Legislation / Provisions of the Law Declared Unconstitutional

Legislation/ Provisions of the Law Declared Unconstitutional.

Compilation by The National Council for Law Reporting (Kenya Law)
2011 - 2018.

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.

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.

Sections 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

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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 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

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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.

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.

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.

Auctioneers Act (No. 5) of 1996

Auctioneers Act (No. 5) of 1996

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

 

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.

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

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

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)

 

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.

 

Merchant Shipping (Maritime Service Providers) Regulations, 2011

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

 

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.

 

Coffee (General) Regulations, 2016

Coffee (General) Regulations, 2016

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

 

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.

 

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

 

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.

 

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

 

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.

 

Article 32 of the Constitution of Kenya, 2010

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.

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

 

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.

Mombasa Port Authority Bill and Mombasa Ports and Habours Bill, 2014

Mombasa Port Authority Bill and Mombasa Ports and Habours Bill, 2014

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

 

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).

Elections Act

Elections Act

Declared Unconstitutional in 2017. 

 

Peter Solomon Gichira v Independent Electoral and Boundaries Commission & another

Constitutional Petition No 234 of 2017

G V Odunga, J

 

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.

Statute Law (Miscellaneous Amendments) Act

Statute Law (Miscellaneous Amendments) Act

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

 

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”.

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

 

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 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

 

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.

 

Section 30(3) of the Judicial Service Act

Section 30(3) of the Judicial Service Act

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

 

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 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

 

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.

 

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

 

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 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

 

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.

 

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

 

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.

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

 

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 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

 

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.

National Assembly Remuneration Act

National Assembly Remuneration Act

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

 

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.

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

 

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.

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

 

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 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

 

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.

Section 16(2)(b) of the Supreme Court Act, 2011

Section 16(2)(b) of the Supreme Court Act, 2011

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

 

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.

 

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

 

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.

Section 13(A) of the Government Proceedings Act and section 3(1) of the Public Authorities Limitation Act

Section 13(A) of the Government Proceedings Act and section 3(1) of the Public Authorities Limitation 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

 

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.

 

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

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

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

  

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.