Legislation / Provisions of the Law Declared Unconstitutional

Legislation/ Provisions of the Law Declared Unconstitutional.

Sections declared to be unconstitutional

Courts interpret the law during their day to day administration of justice. During this interpretive process, Kenyan courts have encountered sections of legislation which are contrary to the letter and spirit of the Constitution of Kenya, 2010 therefore presenting a constitutional conflict which has resulted in a number of sections of the law declared to be unconstitutional. Kenya Law has compiled these decisions from the year 2011 to date and will continuously update this information on its website. In addition to this, these sections will be highlighted for notification purposes in the particular statutes in the Laws of Kenya database.

Sections 3(3) and 11(2) of the Auctioneers Act (No. 5) of 1996.

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

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

High Court, at Nairobi

Petition No 120 of 2017

Mwita J

Download the Decision

 

Brief facts

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

 

Held

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

Order 22 rule 7(1) of the Civil Procedure Rules

Order 22 rule 7(1) of the Civil Procedure Rules

Declared Unconstitutional in 2012.

 

Beatrice Wanjiku & Another v Attorney General & 3 others

Petition No. 190 of 2011

High Court, at Nairobi

D S Majanja, J

Download the Decision

 

Brief Facts

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

Held

Order 22 rule 7 is a cause for concern as it empowers the court to issue a warrant of arrest upon an oral application by the judgment creditor when passing the decree if the judgment debtor is within the court prescincts. This provision in my view, does not entitle the judgment debtor to sufficient notice nor opportunity to pay the debt even where he has the means to do so. The rule as worded is an unnecessary infringement on the rights of the judgment-debtor. This renders this particular rule unconstitutional.

The Coffee (General) Regulations, 2016 are unconstitutional for lack of public participation.

The Coffee (General) Regulations, 2016 are unconstitutional for lack of public participation.

Declared Unconstitutional in 2017.

 

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

Miscellaneous Civil Application 291 and 314 of 2016

G V Odunga, J

Download the Decision

 

Brief Facts

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

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

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

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

 

Held

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

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

 

Section 34 of the Clinical Officers (Training, Registration & Licensing) Bill 2016.

Declared Unconstitutional in 2018.

Republic v The National Assembly and 7 others ex-parte Dr. George Wang’anga’a

Miscellaneous Civil Application 391 of 2017

High Court, at Nairobi

Odunga J

Download the Decision

Brief facts

The Application before the Court challenged the Constitutionality of the Clinical Officers (Training, Registration and Licensing) Bill, 2016 in which section 34 of the said subject Bill amended sections 35A (5) and 35I (b) of the Pharmacy and Poisons Act. The said amendments were inserted by the National Assembly in the Bill during the Committee Stage through a notice of motion. It was averred that the substantive amendment to the Act in the said Bill was a different subject matter and unreasonably or unduly expanded the subject of the Bill and was not in logical sequence to the subject matter of the Bill.

It was further stated that the Respondents’ failure to refer the impugned amendments of the Bill to the Senate violated articles 109, 110, 112,113, 122 and 123 of the Constitution of Kenya, 2010 (Constitution) and National Assembly standing orders No. 121 to 123.

Held

The amendment to Sections 35A (5) & 35I(b) of the Pharmacy and Poisons Act under Section 34 of the Clinical Officers (Training, Registration & Licensing) Bill 2016 was passed in a manner that breached the express provisions of the Constitution and was thus unconstitutional, null and void.

Contempt of Court Act, No 46 of 2016

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

Brief facts

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

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

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

Held

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Sections 43-61A of the Criminal Procedure Code

Sections 43-61A of the Criminal Procedure Code

Declared Unconstitutional in 2015.

 

Anthony Njenga Mbuti & 5 Others V Attorney General  & 3 Others

Constitutional Petition NO 45 of 2014,

High Court at Nairobi (Milimani Law Courts)

M Ngugi, J

Download the Decision

 

Brief Facts

The Petitioners had at various times been arrested and arraigned in Court, but had not been charged with any criminal offences. Instead they had been required to execute a bond to keep the peace in accordance with the provisions of sections 41-63 of the Criminal Procedure Code. They filed the instant Petition challenging the constitutionality of the provisions of section 43 to 61A of the Criminal Procedure Code. They assert that those provisions offended various articles of the Constitution, among them articles 27, 28, 29, 49 and 50 with regard to the rights of an accused person and were therefore null and void.

 

Held

Certainly, in our circumstances and the express provisions, tenure and spirit of the 2010 Constitution, the provisions of the peace bond process are indefensible. Whichever way one looks at it, the provisions of the peace bond process under the CPC cannot meet constitutional muster. I therefore find and hold that Sections 43-61A of the Criminal Procedure Code are unconstitutional for violating the provisions of Articles 27, 28, 49 and 50(2) of the Constitution, and are therefore null and void. It is also worth observing that section 61A of the CPC, which empowers a magistrate to confine a person within a particular district, contravenes the right of citizens to freedom of movement under Article 39.

Section 166 of the Criminal Procedure Code

Declared Unconstitutional in 2018.

Republic v SOM

High Court at Kisumu,

Criminal Case No 6 of 2011

D S Majanja, J

Download the Decision

Brief facts:

The Accused was convicted of the offence of murder. The Court made a special finding under section 166(1) of the Criminal Procedure Code to the effect that the Accused committed the act of killing but was insane. The Accused was to be kept in custody at Kisumu Maximum Security Prison pending the President’s order in accordance with section 166 of the Criminal Procedure Code.

The Accused questioned the constitutionality of section 166 of the Criminal Procedure Code and stated that it provided for a mandatory sentence which did not give the Court discretion in setting the sentence. He contended that the Court ought to impose a definitive sentence that met the facts and circumstances of the case. He relied on the case of Francis Karioko Muruatetu and another v Republic SCK Petition No. 15 and 16 of 2015 [2017] eKLR in which the preposition was made to the effect that a law that failed to take into account the peculiarities of each case was unconstitutional. That case declared the mandatory death sentence imposed for the offence of murder unconstitutional for various reasons.

Ratio Decidendi

Although the Francis Muruatetu Case dealt with the mandatory death sentence, the principles it espoused were applicable to the circumstances of the instant case. The provisions of section 166 of the Criminal Procedure Code on a finding of the Court that an Accused was guilty but insane were mandatory in nature. The Court had no discretion irrespective of the nature of mental illness or condition of the Accused. The ultimate sentence imposed would depend on the discretion of the President who would determine the conditions under which the Accused would serve the sentence either in a mental institution or a prison or whether the Accused would be discharged.

Courts have cast doubts on the constitutional validity of provisions that imposed an indeterminate sentence at the instance of an authority other than the Courts. In AOO and 6 others v Attorney General and another NRB Petition No. 570 of 2015 [2017] eKLR, the Court found that detention of a child found guilty of the offence of murder at the President's pleasure was unconstitutional. It was held that the indeterminacy of the sentence exacerbated the cruel, inhuman or degrading nature of the sentence as the period of incarceration was unknown to the Accused and depended on the President's discretion. The Court also held that leaving the length of the sentence to the discretion of the President violated article 160 of the Constitution which provided for the independence of the Judiciary.

The vesting of discretion on how the Accused would be treated after conviction on the executive was inimical to the fundamental duty of the Judiciary to determine the guilt of the Accused and terms upon which he or she would serve the sentence. By vesting discretionary power on the executive and taking away the judicial function to determine the nature of the sentence to be imposed after the special finding was made, section 166 of the Criminal Procedure Code went contrary to article 160 of the Constitution and was unconstitutional. It also violated the right to a fair trial as protected under article 25 of the Constitution.

Under section 7(1) of the Sixth Schedule to the Constitution, the Court was entitled to construe existing laws, such as the Criminal Procedure Code as one of the ‘existing laws’ that continued to be in force, with such modifications, adaptations, qualifications and exceptions necessary to bring its provisions into conformity with the Constitution. The defect in section 166 of the Criminal Procedure Code was that the review of the sentence was to be done by the President and not the Court and hence reference to "the President" under that section had to be read to mean "the Court." In effect, the modification would mean that the Accused would be brought before the Court periodically for a review of the matter. If necessary the Court would call for evidence including the evidence of experts before making an appropriate order within a framework of a definite period of detention to be imposed by the Court.

Section 167 of the Criminal Procedure Code

Section 167 of the Criminal Procedure Code

Declared Unconstitutional in 2016.

 

Hassan Hussein Yusuf v Republic

Criminal Appeal 59 of 2014

High Court, at Meru

Kiarie Waweru Kiarie J

Download the Decision

 

Brief Facts

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

 

Held

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

 

Regulations in the Ministry of Education to actualize the rights of the students infringed under the Education Act (repealed) contrary to Article 32 of the Constitution of Kenya, 2010.

Regulations in the Ministry of Education to actualize the rights of the students infringed under the Education Act (repealed) contrary to Article 32 of the Constitution of Kenya, 2010.

Declared Unconstitutional in 2017.

 

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

Civil Appeal No. 172 of 2014

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

 

Brief Facts

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

 

Held

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

Sections 2, 7A (4), 7A (5), and 7A (6), 7B and paragraphs 5 and 7 of the Second Schedule of the IEBC Act and Sections 39(1) (C) (a), 39(1D), 39(1E), 39(1F), 39(1G) and 83 of the Elections Act, 2011 through the Election Laws (Amendment) Act No. 34 of 2017.

Declared Unconstitutional in 2018.

Katiba Institute and 3 Others V. Attorney General and 2 Others

Constitutional Petition No. 548 of 2017

High Court, at Nairobi

Mwiata J

Download the Decision

Brief facts:

The Petitioners challenged the Election Laws Amendment Act, 2017 which was enacted by the 3rd Respondent to amend various provisions of the Elections Act, 2011, the Independent Electoral and Boundaries Commission Act, and the Election Offences Act contending that the amendments were unconstitutional. The Petitioners contended that the amendments introduced after the annulled 2017 Presidential election violated national values and principles in articles 10, 81 and 86 of the Constitution in that they tended to inhibit rather than enhance transparency and accountability of the electoral process. They argued that those amendments were unconstitutional and violated not only articles 10, 81 and 86 of the Constitution, but also were intended to circumvent the majority Judgment of the Supreme Court in Raila Odinga and another v Independent Electoral and Boundaries Commission & 2 others.

Held:

Certain amendments introduced through the Election Laws (Amendment) Act No. 34 of 2017 failed the constitutional test of validity. All the amendments made to the Independent Electoral and Boundaries Commission Act, namely; section 2, on definition of the word chairperson, section 7A(4),7A(5), and7A(6), the entire section 7B and paragraphs 5 and 7 of the Second Schedule to the Act on the quorum for purposes of meetings of the Commission were unconstitutional. With regard to the Elections Act, 2011, the amendments introduced to section 39(1) (C) (a), 39(1D), 39(1E), 39(1F), 39(1G) and the entire section 83 failed the constitutionality test.

Section 29 of the Elections Act, 2011.

Section 29 of the Elections Act, 2011.

Declared Unconstitutional in 2017. 

 

Peter Solomon Gichira v Independent Electoral and Boundaries Commission & another

Constitutional Petition No 234 of 2017

G V Odunga, J

Download the Decision

 

Brief Facts

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

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

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

 

Held

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

Section 34(9) of the Elections Act, No. 24 of 2011

Section 34(9) of the Elections Act, No. 24 of 2011

Declared Unconstitutional in 2013.

 

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

Civil Appeal No 351 of 2012           

Azangalala, Kiage & J. Mohammed, JJA

Download the Decision

 

Brief Facts

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

 

Held

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

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

Sections 39(2) and (3) of the Elections Act and regulations 83(2) and 87(2) (c) of the Election (General) Regulations

Sections 39(2) and (3) of the Elections Act and regulations 83(2) and 87(2) (c) of the Election (General) Regulations

Declared Unconstitutional in 2017.

 

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

Appeal 105 Of 2017

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

Download the Decision

 

Brief Facts

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

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

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

 

Held

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

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

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

 

Section 43(5) of the Elections Act

Section 43(5) of the Elections Act

Declared Unconstitutional in 2015.

 

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

High Court at Nairobi,

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

I Lenaola, J

Download the Decision

 

Brief facts

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

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

 

Held

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

Section 44 of the Elections Act

Section 44 of the Elections Act

Declared Unconstitutional in 2017.

 

Kenneth Otieno v Attorney General & Independent Electoral & Boundaries Commission

Petition No 127 of 2017

High Court, at Nairobi

Pauline Nyamweya, Mumbi Ngugi, Enock C Mwita, JJ

Download the Decision

 

Brief Facts

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

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

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

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

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

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

 

Held

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

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

Elections Act, Sections [45(2) (3) and (6), 46(1) (b) (ii) and (c) and 48] and The County Governments Act, Sections [27(2), (3) and (6) and 28(1)(b)(ii) and (c) ]

Elections Act, Sections [45(2) (3) and (6), 46(1) (b) (ii) and (c) and 48] and The County Governments Act, Sections [27(2), (3) and (6) and 28(1)(b)(ii) and (c) ]

Declared Unconstitutional in 2017.

 

Katiba Institute & another v Attorney General & another

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

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

Download the Decision

 

Brief Facts

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

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

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

 

Held

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

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

 

Subsection 45(3) of the Employment Act, 2007

Subsection 45(3) of the Employment Act, 2007

Declared Unconstitutional in 2014.

 

Nelson Ogeto Mogaka & 15 others v Geothermal Development Company Limited

Industrial Court, at Nakuru

Cause 178 & 280 of 2013 (consolidated)

Byram Ongaya J

Download the Decision

 

Brief Facts

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

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

 

Held

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

Section 13(A) of the Government Proceedings Act.

Section 13(A) of the Government Proceedings Act.

Declared Unconstitutional in 2012.

 

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

Civil Suit No. 504 Of 2008

High Court at Nairobi

D S Majanja, J

Download the Decision

 

Brief Facts

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

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

 

Held

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

 

Amendments to sections 2, 5B (5), 27D, 40(1), 46(1)(b), 46(3), 83C(2), 83V 84W(4), 84W(5)and 85A(3)) of the Kenya Information and Communications Act by the Statute Law(Miscellaneous Amendments) Act, 2015.

Amendments to sections 2, 5B (5), 27D, 40(1), 46(1)(b), 46(3), 83C(2), 83V 84W(4), 84W(5)and 85A(3)) of the Kenya Information and Communications Act by the Statute Law(Miscellaneous Amendments) Act, 2015.

Declared Unconstitutional in 2017.

 

Okiya Omtatah Okoiti v Communications Authority of Kenya & 21 others

Petition No 45 of 2016

High Court, at Nairobi

G V Odunga, J

Download the Decision

 

Brief Facts

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

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

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

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

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

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

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

 

Held

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

Amendments to Section 30(3) of the Judicial Service Act through the Statute Law (Miscellaneous Amendments)Act, 2015

Amendments to Section 30(3) of the Judicial Service Act through the Statute Law (Miscellaneous Amendments)Act, 2015

Declared Unconstitutional in 2016.

 

J Harrison Kinyanjui v Attorney General & Another

Constitutional Petition No. 74 Of 2011

High Court, at Nairobi

Mwongo PJ, Ngugi,Korir,Odunga and Onguto JJ

Download the Decision

 

Brief Facts

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

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

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

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

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

 

Held

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

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

 

Section 29 of the Kenya Information and Communications Act

Section 29 of the Kenya Information and Communications Act

Declared Unconstitutional in 2016.

 

Geoffrey Andare v Attorney General & 2 others

High Court, at Nairobi

Mumbi Ngugi J

Petition 149 of 2015

Download theDecision

 

Brief Facts

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

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

 

Held

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

 

Rule 6(b) of the Kenya National Examinations Council Rules, 2015 (Legal Notice No 130 of 2015) and clause 1.8 of Circular No KNEC/GEN/R&QAS/A&R/EQN/16/0004

Rule 6(b) of the Kenya National Examinations Council Rules, 2015 (Legal Notice No 130 of 2015) and clause 1.8 of Circular No KNEC/GEN/R&QAS/A&R/EQN/16/0004

Declared Unconstitutional in 2018.

Dennis Kabuaya Mucheke v Kenya National Examinations Council & 2 others
Petition No 487 of 2017
E C Mwita, J

Download the Decision

Brief facts
The Petitioner sat and passed International General Certificate of Secondary Education, IGCSE, and was admitted to study law at Keele University. He graduated on July 6, 2017 with an LLB degree. He sought to join the Advocates Training Program, ATP, at the Kenya School of Law, KSL. The petitioner's application to have his 'O' Level qualifications equated by the 1st respondent was declined and he was casually informed that the 1st respondent did not equate foreign qualifications obtained locally. Additionally, the petitioner's application for recognition and approval of his degree for purposes of admission to ATP at KSL was declined by the 2nd respondent on grounds that it did not recognize his pre-university foundation qualifications.
Against the respondents' decisions, the petitioner sought various reliefs while stating that there had been violations of his fundamental rights and freedoms and legitimate expectations. Particularly, violations of the right to equality and freedom from discrimination, right to education and right to fair administrative action were alleged.

Held
1. Rule 6(b) of the Kenya National Examinations Council (Equation of Certificates) Rules 2015 provided that the 1st respondent should not equate foreign qualifications obtained from institutions based in Kenya. Therefore, while the parent Act did not prohibit equation of foreign certificates from institutions in Kenya, the rules made under the Act prohibited it. To that extent, the rules went against the general scheme of the parent Act and were unreasonable. Arguing that foreign qualifications obtained from local institutions could not be equated because they would encourage exodus from local examinations was unfair, unjustifiable and unreasonable.
2. Section 24(2) of the Statutory Instruments Act stated that it was mandatory for a statutory instrument not to be inconsistent with the provisions of the enabling legislation or any Act and that where there was an inconsistency, the statutory instrument would be void to the extent of the inconsistency. Section 2 of the Statutory Instruments Act defined “statutory instrument” to include a rule. If indeed a rule was found to be inconsistent with the parent Act, it should be declared void.
3. There was an element of discrimination arising from rule 6(b) of the Kenya National Examinations Council (Equation of Certificates) Rules 2015. It allowed the equation of foreign qualifications obtained outside the country while declining the equation of the same qualification where there it was obtained from local institutions. There was no compelling or reasonable justification for such a rule.
4. People who had done the same examinations should be treated equally regardless of where they sat for those examinations. Doing otherwise entailed acting in a discriminatory manner and in violation of the principles of equality recognized in the Constitution.
5. Under section 8(1)(e) of the Legal Education Act, 2012, it was within the 2nd respondent's mandate to recognise and approve qualifications obtained outside Kenya. That entailed determining whether the university attended by the petitioner was recognised to offer the course taken and whether the petitioner sat and passed the core courses required to be offered in local universities. In the petitioner's case, the 2nd respondent was required to decide whether Keele University was recognized and allowed to offer LLB degree programmes and whether the petitioner attended the core courses contained in part 11 of the second schedule to the Legal Education Act.
6. The question as to whether the petitioner had attained the required university entry mark was a matter for the interested party, the Kenya School of Law (KSL), to determine. That was clearly provided for under the Kenya School of Law Act.
7. A reading of section 17 and the second schedule of the Kenya School of Law Act indicated that the qualifications for admission to the ATP were that one had to have an LLB degree from a recognized university and to have attained a C plus in KCSE with B plain in English or Kiswahili languages. Those who attended foreign universities had to have similar or equivalent qualifications, and to also sit and pass pre-bar examinations set by the school.
8. The 2nd respondent was in dereliction of its duty when it declined to recognize and approve the petitioner's degree on grounds that he had not qualified to join university. Questions relating to qualifications for joining a university were within the interested party's mandate and not the 2nd respondent's mandate.
9. The 2nd respondent breached the petitioner's legitimate expectation that his degree qualification would be recognized and approved. Although there could be no legitimate expectation that was contrary to the law, the law had to be reasonable and justifiable in an open and democratic society and not to infringe on fundamental rights and freedoms. In making the impugned decision, the 2nd respondent violated the petitioner's legitimate expectation to be treated fairly.

Section 65 of the Kenya Ports Authority Act

Declared Unconstitutional in 2018.

 

Bob Thompson Dickens Ngobi v Kenya Ports Authority and 2 others

Civil Suit No 87 of 2013

Download the Decision

 

Brief Facts:

Before court for determination were two Notices of Preliminary Objection by the 1st and 3rd Defendants. The Defendants contended that failure to issue a notice pursuant to section 65 of the Kenya Ports Authority Act rendered the suit incompetent and that section 39(1) of the Public Authorities Limitation of Action Act barred the suit that was filed.

 

Held:

The provisions of section 65 of the Kenya Ports Authority Act were in Pari materia to sections 13A of the Government Proceedings Act and 3(2) of the Kenya Revenue Authority Act. That being so the interpretation which the superior courts had given to section 13A of the Government Proceedings Act and 3(2) of the Kenya Revenue Authority Act would apply to section 65 of Kenya Ports Authority Act. Being fully persuaded by the decisions of the High Court and fully bound by the findings of the Court of Appeal, section 65 of the Kenya Ports Authority Act was in violation of article 48 of the Constitution and to that extent unconstitutional. For that reason, the two limbs in the two Notices of Preliminary Objection could not stand but would fail and were dismissed.

In any event section 65(3) also provided for a window for a claimant to explain inability to give the Notice. Such an explanation could only be given by evidence adducing facts hence that was a point that ought not to have been canvassed as a Notice of Preliminary Objection.

The 3rd Defendant being a creature of the specific statute did not need to seek resort in other legislations on matters otherwise fully covered and which ought to have been covered by its parent statute. The Public Authorities Limitation Act did not apply to Kenya Revenue Authority at all. The use of the word public authority by itself did not invite the Application of the Act to the 3rd Defendant. Having stated that the 3rd Defendant was not a government department or a local authority and could not get refuge behind The Public Authorities Limitation Act.  That being the position the law on limitation pertaining to the 3rd Defendant, its parent act having not provided for limitation, had to be the limitation of Actions Act Cap 22. Accordingly, reliance by the 3rd Defendant upon the Public Authorities Limitation Act was ill founded conceived and advised and could not be sustained.

Being fully persuaded by the decisions of the High Court and fully bound by the findings of the Court of Appeal, section 65 of the Kenya Ports Authority Act was in violation of article 48 of the Constitution and to that extent unconstitutional.

Machakos County Finance Act, 2018

Machakos County Finance Act, 2018

Declared Unconstitutional in 2018.

Machakos County Finance Act, 2018
Simeon Kioko Kitheka & 18 others v County Government of Machakos & 2 others [2018] eKLR
Petition No. 9 of 2018
G V Odunga, J
Download the Decision

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

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

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

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

Declared Unconstitutional in 2017.

 

Kenya Ferry Services Limited v Mombasa County Services & 2 others

Constitutional Petition no 9 of 2016

M J A Emukule, J

Download the Decision

 

Brief Facts

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

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

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

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

 

Held

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

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

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

Regulations 5, 7, 11, 13, 15, 17, 18 and 19 of the Merchant Shipping (Maritime Service Providers) Regulations, 2011.

Regulations 5, 7, 11, 13, 15, 17, 18 and 19 of the Merchant Shipping (Maritime Service Providers) Regulations, 2011.

Declared Unconstitutional in 2017.

 

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

Constitutional Petition No 76 of 2012

(Formerly Nairobi Petition 291 of 2011)

Edward M Muriithi, J

Download the Decision

 

Brief facts

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

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

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

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

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

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

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

 

Held

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

 

The National Assembly Remuneration Act Cap 5 is therefore unconstitutional and no longer serves any purpose in the statute books of this country.

The National Assembly Remuneration Act Cap 5 is therefore unconstitutional and no longer serves any purpose in the statute books of this country.

Declared Unconstitutional in 2014.

 

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

High Court, at Nairobi

Petition Number 227 of 2013

I Lenaola, M Ngugi, W K Korir JJ

Download the Decision

 

Brief Facts 

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

 

Held

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

National Cohesion and Integrations Act-Section 17(1) (a) and (b) and the first schedule


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

Petition No. 385 of 2018

W A Okwany, J
Download the Decision

Brief Facts


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

Held

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

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

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

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

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

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

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

National Land Commission Act- Section 14 (4)

Mwangi Stephen Muriithi v National Land Commission & 3 others

Petition No. 100 of 2017

W A Okwany, J

Download the Decision

Brief facts

The National Land Commission (NLC), after reviewing the legality of the petitioner’s title, revoked and replaced the petitioner as the proprietor of the suit land. Aggrieved by that decision, the petitioner petitioned the Court arguing, among others, that the entire process carried out by NLC including the purported exercise of power to review grants and dispositions of public land, the publication of the notice calling for hearing, the conduct of the hearing and the purported revocation was conducted in an unconstitutional manner that offends the principles of natural justice, that the Constitution did not vest NLC with power to revoke titles, that the NLC was not the body contemplated under article 68 (c) (v) of the Constitution and that section 14 of the National Land Commission Act was unconstitutional to the extent that it purported to grant powers to the NLC that it could not constitutionally perform.

 Held

1.  The functions of the NLC were provided for under article 67(2)(e) of the Constitution, which included to initiate investigations into present or historical land injustices and recommend appropriate redress. Further, article 68(c)(v) of the Constitution provided for the enactment of legislation to enable the review of all grants or dispositions of public land to establish their propriety or legality.

2.  Article 61 (2) of the Constitution classified land as public, community or private.  According to article 62 of the Constitution, public land included land which at the effective date was un-alienated government land and land lawfully held, used or occupied by any State organ, except any such land that was occupied by the State organ as lessee under a private lease.

3.  Section 14 of the National Land Commission Act on the other hand mandated the NLC to review all grants or dispositions of public land to establish their propriety or legality within five years of the commencement of the NLC Act.

4.  Guided by the provisions of articles 67, 68 (c) (v) of the Constitution and section 14 of the NLC Act, the NLC had jurisdiction to review all grants or dispositions of public land.  The jurisdiction in the context extended only to public land or land that was previously public but was subsequently converted to private land.

5.  The title exhibited by the petitioner was a grant.  The land in question was once public land, which was granted to the petitioner by the then President.  The original parcel which was subsequently sub-divided was initially registered in the name of the Permanent Secretary Treasury. One of the Special Condition of the original grant directed that the police were to use the land for purposes of a driving school.  The petitioner obtained change of user by converting the land from public to private use. Since the NLC had jurisdiction to review all grants or dispositions of public land to establish their propriety or legality, it had the mandate to investigate how the instant title was acquired and how the land in question was converted from public to private use.

6.  NLC was the body vested with review powers pursuant to article 68 (c) (v) of the Constitution as read together with articles 67 (e) and 67(3) of the Constitution. In the performance of its legislative function, the enactment of the NLC Act and in particular, section 14 of the said Act was proper. To that extent, section 14 of the NLC Act was not unconstitutional for granting powers to the NLC.

7.  Whereas article 40 of the Constitution protected the right to property, that protection/right did not extend to title founded on an unlawful acquisition. Article 40(6) of the Constitution excluded any property that had been found to have been unlawfully acquired.

8.  NLC in discharging its functions by investigating the manner in which the title/ grant in question was acquired acted well within the ambit of articles 40 (6) 67 and 68 (c) (v) of the Constitution.  It was not for the Court to stand in the way of a quasi-judicial body lawfully discharging its constitutional mandate.

9.  Article 47(1) of the Constitution granted every person with the right to administrative action that was expeditious, efficient, lawful, reasonable and procedurally fair.  Article 50(1) of the Constitution on the other hand granted every person the right to have any dispute that could be resolved by the application of law decided in a fair and public hearing before a court, or if appropriate, another independent and impartial tribunal or body.  Section 4 of the Fair Administrative Actions Act resonated with article 47 of the Constitution and reiterated the entitlement of every Kenyan to administrative action that was expeditious, efficient, lawful, reasonable and procedurally fair.

10. The public notice issued by NLC cited L.R numbers and names of interested parties, who were subsequently invited through the same notice to make representations before it.  The notice did not outline details of any complaint.  Adequate notice implied a notice that complied with the principles of natural justice which meant a written notice setting out the date and subject-matter of the hearing, grounds of the complaint, the basic facts in issue and the potential seriousness of the possible result of such hearing.

11. The mode of service of notice adopted by the NLC did not meet the threshold of the principles of natural justice and articles 47 and 50 of the Constitution, hence could not be said to be adequate/ sufficient notice.

12. The right to be heard transcended mere notice and extended to the person being given sufficient information to enable them prepare and/ or present their case.  Such a person was entitled to be furnished, in good time, with information, including reports and documents in the body’s possession that would be prejudicial to his/her case and which would guide that body relied in arriving at its decision.  Section 14(3) of the Act was clear that such a person, apart from entitlement to notice, had the right to inspect any relevant document.

13. The petitioner was neither furnished with the details of the complaint before the NLC nor granted access to the critical documents before the NLC.  In the circumstances, it was unfair to expect or conclude that in the absence of such critical information, the petitioner was granted a fair hearing as envisaged under article 50 of the Constitution. Thus the petitioner was not granted a fair hearing.

14. Article 67(2)(e) of the Constitution empowered the NLC to initiate investigations into present or historical land injustices and recommend appropriate redress. Article 68(c)(v) of the Constitution empowered Parliament to enact legislation to enable the review of all grants or dispositions of public land to establish their propriety.  The legislation anticipated was the National Land Commission Act (the Act).  The Act provided at section 14 for the review of grants and dispositions, pursuant to article 68(c)(v) of the Constitution.  The said section outlined the procedure for the review of grants and disposition of public land to establish their propriety and legality.  Where the NLC under section 15 of the Act found that the title was acquired in an unlawful manner, it should direct the Registrar to revoke the title.

15. There was no provision empowering the NLC to revoke titles even where it was established that the same were unlawfully or irregularly acquired.  The power to revoke title was vested in the Registrar and not the NLC which could only recommend.

16. The provisions of article 67 (2) of the Constitution were clear and overrode the provisions of section 14 (4) of the Act which empowered the NLC to make a determination after hearing the parties.  The Constitution was the supreme law as espoused under article 2 (4) of the Constitution. To the extent that the NLC rendered a determination as opposed to a recommendation, the decision was tainted with illegality.

Section 19 of the Non-Governmental Organisations Co-ordination Act, 1990

Section 19 of the Non-Governmental Organisations Co-ordination Act, 1990

Declared Unconstitutional in 2016.

 

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

Petition 495 of 2015

Onguto J

Download the Decision

 

Brief Facts

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

 

Held

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

 

Section 88(4) of the National Police Service Act

Section 88(4) of the National Police Service Act

Declared Unconstitutional in 2015.

 

Joshua Muindi Maingi v National Police Service Commission & 2 Others

High Court of Kenya at Nyeri,

Petition No 2 of 2015

B Ongaya, J

Download the Decision

 

Brief Facts

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

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

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

 

Held

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

Section 12 of the Registration of Births and Deaths Act

Section 12 of the Registration of Births and Deaths Act

Declared Unconstitutional in 2016.

 

L.N.W v Attorney General & 3 others

High Court, at Nairobi

Petition 484 of 2014

Mumbi Ngugi J

Download the Decision

 

Brief Facts

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

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

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

 

Held

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

 

Sections 3, 7 and 11 of the Parliamentary Powers and Privileges Act

Declared Unconstitutional in 2018.

Apollo Mboya v Attorney General & 2 others

High Court at Nairobi,

Petition No 472 of 2017

J M Mativo, J

Download the Decision

Brief facts:

The Petitioner challenged the constitutionality of sections 3, 7 and 11 of the Parliamentary Powers and Privileges Act (the Act). He also questioned the process leading to the enactment of the Parliamentary Powers and Privileges Act on grounds of failure to undertake public consultations with all stakeholders.

The Petitioner stated that section 7 of the Act was unconstitutional as it insulated Parliament's staff and legal officers from service of process from Courts in Kenya while permitting service of foreign court process within the precincts of Parliament.

The Petitioner challenged section 11 of the Act on various grounds. Generally, he stated that it purported to confer non-existent privileges and immunities on all staff and advocates of Parliament from court process. He said that it insulated the proceedings and decisions of Parliament including enactments and appointment of public officers from court scrutiny even where they were unconstitutional or a violation of fundamental rights and freedoms. Further, the Petitioner stated that the provision limited the right to fair administrative action and access to justice guaranteed under articles 47 and 48 of the Constitution and amounted to a limitation on the enjoyment of fundamental rights and freedoms which was contrary to article 24 of the Constitution. According to the Petitioner, section 11 of the Act made Parliament a house of secrets that was beyond the reach of the Constitution.

The challenge raised against section 3 of the Act by the Petitioner was that it purported to confer non-existent privileges and immunities to all staff of Parliament, members of the public and press who were within the precincts of Parliament from Court processes and it elevated them above the law. The Petitioner stated that the provision was a contravention of article 117(2) of the Constitution on powers, privileges and immunities of Parliament granted to the business of Parliament, its committees, the leaders of the Majority and Minority and Chairpersons and Members of Committees.

Held:

- Parliamentary privilege is a legal immunity enjoyed by members of Parliament, in which legislators are granted protection against civil or criminal liability for actions done or statements made in the course of their legislative duties.

- Parliamentary immunity ensured the proper operation of Parliament. It conferred rights and privileges to members of Parliament; most importantly freedom of speech. That freedom of speech enabled Parliament to do its job of legislating, adopting the budget and overseeing the activities of the Government. If members of Parliament could not criticize the Government and investigate and denounce abuses because of fear of reprisals by the executive branch or other powerful actors, they would not live up to their role. Freedom of speech would enable them to raise questions affecting the public good which could be difficult to voice elsewhere owing to the possibility of court action.

- Members would participate in parliamentary proceedings usually by speech and also through formal action including voting and giving a notice of motion. Strangers could also participate in parliamentary proceedings by giving evidence before parliamentary committees or presenting petitions with respect to private bills. While participating in parliamentary proceedings, members, officers and strangers were protected under parliamentary immunity. They could not be asked to account for their actions before any authority other than Parliament itself.

- The hard core of parliamentary immunity covered statements made from the floor of the House or in committees, Bills or proposed resolutions and motions, written and oral questions, interpellations, reports made at the request of Parliament, and votes cast. Such actions were protected by absolute privilege of freedom of speech. Members of Parliament could not be sued for defamatory statements or statements that would otherwise be a criminal offence.

- Section 11 of the impugned Act offered more immunity than would be covered under parliamentary immunity. It barred any person from challenging decisions made by Parliament or its committees in Court. It did not limit the nature of decisions which could not be challenged. It shielded Parliament's decisions from court scrutiny. It took the form of an ouster or finality cause which restricted or eliminated judicial review.

- Traditionally, courts interpreted provisions which ousted the Court's jurisdiction narrowly. That meant that a decision that was the subject of an ouster clause could still be subjected to judicial review.

- It was possible for legislation to be nullified by a court on grounds of unconstitutionality on the basis of its content or the process of its enactment. Similarly, a decision of a parliamentary committee, made in exercise of its quasi-judicial functions could be quashed by a court for being ultra vires, an error of law, unreasonable, illegal, and arbitrary or for violating the Bill of Rights.

- By denying an aggrieved citizen access to court in order to challenge a particular decision, ouster clauses offended the constitutional principle of rule of law. The issue that was most likely to provoke the Court's rejection of an ouster clause was that it violated the constitutional right to access to the courts and it attacked the constitutional duty of the Court to hear cases relating to violations of fundamental rights and freedoms and also to determine the constitutionality of legislations and the legality of decisions made.

- To the extent that section 11 of the Act restricted service of civil process to staff working in Parliament, including legal officers, it was a violation of the right of access to justice as recognized in article 48 of the Constitution. Court process would not be served inside Parliament in the course of parliamentary proceedings but to Parliament's officers or advocates authorized to accept service. Thus, it could not be said that the impugned section 11 was meant to protect parliamentary proceedings from disruptions. The justification given for the infringement of the right of access to justice by the Act did not meet the test provided for in article 24 of the Constitution.

- Section 3 of the Act described the precincts of Parliament. There was nothing unconstitutional about it. However, section 7 and 11 of the Act did not pass constitutional muster and were inconsistent with articles 1, 2, 3, 10, 19, 20, 21(1), 22, 23, 24, 48, 50, 93 (2),94 (4), 159, and 258 of the Constitution. Judicial review was part of the basic structure of the Constitution and it could not be ousted by a statutory provision.

Section 194 of the Penal Code

Section 194 of the Penal Code

Declared Unconstitutional in 2017.

 

Jacqueline Okuta & another v Attorney General & 2 others

Petition No 397 of 2016

High Court, at Nairobi

J.M Mativo, J

Download the Decision

 

Brief Facts

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

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

 

Held

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

Section 14(3) of the Political Parties Act

Section 14(3) of the Political Parties Act

Declared Unconstitutional in 2014.

 

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

High Court, at Nairobi

Petition No. 288 of 2014

I Lenaola, J

Download the Decision

 

Brief Facts

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

 

Held

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

Sections 4(2), 8, 12, 17(1), 18, 27, 40, 42, and 70 of the Public Audit Act, 2015

Declared Unconstitutional in 2018.

Transparency International (TI Kenya) v Attorney General & 2 others

High Court at Nairobi,

Petition No 388 of 2016

E C Mwita, J

Download the Decision

Brief facts:

The Petitioner, a non-profit organization, established with the aim of developing a transparent and corrupt free society through good governance and social justice initiatives, sought to challenge the constitutionality of various provisions of the Public Audit Act 2015. In particular, the Petitioner challenged the validity of sections 4(2), 7(1)(g), 9, 12, 14, 17, 18(3), 25, 26, 27, 40, 42, 68, 70 and 72 of the Act.

Generally, some of the provisions were said to negatively impact on the independence of the Auditor General. For example, the constitutionality of sections 8(a)(b)(c)(d)(e) and (f) and 17(1) of the Act which created a role for the Public Service Commission, the Salaries and Remuneration Commission and the National Treasury as related to the staff in the Auditor General's office was questioned. On similar grounds, section 18(3) of the Public Audit Act, which required the Auditor General to second officers to state organs and the provisions on the functions of the Audit Advisory Board, which was to advise the Auditor General on questions concerning the discharge of his mandate, were questioned.

Additional provisions which were said to negate the Auditor General's independence included those providing for inception meetings to be held between the Auditor General and national security organs to discuss the scope of the audit of the national security organs and section 68 of the Act which gave Cabinet Secretary for Finance powers to make regulations for purposes of giving effect to the provisions of the Act.

Provisions which were said to unduly limit or extend the Auditor General's functions or powers were also challenged. Those provisions included section 7(1)(g) of the Public Audit Act which provided that the Auditor General would serve any other functions provided in written law, section 9(1)(e) of the Public Audit Act contained a proviso which limited the Auditor General's access to records, documents, property and premises for purposes of undertaking an audit to situations where such access was reasonably necessary and section 42 of the Public Audit Act, which provided that the Auditor General would not question the merits of a policy adopted by the National Government and the County Government.

The appointment of the Acting Auditor General under section 12 of the Act was also questioned as that entity would be appointed by statute to perform the constitutional functions of an Auditor General in the absence of an Auditor General. It was said that the position was not contemplated by the Constitution and could not be created by statute as it allowed the office holder to exercise constitutional powers.

A challenge was also raised against the constitutionality of section 72 of the Act which limited public access to the official reports of the Auditor General on national security grounds. Furthermore, the scope of the President's powers, under article 115 of the Constitution, when referring a Bill back to Parliament for reconsideration after its presentation for presidential assent was questioned. It was argued that in making recommendations and suggestions on the drafting of the Bill, the President went beyond what was required.

Held:

Under article 229(1) of the Constitution the Auditor General would be nominated by the President and after being approved by Parliament, he would then be appointed by the President. As a constitutional creature, the Auditor General was not a statutory head. The impression in section 4(2) of the Public Audit Act that the Auditor General was created by the statute or was a statutory office was erroneous. Therefore, the statute had an unconstitutional effect.

Section 4(1) of the Public Audit Act recognized that the Auditor General existed by virtue of article 229(1) of the Constitution while subsection 2 of the same provision defined the Auditor General as a statutory head. That entailed reducing a constitutional office into a statutory one. Section 4(2) of the Act resulted in an unconstitutional effect and offended article 229(1) of the Constitution.

Section 4(2) of the Public Audit Act created a problem when it subjected the appointment of the Auditor General's staff to the Public Service Commission. As the holder of an independent office under article 252(1)(c) of the Constitution, the Auditor General had power to recruit his own staff.

Section 7(1) (g) of the Public Audit Act provided that the Auditor General shall perform any other functions prescribed by any other written law. Article 229 provided for the functions of the Auditor General which were to audit and report on financial expenditure of enumerated public entities. Article 229 did not provide any other duties for the Auditor General or subject him to any other legislation. However, under article 252(1)(d) of the Constitution, the Auditor General was allowed to perform any functions and exercise any powers prescribed by statute in addition to the functions and powers conferred under the Constitution. Therefore, the impugned section 7(1) (g) of the Act did not expand the powers and functions of the Auditor General beyond what the Constitution allowed.

Section 8 of the Public Audit Act provided that the Auditor would recruit and promote qualified staff and human resource subject to article 234(5) of the Constitution. Article 234(5) of the Constitution provided for the delegation of functions and powers of the Public Service Commission to any officer, body or authority in the public service. The Auditor General was an independent constitutional office which would not operate while being subject to the Public Service Commission. It would not recruit and discipline staff subject to the Public Service Commission.

Requiring the Auditor General to take action subject to article 234 of the Constitution would undermine and erode the independence bestowed on him by the Constitution. A holistic reading of articles 229, 234, 249 and 252 of the Constitution revealed that the Auditor General could not be subject to the Public Service Commission when either recruiting or disciplining his staff.

The proviso to section 9 (1) (e) of the Act, allowed the Auditor General to access documents, reports, records and even properties for the purpose of carrying out his work if in his opinion the access was reasonably necessary for the audit. There was no limitation introduced in the proviso. It would have been different had the proviso left the question of necessity of access in the opinion of the state organ or public body to be audited. There was no ambiguity or vagueness in the proviso which would make it constitutionally invalid.

Section 12 of the Public Audit Act which created the office of Acting Auditor General, presented various problems. Under the provision, it was the Public Service Commission which would recommend the appointment of the Acting Auditor General to the President in order to fill a vacancy in the office of Auditor General. There was no constitutional requirement that the Public Service Commission would recommend a person for appointment as Auditor General. The law was clear on how the Auditor General would be appointed and there was no alternative method.

Any attempt to create a substantive position of Acting Auditor General by statute, appoint a person otherwise than as contemplated by the Constitution and allow him/her to exercise constitutional functions and powers of the Auditor General, would amount to an unconstitutional office and unconstitutional exercise of functions and powers of the constitutional independent office. Section 12 of the Act was inconsistent with article 229 of the Constitution and was invalid.

Section 17(1) provided that the recruitment of staff of the Auditor General was subject to article 234(5) of the Constitution. Article 234(5) of the Constitution allowed the Public Service Commission to delegate its functions and powers to any other body. Given that the Auditor General was an independent office holder, the Public Service Commission could not delegate its functions and powers to the Auditor General. The Auditor General had powers to recruit staff independently. Section 7(1) was inconsistent with articles 249 (2) (b) and 252 (1) (c) of the Constitution.

The Auditor General was allowed to employ staff for purposes of carrying out his functions and duties. Secondment of staff, under the terms of section 18 of the Public Audit Act, would be improper. It would lead to familiarity, undermine the independence of individual staff and interfere with institutional independence.

Section 27 of the Public Audit Act which provided for the functions of the Audit Advisory Board was problematic. The Auditor General was created by the Constitution as a holder of an independent office. Under article 229(2) of the Constitution, holders of independent offices were independent and not subject to direction or control by any person or authority. The word "independent office" under the Constitution meant an office that worked independent of all other state organs in the discharge of its duties and performance of its functions.

An independent Auditor General was critical in establishing an office that dealt with public finance administration matters given that the Kenyan people put their trust on state organs and public bodies to use public funds to promote an equitable society. In undertaking an audit, the Auditor General was required to reveal any failures on the part of state organs and public bodies to comply with public finance regulations and he could not do that if his independence was curtailed. Independence guaranteed that the Auditor General would perform his duties without fear of repercussions.

The principal function of the Audit Advisory Board was to advise the Auditor General on how to discharge his mandate. That was an interference with the Auditor General's institutional and individual independence. It was also a violation of article 249(2) (b) which was to the effect that the Auditor General was independent and not subject to direction or control of any person or authority. Section 27 of the Public Audit Act was therefore unconstitutional.

Section 40 of the Public Audit Act was unconstitutional on grounds that it interfered with the independence of the Auditor General. It required the Auditor General, when auditing national security organs, to hold a pre-audit meeting at the highest level to agree on the areas to audit and the appropriate audit approach.

Section 42 of the Act barred the Auditor General from questioning the merits of a policy or objective of any level of Government or public entity, when undertaking an audit. A statute could not impose conditions on the performance of the Auditor General's functions where the Constitution did not impose them. Section 42 of the Act was a violation of article 10 of the Constitution which provided for national values and principles of governance which included integrity, transparency and accountability and also article 201 of the Constitution which provided for financial openness.

Section 68 of the Public Audit Act gave power to the Cabinet Secretary for finance to make regulations necessary for the operationalization of the Act. The Cabinet Secretary could make such regulations for purposes of enforcing provisions of the Act if the provisions were not unconstitutional and they did not interfere with the independence of the Auditor General. Where it was apparent that such regulations were interfering with the independence of the Auditor General, they would be open to challenge.

Section 70 of the Public Audit Act was superfluous. It provided that the Act shall prevail in case of any inconsistency between the Act and any other legislation relating to the functions and powers of the Auditor General. It was the Constitution that provided for the powers and functions of the Auditor General and the Public Audit Act merely restated them. If any other legislation conflicted with those provisions, it would be unconstitutional under the terms of article 2(4) of the Constitution. Section 70 of the Act did not add anything new to what was already provided for under the Constitution.

Section 72 of the Public Audit Act had the effect of limiting access to reports by the Auditor General on grounds of national security. Section 72 of the Act recognized the right of access to information as provided for in article 35 of the Constitution and any limitation placed on the enjoyment of that right would have to be justified.

Public Procurement and Disposal Act, 2005-Section 100 (4)

Declared unconstitutional in 2011.

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

Misc. Civil Application No. 362 of 2010

D. Musinga, J

Download the Decision

Brief Facts:

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

Held:

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

Supreme Court Act, 2011-Section 16(2)(b)

Declared Unconstitutional in 2013.

Commission on Administrative Justice v Attorney General & Law Society of Kenya (Interested Party)

Petition No 284 of 2012

High Court, at Nairobi

I Lenaola, J

Download the Decision

Brief Facts:

The Commission on Administrative Justice (the Petitioner) filed a petition challenging the constitutionality of sections 16(1) & (2)(b) and 23(2) of the Supreme Court Act, 2011, submitting that those sections were ultra vires the provisions of article 163 of the Constitution.

The Petitioner contended that section 16(1) & (2)(b) of the Supreme Court Act purported to unilaterally and unconstitutionally extend the appellate jurisdiction of the Supreme Court to include areas where the Court was satisfied that the matter was in the interest of justice and where substantial miscarriage of justice may have occurred, which were situations that were not contemplated by the Constitution. The Petitioner submitted that as a matter of fact the Constitution only recognized a matter of general public importance as the basis for admission of an appeal for hearing by the Supreme Court.

The Petitioner further took issue with the composition of the bench of the Supreme Court for purposes of its proceedings, arguing that whereas the Supreme Court Act under section 23(2) provided that any two or more judges of the Supreme Court may act as the Court, the Constitution provided for a composition of five judges. The Petitioner submitted that the unwritten principle was that at no time should the Supreme Court have an even number of judges, and that to that extent any legislation that created a bench of two judges in the Supreme Court was unconstitutional.

The petitioner finally submitted that once the substantive provisions of an Act were declared unconstitutional, any rule(s) that was made pursuant to those provisions should suffer the same fate:

Held:

Section 16(2) used the word ‘or’ denoting that ‘substantial miscarriage of justice’ as an alternative to proof of ‘a matter of general public importance’ as a criteria for leave to appeal to the Supreme Court. From the reading of section 16 of the Supreme Court Act, the addition of the words ‘a substantial miscarriage of justice’ granted the Supreme Court an extra criteria and jurisdiction to hear and determine applications for leave to appeal to that court. In that instance, section 16(2)(b) was unconstitutional.

Work Injuries Benefits Act, 2007-Section 7 and 10(4)

Declared Unconstitutional in 2018.

Attorney General v Law Society of Kenya & another

Civil Appeal No 133 of 2011

Court of Appeal, at Nairobi

Waki, Makhandia & Ouko, JJ.A)

Download the Decision

Brief facts:

At the High Court, the 1st Respondent challenged sections 4, 7(1), 10(4), 16, 23(1), 25(1), 25(3), 52(1), 52(2) and 58(2) of the Work Injuries Benefits Act of 2007 and stated that they were unconstitutional. The High Court found that the said sections were unconstitutional. The Appellant lodged an appeal at the Court of Appeal to challenge the High Court's decision. The Court of Appeal held that section 7 (in so far as it provided for the Minister’s approval or exemption) and 10 (4) of the Work Injuries Benefits Act 2007 were inconsistent with the Constitution (repealed) and the Constitution of Kenya 2010.

Held

In a free market economy the Government can dictate to employers from which insurer they must take the policy. It cannot micro-manage the implementation of the Act. The Legislature having enacted the enabling laws, the role of the Executive is limited to ensuring compliance with the law. Presently, we think there are sufficient regulatory measures under section 3 of the Insurance Act which establishes the Insurance Regulatory Authority (IRA) with the mandate of licensing, regulating, supervising and general administration of insurance company’s affairs. Of significance to us is the fact that, like the learned Judge, we are satisfied that the requirement that the insurer be approved by the Minister went against section 80 of the former Constitution, for such a requirement would limit the right to freedom of association. The provision would also be in contravention of Article 36 of the current Constitution on freedom of association.

Section 52 of the Work Injuries Benefits Act 2007 gave an objector a right to appeal without giving an affected party a corresponding right. There was no reason in an adversarial system for only one party to have a right of appeal. The provision appeared to be a drafting error and it was not inconsistent with the Constitution, it could be remedied via a legislative amendment.

Victim Protection Act- Section 9(1) (e)

Victim Protection Act- Section 9(1) (e)

Joseph Nduvi Mbuvi v Republic

High Court at Machakos

G V Odunga, J

Download the Decision

Brief Facts:
The application for revision arose from the Senior Resident Magistrate Court ruling, in which the Court placed the applicant on his defence and directed the applicant to supply the prosecution with the witness statements and any other evidence the defence intended to rely on at the defence hearing. The Court went further and made orders geared towards compelling the defence witnesses to record their statements and furnish the prosecution therewith within 14 days.

Held:
1. Article 50(2) of the Constitution which provided for an accused person’s right to be informed in advance of the evidence the prosecution intended to rely on, and to have reasonable access to that evidence. That right could only be exercised by the accused person.

2. The prosecution could not rely on article 50(2) of the Constitution as a basis for seeking to be informed in advance of the evidence the accused intended to rely on and to have access to it. That right could only be exercised against those who had unlimited capacity and resources to deprive individual Kenyans of their life, liberty and security of the person. It was the state that had the capacity to deprive individuals of their rights guaranteed under the Constitution. Therefore, the Court had to rigorously enforce, against the state, the fundamental rights and freedoms of the individual guaranteed by the Constitution.

3. There should be no question of reciprocal rights, or a level playing or any such theory as between the accused person and the state. No statute should give the state such privileges, and the Constitution, did not give the prosecution such powers. Additionally, those rights should not be given through the inherent power of the Court.

4. Whereas article 50(1) of the Constitution provided for fair hearing generally, that right could not be stretched to confer upon the prosecution the right to be informed in advance of the evidence the accused intended to rely on, and to have reasonable access to that evidence or reciprocity of statements.

5. Article 50(9) of the Constitution empowered the Parliament to enact legislation providing for the protection, rights and welfare of the victims of offences. On the other hand, section 9(1)(e) of the Victim Protection Act provided that a victim had a right to be informed in advance of the evidence the prosecution and defence intended to rely on, and to have reasonable access to that evidence. The rights of victims should not be extended to encompass the right to be informed in advance of the evidence that the accused intended to rely on and to access it.

6. There was a presumption of innocence that the Constitution bestowed upon an accused person, there could be no case that an accused person would be expected to disclose in advance. To the extent therefore that section 9(1)(e) of the Victim Protection Act expected that an accused would in advance inform the victim of the evidence he intended to rely on, and to give reasonable access to that evidence, the provision clearly contravened both the spirit and the letter of the Constitution and to that extent it was null and void.

Compilation by The National Council for Law Reporting (Kenya Law)