Legislation / Provisions of the Law Declared Unconstitutional

Legislation/ Provisions of the Law Declared Unconstitutional.

Sections declared to be unconstitutional

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

A

Anti-Corruption and Economic Crimes Act Section 62(6)

Anti-Corruption and Economic Crimes Act Section 62(6)

Moses Kasaine Lenolkulal v Director of Public Prosecutions

High Court at Nairobi

M Ngugi, J

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Brief Facts:
The applicant was the Governor of Samburu County. He had been charged with various offences under the Anti-Corruption and Economic Crimes Act. The Trial Court granted the applicant bail and also issued interim orders that prohibited the applicant from accessing Samburu County offices pending filing, hearing and determination of an application to be made by the prosecution.

Aggrieved by the interim orders the applicant filed the instant revision, in which he sought for the interim orders to be vacated on grounds that they violated section 62(6) of the Anti-Corruption and Economic Crimes Act and that the orders went against the procedures of removing a County Governor as prescribed in the Constitution.

Held:
1. The applicant was holder of a constitutional office. He was the Governor of Samburu County and would thus appear to be exempt from the provisions of section 62(1) of ACECA and protected by section 62(6) thereof as the grounds for his removal were set out in the Constitution. Further, by requiring that he seeks authorisation from the EACC and its CEO, he was, to some extent, subordinated to the EACC. There could also be some practical difficulties in the manner in which the authorisation was to be given.

2. The question of whether the applicant should have access to his office required a perspective that looked beyond the interests of the individual holder of the constitutional office and considered the wider public interest. That perspective spoke to the question of political hygiene, and was a perspective that raised serious concerns that required judicial consideration with respect to section 62(6) of ACECA.

3. Suspension of a public or State officer was not a violation of rights and was in accord with the constitutional provisions in Chapter Six requiring integrity from public and state officers. Where a public or state officer was charged with an offence of corruption, then the officer was required by law to be suspended with half pay, under the terms of section 62(1) of ACECA, until the conclusion of the case. If the prosecution results in an acquittal, then the public or state officer was restored to his position and paid all the monies that could have been withheld in the period of his suspension.

4. Article 260 of the Constitution defined a public officer as a state officer or any person other than a State Officer, who held a public office. Article 260 defined a state office and a state officer to include a member of a County Assembly, Governor or Deputy Governor of a County, or other member of the executive committee of a County Government. Therefore a person in the position of the applicant, a County Governor, as well as well as members of constitutional commissions such as the Chairperson of the National Land Commission were State Officers. If some State Officers were not to be afforded different, preferential treatment, then section 62(1) of ACECA, which referred to suspension of a public officer or state officer who was charged with corruption or economic crime, should apply to them also.

5. In considering section 62(6) of ACECA one should regard the provisions of the Constitution with regard to leadership and integrity, and the national values and principles that underpinned all actions and conduct by all public and State Officers and all State Organs.

6. The provisions of section 62(6) of ACECA, apart from obfuscating, indeed helping to obliterate the political hygiene, were contrary to the constitutional requirements of integrity in governance, were against the national values and principles of governance and the principles of leadership and integrity in Chapter Six of the Constitution, and undermined the prosecution of officers in the position of the applicant in the instant case. In so doing, they entrenched corruption and impunity in the land.

7. Under the provisions of the County Government Act, where the Governor was unable to act, his functions were performed by the Deputy Governor. That was provided for in section 32(2) of the County Governments Act. The Governor in the instant case was not being removed from office. He had been charged with an offence under ACECA, and a proper reading of section 62 of ACECA required that he did not continue to perform the functions of the Office of Governor while the criminal charges against him were pending. However, if section 62(6), which violated the letter and spirit of the Constitution, particularly Chapter Six on leadership and integrity, was to be given an interpretation that protected the applicant’s access to his office, then conditions had to be imposed that protected the public interest. That was what the Trial Court did in making the order requiring that the applicant obtained the authorisation of the CEO of EACC before accessing his office. In the circumstances, there hadn’t been an error of law that required that the instant Court revises the said order.

8. Should there be difficulty in obtaining the authorisation from the EACC, there would be no vacuum in the County. The instant Court took judicial notice of the fact that there had been circumstances in the past in which County Governors had, for reasons of ill health, been out of office, and given the fact that the Constitution provided for the seat of a Deputy Governor, the Counties had continued to function. In the instant case, the applicant was charged with a criminal offence; he had been accused of being in moral ill-health. He was alleged to have exhibited moral turpitude that required that, until his prosecution was complete, his access to the County government offices were to be limited as directed by the Trial Court.

9. [Obiter] Would it serve the public interest for him to go back to office and preside over the finances of the County that he has been charged with embezzling from? What message does it send to the citizen if their leaders are charged with serious corruption offences, and are in office the following day, overseeing the affairs of the institution? How effective will prosecution of such state officers be, when their subordinates, who are likely to be witnesses, are under the direct control of the indicted officer?

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

4

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

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

High Court, at Nairobi

Petition No 120 of 2017

Mwita J

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Brief facts

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

Held

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

Statute Law (Miscellaneous Amendments) Act No 12 of 2012 provisions amending the Advocates Act and the Law Societies Act

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

Court of Appeal at Nairobi

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

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Brief facts

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

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

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

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

Held

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

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

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

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

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

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

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

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

B

Banking Act- Section 33B (1) and (2)

Boniface Oduor v Attorney General and 4 others
High Court at Nairobi; Commercial and Admiralty Division
F Tuiyott, J Kamau, R B Ngetich, JJ
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Brief Facts:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Children Act-Sections 2 (b), 27 (2), 94 (1), 102 (1), 158 (4) (b) & (c) & Law of Succession Act-Sections 3 (2) & (3) Birth & Deaths Registration Act-Section 12

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

&

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

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

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Brief Facts:

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

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

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

Held:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Births and Deaths Registration Act - Section 12

Declared Unconstitutional in 2016.

 

L.N.W v Attorney General & 3 others

High Court, at Nairobi

Petition 484 of 2014

Mumbi Ngugi J

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Brief Facts

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

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

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

 

Held

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

 

C

Children Act-Sections 2 (b), 27 (2), 94 (1), 102 (1), 158 (4) (b) & (c) & Law of Succession Act-Sections 3 (2) & (3) Birth & Deaths Registration Act-Section 12

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

&

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

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

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Brief Facts:

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

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

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

Held:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Declared Unconstitutional in 2017.

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

Miscellaneous Civil Application 291 and 314 of 2016

G V Odunga, J

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Brief Facts

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

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

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

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

Held

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

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

Civil Procedure Rules -Order 22 rule 7(1).

Declared Unconstitutional in 2012.

 

Beatrice Wanjiku & Another v Attorney General & 3 others

Petition No. 190 of 2011

High Court, at Nairobi

D S Majanja, J

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Brief Facts

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

Held

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

Clinical Officers (Training, Registration & Licensing) Bill 2016 - Section 34

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

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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.

Criminal Procedure Code - Sections 43-61A

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

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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.

Criminal Procedure Code - Section 166

Declared Unconstitutional in 2018.

Republic v SOM

High Court at Kisumu,

Criminal Case No 6 of 2011

D S Majanja, J

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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.

Criminal Procedure Code - Section 167

Declared Unconstitutional in 2016.

 

Hassan Hussein Yusuf v Republic

Criminal Appeal 59 of 2014

High Court, at Meru

Kiarie Waweru Kiarie J

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Brief Facts

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

 

Held

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

Contempt of Court Act, No 46 of 2016

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

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

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

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

Held

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

County Government (Amendment) Act that introduced the County Development Board declared unconstitutional

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

Court of Appeal at Nairobi

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

Brief facts:

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

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

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

Held

  1. Article 25(1)(i) of the Constitution expressly stated that any alteration to the objects, principles and structure of devolved governments could only be done by way of referendum. If a finding was made that the Act altered the structure of devolved government, it would follow that the alteration was unconstitutional as no referendum was conducted prior to enactment of the Act. The functions and composition of membership to the CDB as envisaged under sections 91A, 91B and 91C of the Act had to be appraised and evaluated against the above relevant constitutional articles. The constitutionality of the Act depended on whether it violated any of the cited articles.
  2. Section 91A (1) (a) of the Act made the elected member of senate for the county the chairperson of the CDB and convener of its meetings. Section 91A (1) (d) of the Act made the governor of the county to be the vice chairperson of the CDB. A cursory examination of the composition of the CDB revealed that its composition and role of CDB ensured domination by politicians and the subordination of governors to senators. For that reason, section 91A (1) (a) and (d) of the Act was antithetical to and violated the provisions of article 179 (4) of the Constitution. The impugned section made the elected member of the senate chairperson and the governor of the county vice chairperson of the CDB.
  3. The constitutional structure of county government under article 179 (4) of the Constitution was that the county governor and the deputy county governor were the chief executive and deputy chief executive of the county. Section 91A (1) (a) of the Act in making the governor to be vice chair drastically and impermissibly altered the hierarchical structure of a county government. It was unlawful and unconstitutional to cause the governor of county to deputize or be vice chairperson of any committee or organ whose mandate related to county matters. In the absence of express constitutional provision or authorization by the county government, it was unconstitutional for a person who was not a member of the county government to preside over county matters. The Constitution did not contemplate such subservience of governors to senators in the execution of county functions.
  4. Of relevance to the appeal was the composition of the CDB. The Act vide section 91A (1) (a) (b) (c) and (l) provided members of the CDB to include the elected senator, members of the national assembly representing constituencies located in the county, woman member of the national assembly for the county and the county commissioner. Section 91A (1) (a) (b) (c) and (l) of the Act violated the provisions of article 176 (1) and 179 (6) of the Constitution. The structure of devolved government under article 176 (1) of the Constitution was that the county government consisted of a county assembly and a county executive. Senators and members of the national assembly and woman member of the national assembly and the county commissioner were not part of the structure of county government. It was thus a violation of the structure of devolved government to make persons who were members of the national government or parliament to be members of a decision-making body in a county government. The said sections further violated the functional aspects of the doctrine of separation of powers.
  5. Section 91A (2) of the Act itemized the functions of the CDB. Of relevance was section 91A (2) (b) and (c) of the Act where the CDB was to consider and give input to any county development plans and the annual budget before they were tabled in the county assembly. Also relevant was section 91B of the Act which provided that the operational expenses in respect of the CDB were to be provided for in the annual estimates of the revenue and expenditure of the respective county government.
  6. Section 91A (2) and section 91B of the Act violated the functional integrity of county governments. The sections were contrary to articles 179 and 185 of the Constitution. Article 179 (1) of the Constitution vested executive authority of the county upon the governor. Pursuant to article 179 (6) of the Constitution, members of the county executive committee were accountable to the governor. Pursuant to article 185 (1) of the Constitution, the legislative authority of the county was vested upon the county assembly. By requiring county development plans and the annual budget to be tabled before the CDB prior to being considered by the county assembly, the Act restricted the functional independence of the county assembly.
  7. It was an offence under section 91C of the Act for a county assembly to consider and approve its budget or a development plan before the same was tabled before the CDB. Such a scenario was a fetter, restriction and limitation to the functions and powers of the county executive committee and the county assembly. The devolved structure of the county government did not recognize such restrictions or fetters on functional independence of the county government, county executive and county assembly. To the extent that sections 91A (2) and 91B of the Act enacted and imposed functional restrictions on the county executive and county assembly, the said sections were unconstitutional, null and void. The trial court did not err in finding that the functions of the CDB were antithetical to the functional integrity of county government.
  8. Sections 91A and 91B of the Act altered the structure of devolved government as enshrined in the Constitution. That being so, article 255(1)(i) of the Constitution came into play. There was no referendum held in accordance with article 255(1)(i) of the Constitution to alter the structure of the devolved government. To that end, the procedure for altering the structure of devolved government was not followed. Parliament could not lawfully alter the structure of devolved government through an Act of Parliament without a referendum. Accordingly, the Act was unconstitutional, null and void as the procedure for altering the structure of devolved county government as stated in article 255(1(i) of the Constitution was not followed.
  9. In the context of the relationship between national and county government, article 186(2) of the Constitution stipulated that a function or power that was conferred on more than one level of government was a function or power within the concurrent jurisdiction of each of those levels of government. Article 6(2) of the Constitution clarified that the governments at the national and county levels were to perform their functions and exercise powers in a manner that respected the functional and institutional integrity of government at the other level and respected the constitutional status and institutions of government at the other level.
  10. Since national and county governments were inter-dependent, the statement by the trial court that if a power was granted to a specific organ then no other entity could lawfully exercise that power was a general rule that was subject to exceptions. One such exception was where delegation of powers or functions was permitted. The doctrine of separation of power did not apply in its absolute rigidity but the functions of the different parts or branches of the government had been sufficiently differentiated. To that end, the Constitution did not embody the puritan concept of separation of powers but a system of checks and balance with inter-dependence inter and intra various constitutional organs and arms of government. However, the Constitution did not contemplate assumption, by one organ or part of the state, of functions that essentially belong to another. It was not unconstitutional for national government to perform functions inside the administrative structures of county government.
  11. Oversight, which was a form of monitoring, did not entail controlling or giving instructions or micro managing, rather, it involved a regular review of progress or development of a subject. Among the functions of the CDB as stated in section 91A (2) of the Act was to consider and give input to county budget and county development plans before they were tabled at the county assembly. Prima facie, that appeared to be an innocent provision. However, when read in tandem with section 91C of the Act, the decision-making mandate of the CDB became evident as well as the enforceable requirement for the CDB to consider the county budget and development plans prior to tabling at the county assembly.
  12. The coercive nature of the CDB’s functions guaranteed by section 91C of the Act transformed the CDB into a decision making organ and that violated the administrative, legislative and decision making power and authority of the county executive committee, the county assembly and the position of county governor as the chief executive officer of the county.
  13. By involving the senator, members of the national assembly and the woman representative of the county in CDB, a conflict of interest arose between the oversight role of the senate, the functions of the CDB and the mandates of the county assembly and the county executive committee.
  14. The trial court did not err in finding that sections 91A and 91B of the Act contravened the Constitution and were antithetical to the oversight role of the senate as provided in article 96 (2) and (3) of the Constitution as read with the legislative power of the county assembly in article 185 (1) of the Constitution.
  15. The authority of the judiciary to determine the constitutionality of the conduct of other branches of government was a constitutional command. Courts could not delegate that sacrosanct constitutional mandate to another person or body. Under article 165(3) of the Constitution, the High Court had the duty and obligation to intervene in actions of other arms of government and state organs where it was alleged or demonstrated that the Constitution had either been violated or threatened with violation.
  16. Section 13A of the Government Proceedings Act (GPA) required a 30-day notice to be given before any suit could be instituted against the government. On the other hand, section 12(1) of the GPA provided that civil proceedings by or against the government ought to be instituted by or against the Attorney-General, as the case may be. On constitutionality of section 13A of the GPA, the trial court relied on the article 48 of the Constitution on access to justice in finding that the requirement of notice was an impediment to access to justice.
  17.  In principle, civil proceedings were distinguished from criminal proceedings. In the broad categorization of civil proceedings were various modes of instituting civil claims by way of plaint or originating summons or a constitutional petition. Under the 2010 constitutional framework, constitutional petitions on enforcement of fundamental rights or freedoms or petitions alleging violation of the Constitution had different procedures and framework as envisioned by article 22 (3) and (4) of the Constitution. To that extent, a constitutional petition was not civil proceedings mandatorily subject to the ordinary rules of Civil Procedure and the Government Proceedings Act. It was a procedure sui generis and the court was slow to admit to any procedural fetters and hurdles to access to justice in matters constitutional.

Community Land Act- Section 2

Kelly Malenya v Attorney General and another;

Council of Governors (Interested Party) [2019] Eklr

High Court at Nairobi

E C Mwita, J

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Brief Facts:

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

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

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

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

Held:

  1. The petition challenged constitutionality of sections 2, 8(4), 9, 15, 21, 38 and 48 of the Community land Act (Act). Although the reliefs also sought invalidation of sections 6 and 11 of the Act, neither the petition nor the supporting affidavit explained why those sections were unconstitutional.
  2. When a statute or a statutory provision was challenged on grounds of unconstitutionality, the court had an obligation to embark on a discourse to determine whether or not a petitioner’s concerns were true. In doing so, the court took into account the principles applicable in determining the constitutional validity of a statute or statutory provision.
  3. There was a general but rebuttable presumption that a statute or provision was constitutional and that the person alleging unconstitutionality bore the burden to prove that the claim of unconstitutionality. That principle presumed that the legislature being the peoples’ representative understood the problems legislation was intended to solve.
  4. The court should also consider whether the purpose or effect of the impugned provision was unconstitutional. The purpose of enacting legislation or the effect of its implementation could lead to an unconstitutional purpose or effect which would render the provision constitutionally invalid.
  5. Section 2 of the Act in so far as was relevant to the petition, provided that Community land included:
    1. land declared as such under article 63(2) of the Constitution of Kenya, 2010 (Constitution); and
    2. b.land converted into community land under any law.

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

  1. From the definition in section 2 of the Community Land Act, it could not be said that the definition in section 2 was inconsistent with the one in article 63 (2) of the Constitution. The Constitution defined community land broadly and section 2 merely stated that community land was that land declared as under article 63(2) and land converted into community land under any law. A proper reading of section 2 showed that the definition repeated the words in the Constitution. The addition of (b), land converted into community land under any law, did not add or change anything. It was at best superfluous since it fell under any other land declared to be community land by an Act of Parliament.
  2. Section 2 of the Act used the words means and includes in defining community land. The Constitution used the word consists which was close to means. The Constitution did not use the words includes which was infinitive. Article 259(4) (b) was clear that when the word includes was used in the Constitution, it meant; includes but not limited to. By using two words means and includes, section 2 rendered the definition of community land vague. It was not clear whether community land meant the land as defined in the Constitution or it included some other land apart from that defined in the Constitution. The Act could not use both words in the definition section as doing so created confusion.
  3. A provision was vague if it was capable of two interpretations. In the context of section 2 of the Act, it was not clear whether the definition of community land meant land declared as such under article 63(2) of the constitution; or included land declared as such under article 63(2) of the constitution. The two words could not be used at the same time or interchangeably. That made the provision vague and therefore unconstitutional to that extent.
  4. Section 8 of the Fourth Schedule to the Constitution placed planning and development including land survey and mapping under the county governments. On the other hand, section 8 of the Act talked about procedure for recognition, adjudication and registration of community land. Community land was land found in the counties, held in any form and communally used.
  5. Adjudication of community land included surveying and mapping, a function that was reposed on the two levels of government, national and county governments. Section 21 of Part 1 of the Fourth Schedule to the Constitution placed general principles of land planning and the coordination of planning by the counties in the national government. On the other hand, section 8 gave counties planning and development including land survey and mapping. That was a shared function between the two levels of government.
  6. In order to determine the meaning including constitutionality of a provision, the whole provision had to be read. Meaning could not be attributed to a provision by reading only a portion of it. Such a discourse could lead to distortion. The statute or its provision had to also be looked at both textually and contextually, for both were important in statutory construction.
  7. The petitioner argued that the impugned section 8(4) of the Act did not involve county governments in any way during the survey exercise and referred to section 8(4) only. He did not make reference to subsection (1) which stated that the cabinet Secretary should act in consultation with county governments. Similarly he did not refer to subsection (2) which provided that the Cabinet Secretary would, in consultation with the county governments ensure that the process of documenting, mapping and developing of the inventory of community land would be transparent, cost effective and participatory. One could not read subsection (4) in isolation of subsections (1), (2) and (3) and argue that the subsection was unconstitutional. A holistic reading of section 8(4) did not reveal any constitutional invalidity when section 8 was read as a whole.
  8. Section 9 of the Act provided that the Chief Land Registrar would designate a qualified registrar to be the Community Land Registrar responsible for registration of community land. Section 9 merely required the Chief Land Registrar to designate a qualified registrar to be registrar of community land. There was no constitutional invalidity in that provision. Once community land was identified and registered, all the registrar should do was maintain a register of the community land and be responsible for the community land.
  9. The registrar was merely an administrator who kept the record that county governments had access to, given that they were consulted and that way involved in the process of identification, adjudication mapping and registration of the community land. The section did not appear to confer on the registrar of community land any other powers save those of registration and maintaining the register.
  10. Section 15 of the Act provided that a registered community would have a community assembly consisting of all adult members of that community. The quorum of the assembly would not be less the two thirds of the assembly and that the assembly was to elect between seven and fifteen members to constitute land management committee. The section went on to provide for the functions of the land management committee.
  11. Section 15 was clear that the assembly was that of the registered community. That was the community registered to be owner of the community land. That community would have known members. The adult members would form the assembly and elect a management committee of between seven and fifteen members. Those were people known within the community and would be responsible for the management of their land. The Constitution was not expected to give details of the community land administration. Therefore, section 15 had given the manner in which the assembly was to be identified and the committee would be elected and its quorum. Thus, the section was not inconsistent with the Constitution to render it constitutionally invalid.
  12. Section 21 required that the history of the land be documented possibly for reference. Subsection (2) made it mandatory that community land could only be converted into any other category of land with majority of the assembly in a meeting called only for that purpose. That was to ensure that a decision to convert a registered community land into any other category should not be done easily. It was a form of insurance that community land was not available for conversion as matter of course. Secondly, the meeting would only be called for that purpose to avoid taking members by surprise. In that regard, there was no unconstitutional purpose of enacting or effect of implementing section 21 of the Act.
  13. Section 38 (1) of the Act reproduced provisions of article 66(1) of the Constitution. There could not be anything unconstitutional about it and it did not limit the right to property guaranteed under article 40 of the Constitution. The two articles had to be read as supporting each other but not destroying one another. On the other hand, subsection (2) recognized the role of the two levels of government, the national and county governments in so far as management of resources was concerned. Therefore, section 38 of the Act was not limiting the right to property either.
  14. Section 48 of the Act provided that: (1) The Cabinet Secretary, ensuring public participation could make regulations generally for the better carrying into effect of the Act; that (2) Without prejudice to the generality of subsection (1), the Cabinet secretary, ensuring public participation could make Regulations prescribing- (a) the procedures of recognition and registration of all parcels of community land rights; and (b) procedure for settlement of disputes arising from the community land registration process.
  15. The Community Land Act was a national legislation. The Constitution defined community land while article 63(5) of the Constitution required the National Assembly to enact legislation for giving effect to article 63 with regard to community land for purposes of identifying, registration and administration of community land. That being a national legislation, only the Cabinet Secretary could formulate regulations for its implementation. Therefore, there was no constitutional invalidity in section 48 of the Act.

E

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

Declared Unconstitutional in 2017.

 

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

Civil Appeal No. 172 of 2014

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

 

Brief Facts

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

 

Held

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

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

Declared Unconstitutional in 2018.

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

Constitutional Petition No. 548 of 2017

High Court, at Nairobi

Mwiata J

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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.

Elections Act, 2011 - Section 29

Declared Unconstitutional in 2017. 

 

Peter Solomon Gichira v Independent Electoral and Boundaries Commission & another

Constitutional Petition No 234 of 2017

G V Odunga, J

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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.

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

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

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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.

Elections Act - Section 34(9)

Elections Act - Section 34(9)

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

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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.

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

Elections Act - Sections 39(2) and (3) 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

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Brief Facts

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

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

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

 

Held

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

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

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

 

Elections Act - Section 43(5)

Elections Act - Section 43(5)

Declared Unconstitutional in 2015.

 

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

High Court at Nairobi,

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

I Lenaola, J

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Brief facts

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

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

 

Held

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

Elections Act - Section 44

Elections Act - Section 44

Declared Unconstitutional in 2017.

 

Kenneth Otieno v Attorney General & Independent Electoral & Boundaries Commission

Petition No 127 of 2017

High Court, at Nairobi

Pauline Nyamweya, Mumbi Ngugi, Enock C Mwita, JJ

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Brief Facts

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

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

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

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

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

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

 

Held

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

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

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

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Brief Facts

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

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

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

 

Held

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

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

 

Employment Act, 2007 - Subsection 45(3)

Employment Act, 2007 - Subsection 45(3)

Declared Unconstitutional in 2014.

 

Nelson Ogeto Mogaka & 15 others v Geothermal Development Company Limited

Industrial Court, at Nakuru

Cause 178 & 280 of 2013 (consolidated)

Byram Ongaya J

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Brief Facts

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

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

 

Held:

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

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

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

Michael Kasamani and another v Republic

High Court at Kakamega

D S Majanja, J

Brief Facts

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

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

Held

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

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

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

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

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

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

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

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

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

F

Section 63 of the Finance Act, 2018 amendment introducing Section 31A of the Banking Act

Section 63 of the Finance Act, 2018 amendment introducing Section 31A of the Banking Act

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

High Court at Nairobi   

J A Makau, J

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Brief Facts:

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

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

Held:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

G

Government Proceedings Act - Section 13(A)

Government Proceedings Act - Section 13(A)

Declared Unconstitutional in 2012.

 

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

Civil Suit No. 504 Of 2008

High Court at Nairobi

D S Majanja, J

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Brief Facts

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

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

 

Held

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

 

I

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

Declared Unconstitutional in 2018.

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

Constitutional Petition No. 548 of 2017

High Court, at Nairobi

Mwiata J

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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.

J

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

Declared Unconstitutional in 2016.

J Harrison Kinyanjui v Attorney General & Another

Constitutional Petition No. 74 Of 2011

High Court, at Nairobi

Mwongo PJ, Ngugi,Korir,Odunga and Onguto JJ

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Brief Facts

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

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

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

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

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

Held:

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

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

K

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

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

Declared Unconstitutional in 2017.

 

Okiya Omtatah Okoiti v Communications Authority of Kenya & 21 others

Petition No 45 of 2016

High Court, at Nairobi

G V Odunga, J

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Brief Facts

The facts of this petition, according to the petitioner herein, Okiya Omtatah Okoiti, are that on Saturday, February 06, 2016, national newspapers carried news items stating that the Authority’s Board of Directors had allegedly been disbanded by the CS who purported to have withdrawn appeals pending in the Court of Appeal which were filed severally by the Authority and by the 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”.

Kenya Information and Communication Act - Section 84D

Section 84D of the Kenya Information and Communication Act
Cyprian Andama v Director of Public Prosecution & another; Article 19 East Africa (Interested Party) [2019] eKLR
High Court at Nairobi
W A Okwany, J
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Brief facts
The petition challenged the constitutionality of section 84D of the Kenya Information and Communication Act, 2009, (KICA) for unjustifiably violating article 33 and 50(2)(n) of the Constitution. The petitioner contended that impugned section created an offence criminalizing the publishing of obscene information in electronic form in vague and overbroad terms with regard to the meaning of “lascivious”, “appeals to the prurient interest” and “tends to deprave and corrupt persons”. He stated that section 84D of KICA offended the principle of legality in article 50(2)(b) of the Constitution which required that criminal law, especially one that limited a fundamental right should be clear enough to be understood and be precise enough to cover only the activities connected to the law’s purpose.

The petitioner urged the Court to declare section 84D of KICA unconstitutional and to issue an injunction barring the 1st respondent from carrying on with the prosecution of the petitioner in the proceedings in Milimani Criminal Case Number 166 of 2018, Kiambu Criminal Case Number 686 of 2018, and Kiambu Criminal Case Number 687 of 2018. The petitioner was charged with the offences of publishing of obscene information in electronic form contrary to section 84D of the Kenya Information and Communication Act, 2009.

Held
1. Courts had laid two main standards to be used in determining constitutional validity of a challenged statute or its provision(s). The first was the rationality test which applied to all legislation under the rule of law while the second was that of reasonableness or proportionality test which applied when legislation limited a fundamental right in the bill of rights. Article 24(1) of the Constitution provided that such a limitation was valid only if it was reasonable and justifiable in an open and democratic society. Kenya was a democratic state with a democratically elected leadership and therefore it was only through criticism that citizens made their leaders know when their actions were not in the interest of the nation. Such criticism helped public officers understand the feelings of the citizens. Citizens could not be freely expressing themselves if they did not criticize or comment about their leaders and public officers. Article 33 of the Constitution guaranteed freedom of expression and limited it to any expression that was not in accord with article 33(2).

2. KICA was enacted in the year 2009, less than a year to the promulgation of the 2010 Constitution which introduced a wide array of fundamental rights and freedoms under the bill of rights including the freedom of expression. The enactment of KICA and its section 84D in particular was aimed at controlling the kind of information that could be circulated through the electronic media, also referred to as the social media. The title of the impugned section indicated that it was meant to rein in on the publishing of obscene information. However, the resultant effect had been to instil fear and submission among the people considering the hefty fines and long prison terms that the persons charged under the impugned section might face in the event of a conviction. That could not be the object of any law in the face of the prevailing constitutional dispensation; when people enjoyed a robust bill of rights that had opened the democratic space in the country.

3. Article 20(2) of the Constitution emphasized that every person should enjoy the rights and fundamental freedoms in the bill of rights to the greatest extent consistent with the nature of the right or fundamental freedom. Under the 2010 Constitution, people had the right to exercise the right to freedom of expression to the greatest extent, subject only to the limitation of that right under article 33(2) or any other provision in the Constitution.

4. From the Constitution itself, the freedom of expression and the freedom to hold opinion were not absolute and could only be limited in accordance with article 24(1). Article 24(1) of the Constitution required that there be reasonable and justifiable reasons for the limitation to a right. Whereas article 33(1) of the Constitution was limited by clause (2) and (3) thereof, any other limitation should be in terms of the two sub-articles. It was, therefore, upon the respondent to show that the limitation by section 84D of KICA over the publications allegedly made by the petitioner was contrary to article 33(2) and (3). That was not the case in the instant matter because the respondent did not show how article 33(2) was violated by the publications complained of and neither did the respondent say that the limitation was reasonable or justified. Article 24 of the Constitution was in mandatory terms that the purported limitation should be justifiable in an open and democratic society based on human dignity, equality and freedom.

5. Article 24(3) of the Constitution placed an obligation on the state or person seeking to justify a particular limitation to demonstrate to the court or tribunal or other authority that the requirements of article 24 had been satisfied. The only justification that section 84D of KICA met was that it was a law, limiting that fundamental right to freedom of expression, and not more. The instant respondent did not sufficiently demonstrate that the limitation by section 84D of KICA was justified.

6. To the extent that section 84D of KICA purported to suppress dissent, it was a derogation of article 33 of the Constitution. The impugned provision also contravened article 25(c) to the extent that it limited the right to a fair trial as enshrined in article 50(2)(b) of the Constitution. Any alleged discomfort or displeasure with the petitioner’s publication could have been addressed by less restrictive means, such as a civil suit for defamation, other than blanket curtailment of a fundamental right. Section 84D of KICA was unconstitutional considering that even though its purpose was to control/limit use of obscenities in communication, its effect had been to infringe on the freedom of expression guaranteed by the Constitution by creating the fear of the consequences of a charge under the said section.

7. It was a fundamental tenet of natural justice that an accused person ought to be informed, in very clear terms, of the charges that he faced to enable him to prepare his defence adequately. That principle was aptly captured under article 50 of the Constitution which provided for the rights of every accused person and at article 50(2)(b) which expounded the non-derogable right to fair trial to include the right of the accused person to be informed of the charge, with sufficient detail to answer it.
8. Section 84D of KICA provided for an offence in such broad and unspecific terms such that the person charged under it might not know how to answer to it. The section;
a. did not define the meaning of the words; “obscene” or the phrase “any material which is lascivious or appeals to the prurient interest”;
b. did not explain how or who should determine if the publication’s “effect is such as to tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied therein.”

The section left the words to the subjective interpretation by the investigative agencies, the prosecution or the court that would ultimately try the case.

9. A law, especially one that created a criminal offence, should be clear and unambiguous. It should not be widely and vaguely worded that it would net anyone who might not have intended to commit what was criminalized by the provision. In the instant matter, it was difficult to comprehend how court of law trying a criminal case will determine how a publication can have effect that tends to deprave not only persons who read it but also those likely to read, see or hear the matter contained or embodied in it. In effect therefore, section 84D of KICA was so wide and endless in its application that it referred to publications that targeted everyone including those who were yet to read, see or hear of it or what it embodied. Such an all-encompassing and vague statutory provision introduced prior to the enactment of the 2010 Constitution, as an instrument of repression for the protection and cover up of felonies and scandals committed by those in power had no place in a free and democratic society that was governed by the rule of law.

10. From the particulars of the criminal charges against the petitioner, the petitioner might have been unhappy about the misuse of power and public funds by public officers and the outcome of an election in Kirinyaga County. The petitioner might have used very strong and impolite words in expressing his displeasure. His publications targeted public officers. A democratic state should acknowledge constructive criticism of public or state officers as the hallmark of democracy and the means for public accountability. Criminalizing criticism was not in accord with the transformative 2010 Constitution. The dissent in opinion or thought should not amount to a crime, otherwise, that was in effect suppressing the right to hold different opinion from those in public office.

11. The manner in which people express their thoughts was not uniform and might vary depending on their context, background and upbringing. That meant that the mere use of impolite language, which was really the case in the instant petition, should not necessarily be criminalized. Section 84D of KICA criminalized the use of impolite, annoying or character assassinating remarks that would appear to displease those in public office – a scenario that was at cross purpose with the intent and spirit of the Constitution.

12. The subjects of the criticism in the publications made by the petitioner were public or state officers. Article 73 of the Constitution provided that the authority assigned to a state officer was a public trust to be expressed in a manner consistent with the purpose and objects of the Constitution, demonstrated respect for the people, brought honour to the nation and dignity to the office, and vested in the state officer the responsibility to serve the people rather than the power to rule them. Public office bestowed on the public officer servant leadership, and therefore, the right to criticize public officers should not be criminalized merely as a means of suppressing dissent. It was no longer acceptable to use laws that, prima facie, were oppressive to the public for the sole purpose of protecting the dignity of public officers, thereby, violating people’s right to freedom of expression. Any stifling of that right was by any means unconstitutional.

13. Section 84D of KICA was unconstitutional to the extent that it infringed on the citizens’ right to freedom of expression guaranteed under article 33 of the Constitution and derogated the right to fair hearing by providing for an offence in broad and unclear terms; making it subject to the arbitrary and subjective interpretation by the Director of Public Prosecution or the courts, contrary to article 50(2)(b) of the Constitution. Under article 25(c) of the Constitution, the right to a fair trial could not be limited.

14. The Constitution protected people’s rights and prohibited laws that unreasonably and unjustifiably infringe on those rights. Section 7 of the sixth schedule of the Constitution stipulated that all laws in force immediately before the effective date continued in force and were to be construed with the alterations, adaptations, qualifications and exceptions necessary to bring it into conformity with the Constitution. Therefore, a provision such as section 84D of KICA was too retrogressive to fit into the modern, open and democratic society envisaged under the 2010 Constitution. The section was too wide in scope, punitive in intent and suppressive in effect to be tolerated by the transformative 2010 Constitution. The impugned section was inconsistent with articles 33, 50(2)(b) and 25(c) of the Constitution, in so far as it suppressed the freedom of expression and denied the petitioner the right to fair trial through vagueness and ambiguity.



Kenya Information and Communications Act - Section 29

Kenya Information and Communications Act - Section 29

Declared Unconstitutional in 2016.

 

Geoffrey Andare v Attorney General & 2 others

High Court, at Nairobi

Mumbi Ngugi J

Petition 149 of 2015

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Brief Facts

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

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

 

Held

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

 

Kenya Ports Authority Act - Section 65

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.

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

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

Declared Unconstitutional in 2018.

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

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

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

L

Children Act-Sections 2 (b), 27 (2), 94 (1), 102 (1), 158 (4) (b) & (c) & Law of Succession Act-Sections 3 (2) & (3) Birth & Deaths Registration Act-Section 12

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

&

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

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

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Brief Facts:

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

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

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

Held:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Statute Law (Miscellaneous Amendments) Act No 12 of 2012 provisions amending the Advocates Act and the Law Societies Act

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

Court of Appeal at Nairobi

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

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Brief facts

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

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

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

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

Held

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

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

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

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

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

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

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

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

M

Machakos County Finance Act, 2018

Declared Unconstitutional in 2018.

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

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

Marriage Act- Section 66(1)

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

High Court at Malindi

R Nyakundi, J

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Brief Facts

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

Held:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Declared Unconstitutional in 2017.

 

Kenya Ferry Services Limited v Mombasa County Services & 2 others

Constitutional Petition no 9 of 2016

M J A Emukule, J

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Brief Facts

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

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

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

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

 

Held

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

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

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

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

Declared Unconstitutional in 2017.

 

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

Constitutional Petition No 76 of 2012

(Formerly Nairobi Petition 291 of 2011)

Edward M Muriithi, J

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Brief facts

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

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

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

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

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

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

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

 

Held

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

 

Merchant Shipping Act- Section 16(1A)

 

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

High Court at Mombasa

E K Ogola, A Mabeya & M Thande, JJ

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Brief Facts

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

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

Held

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

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

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

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

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

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

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

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

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

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

8.      The President’s reservations and recommendation changed the entire nature, texture, letter and spirit of not only the amendment contained in the Bill, but the Act itself. What was contained in the Bill was an amendment to introduce section 4A to the Act and allow the 2nd respondent to exempt any Government entity from the application of any provision of the Act where such exemption was in the public interest and in furtherance of Government policy. The amendment passed by the 3rd respondent retained the restriction in section 16 of the Act of any ship owner, except one wholly owned by the Government from, inter-a-lia, operating any port in Kenya.  However, the President’s reservations and recommendation was to the effect that, a body not wholly owned by Government but in which the Government had a majority shareholding could control and operate a port in Kenya. The reservations by the President were based on a proposed legislation which had neither been the subject of debate in the 3rd respondent nor had undergone public participation.

9.      The President had in mind a proposed amendment that was different from that contained in the Bill and submitted for public participation. The President was clear in his mind that what was to be contained in the Bill should have included a specific amendment to section 16 of the Act to exempt the Kenya National Shipping Line from the restrictions imposed under section 16. Unfortunately, that was not the case, what was published and submitted for the purported public participation was section 4A of the Act. To the extent that the reservations and recommendation of the President were not part of what was published and subjected to the purported public participation, the same could not have been dealt with under part 4 of Chapter 8 without the application of article 118 of the Constitution.

10.   Due to the nature and import of the proposed amendment by the President, his reservations and recommendation should have been subjected to public participation before being enacted into law. The amendment and introduction of section 16(1A) to the Act was in violation of articles 10 and 118 of the Constitution. To that extent, the amendment was unconstitutional, null, void and of no consequence.

11.   Statute law (miscellaneous amendments) bills were sometimes referred to as omnibus bills. They ordinarily contained amendments to several Acts of Parliament. It was a law that covered a number of diverse and unrelated subjects. It was for expediency, to save parliamentary time. Statute law (miscellaneous amendments) bills were for minor non-contentious amendments such as grammar, correction of errors and such simple matters. Such bills should not contain substantive and important legislation which should be contained in independent bills. 

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

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

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

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

N

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

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

Declared Unconstitutional in 2014.

 

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

High Court, at Nairobi

Petition Number 227 of 2013

I Lenaola, M Ngugi, W K Korir JJ

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Brief Facts 

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

 

Held

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

National Land Commission Act-Section 8(3) (c) and National Police Service Commission Act- Section 5(5) (a)

National Land Commission Act-Section 8(3) (c) and National Police Service Commission Act- Section 5(5) (a)

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

High Court at Nairobi

J.A Makau, J

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Brief Facts:

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

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

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

Held:

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

National Land Commission Act- Section 14 (4)

Mwangi Stephen Muriithi v National Land Commission & 3 others

Petition No. 100 of 2017

W A Okwany, J

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Brief facts

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

 Held

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


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

Petition No. 385 of 2018

W A Okwany, J
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Brief Facts


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

Held

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

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

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

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

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

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

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

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

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

Declared Unconstitutional in 2016.

 

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

Petition 495 of 2015

Onguto J

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Brief Facts

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

 

Held

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

 

National Police Service Act - Section 88(4)

National Police Service Act - Section 88(4)

Declared Unconstitutional in 2015.

 

Joshua Muindi Maingi v National Police Service Commission & 2 Others

High Court of Kenya at Nyeri,

Petition No 2 of 2015

B Ongaya, J

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Brief Facts

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

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

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

 

Held

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

P

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

Declared unconstitutional in 2011.

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

Misc. Civil Application No. 362 of 2010

D. Musinga, J

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Brief Facts:

The ex parte Applicant filed the instant Application seeking orders of certiorari quashing the decision of the Public Procurement Administrative Review Board, order of mandamus compelling the 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.

Political Parties Act - Section 14(3)

Political Parties Act - Section 14(3)

Declared Unconstitutional in 2014.

 

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

High Court, at Nairobi

Petition No. 288 of 2014

I Lenaola, J

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Brief Facts

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

 

Held

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

Penal Code - Section 194

Penal Code - Section 194

Declared Unconstitutional in 2017.

 

Jacqueline Okuta & another v Attorney General & 2 others

Petition No 397 of 2016

High Court, at Nairobi

J.M Mativo, J

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Brief Facts

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

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

 

Held

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

Parliamentary Powers and Privileges Act - Sections 3, 7 and 11

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.

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

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

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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.

Prisons Act- Section 46(1)(ii)

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

High Court at Kisumu

T W Cherere, J

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Brief facts:

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

Held:

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

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

R

Retirement Benefits (Deputy President and Designated State Officers) Act, 2015-Section 4

Retirement Benefits (Deputy President and Designated State Officers) Act, 2015-Section 4

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

High Court at Nairobi

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

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Brief fact:

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

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

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

Held

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

a.        there was a public legal duty to act;

b.       the duty was owed to the applicant;

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

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

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

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

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

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

 

S

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

Declared Unconstitutional in 2013.

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

Petition No 284 of 2012

High Court, at Nairobi

I Lenaola, J

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Brief Facts:

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

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

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

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

Held:

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

Salaries and Remuneration Commission Act- Sections 7(2) & 7(10-15)

Salaries and Remuneration Commission Act- Sections 7(2) & 7(10-15)

Judicial Service Commission v Attorney General & Another

Interested Party; Jacqueline Akinyi Okeyo Manani [2019] eKLR

High Court at Nairobi

J. A Makau, J

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Brief Facts:

A vacancy occurred in the Salaries and Remuneration Commission (SRC) relating to a member representing the Judicial Service Commission (JSC). The petitioner, on January 15, 2018, advertised in the local media inviting applications from persons qualified to be nominated for the position. The JSC upon receipt of the applications, considered all the applications, with a view to determine compliance with the constitutional provisions and the Salaries and Remuneration Commission Act. The petitioner voted the interested party as its nominee to the 2nd respondent.

Meanwhile on April 4, 2018 the President assented to the Statute Law (Miscellaneous Amendments) Act, 2018 which had a commencement date of May 21, 2018.  The Act amended some of the provisions of the Salaries and Remuneration Commission Act, 2011 amongst other statutes.  It was out of such an amendment that the petitioner contended, that the amendments to the Salaries and Remuneration Commission Act, introduced through the Statute Law (Miscellaneous Amendment) Act were unconstitutional as they were not subjected to public participation.

It was 1st respondent’s contention, that the petition did not disclose any violation of the Constitution or any written law. He said that the petitioner read article 230 in isolation to article 250(4) and 250(11) of the Constitution.  The 1st respondent added that the constitutional petition was grossly misconceived, a non-starter and the orders prayed for were outrightly misplaced.  That the jurisdiction of the High Court had not been invoked properly and the matter was not justifiable to the extent that there was no real or substantial controversy. 

Held:

1.       The duty of the Court when the constitutionality of a statutory provision was challenged was to lay the article of the Constitution which was invoked beside the statute which was challenged and decide whether the latter squared with the former.

2.       The impugned amendment required the nominating body to interview the applicants and forward the names of two qualified persons of opposite gender to the cabinet secretary for onward transmission to the President as opposed to the provisions of article 230 (2) (b) of the Constitution which required the President to appoint one person each nominated by the nominating bodies. The statutory provision was null and void and of no effect in law.

3.       The amended section required the President to nominate the members of the commission and forward the names to the National Assembly for vetting and approval.  That was contrary to article 230 of the Constitution as the said article had not provided for vetting and approval of the nominees by National Assembly.  The same violated article 230 of the Constitution as the President assumed the nominating body’s power to nominate their respective representatives and was therefore unconstitutional.

4.       The constitutional provision was clear as to the composition, the mode of nomination and appointment of the members of the Salaries and Remuneration Commission. The challenged statutory provision contravened article 230 of the Constitution hence, it was unconstitutional and impractical to implement.

5.       Article 230 should not be confused with article 250 of the Constitution when it comes to appointments of members of the commission as the two provisions were clearly different. Article 230 of the Constitution did not provide for the nomination of 2 persons by the President.  That was totally different from article 250(2) of the Constitution.  There was a clear difference between a commission established under article 250 and article 230 of the Constitution and as such any attempt to intermarry the two was contrary to the Constitution. Provisions of article 250 could not be used in the appointment of members of a commission under article 230.

6.       From the provisions of article 230 of the Constitution, there was provision for appointment of a chairperson and one person, each appointed by the listed bodies thereto, who were not members or employees of the listed bodies.  There was no provision for male or female for gender balance and that had to be deliberate as the nominees were representatives of other institutions and demanding the application of criteria that was contrary to the clear provision of the Constitution would amount to interference with the independence of the Salaries and Remuneration Commission and the Judiciary.

7.       Whether or not legislation operated retrospectively depended on the intention of the enacting body as manifested by the legislation. In seeking to ascertain the intention behind the legislation, the courts were guided by certain rules of construction and one of these rules was, that if the legislation affected substantive rights, it would not be construed to have retrospective effect unless a clear intention to that effect was manifested.  Whereas, if it affected procedure only, prima facie, it operated retrospectively unless there was a good reason to the contrary.  The rule of construction was one of the factors to which regard had to be given in order to ascertain that intention.

8.       From the construction of the impugned sections, the provisions of the legislation could not per se be said to affect procedure only nor could it be said that the intention of the enacting body was to have it operate retrospectively. The legislation, as it was, affected substantive rights, and as such it could not be construed in to have retrospective effect unless a clear intention to that effect was manifested.  The general rule for non-criminal legislation was that all statutes other than those which were declaratory or which related only to matters of procedure or evidence were prima facie prospective and retrospective was not to be given to them, unless it was expressly stated so in clear words or by virtue of necessary implication. Where legislation was contrary to the Constitution it could not have any retrospective effect.  Therefore, the amendments to the Salaries and Remuneration Commission Act could not apply retrospectively.

9.         Public participation was one of the national values and principles of governance that bound all state organs, state officers, public officers, and all persons. It was applicable whenever any of them applied or interpreted the Constitution, enacted or interpreted any law, or made or implemented public policy decisions. The amendments introduced to the Salaries and Remuneration Commission Act were not minor amendments as suggested by the respondent as they substantially altered the core substance of the legislation and as such re-enactment, the principle of public participation had to apply. 

10.     The burden of proof that there was public participation lay with the respondents to demonstrate that there was public participation.  No evidence was adduced to demonstrate that there was public participation in relation to the substantive amendments and that was contrary to article 10 of the Constitution.

V

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

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

Joseph Nduvi Mbuvi v Republic

High Court at Machakos

G V Odunga, J

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

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

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

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

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

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

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

W

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

Declared Unconstitutional in 2018.

Attorney General v Law Society of Kenya & another

Civil Appeal No 133 of 2011

Court of Appeal, at Nairobi

Waki, Makhandia & Ouko, JJ.A)

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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.

Work Injury Benefits Act, No. 13 of 2007 -Sections 10, 16, 23, 26 and 53 (2) (d), 2 (e), 58 and the entire parts IV and V

Work Injury Benefits Act, No. 13 of 2007 -Sections 10, 16, 23, 26 and 53 (2) (d), 2 (e), 58 and the entire parts IV and V

Juma Nyamawi Ndungo & 4 others v Attorney General; Mombasa Law Society (Interested Party)

High Court at Mombasa

E K Ogola, J

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Brief facts

The petitioners sought a determination relating to various constitutional issues. The first was on whether Magistrates Courts had jurisdiction to entertain claims for compensation for bodily harm arising from negligence and breach of duty at the workplace. The second was on whether the Director appointed under the Work Injury Benefits Act or any other officer appointed under the Employment Act could exercise judicial authority relating to injuries suffered at work due to negligence. Lastly, the petitioner challenged the constitutionality of various sections of the Work Injury Benefits Act including sections 10, 16, 23, 26, 28, 30, 33, 37, 51, 53(2) (d), 58(2) and the first schedule of the Act.

In the case of Attorney General v Law Society of Kenya & another [2017] eKLR, inter alia, the Court of Appeal set aside the High Court's finding that sections 4, 16, 21(1), 23(1), 25(1) (3), 52(1) (2) and 58 (2) of the Work Injury Benefits Act were unconstitutional. The Court of Appeal, however declared that sections 7 (in so far as it provided for the Minister’s approval or exemption) and 10(4) of the Work Injury Benefits Act were unconstitutional. When the High Court made its decision on constitutionality, the repealed Constitution was in effect and the decision meant that Magistrates’ Courts could handle claims of workplace injury. In the aftermath of the Court of Appeal decision, issued after the promulgation of the Constitution of Kenya 2010, most Magistrates’ Courts declined to deal with workplace injury claims, on grounds that they did not have the requisite jurisdiction to handle them.

The petitioners were aggrieved that their cases on workplace injury which were pending before Magistrates Courts were stopped arbitrarily. Under section 58 of the Work Injury Benefits Act, the Work Injury Benefits Act had retrospective effect and section 53 of the Act established the Director who had a dispute resolution role. The net effect was that claims that were already pending before court would have to be filed afresh before the Director. Majority of the claims affected by those provisions dated back to a period in excess of 11 years meaning that they failed to meet the one year limitation period provided under section 26 of the Work Injury Benefits Act.

The petitioners argued that the retrospective application of the Work Injury Benefits Act undermined article 159 of the Constitution which provided for substantive justice and property rights recognized under article 40 of the Constitution. They said that the test of reasonability and substantive justice demanded that what was done pursuant to the legal regime that subsisted at the time the claims were lodged in court be deemed as legal.

The petitioner said that the office of the Director was yet to be operationalized and aside from the Director and his assistants being appointees of the Executive, the relevant statute did not provide for their qualifications or mode of appointment. Further the petitioner stated that the Director and his assistants, as appointees of the Executive, had the authority to receive complaints, investigate them and ultimately adjudicate over them in breach of the doctrine of separation of powers. A further allegation was that it was discriminatory for part V of the Work Injury Benefits Act to have compensation for pain and suffering as compensation that would be based on one’s income.

In general, the petitioners alleged that under the circumstances, their rights to access to justice, property, a fair trial, non-discrimination and equality and human dignity were violated.

Held

  1. Article 10 (1) (a) and 2 of the Constitution which provided for the national values and principles of governance would guide the Court in interpreting the Constitution. The Constitution was a living document, with a soul and a conscience of its own, and courts had to endeavour to avoid crippling it by construing it technically or in a narrow spirit but construe it with the lofty purposes for which its makers framed it.
  2. Article 159(1) of the Constitution provided that judicial authority was derived from the people and vested in and had to be exercised by the courts and tribunals established by or under the Constitution. Judicial authority was the constitutional authority vested in courts and judges to hear and decide justiciable cases and to interpret and enforce or void, statutes when disputes arose over their scope or constitutionality.
  3. The doctrine of separation of powers would not allow Parliament to transfer discretion to determine the severity of the punishment to be inflicted upon an individual member of a class of offenders, from the judiciary to any executive body which was not appointed under chapter VII of the Constitution.
  4. Under the Constitution, judicial authority could only be exercised by courts and independent tribunals. No other entity, including the Director as established under the Work Injury Benefits Act had judicial authority.
  5. Section 53 (1) of the Work Injury Benefits Act created the office of the Director of Work Injury Benefits. Section 53(2) (d) and (e) gave him the power to receive reports on accidents and carry out investigations into such accidents and ensure injured employees were compensated. In an adversarial system, investigation was not a judicial function, and neither was it the duty of court to ensure that all employees who suffered at the work place were compensated.
  6. Under section 53(2) (e) of the Work Injury Benefits Act, the Director's functions included adjudicating over injury cases and assessing damages. Those functions were purely judicial functions.
  7. Section 16 and 53 (2) (d) and 53 (2) (e) of the Work Injury Benefits Act entailed a usurpation of judicial power by the executive and were therefore unconstitutional. Additionally, sections 10, 23, 26, 28, 30, 33, 37, 51, 53 (2) (d), 53 (2) (e), 58 (2) and the first schedule to the Work Injury Benefits Act were unconstitutional as they promoted the exercise of judicial powers by the Director who was neither an independent tribunal nor a court.
  8. Pursuant to section 29(3) of the Employment & Labour Relations Court Act, various gazette notices were issued to grant jurisdiction to Magistrates’ Courts to hear and determine employment disputes. However, the subordinate courts downed their tools in work injury related claims. Even if those courts were to decline jurisdiction under the Work Injury Benefits Act, they would still have jurisdiction to entertain work injury related disputes under the Employment and Labour Relations Court Act. 
  9. The doctrine of implied repeal was to the effect that where provisions of one Act of Parliament were inconsistent or repugnant to the provisions of an earlier Act, the later Act would abrogate the inconsistency in the earlier one. Section 35 of the Employment and Labour Relations Court Act provided that its provisions would take precedence over any other law that subsisted before its enactment on the issues set out in section 29 of the Act.  The Employment and Labour Relations Court Act, which gave the Magistrates’ Courts jurisdiction in employment and labour relations disputes, had to, under the provisions of rule 7 of part 2 of the sixth schedule of the Constitution, prevail over the provisions of the Work Injury Benefits Act that seemed to deny Magistrates’ Courts jurisdiction. 
  10. Under the doctrine of separation of powers each arm of government would perform its task independently and would enjoy safeguards against encroachment by another arm. There were three arms of government in the Constitution, namely; the Executive, the Judiciary and the Legislature.
  11. To the extent that the provisions of the Work Injury Benefits Act, in particular sections 16 and 53(2)(d) , sought to transfer judicial power to the Executive, or an entity that was neither a tribunal nor a court, they violated the constitutional doctrine of separation of powers and were therefore unconstitutional.
  12. In granting the Magistrates’ Court the jurisdiction to deal with labour and employment issues, the Legislature as set out in Nairobi Branch v Malindi Law Society C. A. No. 287 of 2016, was acting within its mandate under the Constitution.  Therefore the Magistrates’ Court Act and the Employment and Labour Relations Court Act conferred upon subordinate courts the jurisdiction to try and to determine labour related disputes.
  13. The petitioners’ rights to property as recognized in article 40 of the Constitution were violated.  The petitioner had causes of action which had been lodged in court and causes of action had been recognized as property rights because of the expected outcome of compensation.
  14. The refusal by Magistrates’ Courts to determine work injury claims violated the petitioners’ rights of access to justice as recognized in article 48 of the Constitution. The Magistrates’ Courts were distributed everywhere in Kenya and the provisions of section 29 of the Employment and Labour Relations Court Act were enacted specifically to promote the right of access to justice.
  15. The rights to a fair trial as recognized in article 50(1) of the Constitution required a fair and public hearing before a court or an independent and impartial tribunal. The office of the Director of Work Injury Benefits created under section 53 (1) of the Work Injury Benefits Act was not such a body and a trial before that Director violated the right to a fair trial.
  16. The petitioners' rights to have their cases heard and determined without delays as provided for in article 159 (2) (b), were violated. Delays had been occasioned by unnecessary confusion relating to the applicable legal regime.
  17. It was costly and expensive for the petitioners to look for the Director whose offices were unknown. Article 159 (2) (a) on the right of the petitioners to have their cases heard and determined without discrimination based on their status was violated.
Compilation by The National Council for Law Reporting (Kenya Law)