Capital provided that in such transactions, distributors were paying only for the acquisition of the software copies and not to exploit any right in the software copyrights. Therefore, payments in those types of transactions should be dealt with as business profits and not as royalties. The tribunal erred in failing to consider that the appellant was a vendor of copyrighted material and not the user of a copyright and in that regard did not receive any right to exploit the copyright.
- The appellant was not subject to pay royalties and in turn not liable to pay withholding tax to the respondent with regard to the distribution of the computer software.
Appeal was allowed and the decision of the tribunal was set aside.
Incompetence of a Judicial Officer Could Not Be Read from One Civil Application as Opposed to The Duties Discharged in The Course of a Judicial Officer’s Career.
Phylis Lusiah Shinyada v Judicial Service Commission  eKLR
Petition E106 of 2020
Employment and Labour Relations Court at Nairobi
J Rika, J
November 26, 2021
Reported by Ribia John
Statutes – interpretation of statutes – interpretation of the article 169(1) of the Constitution – interpretation of the Judicial Service Code of Conduct and Ethics, Legal Notice Number 50 of 2003 – interpretation of the terms “judge” and “judicial officer” - whether there was a distinction between the terms, “judge” and “judicial officer” as used in the Constitution and in the Judicial Service Code of Conduct and Ethics, Legal Notice Number 50 of 2003
Constitutional Law – Judicial Service Commission – disciplinary hearing – claim of incompetence - what factors did the court/administrative body look into in determining a claim of incompetence against a judicial officer
Constitutional Law – fundamental rights and freedoms – rights of state officers – rights of judicial officers – judicial independence - Judicial Service Commission – where it was alleged that the JSC was unduly influenced in its disciplinary proceedings against a judicial officer – whether the Judicial Service Commission disregarded the independence of the petitioner - whether the Judicial Service Commission violated the petitioner’s right to; fair labour practices, fair administrative action and to the right to a fair hearing – whether the Judicial Service Commission victimized the petitioner for having performed the functions of office in accordance with the Constitution and any other law - Constitution of Kenya, 2010, articles 41(1), 47(1), 50, 160(5), 236(a); Employment Act, Act No. 11 of 2017 sections 43 and 45.
Constitutional Law – Judiciary - Judges and Magistrates Vetting Board – Judicial Service Commission - where the Judges and Magistrates Vetting Board was found to have no jurisdiction by the Supreme Court - whether the proceedings and outcomes/recommendations of the Judges and Magistrates Vetting Board (the board) had any value as regards to the suitability of a judicial officer to hold office - whether the fact that the Judges and Magistrates Vetting Board was found to have no jurisdiction by the Supreme Court barred the board from communicating the complaints against judicial officers to the Judicial Service Commission.
Constitutional Law – Judicial Service Commission – disciplinary committee – gender balance - whether there was mandate upon commissioners the Judicial Service Commission to observe gender balance in constituting the disciplinary committee that would hear and determine disciplinary hearings - Judicial Service Act, Act No. 1 of 2011, section 32; Judicial Service Act, Act No. 1 of 2011, Third Schedule, regulation 25;
Constitutional Law – fundamental rights and freedoms – right to fair administrative action - Judicial Service Commission – claim that a hearing of the disciplinary committee of the JSC had undue delay - whether a delay of 19 months against JSC’s police to conclude disciplinary hearings in 6 months, on its own, was as an abridgment of the right to fair administrative action of the judicial officer facing the disciplinary proceedings – Constitution of Kenya, 2010 article 47; The Judicial Service Commission Human Resource Policy
Civil Practice and Procedure – execution – forum for execution - whether disputes on execution of a decree could be heard by any other court other than the court that heard and determined the matter – Civil Procedure Act, CAP 21, section 34(2)
The petitioner, a judicial officer, was charged before the Judicial Service Commission for incompetence. The particulars of the charge were that in Kisii C.M.C.C No. 88 of 2007, Julius M. Ndege v. Hezron O. Nyambane and No. 67 of 2009, the petitioner allegedly issued order releasing the defendant’s motor vehicle to the plaintiff, contrary to the orders of Kisii High Court Petition No. 35 of 2010, an act that puts the petitioner’s competence into question. The petitioner was later dismissed based on the determination of the disciplinary committee of the JSC on the above charge.
Before the disciplinary committee, the petitioner explained her role, in Kisii C.M.C.C No. 88 of 2007. She stated that she was administratively assigned the file, after all other magistrates at the Station recused themselves. The file was placed before her at execution stage. The motor vehicle belonging to the defendant, complainant before the JSC, had been attached and sold to a third party through a public auction. She could not revert the motor vehicle to the complainant through an application. The petitioner stated that failure to grant orders reverting the motor vehicle to the complainant, did not mean that justice was lost; the complainant could appeal, seek review, or file a claim for damages against the auctioneers. The petitioner states that third parties had filed Petition No. 35 of 2010 before the High Court at Kisii. The High Court issued a ruling which the petitioner submitted, did not restrain her judicial independence, in making her own ruling. No specific orders were served upon the Petitioner, restraining her judicial discretion.
Aggrieved the petitioner filed the instant petition on grounds that the JSC was unduly influenced in making its determination. That the petitioner was being victimized for following the letter of the law and for performing her functions as provided for in the Constitution and any other law of the land. The petitioner also challenged the constitution of the disciplinary committee, submitting that the panellists were from the same gender, contrary to the Judicial Service Act.
The petitioner sought to be reinstated, to receive back pay and sought orders that the actions of the JSC, to allegedly determine her disciplinary hearing with a preconceived bias and without an appreciation of the facts of the case were a violation of her right to fair administrative action, fair hearing, dignity and fair labour practices. The petitioner also sought for a declaration that she was unfairly dismissed from service.
- Whether there was a distinction between the terms, “judge” and “judicial officer “as used in the Constitution and in the Judicial Service Code of Conduct and Ethics, Legal Notice Number 50 of 2003.
- Whether the proceedings and outcomes/recommendations of the Judges and Magistrates Vetting Board (the board) had any value as regards to the suitability of a judicial officer to hold office.
- Whether the fact that the Judges and Magistrates Vetting Board was found to have no jurisdiction by the Supreme Court barred the board from communicating the complaints against judicial officers to the Judicial Service Commission.
- Whether there was mandate upon commissioners the Judicial Service Commission to observe gender balance in constituting the disciplinary committee that would hear and determine disciplinary hearings.
- Whether a delay of 19 months against JSC’s police to conclude disciplinary hearings in 6 months, on its own, was as an abridgment of the right to fair administrative action of the judicial officer facing the disciplinary proceedings.
- Whether disputes on execution of a decree could be heard by any other court other than the court that heard and determined the matter.
- Whether, based on the facts of the instant case, the petitioner was incompetent in the performance of her duties as a judicial officer.
- What factors did the court/administrative body look into in determining a claim of incompetence against a judicial officer?
- Whether the incompetence of a judicial officer could be read from one civil application as opposed to the duties discharged in the course of a judicial officer’s career.
- Whether, based on the facts of the instant case, the Judicial Service Commission disregarded the independence of the petitioner.
- Whether the quashing of the proceedings of the disciplinary committee of the Judicial Service Commission would necessitate the quashing of a charge sheet of the accused.
- Whether, based on the facts of the case, the Judicial Service Commission violated the petitioner’s right to; fair labour practices, fair administrative action and to the right to a fair hearing.
- whether the Judicial Service Commission victimized the petitioner for having performed the functions of office in accordance with the Constitution and any other law. Read More..
- Confusion of terms judge’ and judicial officer was occasioned by article 260 of the Constitution of Kenya, 2010 (Constitution) that defined judicial officer to mean registrar, deputy registrar, magistrate, kadhi or a presiding officer of a court established under article 169(1) of the Constitution. It excluded Judges. A more sensible definition, was in the Judicial Service Code of Conduct and Ethics, Legal Notice Number 50 of 2003, which stated that a judicial officer meant and included any judge, magistrate, registrar or kadhi of all grades, employed in the Judicial Service of Kenya. The court would use the terms judges and judicial officers interchangeably in the instant judgement.
- It was purposeless for the petitioner and the Judicial Service Commission (JSC) to spend considerable time arguing on findings of suitability or unsuitability, made by the Judges and Magistrates Vetting Board (the board). The process and the outcome before the board was a nullity and void ab initio for want of jurisdiction. Proceedings before the board could only add a historical value to the dispute. If an act was void, it was a nullity in law. It was not only bad, but incurably bad. There was no need for an order of the court to set it aside. It was automatically null and void, without much ado, though it was sometimes convenient to have the court declare it to be so.
- The determination of the board, for or against the petitioner was unhelpful. It was a nullity. It was pointless for the board to give a caveat on review, about the chances of success of the application. Its decision was null and void ab initio, and was only reviewed and declared null and void, as a matter of convenience.
- The JSC was not wrong in founding the charges against the petitioner from the communication made by the board. The process before the board was different from the process overseen by the respondent under the Judicial Service Act. The fact that the board was found to have no jurisdiction, did not bar the board from communicating the complaints against the petitioner to the JSC. It was not exercising its jurisdiction in communicating with the JSC. Once the JSC received the complaints, it was at liberty to ignore or act on them
- Article 172(1)(c) of the Constitution mandated the JSC, among other things, to receive complaints against, investigate and remove from office or otherwise discipline Magistrates and other Judicial Officers and Staff. The source of the complaints was unrestricted. Complaints could be originated by whistle-blowers, individuals or institutions. That mandate was legislated under section 32 of the Judicial Service Act (the Act) and the Third Schedule thereof. The record from the board was communicated to the Chief Justice. Upon receipt, the Chief Justice was required to make such enquiry as he deemed fit, under regulation 25 of the Third Schedule to the Act. If the Chief Justice was satisfied that the complaint would, if proved result in dismissal, he was required to frame charges against the judicial officer, and was to forward a statement of the allegations to the judicial officer, inviting the judicial officer to give an exculpation.
- The petitioner’s challenge to the constitution of the Disciplinary Committee on grounds that the panellists were from the same gender, contrary to the Judicial Service Act was made belatedly and did not seem to have given the JSC an opportunity to respond on the particular subject. It was irregular to raise fresh issues, in final submissions. Section 32 of the Judicial Service Act, stated that for purposes of appointment, discipline and removal of judicial officers and staff, the JSC would constitute a committee or panel which was to be gender-representative.
- The petitioner complained that she was heard by three Lady Justices, Hon. DCJ Philomena Mwilu, Hon. Emily Ominde and Hon. Chair, Mercy Deche. The record indicated that Hon. Judge Muchelule joined the proceedings midway. It was made clear by the Chair that he would not participate. He was not therefore part of the Committee that heard the petitioner. It was not clear why, the Hon. Commissioner attended proceedings he did not have an active role in.
- Hearing of disciplinary proceedings was governed by regulation 25 of the Third Schedule to the Act. Section 32 of the Judicial Service Act was on appointment of the Committee which was the human resource and administration committee of the JSC. That was a standing committee, appointed to among other human resource functions, administer discipline. It was that committee, under Section 32 of the Judicial Service Act, which was required to reflect gender balance. Regulation 25(3) of the Third Schedule to the Judicial Service Act required that the JSC appoints at least three persons, presumably from the committee appointed under section 32, for purposes of the actual disciplinary hearing. The regulation did not require gender balance in the three-person committee. The Chief Justice was not to be a member of the committee. Judges who were members of the JSC under the Constitution, were allowed to sit in the Committee.
- The Committee which heard the petitioner was properly constituted. There were three persons. There was no gender ratio required in the composition of the disciplinary committee. They were only required to be three persons. It did not matter if they were all female, male or transgender. The petitioner’s challenge on composition of the disciplinary committee had no merit and was declined.
- There was delay in hearing the petitioner. The actual hearing took 19 months, against the fair standard of 6 months, adopted by the JSC in its own human resource policy. Delay was attributed to internal and external challenges that affected the JSC’s ability to conclude the disciplinary proceedings within the desired 6 months. It was involved in appointment of a new Chief Justice; appointment and swearing in of new commissioners was under legal challenge; the commissioners were part-timers at the JSC, while fully employed elsewhere; and sittings of the JSC had been reduced to a maximum of 8, in a month, by the Salaries and Remuneration Commission.
- Delay in the circumstances was not unreasonable. The JSC demonstrated there were external and internal factors, beyond its control, militating against a timeous disposal of the complaints against the petitioner. The record indicated, she was granted a hearing as soon as the impediments receded. Delay on its own, could not be interpreted as an abridgment of the petitioner’s right to fair administrative action. It would serve the JSC well however, to relook at its policy on the reasonable period it was likely to take, in hearing and expeditiously disposing of disciplinary cases. There were many cases against the JSC, brought by judicial servants, coming before the High Court, where delay was always shown to be present. There was no significant breach of fair procedure, under the Judicial Service Act, the Fair Administrative Action Act and the Employment Act.
- Decisions of administrators were challengeable in court on procedural and substantive grounds. It would be absurd for the court to be limited to review of the procedure alone. The reasons justifying the decision, were oftentimes, the centrepiece of judicial intervention in administrative actions, and in particular actions terminating an employee’s contract of service. Administrators were required to give reasons for their decisions, so that the persons dissatisfied with those reasons, were able to challenge those reasons in court, on review or appeal. When courts reviewed decisions of administrators substantively, they were simply enforcing the mandate of the administrators, established by legislation. There was no reason to hold that the role of the court was limited to interrogation of the process leading to termination, as urged by the JSC. The authority of the administrator was not absolute, and rule of law and good administration concerns, ensured that the reasonableness of administrative decision is policed by the courts.
- Substantive review by courts, based on rule of law concerns, and the principle of fairness inherent in Kenya’s constitutional order. The petitioner was charged with lack of competence in discharge of her role as a Senior Resident Magistrate, Kisii Law Courts.
- Disputes on execution under Section 34(2) of the Civil Procedure Act had to be heard by the court executing decree, and not by any other court. Section 34 strictly barred filing of separate proceedings, to determine issues that emanated or arose from execution of decrees in a suit. It was for the petitioner, to determine who were the rightful parties before her, and demarcate their respective rights and liabilities under the execution suit.
- The petitioner, upon hearing and evaluating the arguments made by all the parties, exercising her undoubted, exclusive jurisdiction, under section 34(2) of the Civil Procedure Act, wrote her reasoned ruling, dismissing the complainant’s application and releasing the lorry to Evans Angoke Alunga. The lorry was not released to the plaintiff as stated in the charge sheet drawn by the Chief Justice. It was released to the 2nd purchaser, Evans Angoke Alunga. The petitioner considered the decision of the Kisii High Court in Petition No. 35 of 2010, and also considered two other decisions of the High Court, which were at odds with the opinion of the High Court in Petition 35 of 2010. She was cautious, to respectfully observe, that she did not wish to appear to be faulting the finding of the court in the petition.
- Even if there were infirmities in the attachment and sale process, the property, having been sold at a public auction could not be reversed, and the applicant could only pursue damages under section 26 of the Auctioneers Act. She dismissed the complainant’s application and directed that the vehicle be released to the 4th interested party, Evans Angoke Alunga. It was the finding of the court that the petitioner exercised her discretion judiciously; she was mandated to evaluate evidence and make an independent determination under section 34(2) of the Civil Procedure Act; the ruling of the High Court in Petition No. 35 of 2010 did not bar the petitioner, from free exercise of civil mandate; the High Court was not seized of the execution suit under section 34(2) of the Civil Procedure Act; the decree was not a decree issued by the High Court; the High Court had in the petition emphasized the importance to have the execution suit disposed of in the court which issued decree; and the petitioner’s ruling disclosed no grounds to conclude that she did not demonstrate judicial competence. It was difficult to see what aspect of the proceedings before the petitioner, was handled without deference to legal professionalism, knowledge, diligence and judicial competence.
- The High Court in petition 35 of 2010, did not bind the petitioner to rule in favour of the complainant. The High Court stated that the complainant’s interest should have been safeguarded, as his right to the lorry was still subject of court proceedings. The High Court on review by the petitioner (Evans), ruled that it was essential to have the execution suit heard before the Magistrate’s Court. At no time did the High Court, hear and determine the execution suit. The execution suit was heard eventually, and culminated in the ruling by the petitioner. Proceedings that were pending before the Magistrate’s Court, ended in the suit that was heard by the petitioner, under Section 34(2) of the Civil Procedure Act.
- The High Court gave an opinion while dismissing the petition, that the right of the complainant ought to have been protected, pending determination of proceedings. The lorry was preserved at the police station, pending determination of the competing claims, to its ownership and possession. The petitioner resolved the rival claims in accordance with the law, and her understanding of the law. There was no declaration by the High Court, that the complainant should eventually be found to be the rightful owner of the lorry, or that the lorry should eventually be released to him. He was a judgment-debtor who had failed to meet a judgment issued regularly by the court, and who deposited security in court at the 13th hour, when his property had already been sold.
- It was completely contrary to the law, to conclude as did the JSC, that the petitioner overturned the decision of the High Court. There was no decision determining ownership in favour of the complainant, or directing that the lorry held at the Police Station, should eventually be released to him. The petitioner’s competence was also attacked on the ground that she ordered release of the lorry while there was an order of stay of execution in place. But the record showed the lorry had already been sold, vesting order issued, and logbook transferred, at the time the petitioner became seized of the matter. Deposit of the logbook and balance of the decretal sum, was made after sale had taken place.
- intelligence, ability and diligence were minimum qualifications, expected of every judge. Lack of those qualities constituted incompetence. The Constitution of Kenya recognized the qualities right from appointment of judges, under article 166 of the Constitution (prerequisites), to their removal under article 168 (grounds for removal). Incompetence was one of the grounds warranting removal of a judge from office. That ground was separate from gross misconduct or misbehaviour. The principles on judicial competence and conduct, applicable to judges, extend to magistrates. regulation 12(3)(d) of the Judicial Code of Conduct and Ethics, stipulated that judicial officers, were to perform their duties in an efficient and competent manner. Competence was an indispensable quality, required in discharge of judicial service.
- incompetence included any physical, moral or intellectual quality, the lack of which incapacitates one to perform the duties of his office. To comprise was mere incapacity for the performance of official duties. Incompetence, was the lack of ability, knowledge, legal qualification, or fitness to discharge the required duty or professional obligation. From the conduct of proceedings by the petitioner in Kisii C.M.C.C No. 88 of 2007, the court did not see which quality required of a judicial officer in the definitions above, could have been lacking in the petitioner, to lead to a conclusion that she was incompetent.
- When incompetence was alleged against a judicial officer, it was the role of the court (or the administrative body) seized of the disciplinary hearing, to determine whether the accused lacked requisite ability, knowledge, judgment or diligence, to consistently and capably discharge the duties of the office held. Incompetence, even assuming the petitioner conducted proceedings in Kisii C.M.C.C No. 88 of 2007 in the abysmal manner assigned to her conduct of the proceedings by the JSC, would not validly be established by that single conduct of proceedings. It had to be shown that the judicial officer had demonstrated lack of judgment, knowledge, diligence and ability, to consistently and ably discharge the duties of his or her office. Incompetence could not be read from one civil application dealt with by a judicial officer.
- Article 168(1) of the Constitution of Kenya on removal of judges named incompetence as a ground for removal, separate from other grounds. The petitioner was not judged fairly by the JSC. The charge against her was lack of competence. It was based on a single ruling. The ruling itself was made in accordance with the law, and facts presented before the petitioner by the parties. The petitioner exercised an exclusive jurisdiction, in dealing with issues arising or emanating from a decree, issued by the Magistrate’s Court. There were no magistrates, judges or advocates who worked with her, who attested to her incompetence over a period of time. It was not shown that she was no longer capable of discharging the judicial function. She was not declared incompetent based on cumulative evidence. The decisions of the judicial officer under disciplinary proceedings on incompetence, had to be shown to have been consistently far afield of precedent and the law. They had to be shown to amount to egregious violation of fundamental rights, to an extent that the judicial officer appeared to have embraced impunity towards the law. The court did not think that the ruling of the petitioner in question, or any other of her hundreds of decisions, was shown to fall within those parameters, to result in a finding of incompetence.
- The petitioner testified that over time, she had worked diligently, and was promoted by the JSC, heading and establishing courts, and lastly was appointed as the Deputy Registrar, in charge of the Employment and Labour Relations Court at Kisumu. She had recorded hundreds of rulings and judgments. A competence determination had to remain focused on the judicial officer’s ability to consistently follow and apply the law over time.
- Absolute immunity would be a roadmap to judicial authoritarianism and corruption, where judges cannot be held to account personally for violation of citizens’ civil rights, hence the need to limit immunity to acts done in good faith and in lawful execution of judicial functions.
- Parties aggrieved by decisions of the judicial officer had recourse in the appellate system. In egregious illegalities, violations of the judicial oath, or outright illegalities and criminality, mechanisms for removal from office existed. It was indispensable to promote and protect the independence and impartiality of individual judicial officers, and the judiciary as a whole. Judicial independence, was not a prerogative or privilege of judicial officers, but a guarantee of everyone’s right to fair administration of justice. The Constitution of Kenya, the International Covenant on Civil and Political Rights and The Bangalore Principles on Judicial Conduct, stressed the need for independent and impartial judiciaries, where the individual judicial officer was able to discharge judicial functions independently and competently.
- The petitioner’s independence was disregarded by the JSC. She acted lawfully and in good faith. The JSC was unduly influenced in its decision to remove the petitioner from office, by its perception that the petitioner disregarded a binding decision of the High Court. The letter of dismissal dated March 27, 2019, attested to that thinking by the JSC.
- The Constitution of Kenya and other standards of appropriate judicial conduct such as the Bangalore Principles of Judicial Conduct, while requiring judiciaries to uphold judicial competence and diligence, promote judicial immunity as necessary, in sustenance of stable, accountable and independent Judiciaries. Impediments that hindered the judicial officers’ ability to carry out their functions were deprecated. Impediments had been identified to include pressure of various kinds, both intended (deliberate attempts to influence judicial officers) and unintended (through circumstances which could lead the judicial officers to be restrained in their decisions).
- The petitioner was expected, in view of the High Court ruling, to be restrained in her own ruling, or plainly, not to exercise her decisional independence, in a matter she was fully seized. There was unintended pressure on the petitioner, from the High Court ruling, to determine the execution dispute as had been suggested by the High Court.
- It was alleged in the affidavit of the Chief Registrar, in response to the petition, that the petitioner conceded mistakes may have taken place, and that she was ready to learn, during the disciplinary hearing. That appeared to the court, to have taken place, after the petitioner was repeatedly put to task by the Commissioners. She was persistently asked by Senior Judges in the Disciplinary Committee, why she overturned a decision made by another Senior Judge. It was possible that the petitioner wilted, after heavy exertion. The remorseful comments on the part of the petitioner, could not be taken at face value, or lead to the conclusion that she admitted to being incompetent. There was no valid reason or reasons, to warrant the dismissal of the petitioner from service by the JSC.
- The JSC could not have dealt with allegations made against the petitioner, concerning her competence, without looking into the merits of her ruling and that of the High Court. Although the respondent kept reassuring her during the disciplinary hearing, that it was not sitting on appeal against her ruling, it was inevitable, to make an informed decision on the petitioner’s competence, to delve into the merits of her decision.
- The JSC appeared in fact, to have failed in fully analysing the merits of the petitioner’s ruling, and therefore reached at the wrong finding, that she had overturned the ruling of the High Court. If the JSC was to be faulted, it was not for delving into the merits of the ruling made by the petitioner; it was for delving into the merits half-heatedly, resulting in a flawed conclusion that the petitioner was incompetent. It was not possible for the JSC to have an informed view of what the petitioner and the High Court said, with regard to ownership and possession of the lorry, without going into the merits of the rulings in issue. The instant petition would not be resolved, without looking at the merits in the rulings subject matter of the disciplinary hearing. The JSC similarly would not resolve the charge of incompetence, without looking at the merits of the rulings made by the petitioner and the High Court.
- There were far too many laws alleged to have been contravened by the JSC under paragraph 63(b) of the petition. When too many laws were cited in any Petition, there was always a risk of imprecision. Unfortunately, many litigants appeared to think that the more laws they cited, the higher the probability of success. The court did not have jurisdiction to determine whether the JSC flouted the Vetting of Judges and Magistrates (Amendment) Act 2013. The process and outcome at the particular board was found to be null and void for want of jurisdiction.
- The prayer to quash the charge, proceedings and determination by the JSC could not be granted wholesale. The court had concluded that the charge was properly drawn. The five complaints reached the JSC regularly. Details of the complaints were stated. Proceedings took place in accordance with the Judicial Service Act. Those proceedings led to dismissal of other charges against the petitioner. There was no justifiable reason to quash a charge sheet that was regularly drawn, and proceedings regularly convened and concluded.
- The court was not persuaded that the petitioner was denied rights under article 27 of the Constitution, on equality and freedom from discrimination. Her petition was not about discrimination. The focus of her grievance similarly was not on article 28 on the right to human dignity. The conduct of regular disciplinary proceedings against her did not violate her dignity. She was not removed from office without due process of the law, in violation of article 236(b) of the Constitution. She was however, victimized for having performed the functions of her office in accordance with the Constitution or any other law, in violation of article 236(a).
- The Constitution and the Judicial Service Act mandated the JSC to administer disciplinary proceedings and sanctions against judicial officers. Exercise of that mandate was not shown to violate the petitioner’s right to inherent dignity, warranting compensation by the respondent. Once the dismissal decision involving a state officer was adjudicated unlawful, null and void, reinstatement was an automatic remedy. The petitioner was a state officer as defined under article 260 of the Constitution.
Petition partly allowed.
- Declaration that the petitioner’s dismissal by the JSC from judicial service, violated the petitioner’s constitutional rights under articles 41(1), 47(1), 50, 160(5) and 236(a) of the Constitution and substantive statutory rights under sections 43 and 45 of the Employment Act, 2007.
- The decision by the JSC, dismissing the petitioner from judicial service on the ground of incompetence was quashed.
- The petitioner was granted an order of automatic reinstatement, without loss of rank, salary and benefits from the date of dismissal.
- No order on the costs.
Subjecting All the Candidates for The Positions of MCA to A Minimum of University Degrees Prejudiced the Rights and Fundamental Freedoms of Those Who Were Not Able to Directly Acquire/Afford University Degrees.
County Assembly Forum & 6 others v Attorney General & 2 others; Senate of the Republic of Kenya (Interested Party)  eKLR
Constitutional Petition E229, E225, E226, E249 & 14 of 2021 (Consolidated)
High Court at Nairobi
AC Mrima, J
October 15, 2021
Reported by Ribia John
Constitutional Law – fundamental rights and freedoms – enforcement of bill of rights - right to institute court proceedings claiming that a right or fundamental freedom in the Bill of Rights had been denied, violated or infringed, or was threatened - Whether the right to petition Parliament to consider any matter within its authority took away the right of a party to question the constitutionality of an Act of Parliament, or any action taken by the legislature – whether the power of Parliament under to enact, amend or repeal any legislation was curtailed by the High Court’s exercise in the exercise of its jurisdiction to question whether any law was inconsistent with or in contravention of the Constitution - - Constitution of Kenya, 2010 articles 3, 22, 94, 95, 119(1), 165(3) and 258; Elections Act, Act no 24. Of 2011, section 22(1)(b)(ii).
Constitutional Law – fundamental rights and freedoms – limitation of fundamental of political rights – political rights - the right to be a candidate for public office, or office within a political party of which the citizen is a member and, if elected, to hold office - whether the requirement eligibility criteria that limited the persons that may vie for the post members of county assembly to degree holders was a limitation of the right to be a candidate for public office, or office within a political party of which the citizen is a member and, if elected, to hold office of Kenyans without a university degree – whether such a limitation as justifiable – Constitution of Kenya, 2010, articles 24 and 38(3); Elections Act, Act no24. Of 2011, section 22(1)(b)(ii).
Constitutional Law– fundamental rights and freedoms – freedom against discrimination – rights of minorities and marginalized groups - whether subjecting all the candidates for the positions of Member of County Assembly (MCA) to a minimum of university degrees prejudiced the rights and fundamental freedoms of those who were not able to directly acquire/afford university degrees – whether the section 22(1)(b)(ii) of the Elections Act failed to take into account the rights of the minority and marginalised groups – Constitution of Kenya, 2010 articles 27 and 56; Elections Act, Act no 24. Of 2011, section 22(1)(b)(ii).
Statutes – interpretation of statutes – interpretation of section 22(1)(b)(ii) of the Elections Act (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) – constitutionality of the impugned provision - whether the section 22(1)(b)(ii) of the Elections Act disregarded any other qualification applicable in the election of an MCA other than the qualification for a university degree - whether the section 22(1)(b)(ii) of the Elections Act had the effect of subjecting all elective positions in Kenya to the same academic qualifications without due regard to the different attending responsibilities bestowed by the various elective offices; Elections Act, Act no 24. Of 2011, section 22(1)(b)(ii); National Qualification Act.
Words and Phrases – res judiciata – definition of – “A thing adjudicated. An issue that has been definitively settled by judicial decision. An affirmative defence barring the same parties from litigating a second law suit on the same claim, or any other claim arising from the same transaction or series of transactions and that could have been; but was not -raised in the first suit. The three essential elements are (1) an earlier decision on the issue, (2) a final judgment on the merits, (3) the involvement of the same parties, or parties in privity with the original parties” - The Black’s Law Dictionary, Thomson Reuters, 10th Edition.
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.
- Whether the instant case was res judicata.
- Whether article 119 of the Constitution (that granted every person the right to petition Parliament to consider any matter within its authority) took away the right of a party to question the constitutionality of an Act of Parliament, or any action taken by the legislature.
- Whether the power of Parliament under to enact, amend or repeal any legislation was curtailed by the High Court’s exercise in the exercise of its jurisdiction to question whether any law was inconsistent with or in contravention of the Constitution.
- Whether the requirement eligibility criteria that limited the persons that may vie for the post members of county assembly to degree holders was a limitation of the rights the right to be a candidate for public office, or office within a political party of which the citizen is a member and, if elected, to hold office of Kenyans without a university degree.
- If yes, whether the said limitation was justifiable.
- Whether the section 22(1)(b)(ii) of the Elections Act disregarded any other qualification applicable in the election of a Member of County Assembly (MCA) other than the qualification for a university degree.
- Whether subjecting all the candidates for the positions of MCA to a minimum of university degrees prejudiced the rights and fundamental freedoms of those who were not able to directly acquire/afford university degrees.
- Whether the section 22(1)(b)(ii) of the Elections Act had the effect of subjecting all elective positions in Kenya to the same academic qualifications without due regard to the different attending responsibilities bestowed by the various elective offices.
- Whether the section 22(1)(b)(ii) of the Elections Act failed to take into account the rights of the minority and marginalised groups.
- What principles were to be considered in the application of the doctrine of public participation. Read More...
Relevant Provisions of the Law
Elections Act, Act No. 24 of 2011
22. Qualifications for nomination of candidates
(1) A person may be nominated as a candidate for an election under this Act only if that person—
(a) is qualified to be elected to that office under the Constitution and this Act; and
(i) in the case of a Member of Parliament, a degree from a university recognized in Kenya; or
(ii) in the case of member of a county assembly, a degree from a university recognized in Kenya.
- 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 decision of Johnson Muthama -vs- Minister for Justice and Constitutional Affairs & Another (2012) eKLR, could only be in support of the consolidated petitions. The contention that the consolidated Petitions were res judicata was dismissed. The decisions in John Harun Mwau v Independent Electoral and Boundaries Commission & another  eKLR and Johnson Muthama v Minister for Justice and Constitutional Affairs & another  eKLR did not deal with section 22(1)(b)(ii) of the Elections Act which was the subject of the instant consolidated petitions. The consolidated petitions challenged an amendment passed in 2017 whereas the earlier decisions dealt with some other amendments passed earlier on.
- The issues raised in the consolidated petitions related to the university degree qualifications for those intending to vie for the positions of Members of County Assembly. The issue arose in 2017 when Parliament passed a legislation amending the then prevailing law. By then, there was no university degree requirement for those seeking to vie for the position of Members of County Assembly. As such, the issue now raised in the consolidated Petitions could not have been litigated in John Harun Mwau v Independent Electoral and Boundaries Commission & another  eKLR and in Johnson Muthama v Minister for Justice and Constitutional Affairs & another  eKLR.
- The now 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 -vs- Attorney General & Another case (2020) eKLR However, the court declined jurisdiction and the matter was not fully and finally determined. The consolidated petitions were not res judicata.
- The ripeness doctrine was one facet of the larger principle of non-justiciability. It was a jurisdictional issue that barred a court from considering a dispute whose resolution had not crystallized enough as to warrant court’s intervention. Its operation was informed by the idea that there existed other fora with the capacity to resolve the dispute other than court process.
- The National Assembly was part of the Parliament of Kenya. Its primary function was codified in articles 94 and 95 of the Constitution of Kenya, 2010 (Constitution). Article 119 did not take away the right of a party to question the constitutionality of an Act of Parliament, or any action taken by the legislature, guaranteed under articles 22 and 258. Article 119(1) would serve a useful purpose in allowing citizens to petition Parliament to consider matters of concern to them that were within the purview of Parliament, including the repeal or amendment of legislation.
- Where there was a clear procedure for redress of any particular grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed. Article 3(1) of the Constitution enjoined every person to respect, uphold and defend the Constitution. Similarly, article 258(1) donated the power to every person to institute court proceedings claiming that the Constitution had been contravened, or was threatened with contravention. If the court were to shirk its constitutional duty under article 165(3)(d), it would have failed in carrying out its mandate as the temple of justice and constitutionalism and the last frontier of the rule of law. The argument that the petitioner should have approached Parliament under article 119(1) was without merit.
- The power of Parliament under article 119 of the Constitution to enact, amend or repeal any legislation was not in any way curtailed by the High Court’s exercise of its jurisdiction under article 165(3) of the Constitution. Whereas Parliament had the preserve to enact, amend or repeal any legislation, courts had the duty to ensure that Parliament inter alia kept within the constitutional borders while discharging its mandate. That was where the difference lay. As such, the court’s exercise of its jurisdiction in determining whether Parliament acted within the Constitution in coming up with the impugned law could not be seen as an affront to the doctrine of separation of powers. The two were distinct mandates under the Constitution.
- A claim 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 was very different from Parliament’s power to reconsider and possibly amend or repeal the impugned provision. There was no proposition that the decision of Parliament on the public petitions was binding on the court. The contention that the consolidated petitions were caught up by the doctrine of ripeness was hereby dismissed.
- 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. The entire Constitution had to be read as an integrated whole, and no one particular provision destroying the other but each sustaining the other. That was the rule of harmony, the rule of completeness and exhaustiveness and the rule of paramountcy of the written Constitution
- The post of a Member of County Assembly (MCA) was primarily informed by the concept of devolution. There was need to decentralize power and government services by having a political representative of the people at the lowest cadre of the political spectrum. As a result, the Constitution created County Governments under article 176. Being the lowest cadre of representation of the people, a County Assembly was created for each county. Article 177 of the Constitution created the smallest unit of political representation called the ward.
- The impugned provision was a limitation to the political rights under article 38(3) of the Constitution. As a result, such a limitation had to pass the constitutional muster in article 24 of the Constitution.
- The creation of the elective position of MCA served two main purposes. First, the position was constitutionally entrenched for the purpose of enhancing service delivery to the people. Second, the position was created in order to open up democracy through the enlargement of people participation in governance. A permissible limitation had to be reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom.
- According to the 2019 Kenya Population and Housing Census Report (hereinafter referred to as ‘the Report’) only 1.2 Million Kenyans held university degrees. That translated to 3.5% of the entire Kenyan population. Out of the 1.2 Million university graduates, 25% of them were in Nairobi County. The balance was shared between the rest of the 46 counties. The report gave the statistics at Ward levels. For instance, in Mau Forest sub-county which has 5 wards there were only 2 university graduates. It, hence, meant that some of the Wards would not have representatives, that was if the two graduates successfully offered themselves for the positions of MCAs. More appalling was the fact that there were no university graduates in the entire Mt. Elgon sub-county as well as Kakamega Forest sub-county. The Report was part of the evidence in the consolidated petitions. The impugned provision would have adverse effects on the representation of the people at the ward level. The impugned provision had the effect of rendering some wards without representation at the county assemblies.
- The law recognized other modes of qualifications further to the convectional ones. The law established the manner in which relevant qualifications may be awarded to a person. Such qualifications could, in appropriate instances, be equated to convectional degrees. There was a law which attained the same purpose as the impugned provision. 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 MCAs.
- 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 MCAs 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.
- Although the petitioners did not state the average cost of obtaining a degree qualification in Kenya, there was no doubt that there was such a cost and that the cost was not within the reach of the majority of Kenyans. The court took judicial notice of the fact that most Kenyans were 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 MCA 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.
- The Covid-19 pandemic interfered with the university academic programmes such that there were those students who were 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. There was no response to the contestation. The 6th petitioner was a student at the Kenyatta University School of Security, Diplomacy and Peace Studies. He hoped to graduate before 2022, but as a result of the effects of the pandemic, he would not have graduated by the year 2022. such a class of university students would stand discriminated if the impugned provision stands.
- The impugned provision had the effect of making all elective positions in Kenya attracted similar academic qualifications. All those who aspired to vied for the position of the President, the Deputy President, Governor, Member of Parliament and MCA in Kenya had to possess a minimum of a university degree academic qualification. The responsibilities bestowed upon the offices of the President, the Deputy President, Governor, Member of Parliament and MCA differed. The President, bore the greatest and overall responsibility as the Head of State and Government in Kenya whereas the MCA was a representative of the smallest representative unit in Kenya known as a Ward. Whereas on one hand there was only one President in Kenya, there were, on the other hand, over 2000 MCAs in the country.
- The need for differentiated qualifications, whether academic or otherwise, became apparent. The dominant perception at the time of constitution-making was that the deconcentration of powers would open up the scope for political self-fulfilment, through an enlarged scheme of actual participation in governance mechanisms by the people – thus giving more fulfilment to the concept of democracy, it could only be logical to have different academic qualifications, at least for the lowest cadre of the representatives of the people being the MCAs.
- The court was not fronting the position that university educational qualifications or their equivalent were not necessary for those that sought the candidature of MCAs. The reality was that Kenya was a member of the international community and had so far taken several steps and programmes in attaining some of the globally agreed standards. Such included 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. A time was soon catching up with Kenya when the dictates of global demands and trends would make a university degree qualification or its equivalent an inevitable necessity in every elective position. However, at the moment, 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 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. As Parliament discharged its legislative responsibility it had to focus and had to also be on the ethical standards of those seeking public offices and not only on educational pursuits.
- The impugned provisions 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 an affront to the Constitution. 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. It also failed to treat every person equal before the law. Whereas the law recognised equivalent qualifications, the impugned provision out-rightly disregarded that and firmly settled for only convectional university degrees. The impugned provision also failed 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.
- Article 38(3) of the Constitution was also infringed to the extent that the impugned provision placed unreasonable restrictions to the exercise of political rights. The impugned provision failed to take into account the dictates in article 56 of the Constitution regarding the rights of the minority and marginalised groups.
- A commitment to a right to public participation in governmental decision-making was derived not only from the belief that we improve the accuracy of decisions when we allowed people to present their side of the story, but also from our sense that participation was necessary to preserve human dignity and self-respect
- The following principles were to be applied whenever the application of the doctrine of public participation came into issue:
- It was incumbent upon the government agency or public official involved to fashion a programme of public participation that accorded with the nature of the subject matter. It was the government agency or public official who was to craft the modalities of public participation but in so doing the government agency or public official had to take into account both the quantity and quality of the governed to participate in their own governance. Yet the government agency enjoyed some considerable measure of discretion in fashioning those modalities.
- Public participation called for innovation and malleability depending on the nature of the subject matter, culture, logistical constraints, and so forth. No single regime or programme of public participation could be prescribed and the courts would not use any litmus test to determine if public participation had been achieved or not. The only test the courts used was one of effectiveness. A variety of mechanisms could be used to achieve public participation.
- Whatever programme of public participation was fashioned, it had to include access to and dissemination of relevant information. Participation of the people necessarily required that the information be availed to the members of the public whenever public policy decisions were intended and the public were to be afforded a forum in which they could adequately ventilate them.
- Public participation did not dictate that everyone had to give their views on the issue at hand. To have such a standard would be to give a virtual veto power to each individual in the community to determine community collective affairs. A public participation programme, had to, however, show intentional inclusivity and diversity. Any clear and intentional attempts to keep out bona fide stakeholders would render the public participation programme ineffective and illegal by definition. In determining inclusivity in the design of a public participation regime, the government agency or public official had to take into account the subsidiarity principle: those most affected by a policy, legislation or action had to have a bigger say in that policy, legislation or action and their views had to be more deliberately sought and taken into account.
- The right of public participation did not guarantee that each individual’s views would be taken as controlling; the right was one to represent one’s views – not a duty of the agency to accept the view given as dispositive. However, there was a duty for the government agency or public official involved to take into consideration, in good faith, all the views received as part of public participation programme. The government agency or public official could not merely be going through the motions or engaging in democratic theatre so as to tick the constitutional box.
- The right of public participation was not meant to usurp the technical or democratic role of the office holders but to cross-fertilize and enrich their views with the views of those who will be most affected by the decision or policy at hand.
- 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.
- Parliament had to come up with an enactment in the nature of the impugned provision, there was need for elaborate and comprehensive public participation and stakeholder engagement. 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, the National Assembly chose to ignore all that. There was no public participation towards the enactment of section 22(1)(b)(ii) of the Elections Act. The impugned provision falls short of the constitutional requirement under article 10(2)(a) of the Constitution.
- 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.
- 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.
- 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.
- No order as to costs as the matter was public interest litigation.
CEO and Editor -
Prof. Jack Mwimali
The Kenya Law Team
Where Legal Information is Public Knowledge.
The National Council for Law Reporting | P.O Box 10443 - 00100, Nairobi Kenya. | www.kenyalaw.org