Weekly Newsletter 045/2020



Kenya Law

Weekly Newsletter


 Provision of Educational Services through Virtual class or Digital class during the Covid-19 pandemic did not constitute a normal school term and the same was unlawful for lack of stake-holder consultations.
 
M H & 2 others (Suing of their Own Accord and on Behalf of Oampga Parents and Guardians of Minor Students Enrolled In Oshwal Mombasa) v Nitin Pravinchandra  Malde & 7 others [2020] eKLR
Constitution Petition No.30 of 2020
High Court at Mombasa
D Chepkwony, J.
September 2, 2020
Reported by Beryl Ikamari & George Kariuki
Download the Decision
 
Constitutional Law – fundamental rights and freedoms – right to education and freedom from discrimination – access to education – whether it was constitutional for a virtual learning system utilised by a school to include terms wherein students that failed to pay for it would be deregistered from the school – Constitution  of Kenya 2010, articles 27 and 53.
Constitutional Law – fundamental rights and freedoms – fair administrative action and  consumer rights – rights of an individual to be consulted before a decision that affected that individual was made - where a school altered the terms of learning to introduce virtual e-learning as a response to the Covid – 19 pandemic without consulting the parents – whether such alteration of terms entailed a violation of consumer rights and rights to fair administrative action- Constitution  of Kenya 2010, articles 46 and 47.
Constitutional Law – fundamental rights and freedoms –  children’s rights -  best interest of the child – whether a court could make orders requiring discounted rates of school fees to be charged for purposes of virtual e-learning – Constitution of Kenya 2010, article 53.

Brief facts:
The petitioners were parents who had enrolled their children in the respondent’s private institution. In the period between March 16, 2020 and April 9, 2020 the respondent by themselves or their agents offered educational services through “virtual learning” in a bid to ensure continuity of learning. As a precondition for enrollment, parents were expected to pay school fees in full save for a conditional rebate of between Kshs. 5,000/= and Kshs. 10,000/=.
The petitioner contended that the admission agreement with the respondents did not include such terms as virtual learning experience being an exclusive mode of providing of educational services or at all. It also did not contain a future agreement or promise for the provision of educational services to the petitioners through virtual learning without further solicitation. Offering of learning through VLE (virtual e- learning) only catered for a negligible fraction of the wide threat of educational services offered at the school which was a material change in their Consumer Agreement.
The petitioners’ contention was that there were compelling justifications for reduction of fees including the economic challenges brought about by the Covid-19 crisis and that other Institutions were offering reasonable discounts to their consumers.

 
Issues:
  1. Whether the period between the closure of schools on March 15, 2020 and the normal reopening as directed by the Ministry of Education constituted a normal school term.
  2. Whether there was violation of the right to equality and freedom from discrimination and rights to education where a virtual e- learning system included terms where students who did not pay for it would be deregistered from the school.
  3. Whether the court could order a school to adjust the tuition fees to discounts suggested by parents owing to the Covid – 19 pandemic.
 
Held:
  1. The offer of virtual learning by the school in the period between closure of the respondent’s school on March 15, 2020 and the normal reopening thereof as directed by the Ministry of Education did not constitute a normal school term.
  2. It was common ground that in response to the first reported case of the Coronavirus (Covid-19) Pandemic in the Republic of Kenya, the closure of all educational institutions within the Republic with effect from March 10, 2020 up to and including May 3, 2020 was communicated vide a Press Statement made on March 9, 2020. The Ministry of Education subsequently extended the closure of said Educational Institutions up to and including June 4, 2020 and a further subsequent extension up to January, 2021 when it was expected that schools would reopen. Therefore, the 2020 school calendar year was considered lost to public and private schools alike due to the Covid -19 pandemic and the respondent was no exception.
  3. As an implied term of the law, the respondents had an obligation to offer reasons for any administrative action that affected the rights of the parents as well as the students when such a concern was raised, which duty they failed to discharge.
  4. Being a private entity that exercised administrative authority over the parents and students enrolled in the institution including the petitioners, the respondents were under an obligation to address any concerns raised by the petitioners and offer reasons for any administrative action at the request of the Petitioners.
  5. The respondents’ actions and decisions, which entailed demanding for fees for virtual learning while stating that those that did not pay would be deregistered from the school,rightly affected the legal rights and interest of the said parents and students flowing from the contract executed when enrolling the students in the respondent’s institution.
  6. It was therefore an implied term of the contract between the parties that the administrative decisions by the respondents would be reasonable and fair depending on the circumstances of the case and that the parents as well as the student by dint of the contracts reserved a right of representation in any administrative action undertaken by the respondents.
  7. Students enrolled in schools were direct consumers and even though not all kinds of activities performed by the school would be classified as marketable services due to the nature of those particular services, the school was well within the scope of consumer protection laws.
  8. In the consumer agreement, the petitioners made a decision to be bound to pay school fees in full upon demand in exchange for provision of educational services. Evidence adduced showed that the school was unable to meet its part of the bargain due to conditions arising out of the Covid -19 pandemic.
  9. There was a burden on the school to pay its staff during those months where Covid-19 affected learning at the school, hence the court was reluctant to order a 70% discount on fees charged as prayed.
  10. The petitioners were obliged to pay school fees for the roll-out to the VLE (virtual e- learning system). They failed to show how their rights had been infringed in terms of the manner of infringement and the nature and extent of the infringement.

Orders: -

  1.  The petition was allowed and the provision of educational services through virtual class or digital class was declared unlawful as the same did not constitute a normal school term, was ultra vires the parents’ consumer rights and the same was done without consultation.
  2.  The respondents were ordered to facilitate the formation of a Parents’ Teachers Association (PTA) within 60 days pursuant to section 55 of the Basic Education Act No.14 of 2013.
  3. The respondents were ordered to engage the Parents’ Teachers Association (PTA) in matters of provision of educational services through virtual class or digital class and deliberation on the tuition fees payable.
  4. The respondents were ordered to continue providing educational services through virtual class and parents who wished to enroll their children to the virtual classes were to pay the full tuition fees.

Each party was ordered to bear their own costs

Kenya Law
Case Updates Issue 045/2020
Case Summaries

CONSTITUTIONAL LAW The presidential “state of the nation address” directing the indefinite closure of schools declared unconstitutional for causing psychological harm to school-enrolled children and for being against the best interests of the child.

Joseph Enock Aura v Cabinet Secretary, Ministry of Education, Science & Technology & 3 others; Teachers Service Commission & 6 others (Interested Parties) [2020] eKLR
Constitutional Petition No. 2189 of 2020
High Court at Nairobi
JA Makau, J
November 19, 2020
Reported by Beryl Ikamari & George Kariuki

Download the Decision

Constitutional Law - fundamental rights and freedoms - right to education - whether closure of schools for purposes of combating the Covid - 19 pandemic was constitutional and whether it exposed children to psychological harm - articles 10(2)(a), 10(2)(b), 22, 23, 53, 131 (2) (e), and 135; Children Act, No 8 of 2001, sections 4 32(2) and 22; Basic Education Act, No 14 of 2013, sections 4(l), 42, 55 and 70; Public Health Act, (cap 242) section 32.
Constitutional Law - constitutionality of subsidiary legislation - enactment relating to closure of schools in order to combat the Covid - 19 pandemic - role of the Cabinet Secretary for Health and the role of the Cabinet Secretary for Education, Science and Technology - whether the enactment met constitutional and statutory thresholds including provisions on the best interests of the child as a paramount consideration - Constitution of Kenya 2010, article 53(2) and Children Act, No 8 of 2001, sectiosn 4 32(2) and 22; Basic Education Act, No 14 of 2013, sections 4(l), 42, 55 and 70; Public Health Act, (cap 242) section 32.

Constitutional Law - office of the Attorney General - the Attorney General as an advisor to the Executive - whether the Attorney General failed to advise the Executive on how to comply with the law when undertaking a closure of schools due to the Covid - 19 pandemic.
Constitutional Law – constitutional litigation – drafting of petitions - precision in drafting petitions - whether a petition had been drafted in a manner that sufficiently and precisely set out a claim so as to enable parties to respond to it and the court to make a determination.
Constitutional Law - national values and principles of governance - public participation - whether the process of the enactment of the community based learning program failed to meet public participation requirements and was therefore unconstitutional - Constitution of Kenya 2010, article 10.

Brief Facts
The petition was brought in response to the “State of the Nation Address” by the President on March 15, 2020 that directed the indefinite closure of schools on the basis of the novel Covid-19 pandemic among other measures. The petitioner brought the petition on behalf of his children: JLA (aged 21 years), JMA (aged 18), and DTA (aged 16 years) for compensation for the psychological suffering inflicted on them by the Government of Kenya’s closure of in-person learning since March 16, 2020, in breach of their rights against such freedom from psychological torture and right to human dignity. The petition was also brought on behalf of millions of such other school going children.
The petitioner also contended that the Executive through the Ministry of Education and the Ministry of Health failed to provide the basis for the unilateral closure of schools without consultation with National and County Education Boards even after being probed by the petitioner. Those administrative actions were contended to be ultra vires the best interests of the child as constitutionally founded.
Lastly, the petition opposed the community based learning enacted by the Ministry of Education as a remedial measure for arresting the effects of Covid-19 on Education. The petitioners contended that the policy had no underpinning under the law.

Issues:

  1. Whether the closure of schools following a directive issued by the President of the Republic of Kenya in a “State of the National Address” as part of the measures put in place to combat the Covid – 19 pandemic was unconstitutional?
  2. Whether the closure of schools as part of the measures put in place to combat the Covid – 19 pandemic caused psychological harm to school-enrolled children?
  3. What was the role of the Cabinet Secretary for Health in the enactments of legislative measures about Covid-19 pandemic?
  4. Whether enactments related to the Covid- 19 pandemic met legal and constitutional thresholds with respect to the right to education of school enrolled-children?
  5. Whether the Cabinet Secretary for Education, Science and Technology discharged its mandate under article 53(2) of the Constitution as read together with section 32(2) of the Children’s Act, in the face of the open-ended closure of schools over the Covid – 19 Pandemic and whether it was in ‘the best interest of the child’ to re-open schools?
  6. Whether the Attorney-General was liable for his failure to advice the Executive to adhere to the relevant statutory requirements when closing schools due to the Covid – 19 Pandemic?
  7. Whether the amended Petition was sufficiently and precisely pleaded or it was based on conjecture?
  8. Whether the community based learning program as enacted was legal? Read More..

Held:

  1. In exercise of executive authority, the President was bound to promote service to the people for their well-being and benefit. In doing so, the President was required to consult with the County and National Executive Boards.
  2. According to rules of practice, petitioners approaching the constitutional court were required to disclose in their petition a brief statement of facts with reference to exhibits, attached to the petition, issues arising for determination and a concise statement of argument on each issue incorporating the relevant authorities referred to.
  3. The petitioner failed to specifically plead the breach allegedly committed in the President’s address and facts about that were not provided in any part of the petition. In that regard, the court had inherent jurisdiction to prevent an abuse of its process and it therefore had a duty to intervene and stop such proceedings to prevent abuse of the court process.
  4. In issuance of the “State of the Nation Address” pursuant to article 10of the Constitution, the President was entitled to address the nation on any issue of national concern, as it arose anywhere. The closure of schools following a directive issued by the President of Republic of Kenya in a “State of the Nation Address” was therefore constitutional and did not violate the Constitution of Kenya in any way.
  5. Injuries suffered as a result of discrimination, harassment or inhuman and degrading treatments were no less real because they did not possess tangible physical or financial consequences. The difficulty in assessing the amount of compensation for that type of injury ought not to deter the court from recognizing its potential.
  6. There was genuine prospect that the effects of the indefinite closure of schools would permanently alter the lives of children caught in the apex of the Covid-19 pandemic.
  7. Evidence was adequately adduced to the effect that children who faced acute deprivation in nutrition, protection or stimulation, or periods of prolonged exposure to toxic stress, during the critical window of early childhood development were likely to develop lifelong challenges as their neurological development would be impaired.
  8. Children who dropped out of school would not only face a higher risk of child marriage, child labour, and teenage pregnancies, they would also see their lifetime earning potential precipitously fall. Children who experienced family breakdowns during the period of heightened stress risk would lose the sense of support and security on which children’s wellbeing depended.
  9. The petitioner pleaded, particularized, and proved that the closure of schools would cause psychological harm to school-enrolled children.
  10. Constitutionally, information required by any person ought to have at first been requested for the enforcement or protection of another right and been denied before a violation of the right to information could be alleged. The petitioner failed to prove the allegation against provision of information to the required standard of proof.
  11. The benefit of the petitioner’s school going children and other school children attending school in-person out-weighed the risks of Covid – 19 as urged by the respondent as long as the respondents ensured that Covid – 19 measures and safety protocols were put in place and fully complied with in each and every school by both the learners and the teachers.
  12. The best interest of any child was to be in school in-person as there was more control, guidance and provision of health safe measures in the school than leaving the children roaming in the villages or shanties or towns without observing any Covid-19 Health Protocols.
  13. It was important for school-gong children to have the social interaction and academic development that could be reaped only from in-person learning. Therefore, the school going children would reasonably be safe in school given that health conditions that would place children at health risk were given priority.
  14. The acts of default alleged against the Attorney General were not particularized or specifically pleaded and there was no demonstration from the petitioner that any such impugned acts were done. There was no demonstration on part of the petitioner that the impugned acts were done in bad faith for executing the functions, power’s or duties of the commission so as to render the Attorney General liable to any action, claim or demand whatsoever. There was therefore no basis in the petitioners’ allegation that the Attorney General failed to advise the Executive.
  15. The petition was drawn in accordance with guidelines statutorily set out for drawing constitutional petitions. The petition was therefore not an abuse of the court process as the relevant articles were clearly stated as were the particulars.
  16. Evidence was sufficiently adduced to the effect that the interest of justice as regards the welfare of children would be better served when the children were at school than when out of school without any control as regard person-to-person contact. The respondents could have given directions when most of the children were at school.
  17. The Executive stepped beyond what the law and the Constitution permitted. They could therefore not seek refuge in illegality and hide under the twin doctrines of parliamentary privilege and separation of powers to escape judicial scrutiny.
  18. The respondents did not rebut the petitioner’s contention that the community Based Learning program was unilaterally commenced, that there were no consultations with the stakeholders and that they were not on relevant provisions of the Basic Education Act.
  19. There was a sixteen-member Committee appointed by the Minster but there was no evidence that the committee made any report on Community Based Learning Program and even if they did so, it was not supported by any provisions of the Basic Education Act. The project was ultra vires the Act and was therefore null and void for all purposes and intentions.

Orders:-

  1. A declaratory Order was issued declaring that each of the petitioner’s school-going children subject of this petition, JLA (aged 21 years), JMA (aged 18), and DTA (aged 16 years) and all equally implicated Kenyan school-going children and learner’s fundamental rights and freedoms in relation to their education as enumerated in the petition were contravened and grossly violated by the respondents as enumerated in the petition.
  2. An order was issued declaring that pursuant to article 10 (2) (a) and 10 (2) (b) of the Constitution of Kenya, the 1st respondent was bound by the principles of patriotism, public participation, transparency, fairness, human rights, and good governance in the execution of the terms of his portfolio and duties appurtenant to the education sector in Kenya as spelt out in the applicable statutory regimes, and any recommendations by any person or entity to the 1st respondent on the closure and reopening program of schools in Kenya at any time conducted without involving the National Education Board, the respective County Education Boards, the County Parent’s Associations from school through a delegate system as mandated in the Third Schedule to the Basic Education Act was null and void.
  3. A declaratory order was issued declaring that, in prolonging the open-ended closure of schools and learning institutions in Kenya from March 16, 2020 to date without any consultations with the parents, guardian of school-enrolled children, affected learners in diverse learning institutions, in conjunct with the National Education Board and respective County Education Boards, the 1st respondent’s (Cabinet Secretary, in charge of Education’s) action was ultra vires Section 4 (I) and Section 70 of the Basic Education Act.
  4. A declaratory order issued declaring that the “community-based” learning project announced by the 1st respondent on July 30, 2020 in conjunct with the 1st Interested Party, (Teachers Service Commission) was null and void for want of public participation and consultation with the National Education Board, respective County boards across Kenya, and the petitioner via his cited children’s school, and like parents of school-enrolled children across Kenya.
  5. An order of injunction was issued to restrain the 1st respondent by himself, his assistants and partners, agents, servants, or otherwise howsoever, together with the 1st interested party, Teacher Service Commission from undertaking, or further executing the “community-based learning” project in schools and learning institutions across Kenya as announced by the 1st respondent on July 30, 2020.
  6. An order of mandamus was issued to compel the 1st respondent to immediately direct the re-opening of in-person learning institutions and schools in Kenya, observing the health and safety guidelines and considering a safe environment, commencing forthwith and not later than 60 days of the order for learning institutions and schools across the Republic of Kenya so as to have all the learners in learning institutions and schools enjoying in-person learning.
  7. An order of certiorari by way of judicial review was issued to bring into the court for purposes of quashing, the 1st respondent’s decision made on July 30, 2020 purporting to declare and execute “community-based learning” program in schools, learning institutions, churches and places of worship across Kenya, for lacking of public participation and being ultra vires Section 42 (1) of the Basic Education Act, Act No. 14 of 2013.
  8. Each party was directed to bear their own costs in the petition.
JUDICIAL REVIEW

Demand for taxes on Jet A1 fuel for local use for the period December 2015 to August 2016 found to be unreasonable.

Vivo Energy Kenya Limited v Commissioner of Customs & Border Control, Kenya Revenue Authority & another [2020] eKLR
Judicial Review Application No 346 of 2019
High Court at Nairobi
W Korir, J
October 15, 2020
Reported by Beryl Ikamari

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Judicial Review - grounds for judicial review - breach of legitimate expectation - whether a legitimate expectation not to pay tax was in existence when recommendations had been made for the abandonment of the tax, a notice of objection against the tax had been allowed by operation of the law and no system for the payment of the tax had been put in place.
Judicial Review - grounds for judicial review - unreasonableness - whether a demand for tax was unreasonable where a system for the collection of the tax had not been set up, a notice of objection against the payment of the tax had been allowed by operation of the law and there were recommendations for the tax to be abandoned.
Jurisdiction - jurisdiction of the High Court - where there was no decision to appeal against - whether the High Court had jurisdiction where a notice of objection lodged by a taxpayer had not been responded to within the requisite statutory sixty day period - Tax Procedures Act, No 29 of 2015, sections 3 and 51(11).
Judicial Review - institution of judicial review proceedings - exhaustion of alternative remedies - exceptions to the doctrine of exhaustion - where there was no decision capable of being appealed against at the Tax Appeals Tribunal - whether in a situation where the Commissioner failed to make a decision on a notice of objection by a taxpayer within the requisite statutory period, judicial review remedies were available for any administrative wrongs done before and after the filing of the notice of objection - Constitution of Kenya 2010, article 159(2)(c); Fair Administrative Actions Act, section 9(4).

Brief Facts:
Without citing an enabling provision of the law, the 1st respondent demanded from the applicant Kshs. 109,759,855/= being excise duty on locally consumed Jet A1 fuel for the period of December 1, 2015 to August 31, 2016. The 1st respondent sent another demand letter on October 25, 2016 for the same tax but for an increased amount of Kshs. 127,183,364/=. In response, the applicant lodged a notice of objection dated November 8, 2016 to which the 1st respondent did not respond within the statutory 60 days allowed for the making of the response. Consequently, the applicant argued that the failure to make a response meant that under section 51(11) of the Tax Procedures Act, the response was allowed and it was not obliged to pay the demanded tax.
Later, on October 3, 2019 and October 24, 2019, the 1st respondent made demands for the payment of the same tax but for a varied amount of Kshs. 109, 759, 855/=
The applicant contended that it had legitimate expectation that the tax would not be payable until September 2018 as the Kenya Revenue Authority's system explicitly recognized that no excise duty was payable and the 1st respondent did not provide for or allow for the payment of excise duty. The applicant said that it made payments for the tax on November 18, 2019 due to pressure from the 1st respondent and threats of adverse enforcement measures.
The respondents raised a challenge stating that the court lacked jurisdiction to hear and determine the matter and also stated that the matter had been overtaken by events as the applicant had already paid for the tax. They added that an order of prohibition could not be issued to stop what had already been done.

Issues:

  1. Whether the High Court had jurisdiction to hear and determine a matter wherein a notice of objection against demands made for tax had not elicited a response from the Commissioner within the requisite statutory period.
  2. When would the doctrine of exhaustion be inapplicable to a matter?
  3. What were the legal consequences of a failure by the Commissioner to make a decision within sixty days upon receipt of a notice of objection from a taxpayer?
  4. When would a legitimate expectation be said to be in existence?
  5. When would a decision be said to be unreasonable?
  6. Whether it was unreasonable for a Commissioner to demand for taxes during the existence of a recommendations to abandon the taxes and after failing to respond to a notice of objection against the payment of the tax had been allowed by operation of the law. Read More...

Held:

  1. The doctrine of exhaustion was recognized under article 159(2)(c) of the Constitution and section 9(4) of the Fair Administrative Action Act. It ensured that parties exhausted all available remedies before seeking judicial review. An exemption to the doctrine was provided under section 9(4) of the Fair Administrative Action Act, under which an application for an exemption could be made where there were exceptional circumstances which warranted it.
  2. An appealable decision under section 3 of the Tax Procedures Act was defined as an objection decision and any other decision made under a tax law other than a tax decision or a decision made in the course of a tax decision. There was no decision made in relation to the applicant's notice of objection and therefore the applicant did not have a decision to appeal against at the Tribunal. The applicant faced exceptional circumstances not envisaged under the Tax Procedures Act.
  3. Section 51(11) of the Tax Procedures Act was to the effect that where the Commissioner had not made an objection decision within sixty days from the date which the taxpayer lodged a notice of objection, the objection would be allowed. Therefore, the applicant's objection which sought a revision of the 1st respondent's decision was allowed by operation of the law by dint of section 51(11) of the Tax Procedures Act. The 1st respondent should not have continued to demand for payment to be made for that tax and all demands made amounted to nothing in law.
  4. Article 47 of the Constitution stated that every person had a right to administrative action which was expeditious, lawful, reasonable and procedurally fair. For one to establish that an action or decision was unreasonable it had to be shown that the reasoning was illogical or irrational.
  5. The 2nd respondent's letter dated February 10, 2017 stated that an additional tax burden would cripple airlines and it recommended that the 1st respondent should exercise statutory powers to abandon and refrain from recovery of the tax in question. The 1st respondent confirmed that demands for the tax had been put on hold pending the approval of the proposed waiver of the tax. It therefore went against logic that after recommending the abandonment of the tax, that tax was demanded from the applicant. Making a demand under those circumstances was contrary to the provisions of section 37 of the Tax Procedures Act.
  6. The 1st respondent acted unreasonably in demanding for the excise duty, and both the 1st and 2nd respondents acted contrary to the applicant’s right to fair administrative action under article 47 of the Constitution by failing to properly dispense with their statutory mandates under the Tax Procedures Act.
  7. Legitimate expectation referred to the principle of good administration or administrative fairness that, if a public authority led a person or body to expect that the public authority would, in the future, continue to act in a way either in which it had regularly (or even always) acted in the past or on the basis of a past promise or statement which represented how it proposed to act, then, prima facie, the public authority should not, without an overriding reason in the public interest, resale from that representation and unilaterally cancel the expectation of the person or body that the state of affairs would continue.
  8. The applicant had a legitimate expectation that the 1st respondent would not collect taxes that had successfully been objected to by the applicant. Additionally, there were recommendations that demands for the tax would not be made. There was no system put in place for the collection of the tax and that created an impression that the tax would not be collected at all. The demand for the tax was a violation of the applicant's legitimate expectation.
  9. Article 23(3) of Constitution provided for the grant of various reliefs by the court to a person whose fundamental rights and freedoms had been violated. The applicant was entitled to appropriate reliefs.

Application allowed.
Orders: -

  1. A declaration that as a consequence of the Commissioner’s failure to make a decision on the applicant’s notice of objection dated November 8, 2016 (and received on November 9, 2016) within the statutory period of sixty days, the said notice of objection was allowed in terms of Section 51(11) of the Tax Procedures Act, 2015.
  2. An order of certiorari bringing into the court for quashing and quashing the Commissioner of Customs and Border Control’s demand for excise duty for the period December 2015 to August 2016 as contained in the letters dated August 24, 2016, November 23, 2016, February 3, 2017, October 3, 2019 and October 24, 2019 on Jet A1 fuel for local use.
  3. An order of prohibition prohibiting the Commissioner of Customs and Border Control whether by himself, his authorised officers and/or agents from demanding the payment of and/or taking any enforcement action of whichever nature in respect of excise duty on Jet A1 fuel for local use for the period December 2015 to August 2016.
  4. An order of mandamus compelling the Commissioner of Customs and Border Control to refund forthwith the sum of Kshs 109,759,854/= paid by the Applicant on November 18, 2019 in respect of excise duty on Jet A1 fuel for local use for the period December 2015 to August 2016.
  5. The Applicant was awarded the costs of the petition against the respondents.
CONSTITUTIONAL LAW

Directives issued by the Kenya Ports Authority, on the transportation of cargo from the port of Mombasa via the Standard Gauge Railway to an Inland Container Depot at Nairobi, are constitutionally infirm.

William Odhiambo Ramogi & 3 others v Attorney General & 4 others; Muslims for Human Rights & 2 others (Interested Parties)
Petition 159 of 2018
(Consolidated with Petition 201 of 2019)
High Court at Mombasa
L Achode, J Ngugi, P Nyamweya, E Ogola & A Mrima, JJ
November 6, 2020
Reported by Beryl Ikamari

Download the Decision

Constitutional Law - constitutional petition - parties - interested parties - whether an interested party in a constitutional petition could frame new issues for determination by the court.
Constitutional Law - institution of a constitutional petition - exhaustion doctrine - exceptions to the exhaustion doctrine - whether dispute settlement mechanisms provided for under the Competition Act would give rise to an application of the exhaustion doctrine to oust the High Court's jurisdiction, where a constitutional petition related to matters provided for under the Competition Act and also alleged violations of fundamental rights and freedoms - Constitution of Kenya 2010, article 159; Competition Act, No 12 of 2010, sections 31.
Constitutional Law - national values and principles of governance - public participation and fair administrative action - exercise of statutory power - whether a decision which affected importers, transporters and users of the port of Mombasa and related to the transportation of cargo from the port of Mombasa to other destinations, required public participation and a fair hearing to be afforded to the affected parties - Constitution of Kenya 2010, articles 10 and 47.
Constitutional Law - fundamental rights and freedoms - enforcement of fundamental rights and freedoms - socio-economic rights - right to livelihoods - proof required in order to establish a claim on breach of the right to livelihood - Constitution of Kenya 2010, article 43.
Constitutional Law - devolution - division of functions between the National Government and the County Government - whether the Take or Pay Agreement between the Kenya ports Authority and the Kenya Railways Corporation, which in part dealt with transportation of cargo from the port of Mombasa, violated constitutional provisions on distribution of functions between different levels of Government - Constitution of Kenya 2010, article 174, the Fourth Schedule, part 2, paragraph 5(e).
Evidence Law - admissibility - hearsay evidence - newspaper articles - whether newspaper articles were admissible evidence, where the author of the article never gave testimony in court as to what he or she had perceived when writing the article

Brief facts:

Petition 159 of 2018 challenged a clause in an agreement between the 3rd respondent (Kenya Ports Authority) and the 4th respondent (Kenya Railways Corporation). The clause obligated the 3rd respondent to consign to the 4th respondent, as a carrier, a set volume of freight and other cargo pursuant to the commencement of the operations of the Standard Gauge Railway (SGR) to the 3rd respondent's Inland Container Depot (ICD) at Embakasi. The 1st to 3rd petitioner alleged that the clause violated various constitutional provisions including fundamental rights and freedoms. In general, they complained that the clause threatened the socio-economic rights of the petitioners and residents of Mombasa County under article 43 of the Constitution.
The impugned clause was part of what was known as the Take or Pay Agreement which entailed a public policy decision as it had the effect of transferring port services from Mombasa to Nairobi. The petitioners alleged that the residents and youth of Mombasa County and its environs were most affected by the loss of jobs and relocation of employment opportunities.
Mombasa High Court petition No. 201 of 2019 challenged two directives issued by the 3rd respondent (Kenya Ports Authority) and directed at members of the 4th petitioner (Kenya Transporters Association Limited) and they were about the consignment of cargo and the location of the clearance depot for cargo arriving at the port of Mombasa. The first directive, issued on March 15, 2019, notified the general public that from the date of the directive, shipping lines would not be allowed to endorse a Bill of Lading to importers' Container Freight Station (CFS) of choice. The second directive, issued on August 3, 2019, stated that all imported cargo for delivery to Nairobi and the hinterland would be conveyed by SGR and cleared at the ICD - Nairobi. It was argued by the petitioners that the directives supported monopolistic tendencies with regard to the transport of containers from the port of Mombasa to other destinations. The 4th petitioner said that it went contrary to the Competition Act and the Consumer Protection Act. The 4th petitioner added that importers of cargo had a right to choose the mode of transportation for their cargo from the port of Mombasa to a destination of their choice. They said that the directives violated the socio-economic rights of the residents of Mombasa and Kenya in general.
Mombasa High Court petition No 159 of 2018 and Mombasa High Court Petition No 201 of 2019 were consolidated and canvassed through written submissions and oral arguments.

Issues:

  1. Whether an interested party could introduce and frame new issues for consideration by the court.
  2. Under what circumstances would the exceptions to the doctrine of exhaustion arise?
  3. When would a decision which was made by an organization pursuant to an exercise of its statutory power require public participation before it was implemented?
  4. Whether the impugned directives on the transportation of cargo from the port of Mombasa were issued after a process that was constitutional and in line with public participation requirements and the right to fair administrative action.
  5. What would a litigant have to demonstrate in order to establish a claim that his or her right to livelihood had been violated?
  6. Whether the Take or Pay Agreement, as pertained to the transportation of cargo from the port of Mombasa, violated article 174 of the Constitution as read together with paragraph 5(e) of Part 2 of the Fourth Schedule of the Constitution, which related to the distribution of functions between the National Government and the County Governments.
  7. What was the probative value of newspaper articles as evidence? Read More...

Held:

  1. The consolidated petition did not place reliance on articles 6(2), 6(3) and 27 of the Constitution but the 1st and 2nd interested parties sought to rely on those provisions. The question as to whether an interested party could introduce new issues for consideration by the court arose. The principle established in the courts' jurisprudence was that an interested party was a peripheral party in a suit and such a party could not introduce new matters for the court's consideration.
  2. The framing of issues that were not otherwise pleaded in the consolidated petition was an unacceptable attempt by the 1st and 2nd interested parties to expand the scope of the proceedings. The court would therefore not consider submissions based on alleged violations of articles 6(2), 6(3) and 27 of the Constitution.
  3. The exhaustion doctrine served the purpose of ensuring that there was a postponement of judicial consideration of matters to ensure that a party was, first of all, diligent in the protection of his own interest within the mechanisms in place for resolution outside the courts. That encouraged alternative dispute resolution mechanisms in line with article 159 of the Constitution.
  4. The Competition Act provided various dispute resolution procedures that were available to an aggrieved party. Parties were obligated to exhaust those mechanisms before approaching the courts.
  5. There were exceptions to the exhaustion doctrine. In exceptional circumstances, the High Court could determine that the exhaustion requirement would not serve the values enshrined in the Constitution or law and allow the suit to proceed before it. The court would consider the suitability of the appeal mechanism available in the context of the particular case and determine whether it was suitable for the determination of the issues raised. Additionally, the court had jurisdiction to consider grievances from parties who lacked an adequate audience before a statutory forum or who did not have the quality of audience before the forum which was proportionate to the interests the party wished to advance.
  6. Where a suit sought to enforce fundamental rights and freedoms and it was demonstrated that the constitutional violations were not mere bootstraps or merely framed in the Bill of Rights language as a pretext to gain entry to the court, that suit would not be barred by the exhaustion doctrine. That was especially so because the enforcement of fundamental rights and freedoms was a question that could only be determined by the High Court.
  7. Although the 4th petitioner's case against the 5th respondent, largely concerned the Competition Act, the ripple effect was the subject of the violation of fundamental rights and freedoms. The issues relating to the Competition Act and fundamental rights and freedoms were intertwined. The statutory dispute resolution mechanisms under the Competition Act could not be construed to oust the court's jurisdiction, as the nature of the issues raised qualified as an exception to the exhaustion doctrine. The exhaustion doctrine was relevant but inapplicable given the nature of the grievance and the public interest involved.
  8. The consolidated petitions involved polycentric issues and multiplicity of parties including questions related to the fundamental rights of the petitioners which warranted an exception to the doctrine of exhaustion.
  9. The 5th respondent (the Competition Authority of Kenya) had commenced investigations into the 4th petitioner's complaints relating to restrictive trade practices arising from the impugned directives on the transportation of cargo from the port of Mombasa. Therefore, the 5th respondent did not ignore the issues raised by the 4th petitioner and ought not to have been sued.
  10. The 4th petitioner sought an order of mandamus directing the 5th respondent to take immediate action to demolish the monopolistic tendency with regard to the transportation of containers from the port of Mombasa to other destinations in Kenya. That was tantamount to asking the court to direct the Competition Tribunal on what finding to make, an act which would amount to usurping the domain of the Tribunal. The order of mandamus would not be granted.
  11. The Bill of Rights had an underlying value of freedom which was a right to be afforded an opportunity to choose from a range of options voluntarily. While the Constitution placed premium on the value of freedom, it had not inscribed "freedom of contract" as a fundamental right. The enumerated rights and freedoms in the Constitution did not include the rights to make certain economic choices which could trammel the state's police powers to direct health, security and economic activities.
  12. In its various principles as well as in its structure and variety of civil, political, social, economic, cultural and group rights, the Constitution plainly envisaged a directive role of the state in respecting, promoting, and fulfilling the various enumerated fundamental rights of individuals and groups. Such a directive role, of necessity, meant that the state had leeway to regulate and limit the freedom to contract by individuals in order to achieve other public interest objectives including the objective of achieving the social and economic rights of citizens.
  13. The 4th petitioner wrongly assumed that the state, through the respondents, had no right or constitutionally-protected and legitimate governmental interest in regulating the mode of transport for containers as part of the Government’s efforts to fulfill the collective social and economic rights of all citizens. The truth was that the state had legitimate governmental interests, permitted by the Constitution, to impose certain reasonable restraints on freedom of contract. However, while the state had much leeway to impose reasonable limitations to the freedom to choose economic activities in the common good, such limitations had to be reasonable, non-discriminatory, non-oppressive and procedurally imposed for them to pass constitutional muster.
  14. A party that claimed that a fundamental right or freedom had been violated had the burden of demonstrating the following four things: -
    1. To demonstrate that the fundamental right or freedom was recognized as such in the Bill of Rights. If it was within the list of recognized rights and freedoms, the state would be required to justify any abrogation or limitation under article 24 of the Constitution. The state had the onus of showing that the limitation placed on the rights was reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom.
    2. Where the right or freedom was not enumerated in the Bill of Rights but was a non-fundamental right or a right generally covered under the general subtext of freedom or liberty under the Constitution or some other penumbral right or freedom under article 19(3)(b) of the Constitution, a person claiming a violation was required to demonstrate that the abrogation or limitation was either unreasonable or oppressive. That could be done by showing either that the particular policy or law in question did not serve any legitimate governmental interest or that the particular policy or law was not rationally related to the articulated governmental interest.
    3. Even where a policy or law passed muster under the rational basis test, the state had to demonstrate that the policy or law limiting the non-fundamental right was crafted after a process of public participation or administrative fair hearing in which those most affected by the policy or law had been given an opportunity to air their views and to have those views considered before the policy or law was made final. That was a due process requirement.
    4. If the impugned policy or law otherwise violated an enumerated fundamental right or freedom in its effects or impact (as opposed to its text and intent which had to meet the requirements under article 24 of the Constitution), a court would still find the impugned policy or law impermissible.
  15. The 4th respondent did not show that the impugned directives did not serve any legitimate governmental interest. It was shown that the impugned directive sought to implement policy decisions created by the 2nd respondent with the aim or realizing the socio-economic rights envisaged in article 43 of the Constitution by directing economic activities in a way the Government believed was sustainable and equitable for the whole country. The court was unable to make a finding that the impugned directives were not rationally related to the expressed legitimate governmental goal of driving economic policy in Kenya through the Integrated National Transport Policy for Kenya.
  16. Public participation referred to the processes of engaging the public or a representative sector while developing laws and formulating policies that affected them. It could take various forms including consultations.
  17. The manner in which a public body exercised its powers was dependent on the resultant effect. If the exercise of statutory powers only impacted on the ordinary day to day operations of the entity, public participation would not be a requirement. Requiring an entity to subject its internal operational decisions to public participation was unreasonable. It was a tall order which would definitely forestall the operations of such an entity. Where the exercise of statutory power transcended the borders of the entity or had a significant effect on the stakeholders or the public, it ought to have been subjected to public participation. That was so because the resultant decision had a significant impact on the public or stakeholders.
  18. The Take or Pay Agreement was an internal contractual arrangement between the 3rd and 4th respondents. It belonged to the sphere of internal operations of the 3rd and 4th respondents over which there was no need for constitutionally mandated public participation. The 3rd and 4th respondents were legally competent to conclude the Take or Pay Agreement without triggering the public participation requirement of the Constitution.
  19. The operationalization of the Take or Pay Agreement had effects on the internal operations of the two contracting parties and also on the rights and interests of stakeholders and the public. Actions and decisions related to operationalization had to be subjected to public participation.
  20. There was no question that the impugned directives radically impacted on the 4th petitioner and all importers who used the port of Mombasa. It removed any choice from the members of the 4th petitioner and the port users on what Container Freight Station (CFS) to use and what mode of transportation to employ to the Inland Container Depot (ICD).
  21. There was no attempt to subject to impugned directives to public participation. Public participation ought to have been undertaken. A decision removing all sets of options from an economic actor, targeted group, participants in a particular trade or profession and requiring them to channel their economic activities in a particular direction, was, definitionally, one that had to be arrived at after due consultations and meaningful public participation. Due to lack of public participation, the impugned directives were constitutionally infirm and a violation of article 47 of the Constitution which was on the right to fair administrative action.
  22. The impugned directives were administrative actions. They affected the legal rights and interests of the 4th petitioner, importers, transporters, other port users, and stakeholders. As such they had to pass the constitutional and statutory tests of lawfulness, reasonableness and procedural fairness.
  23. The impugned directives did not conform to the requirements of article 47 of the Constitution and the Fair Administrative Actions Act. At a minimum the 3rd respondent was required to do the following to ensure compliance: -
    1. give notice of the intended directives to the 4th petitioner, importers, transporters, other port users, and stakeholders;
    2. afford an opportunity for the 4th petitioner, importers, transporters, other port users, and stakeholders to be heard on the question; and
    3. give reasons for the decisions made which were embodied in the impugned directives.
  24. The social and economic rights provided for in article 43 of the Constitution included the right to the highest attainable standard of health, which included the right to health care services, including reproductive health care, to accessible and adequate housing, and to reasonable standards of sanitation, to be free from hunger, and to have adequate food of acceptable quality, to clean and safe water in adequate quantities, to social security and to education.
  25. A petitioner ought to demonstrate with some degree of precision the right it alleged had been violated, the manner it had been violated, and the relief it sought for that violation. The petitioners did not allege that there was an infringement of the specific rights provided for in article 43 of the Constitution but instead focused on demonstrating infringements on their rights to livelihood as the basis of the infringement of article 43 of the Constitution.
  26. While the right to work and earn a livelihood was a negative right in the sense that it imposed a duty on the state not to act in certain ways that would infringe on the said rights, the social and economic rights provided for in article 43 were positive rights, which imposed obligations on the state to do as much as it could to secure for its citizens a core minimum of the social and economic rights specified in the article.
  27. In order to succeed in a claim relating to the right to livelihood, the petitioners needed to prove that the respondents caused harm or injury to, or limited their work and related activities in cargo handling and transport, either by way of direct actions or by omission to take reasonable steps to prevent such harm and injury.
  28. The testimony of the petitioners in their affidavits was not direct. They relied mainly on circumstantial documents from which facts sought to be proved were meant to be logically or reasonably inferred.
  29. Some of the evidence related to annexures produced by the 1st, 2nd and 3rd petitioners and they were copies of documents that were neither certified nor produced in accordance with the provisions of section 68 of the Evidence Act as regarded production of secondary evidence.
  30. The 4th petitioner sought to rely on a report titled “The Assessment Report of the Socio-Economic Impact of the Operationalization of the Mombasa – Nairobi Standard Gauge Railway on Port City Mombasa." There were rules regarding the admissibility of expert opinions. In short, by relying on the report, the 4th petitioner sought to rely on an expert statement of a person who was not a party to the suit without laying a proper basis for such reliance. It was not possible to assign a probative value to the report because the expertise of the authors was not established and there was no attempt made to justify the scientific basis of the method deployed in generating data for the report or the scientific method used to collect the data.
  31. The petitioners also relied on newspaper reports as evidence. A newspaper report would be hearsay evidence and inadmissible in evidence in the absence of the maker of the statement appearing in court and deposing to have perceived the fact reported.
  32. While the petitioners were successful in demonstrating that the right to a livelihood was inextricably linked to the social and economic rights enumerated in article 43 of the Constitution, in their averments and arguments, the petitioners alternately failed to present relevant evidence probative of the claimed violations. Additionally, they presented evidence which was not only inadmissible, but also of no probative value in proving the allegations made that the impugned agreement and impugned directives affected and infringed the petitioners’ right to livelihood.
  33. Under Part 1 of the Fourth Schedule, the functions of the National Government were set out at paragraph 18(f) which provided that the National Government was tasked with transport and communications, including marine navigation. The functions and powers of the County Governments under Part 2 of the Fourth Schedule at paragraph 5(e) was County Transport, including ferries and harbours excluding the regulation of international and national shipping and matters related thereto.
  34. From the constitutional text, the county transport function was stated as including ferries and harbours. The text was also explicit that the county function excluded regulation of international and national shipping and matters related thereto which belonged to the National Government.
  35. The court would not go beyond restating what the Constitution provided. If the parties desired for the court to pronounce itself on the outer limits of the regulation or policy making function assigned to the National Government under paragraph 5(e) of Part 2 of the Fourth Schedule to the Constitution, they should have provided sufficient material to assist the court in making such a determination. In any event, such a pronouncement could only be made in the context of a concrete case placed before the court for determination.

Petition partly allowed.
Orders:-

  1. Claims that the Take or Pay Agreement dated September 30, 2014 and/or the directives by the 3rd respondent dated March 15, 2019 and August 3, 2019 violated the social and economic rights of the petitioners were not proved and were dismissed.
  2. The claim that the Take or Pay Agreement dated September 30, 2014 was in violation of articles 10 and 47 of the Constitution failed and was dismissed.
  3. The claim that the directives by the 3rd respondent dated March 15, 2019 and August 3, 2019 were in violation of articles 10 and 47 of the Constitution for want of public participation and for non-compliance with fair administrative procedures succeeded. The court declared the impugned directives constitutionally infirm. The impugned directives were quashed.
  4. Given the potential of order (iii) above to disrupt the orderly operations of the port and the operationalization of the National Transport Policy, the effect of that order was suspended for one hundred and eighty (180) days to afford the respondents an opportunity to regularize the situation.
  5. All the other prayers in the consolidated petitions failed and were dismissed.
  6. As the matter entailed public interest litigation, each party would bear its own costs
CONSTITUTIONAL LAW

Failure to allow public participation and access to information before imposition of curfews on security grounds is not in contravention of the Constitution

Kenya National Commission on Human Rights v Attorney General & 2 others
Constitutional Petition 11 of 2017
High Court at Garissa
C Kariuki, J
October 20, 2020
Reported by Sharon Sang & Kakai Toili

Download the Decision

Constitutional law – fundamental rights and freedoms – limitations of fundamental rights and freedoms – limitations of right to access to information – limitation to information sought before imposition of curfews on security grounds – whether failure to allow access to information before imposition of curfews on security grounds was in contravention of the Constitution – Constitution of Kenya, 2010, article 24 and 35; Access to Information Act (No 31 of 2016), section 6.
Constitutional Law – national values and principles of governance – public participation – public participation before the imposition of curfews based on security grounds - whether failure to allow public participation before imposition of curfews on security grounds was in contravention of the Constitution - Constitution of Kenya, 2010, articles 1, 2 and 10; Public Order Act, Cap 56, sections 8 and 9.

Brief facts:

Pursuant to the Kenya incursion into Somalia through operation Linda Nchi to deal with the terror threats from Al shabaab Militia, Kenya began experiencing terror attacks. The Government imposed a curfew in Mandera, Wajir, Garissa and Tana River counties pursuant to section 8 of the Public Order Act (the Act) after gunmen linked to Al shabaab massacred 147 students at Garissa University,. The 2nd respondent imposed another curfew in Mandera County, which was later on extended.
The petitioners were apprehensive that the curfew orders in Mandera were arbitrarily imposed to their detriment as they suffered and continued to suffer as the same violated their constitutionally protected rights because of the continued and arbitrary imposition of curfews by the respondents. They also objected the order stating that it was imperative that the affected populations in any part of Kenya should be afforded an opportunity to participate in the decision leading up to the imposition, revision, rescission and overall management of any curfew order. They filed a petition in the High Court challenging the constitutionality of the curfew and sections 8 and 9 of the Public Order Act on which the curfew was established.

Issue:

Whether failure to allow public participation and allowing access to information before imposition of curfews on security grounds was in contravention of the Constitution. Read More...

Relevant provisions of law
Constitution of Kenya, 2010
Article 35 – Access to information
(1) Every citizen has the right of access to-

a) information held by the State; and
b) information held by another person and required for the exercise or protection of any right or fundamental freedom.

(2) Every person has the right to the correction or deletion of untrue or misleading information that affects the person
(3) The State shall publish and publicize any important information affecting the nation.

Access to Information Act, No 31 of 2016
Section 6 – Limitation of rights of access to information.
(1) Pursuant to Article 24 of the Constitution, the right of access to information under Article 35 of the Constitution shall be limited in respect of information whose disclosure is likely to –

a) undermine the national security of Kenya;
b) impede the due process of law;
c) endanger the safety, health or life of any person…(i)

(2) For purposes of subsection (1)(a), information relating to national security includes –

a) military strategy, covert operations, doctrine, capability, capacity or deployment;
b) foreign government information with implications on national security;
c) intelligence activities, sources, capabilities, methods or cryptology;
d) foreign relations;
e) scientific, technology or economic matters relating to national security;
f) vulnerabilities or capabilities of systems, installations, infrastructures, projects, plans or protection services relating to national security;
g) information obtained or prepared by any government institution that is an investigative body in the course of lawful investigations relating to the detection, prevention or suppression of crime, enforcement of any law and activities suspected of constituting threats to national security…(l)

Held:

  1. The issue of unconstitutionality of section 8 and 9 of the Public Order Act had been determined by the Court of Appeal in the case of Haki Na Sheria Initiative v Inspector General of Police & 3 others [2020], where it held that the sections were justifiable and within the Constitution. Therefore, the question constitutionality or otherwise of section 8 and 9 of the Public Order Act had been settled and was not unconstitutional. The decision emanated from the Court of Appeal and therefore binding on the instant court.
  2. The sacred fountain of the constitutional doctrine of public participation was embedded in the principle of sovereignty of the people under article 1 of the Constitution. Article 2 of the Constitution contemplated direct and indirect exercise of sovereignty by the people through elected representatives, at all times the people reserving the right to direct exercise of sovereignty. The right of public participation was further captured as one of the national values and principles of governance enshrined in article 10 of the Constitution. Therefore, public participation was a key component in the Constitution.
  3. Article 35 of the Constitution provided for the right to access Information and had been operationalized by the Access to Information Act, which at section 6 provided for the limitation of the right of access to information. Article 25 of the Constitution provided for the rights that could not be limited (non-derogable rights), and access to information was not such a right.
  4. Involving the public in matters of security such as the instant issue of imposition of curfews and sharing information thereof would be a threat to the national security especially in the terror prone region of Mandera.
  5. The issue of public participation was entrenched in the legislation making process and therefore the public view could not be said not to have been captured unless contrary evidence was tabled. In any event, the court was there to monitor excesses in the implementation of curfew and grant commensurate remedies.

Petition dismissed with no orders as to costs.

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