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.

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

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.

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?

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.

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.

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.

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.

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

Declared Unconstitutional in 2018.

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

Miscellaneous Civil Application 391 of 2017

High Court, at Nairobi

Odunga J

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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.

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.

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.

Section 166 of the Criminal Procedure Code

Declared Unconstitutional in 2018.

Republic v SOM

High Court at Kisumu,

Criminal Case No 6 of 2011

D S Majanja, J

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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.

Section 167 of the Criminal Procedure Code

Section 167 of the Criminal Procedure Code

Declared Unconstitutional in 2016.

 

Hassan Hussein Yusuf v Republic

Criminal Appeal 59 of 2014

High Court, at Meru

Kiarie Waweru Kiarie J

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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.

 

Regulations in the Ministry of Education to actualize the rights of the students infringed under the Education Act (repealed) contrary to Article 32 of the Constitution of Kenya, 2010.

Regulations in the Ministry of Education to actualize the rights of the students infringed under the Education Act (repealed) contrary to Article 32 of the Constitution of Kenya, 2010.

Declared Unconstitutional in 2017.

 

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

Civil Appeal No. 172 of 2014

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

 

Brief Facts

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

 

Held

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

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

Declared Unconstitutional in 2018.

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

Constitutional Petition No. 548 of 2017

High Court, at Nairobi

Mwiata J

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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.

Section 29 of the Elections Act, 2011.

Section 29 of the Elections Act, 2011.

Declared Unconstitutional in 2017. 

 

Peter Solomon Gichira v Independent Electoral and Boundaries Commission & another

Constitutional Petition No 234 of 2017

G V Odunga, J

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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.

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

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

Declared Unconstitutional in 2013.

 

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

Civil Appeal No 351 of 2012           

Azangalala, Kiage & J. Mohammed, JJA

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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.

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

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

Declared Unconstitutional in 2017.

 

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

Appeal 105 Of 2017

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

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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.

 

Section 43(5) of the Elections Act

Section 43(5) of the Elections Act

Declared Unconstitutional in 2015.

 

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

High Court at Nairobi,

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

I Lenaola, J

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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.

Section 44 of the Elections Act

Section 44 of the Elections Act

Declared Unconstitutional in 2017.

 

Kenneth Otieno v Attorney General & Independent Electoral & Boundaries Commission

Petition No 127 of 2017

High Court, at Nairobi

Pauline Nyamweya, Mumbi Ngugi, Enock C Mwita, JJ

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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.

 

Subsection 45(3) of the Employment Act, 2007

Subsection 45(3) of the Employment Act, 2007

Declared Unconstitutional in 2014.

 

Nelson Ogeto Mogaka & 15 others v Geothermal Development Company Limited

Industrial Court, at Nakuru

Cause 178 & 280 of 2013 (consolidated)

Byram Ongaya J

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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

Section 13(A) of the Government Proceedings Act.

Section 13(A) of the Government Proceedings Act.

Declared Unconstitutional in 2012.

 

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

Civil Suit No. 504 Of 2008

High Court at Nairobi

D S Majanja, J

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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.

 

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”.

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.

Section 29 of the Kenya Information and Communications Act

Section 29 of the Kenya Information and Communications Act

Declared Unconstitutional in 2016.

 

Geoffrey Andare v Attorney General & 2 others

High Court, at Nairobi

Mumbi Ngugi J

Petition 149 of 2015

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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.

 

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

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

Declared Unconstitutional in 2018.

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

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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.

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.



Section 65 of the Kenya Ports Authority Act

Declared Unconstitutional in 2018.

 

Bob Thompson Dickens Ngobi v Kenya Ports Authority and 2 others

Civil Suit No 87 of 2013

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Brief Facts:

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

 

Held:

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

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

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

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

Machakos County Finance Act, 2018

Machakos County Finance Act, 2018

Declared Unconstitutional in 2018.

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

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

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

Declared Unconstitutional in 2017.

 

Kenya Ferry Services Limited v Mombasa County Services & 2 others

Constitutional Petition no 9 of 2016

M J A Emukule, J

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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).

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

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

Declared Unconstitutional in 2017.

 

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

Constitutional Petition No 76 of 2012

(Formerly Nairobi Petition 291 of 2011)

Edward M Muriithi, J

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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.

 

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 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.

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.

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

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

Declared Unconstitutional in 2016.

 

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

Petition 495 of 2015

Onguto J

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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.

 

Section 88(4) of the National Police Service Act

Section 88(4) of the National Police Service Act

Declared Unconstitutional in 2015.

 

Joshua Muindi Maingi v National Police Service Commission & 2 Others

High Court of Kenya at Nyeri,

Petition No 2 of 2015

B Ongaya, J

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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.

Section 12 of the Registration of Births and Deaths Act

Section 12 of the Registration of Births and Deaths Act

Declared Unconstitutional in 2016.

 

L.N.W v Attorney General & 3 others

High Court, at Nairobi

Petition 484 of 2014

Mumbi Ngugi J

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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.

 

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

Declared Unconstitutional in 2018.

Apollo Mboya v Attorney General & 2 others

High Court at Nairobi,

Petition No 472 of 2017

J M Mativo, J

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Brief facts:

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

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

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

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

Held:

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

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

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

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

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

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

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

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

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

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

Section 194 of the Penal Code

Section 194 of the Penal Code

Declared Unconstitutional in 2017.

 

Jacqueline Okuta & another v Attorney General & 2 others

Petition No 397 of 2016

High Court, at Nairobi

J.M Mativo, J

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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. 

Section 14(3) of the Political Parties Act

Section 14(3) of the Political Parties Act

Declared Unconstitutional in 2014.

 

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

High Court, at Nairobi

Petition No. 288 of 2014

I Lenaola, J

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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.

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

Declared Unconstitutional in 2018.

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

High Court at Nairobi,

Petition No 388 of 2016

E C Mwita, J

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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.

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.

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.

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.

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.

The failure to register the Lesbian, Gay, Bisexual, Transgender, Intersex and Queer (LGBTIQ) Community Rights Group as an NGO by the Non-Governmental Organizations Board held to be unconstitutional

The failure to register the Lesbian, Gay, Bisexual, Transgender, Intersex and Queer (LGBTIQ) Community Rights Group as an NGO by the Non-Governmental Organizations Board held to be unconstitutional
Non-Governmental Organizations Co-Ordination Board v EG & 5 others [2019] eKLR
Court of Appeal at Nairobi
P N Waki, M K Koome, R N Nambuye, D K Musinga & M S Asike Makhandia, JJA

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Brief Facts:
The 1st respondent floated three names under which he sought to register a non-governmental organization (proposed NGO) with the appellant, seeking to address human rights abuses and violations suffered by the Lesbian, Gay, Bisexual, Transgender, Intersex and Queer persons (LGBTIQ) in Kenya and which request was rejected by the appellant’s Executive Director(Director) precipitating the 1st respondent to file a petition at the High Court on the ground that his right to freedom of association, dignity, equality and right not to be discriminated against had been violated among other grounds. The High Court allowed the petition and held that the right to equality before the law would not be advanced if people were denied the right not to be discriminated against based on their sexual orientation. The appellant was aggrieved by the High Court’s decision and thus filed the instant appeal.

Held:
1. The Constitution had ring-fenced its purpose and the manner it ought to be construed. After declaring its supremacy in article 2, the Constitution proceeded in article 10 to bind everyone who applied and interpreted it or any other law or made public policy, to the national values spelt out therein including: human dignity, equity, social justice, inclusiveness, equality, human rights, non-discrimination and protection of the marginalized.
2. The principles of the rule of law, participation of the people, equity, inclusiveness, equality, human rights, transparency and accountability were binding. The Constitution opened up further space for application of other principles and values obtaining in the general rules of international law and the international instruments Kenya had ratified, such as, the Universal Declaration on Human Rights, the International Covenant on Civil and Political Rights (ICCPR), and the International Covenant on Economic, Social and Political Rights (ICESCR).
3. The Constitution laid out an expansive Bill of Rights for the purpose of recognizing and protecting human rights and fundamental freedoms in order to preserve the dignity of individuals and communities, promote social justice and the realization of the potential of all human beings'. In articles 20 (3) and (4), it gave an edict to the courts as they applied the Bill of Rights to develop the law where it did not give effect to a right; adopt the interpretation that most favoured the enforcement of a right or fundamental freedom and promote the values that underlay an open and democratic society based on human dignity, equality, equity, freedom and the spirit, purport and objects of the Bill of Rights.
4. In article 259, the Constitution commanded the manner in which it should be interpreted. It also demanded that every provision of the Constitution be construed according to the doctrine of interpretation that the law was always speaking. The Constitution had to be interpreted in a manner that eschewed formalism, in favour of the purposive approach and in a holistic manner within its context and in its spirit.
5. The people in Kenya who answered to any of the descriptions in the acronym LBGTIQ, were persons. Article 36 of the Constitution covered the persons in that group. Like everyone else, they had a right to freedom of association which included the right to form an association of any kind. That was the literal wording of article 36 (1) which had no hidden meaning. Article 260 of the Constitution provided further clarity to the definition of person. Construing 'person' to refer only to the sane and law abiding people would be unduly stretching the ordinary meaning of the words used in the Constitution.
6. The Penal Code did not criminalize the persons answering to the description LBGTIQ qua such persons. What it provided for were specific offences, more specifically, unnatural offences, attempts to commit unnatural offences, and indecent practices between males. Those were sections 162, 163 and 165 of the Penal Code, respectively. Like everyone else, LBGTIQ persons were subject to the law and would be subjected to its sanctions if they contravened it. Convicting such persons before they contravened the law would be retrogressive.
7. According to the proposed NGO’s objectives, the 1st respondent intended to register the NGO to among other things conduct accurate fact finding, urgent action, research and documentation, impartial reporting, effective use of the media, strategic litigation and targeted advocacy in partnership with local human rights groups on human rights issues relevant to the gay and lesbian communities living in Kenya. On the face of it, there was nothing unlawful or criminal about such objectives. However, they never reached the stage of proper consideration by the Board because the main gate to the boardroom was locked.
8. Article 36 of the Constitution granted every person the right to form an association of any kind. It also provided that an application to form an association could only be refused on reasonable grounds and no person could be compelled to join an association. That was the breadth of the right of freedom of association as provided for in the Constitution. It covered every person and any kind of association. It could only be limited in terms of law and only to the extent that the limitation was reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom. An individual human being, regardless of his or her gender or sexual orientation, was a person for the purposes of the Constitution.
9. The Constitution extended the definition of ‘person’ from only the natural, biological human being to include legal persons. Neither article 36 of the Constitution nor the definition of “person” in article 260 of the Constitution created different classes of persons. There was nothing that indicated that the Constitution, when referring to ‘person’, intended to create different classes of persons in terms of article 36 based on sexual orientation. Moreover, articles 20(3) and (4) of the Constitution provided that a court adopt the interpretation that most favoured the enforcement of a right or fundamental freedom and promoted the values that underlay an open and democratic society based on human dignity, equality, equity and freedom and the spirit, purport and objects of the Bill of Rights.
10. Article 20 (1) of the Constitution provided that the Bill of Rights applied to all persons. Article 259 of the Constitution provided that the Constitution had to be interpreted in a manner that advanced human rights and fundamental freedoms. The term “every person” in article 36 of the Constitution properly construed did not exclude homosexual person and the 1st respondent therefore fell within the ambit of article 36 which guaranteed to all persons the right to freedom of association. The right to freedom of association was also expressly recognised in international covenants to which Kenya was a party.
11. [OBITER DICTA] The issue of persons in the society who answer to the description lesbian, bisexual, gay, transsexual, intersex and queer (LBGTIQ) is rarely discussed in public. The reasons for such coyness vary. But it cannot be doubted that it is an emotive issue. The extensive and passionate submissions made in this matter before the High Court, and before us, is testimony to the deep rooted emotions that the issue can easily arouse. It is possible for the country to close its eyes and hearts and pretend that it has no significant share of the people described as LGBTIQ. But that would be living in denial. We are no longer a closed society, but fast moving towards the 'open and democratic society based on human dignity, equality, equity, and freedom' which the Constitution envisages. We must therefore, as a nation, look at ourselves in the mirror. It will then become apparent that the time has come for the peoples' representatives in Parliament, the Executive, County Assemblies, Religious Organizations, the media, and the general populace, to engage in honest and open discussions over these human beings. In the meantime, I will not ".. be the first to throw a stone at her [LGBTIQ]".

Imposition of levies on the issuance and filling of the P.3 forms and other medical examination forms required by victims of crimes violated their rights contrary to Article 48 of the Constitution on the right of access to justice

High Court declares the imposition of levies on the issuance and filling of the P.3 forms and other medical examination forms required by victims of crimes violated their rights contrary to Article 48 of the Constitution on the right of access to justice
Legal Resources Foundation Trust v Attorney General & 5 others [2019] eKLR
High Court at Embu
F Muchemi, J

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Brief Facts:
The instant petition challenged the respondents’ act of charging fees for issuance and filling of police forms, and particularly the P.3 form, in various National Government and County Government health institutions.

The petitioner contended that the respondents were in violation of the basic principles of access to justice and that the levying of any fees for the police forms either at issuance or at filling stage was illegal, unlawful and unconstitutional. The petitioner sought orders of prohibition against the respondents and the National Government and the County Government health facilities and institutions from levying fees for issuance and filling of P.3 forms, among other orders.

Held:

1. A P.3 form was a medical examination report form used by the police to make request for examination in medical facilities for victims of crime. The P.3 form was used as evidence in criminal and sexual offences cases to support allegations of a victim that injuries were sustained in the course of the commission of the alleged crime. The importance of the P.3 form could be inferred from the outcomes following the tendering or otherwise of the report in a criminal or civil suit, in sexual offences cases in addition to the Post Rape form, and it was thus a vital document in the collection of evidence. P.3 form was a vital evidential document.

2. The Police Charter (Charter) stated that the P.3 form was a free document. There were some police stations that were in compliance with the Charter and gave the form free of charge. Some Government health facilities operated by the National and County Governments charged for filling the P.3 form while others did not. The same facilities issued the Post Rape form free of charge whose purpose was complimentary to that of the P.3 form; to assist victims of rape and assault in their evidence in criminal cases. The post mortem report in murder cases, the P.3 form for mental assessment, and other forms were supplied by the State and the County Governments free of charge.

3. The respondent did not explain why the levy of filling the P.3 form, which was not based on any Government policy and which was not charged by all its facilities, and also lacked uniformity in the amount of fees charged, had to be retained. The clinical officers and the doctors were salaried employees of the National and County Governments. The Government policy did not allow a salaried employee to charge fees for services rendered by the employee for his/her own benefit in the course of his/her official duties. That was supported by the fact that some levies were not receipted implying that the amounts paid by the victims might have been going to individual officers who were on Government salary.

4. Article 209(4) of the Constitution empowered the National and County Governments to charge fees for services rendered. Those charges had to be done in accordance with the law and relevant Government regulations. The respondent had no policy in place governing fees for issue and the filling of P.3 forms. There was no justification for the levy being made in some counties while it was not done in others. There had to be legislation and regulations to facilitate implementation of any constitutional provision such as article 209(4). The Court took judicial notice that the National and County Governments had in some cases implemented the provisions of article 209(4) of the Constitution in other service areas other than filling of P.3 forms where the law had been complied with.

5. The principle of legitimate expectation to a hearing had not only been confined to past advantage or benefit but had to be extended to a future promise or benefit yet to be enjoyed. It was a principle, which should not be restricted because it had its roots in what was gradually becoming a universal but fundamental principle of law namely the rule of law with its offshoot principle of legal certainty.

6. If the reason for the principle of legitimate expectation was for the challenged bodies or decision makers to demonstrate regularity, predictability and certainty in their dealings, that was, in turn enabled the affected parties to plan their affairs, lives and businesses with some measure of regularity, predictability, certainty and confidence. The principle had been very ably defined in public law but it was clear that it had its cousins in private law of honouring trusts and confidences. Trusts and confidences had to be honoured in public law and therefore the situations where the expectations had to be recognized and protected had to of necessity defy restrictions in the years that followed. The strengths and weaknesses of the expectations had to remain a central role for the public law courts to weigh and determine.

7. Legitimate expectation arose not because the claimant asserted any specific right to a benefit but rather because his interest in it was one that the law held protected by the requirements of procedural fairness; the law recognized that the interest could not properly be withdrawn (or denied) without the claimant being given an opportunity to comment and without the authority communicating rational grounds for any adverse decision. The fee charged on the issue and filling of P.3 forms was illegal. The victims of assault, sexual offences and related crimes were entitled to the benefits of the principle of legitimate expectation.

8. The 3rd respondent had a health policy known as the Kenya Health Policy, 2014 – 2030 aimed at ensuring significant improvement in the overall status of health in Kenya in line with the Constitution, Kenya’s long term agenda, Vision 2030 and global standards. The Constitution obligated the State and every State organ to observe, respect, protect, promote and ensure enjoyment of the Bills or rights and to take legislative measures including the setting of standards to achieve the progressive realisation of those rights. It was therefore the constitutional mandate of the 3rd respondent to ensure it had an all-inclusive health policy that had to be complied with by all its health institutions including the County Governments.

9. The 2nd respondent had left the County Governments to legislate on matters, some of which were against its policy and against the policy of other Government ministries and institutions in matters health. An example was the levying of charges for filing the P.3 form in respect of which the 3rd respondent had expressed itself that it was free service since the doctors and the clinicians tendering the services were salaried employees.

10. The 3rd respondent had given exemptions to filling of P.3 forms to victims of some counties like Kwale in exclusion of others. Those selective exceptions were not in line with the current health policy and were discriminative which was prohibited under article 27 of the Constitution. If such a practice was allowed to continue contrary to the provisions of the Constitution and Government policy, it was likely to lead to violation of the basic principles of the rule of law.

11. Article 27(4) of the Constitution enjoined the State not to discriminate directly or indirectly against any persons on any grounds specified therein. The Court had a duty to ensure that law and order was maintained for the good of all citizens irrespective of the status in order to create a conducive environment for the enjoyment of fundamental rights and individual freedoms.

12. The Victim Protection Act, 2014(Act) was purposed to help the victims of crime and abuse of power. The assistance included providing better information and support services to vulnerable victims. Such services were explained in section 2 of the Act as all services offered to the victim of the offence to secure restoration of their emotional, mental, physical, legal or economic status from any harm occasioned by the offence committed. Section 4(2)(g) of the Act provided for the victim to be accorded legal and social services of his or her choice.

13. The Victims Protection Act generally provided for the rights of the victim including fair hearing, protection, and legal representation, among other benefits. The enactment was informed by the awareness of the State that it had a constitutional duty to protect its citizens and to ensure the realization of their rights under the Bill of Rights. The right to information under the Act included all the material that a victim might need in the prosecution of their case against the perpetrator. A P.3 form was part of that vital information that would be needed in proof of criminal cases of assault and sexual offences.

14. The State had an obligation under the Constitution to ensure that the victim of a crime enjoyed his/her right to fair hearing under article 50 of the Constitution and the right to access justice under article 48 of the Constitution. Several victims of crime had demonstrated that their cases had been dismissed for lack of proof for the reason that the P.3 form was not produced, or that the doctor was not available to testify even after the fee for filling of the P.3 form had been levied. Some complaints lodged with the police by the victims never saw the light of the day because the victims could not afford the fees for filling the P.3 form charged in health facilities. The 2nd respondent did not stop the illegal actions of its officers who had been issuing P.3 forms to victims at a fee despite the fact that it had declared free service under its charter.

15. The 1st respondent was the principal legal advisor of the Government and was in charge of advising various National Government ministries in areas of need. The issue of the P.3 form affected many Kenyan citizens on a daily basis and it was unfortunate that the 1st respondent had not taken any action in full view of the violation of rights of victims. The agony, the pain and mental anguish suffered by the victims was beyond measure in their pursuit of obtaining medical evidence in their cases. That was indeed a major hindrance to access to justice. Accordingly, the respondents by their separate acts or omissions had violated the right to access to justice of the victims in the instant petition contrary to article 48 of the Constitution.

16. The 3rd respondent had a duty to comply with the constitutional provisions as to its responsibilities as set out in article 187 of the Constitution. The Health Policy of the National Government bound all the respondents in their respective dockets and equally bound the county health institutions. The 3rd respondent was under a duty to enforce compliance with its policy.

17. A host of victims had suffered the violation of their rights to access to justice and fair hearing. The few who had been in the instant petition could have been just a tip of the iceberg. The victims did not adduce evidence as to the damage suffered and the quantum thereof.

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.

Task Sharing Policy Guidelines 2017-2030 which allowed non-laboratory staff to conduct medical tests declared unconstitutional

Task Sharing Policy Guidelines 2017-2030 which allowed non-laboratory staff to conduct medical tests declared unconstitutional

Association of Kenya Medical Laboratory Scientific Officers v Ministry of Health & another [2019] eKLR

High Court at Nairobi

J A Makau, J

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Brief Facts

The petitioner was the chairman of the Association of Kenya Medical Laboratory Scientific Officers, a key stakeholder in the provision of medical laboratory services. He contended that the 1st respondent spearheaded the development of the Task Sharing Policy Guidelines 2017-2030 (Guidelines), which was in the process of being implemented, without the involvement of the petitioner. The petitioner alleged that the Guidelines violated the principle of public participation under article 10(2) (a) of the Constitution. The petitioner further found fault in the Guidelines in that they allowed non-laboratory staff to conduct tests that required highly skilled laboratory staff.

The petitioner contended that the Guidelines had resulted in numerous cases of misdiagnosis of patients. Therefore, they endangered the rights of Kenyans to access the highest attainable standard of health care and demoralized trained medical laboratory professionals. The petitioner urged that the Guidelines discriminated against members of the association, by allowing non-laboratory staff to conduct tests that required highly skilled laboratory staff and they were denied their livelihood.

Held

  1. Where legislation was infused with a degree of openness and participation, the dangers of arbitrariness and irrationality in the formulation of the legislation, would be minimized. The objective of involving the public in the law-making process was to ensure that the legislators were aware of the concerns of the public. If legislators were aware of those concerns, that would promote the legitimacy and thus the acceptance of the legislation. It would not only improve the quality of the law-making process but also serve as an important principle that government should be open, accessible, accountable and democratic.
  2. The representative and participative elements of democracy should not be seen as being in tension with each other. What the constitutional scheme required was the achievement of a balanced relationship between representative and participatory elements in democracy. The public involvement provisions of the Constitution addressed that symbolic relationship, and they were at the heart of the legislative function. The Constitution contemplated that the people will have a voice in the legislative organs of the State not only through elected representatives but also through participation in the law-making process.
  3. The forms of facilitating an appropriate degree of participation in the law-making process were indeed capable of infinite variation. What matters was that at the end of the day a reasonable opportunity was offered to members of the public and all interested parties to know about the issue and to have an adequate say. What amounted to a reasonable opportunity depended on the circumstances of each case. Although there was an element of public participation it failed to meet the constitutional threshold.
  4. Section 5 of the Statutory Instrument Act required a regulation-making authority, before issuing a statutory instrument, to make appropriate consultations with persons who were likely to be affected by the proposed instrument. Section 5(3) (a) of the said Act required a regulation-making authority to notify, either directly or through advertisement, bodies or organizations representative of persons who were likely to be affected by the proposed instrument. The 1st respondent did not demonstrate that it complied with the Statutory Instrument Act by issuing the stipulated notifications or discharging its legal duty to consult.
  5. The respondent averred that the Task Sharing Policy Guidelines 2017-2030 were developed through wide consultation and a collaborative process but failed to show indeed that there was notification either directly or by advertisement to the bodies who were likely to be affected by the proposed instrument.
  6. The burden of proving that there was public participation lay with the 1st respondent. The 1st respondent was alleging that the Guidelines had been developed through a widely consultative and collaborative process involving a broad number of institutions in various sectors in Kenya and abroad. The 1st respondent failed to demonstrate that indeed the petitioner was amongst the consulted institutions as its name was not in the list made by the 1st respondent in respect of the institutions consulted. The allegation that the petitioner was a private and amorphous group, whose membership was purely voluntary, should not be a justification for the 1st respondent to decide not to involve the petitioner in the public participation. The 1st respondent did not deny that the petitioner was not involved in any way in the development of the Guidelines, notwithstanding the fact that the 1st respondent was enjoined by article 10 of the Constitution to ensure that the national principle of public participation was discharged when it exercised its powers and performed its duties.
  7. The Guidelines were developed in total disregard to section 19(1) of the Medical Laboratory Technicians and Technologists Act which provided that no person should act as a laboratory technician or technologist in any health institution in Kenya unless such person was registered under the Act. The Guidelines purported to allow medical tests to be conducted by a non-laboratory staff who included- medical officers, dentists and medical specialists, nursing and midwives and clinical officers. Although there was a chronic shortage of human personnel in the health sector in Kenya, it could not be remedied by provision of services by untrained and unprofessional persons. Article 43(1) of the Constitution talked of the highest attainable standard of health and that did not mean providing any health care services irrespective of harmful effects. Kenyans should not be exposed to untold dangers by allowing untrained and unprofessional personnel to purport to provide health services.
  8. The enactment and implementation of the Guidelines was a violation of the right to the highest attainable standard of health. The Guidelines sought to allow non-laboratory staff to conduct medical tests that required highly skilled staff. Therefore, the Guidelines violated constitutional obligations to safeguard the health rights of the consumer. That amounted to a violation of article 46 of the Constitution, dealing with consumer protection safeguards relating to both the health and economic interests of the consumer, as the respondent sought to economically exploit the citizenry and risk their health through exposing them to medical tests by unqualified staff.
  9. The Guidelines violated the provisions of article 41 of the Constitution dealing with the right to fair labour practices. The Guidelines subjected the members of the association to unfair labour practices in that the highly skilled laboratory staff were competing for work with non-laboratory staff, therefore, denying them their livelihood. There was a legitimate expectation in existence was once one had gone through the prerequisite training to qualify as a skilled laboratory staff. All laboratory services and medical tests were to be conducted only by those who had qualified to work as laboratory staff.
  10. The Guidelines enabled mid-level health care professionals such as nurses, clinical officers, pharmaceutical technologists, laboratory technologists, as well as, community health workers to safely conduct clinical tasks and procedures that would otherwise be restricted to cadres with higher qualifications. Allowing non-laboratory staff to conduct medical tests that required highly skilled staff would violate the rights granted under article 43(1) (a) of the Constitution. It would compromise the quality of medical treatment accorded to various patients, as it raised a question about the caliber and authenticity of medical tests conducted by the non-laboratory staff.

 

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

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.

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.

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.

 

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.

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.

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.

Directive banning outdoor advertisement of gambling


Republic v Betting Control and Licensing Board and another ex parte Outdoor Advertising Association of Kenya
High Court at Nairobi
J M Mativo, J
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Brief Facts :
The 1st respondent issued a directive to the effect that: it had banned outdoor advertising of gambling, advertising of gambling on all social media platforms, advertising gambling between 6am and 10pm and endorsement of gambling operations by celebrities. In addition, the 1st respondent directed that it had to approve any form of advertisement, and decreed that, any such advertisement had to contain a warning message about the consequences of gambling and its addictiveness, which had to constitute a third of the actual advertisement and be of the same font. Furthermore, it directed that the requirement was to be complied with on or before May 30, 2019.
The ex parte applicant sought orders of certiorari and prohibition on the grounds that: the 1st respondent did not have powers under the Act to control, regulate or ban outdoor advertising of gambling, which power was expressly donated to County Governments under part 2(3) of the Fourth Schedule to the Constitution; and that the 1st respondent, an administrative body, had to exercise its powers within the four corners of the enabling statute. Held:
1. Public bodies, no matter how well intentioned, could only do what the law empowered them to do. That was the essence of the principle of legality, the bedrock of Kenya’s constitutional dispensation, which was enshrined in the Constitution of Kenya, 2010 (Constitution). It followed that for the impugned decisions to stand; it had to be grounded on the law. As such, the respondent’s actions had to conform to the doctrine of legality. Put differently, a failure to exercise that power where the exigencies of a particular case required it, would amount to undermining the legality principle, which, was inextricably linked to the rule of law. The concomitant obligation to uphold the rule of law and, with it, the doctrine of legality, was self-evident. In that regard, the 1st respondent was constrained by that doctrine to enforce the law by ensuring that its decisions conformed to the enabling provisions of the law.
2. Article 186(1) of the Constitution provided that except as otherwise provided by the Constitution, the functions and powers of the national government and the county governments, respectively, were as set out in the fourth schedule. Section 4, part 2 of the fourth schedule to the Constitution provided that the functions and powers of the county were- Cultural activities, public entertainment and amenities including- betting, casinos and other forms of gambling. Section 4 expressly conferred betting, casinos and other forms of gambling to the County governments. A clear reading of the provision left no doubt that the function in question had not been conferred upon the Ministry of Interior and Co-ordination of National Government.
3. Section 70 of the Betting, Lotteries and Gaming Act (Act) conferred powers to the Minister to make Regulations. Two consequences flowed from the provisions of the Sixth Schedule to the Constitution and section 70 of the Act:
a. the Constitution conferred the function in question upon the County Governments. Differently stated, it was a devolved function; and
b. section 70 of the Act did not provide for outdoor advertisements of gambling, or advertisements in the social media nor did it provide for the form or manner of advertising.
The only relevant provision was section 70 (c) of the Act, which provided for the advertisement of an application for a licence or permit under the Act and of proceedings of the Board to consider and determine any such application. As the provision suggested, it only related to advertisement of an application for a license or permit under the Act.
4. An administrative decision was flawed if it was illegal. A decision was illegal if it: -
a. contravened or exceeded the terms of the power which authorized the making of the decision;
b. pursued an objective other than that for which the power to make the decision was conferred;
c. was not authorized by any power; and
d. contravened or failed to implement a public duty.
The task for the courts in evaluating whether a decision was illegal was essentially one of construing the content and scope of the instrument conferring the duty or power upon the decision-maker.
5. The instrument would normally be a statute or regulations. The courts when exercising the power of construction were enforcing the rule of law, by requiring administrative bodies and tribunals to act within the four corners of their powers or duties. They were also acting as guardians of Parliament’s will, seeking to ensure that the exercise of power was in accordance with the scope and purpose of Parliament’s enactments. One could confidently assume that Parliament intended its legislation to be interpreted in a meaningful and purposive way giving effect to the basic objectives of the legislation.
6. Safeguarding legality was the most important purpose for the judicial review of administrative actions. Thus, in most administrative law systems, a person seeking judicial review of an administrative decision had to be able to persuade the court that there were grounds for review in order for the legality of the administrative decision to be judicially challenged. In one sense, there had to always be the premise of want of legality. That was because any administrative decision-making process involved the exercise of legally conferred powers and the observation of legally prescribed procedures.
7. The most basic rules of administrative law were: first, that decision makers could exercise only those powers, which were conferred on them by law and, second, that they could exercise those powers only after compliance with such procedural prerequisites as existed. So long as administrators complied with those two rules, their decisions were safe. From the perspective of administrators and statutory bodies, the fundamental principle generally required that the exercise of powers of administrators and statutory bodies had to strictly comply with the law both substantively and procedurally. It followed, therefore, that the legality of an administrative decision or decisions rendered by government Ministers could be judicially challenged on grounds that the administrative decision did not comply with the basic requirements of legality.
8. The most obvious example of illegality was where a body acted beyond the powers which were prescribed for it. In other words, it acted ultra vires. Decisions taken for improper purposes could also be illegal. Illegality also extended to circumstances where the decision-maker misdirected itself in law. When exercising a discretionary power, a decision-maker could take into account a range of lawful considerations. If the exercise of the discretionary power had been influenced by considerations that could not lawfully be taken into account, or by the disregard of relevant considerations required to be taken into account, a court would normally find that the power had been exercised illegally. The decision-maker had to understand correctly the law that regulated his decision-making power and give effect to it.
9. The second issue that could be argued under illegality was fettering discretion. That heading for judicial review entailed considering whether an administrative body actually exercised the power it had, or whether because of some policy it had adopted, it had in effect failed to exercise its powers as required. In general terms the courts accepted that it was legitimate for public authorities to formulate policies that were legally relevant of their powers, consistent with the purpose of the enabling legislation, and not arbitrary, capricious or unjust. An illegality could also occur where a body exercised a power, which was within its functions but exceeded the scope of power that was legally conferred to it. Also relevant was the concept error of law that was mainly concerned with the erroneous applications of the law.
10. The power of the court to review an administrative action was extraordinary. It was exercised sparingly, in exceptional circumstances where illegality, irrationality or procedural impropriety had been proved. The action or decision complained of had to conform to the statutory provisions and pass the constitutional muster. A clear reading of the provisions of section 4 of the sixth schedule, and the entire section 70 the Act left no doubt that the function in question was vested upon the 2nd respondent and not the Ministry. It followed that the impugned decision(s) contained in the letter dated April 30, 2019 and the communication dated Thursday May 2, 2019 lacked legal basis, hence, it was ultra vires and therefore null and void. It was tainted with illegality and could not stand court scrutiny.
11. Section 2 of the Statutory Instruments Act and the Standing Orders of both houses of Parliament defined a statutory instrument. The letter dated April 30, 2019 was a directive as the last sentence suggested. The first paragraph of the letter confirmed that the Board was a regulator. Simply put, the communication was a Regulation. In addition, the press release dated May 2, 2019 referred to Regulations. It was evident that the impugned decision communicated in the said documents fell squarely within the definition; hence, it was a statutory instrument.
12. Statutory instruments were prepared by the Cabinet Secretary, or a body with powers to make them, e.g. a commission, authority or a board. The law was that statutory instruments had to conform to the Constitution, Interpretation and General Provisions Act, the Parent Act and the Statutory Instruments Act. The Statutory Instruments Act required:-
a. consultation with stakeholders; and
b. preparation of regulatory Impact Statement, preparation of explanation memorandum, tabling of statutory instrument in the House, consideration of the statutory instrument by the National Assembly, Committee on Delegated Legislation.
13. Section 13 of the Statutory Instruments Act provided for guidelines for the committee that focused on the principles of good governance and the rule of law. The Committee considered whether the statutory instrument conformed to the Constitution, the parent Act or other written laws. It considered whether it infringed the Bill of Rights or contained a matter that ought to be dealt with by an act of Parliament. It also considered whether it contained taxation, directly or indirectly barred the jurisdiction of the courts.
14. The Committee also considered whether the instrument gave retrospective effect to any of the provisions in respect of which the Constitution or the Act did not expressly give any such power. It was required to consider whether it involved expenditure from the Consolidated Fund or other public revenues. The Committee had to consider whether the instrument was defective in its drafting or for any reason the form or purport of the statutory instrument called for any elucidation or appeared to make some unusual or unexpected use of the powers conferred by the Constitution or the Act pursuant to which it was made.
15. The Committee considered whether the instrument appeared to have had unjustifiable delay in its publication, or laying before Parliament. It also considered whether it made rights, liberties or obligations unduly dependent upon non-reviewable decisions; or made rights liberties or obligations unduly dependent insufficiently defined administrative powers. It also considered whether it inappropriately delegated legislative powers; or imposed a fine, imprisonment or other penalty without express authority having been provided for in the enabling legislation. Further, the Committee was required to consider if it appeared for any reason to infringe on the rule of law; inadequately subjected the exercise of legislative power to parliamentary scrutiny; and accorded to any other reason that the Committee considered fit to examine. The criteria set out in section 13 of the Statutory Instruments Act was replicated in Parliamentary Standing Order number 210 (3) on the procedure for considering statutory instruments.
16. Section 15 (2) of the Statutory Instruments Act provided that where the Committee of Delegated Legislation did not table its report within 28 days following the date of referral of the Statutory Instrument or such other period as the House could, by a resolution approve, the statutory instrument would be deemed to have fully met the relevant considerations referred to in section 13.
17. A regulation had to conform to the Constitution in terms of both its content and the manner in which it was adopted. Failure to comply with manner and form requirements in enacting regulations rendered the decision invalid. Courts had the power to declare such regulations invalid. The Court not only had a right but also a duty to ensure that the law-making process prescribed by the Constitution was observed. In addition, if the conditions for law-making processes had not been complied with, it was the duty of the court to say so and declare the resulting statute, regulations, or rules invalid.
18. The impugned decision was adopted in a manner inconsistent with the constitutional and statutory requirements. The moment violation of the Constitution or breach of a statutory requirement became evident as in the instant case, the rebuttable presumption of constitutionality of a statute or a Regulation ceased to operate.
19. Fundamental to the legitimacy of public decision-making was the principle that official decisions should not be infected with improper motives such as fraud or dishonesty, malice or personal self-interest. Those motives, which had the effect of distorting or unfairly biasing the decision-maker’s approach to the subject of the decision, automatically caused the decision to be taken for an improper purpose and thus took it outside the permissible parameters of the power.
20. A power was exercised fraudulently if its repository intended for an improper purpose, for example dishonesty, to achieve an object other than that which he claimed to be seeking. The intention could be to promote another public interest or private interests. A power was exercised maliciously if its repository was motivated by personal animosity towards those who were directly affected by its exercise.
21. Reasonableness, within the context of administrative law could not be imbued with a single meaning. Rationality meant that evidence and information had to support a decision an administrator took. It was common ground that unreasonableness and irrationality were grounds for Judicial Review. Rationality and reasonableness as grounds for the review of an administrative action were dealt with in section 7(2) (i) and (k) of the Fair Administrative Action Act. In the application of that rationality test, the reviewing court would ask whether there was a rational objective basis justifying the connection made by the administrative decision-maker between the material made available and the conclusion arrived at.
22. A court or tribunal had the power to review an administrative action if the exercise of the power or the performance of the function authorised by the empowering provision, in pursuance of which the administrative action was purportedly taken, was so unreasonable that no reasonable person could have so exercised the power or performed the function. The simple test used throughout was whether the decision in question was one, which a reasonable authority could reach.
23. The test of Wednesbury unreasonableness had been stated to be that the impugned decision had to be objectively so devoid of any plausible justification that no reasonable body of persons could have reached it and that the impugned decision had to be verging on absurdity in order for it to be vitiated. Review by a court of the reasonableness of decision made by another repository of power was concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process but also with whether the decision fell within a range of possible, acceptable outcomes which were defensible with respect to the facts and law.
24. If a statute which conferred a decision-making power was silent on the topic of reasonableness, that statute should be construed so that it was an essential condition of the exercise of the powers that it be exercised reasonably. The legal standard of reasonableness had to be the standard indicated by the true construction of the statute. It was necessary to construe the statute because the question to which the standard of reasonableness was addressed was whether the statutory power had been abused.
25. Legal unreasonableness comprised any or all of the following, namely; specific errors of relevancy or purpose; reasoning illogically or irrationally; reaching a decision which lacked an evident and intelligible justification such that an inference of unreasonableness could be drawn, even where a particular error in reasoning could not be identified; or giving disproportionate or excessive weight — in the sense of more than was reasonably necessary — to some factors and insufficient weight to others.
26. Judicial intervention in judicial review matters was limited to cases where the decision was arrived at arbitrarily, capriciously or mala fide or as a result of unwarranted adherence to a fixed principle or in order to further an ulterior or improper purpose, or where the functionary misconceived the nature of the discretion conferred upon him and took into account irrelevant considerations or ignored relevant ones; or where the decision of the functionary was so grossly unreasonable as to warrant the inference, or where the decision maker failed to apply his mind to the matter. Contextualizing the impugned decision with the circumstances under which it was made, the instant case was a proper case for judicial interference.
27. A decision suffered from procedural impropriety if in the process of its making, the procedures prescribed by statute were not followed or if the rules of natural justice were not adhered to. Decision makers had to act fairly in reaching their decisions. The principle applied solely to matters of procedure, as opposed to considering the substance of the decision reached.
28. There were three broad bases on which a decision maker could owe a duty to exercise its functions in accordance with fair procedures. First, legislation or another legal instrument which gave a decision making power could impose a duty to follow specific procedures. The requirements relating to procedure contained in the statute or other instrument had to be complied with. However, failure to comply with required procedures did not automatically mean that the decision which followed was invalid. The courts took a range of factors into account in deciding whether or not to nullify a decision.
29. Procedural impropriety generally encompassed two things: procedural ultra vires, where administrative decisions were challenged because a decision-maker had overlooked or failed to properly observe statutory procedural requirements; and common law rules of natural justice and fairness. The common law rules of natural justice consisted of two pillars: impartiality (the rule against bias, or nemo judex in causa sua – no one should be a judge in his own cause) and fair hearing (the right to be heard, or audi alteram partem – hear the other side).
30. The rule against bias divided bias into three categories: actual bias, imputed bias and apparent bias. More recent case law from the UK tended to refer to a duty of public authorities to act fairly rather than to natural justice. One aspect of such a duty was the obligation on authorities in some cases to give effect to procedural legitimate expectations. Those were underpinned by the notion that a party that was or would be affected by a decision could expect that he or she would be consulted by the decision-maker before the decision was taken.
31. In recent years, the common law relating to judicial review of administrative action based on procedural impropriety had undergone a rather remarkable transformation. The courts, using the language of natural justice and, more recently and more dramatically, fairness, had brought about a situation in which a broad range of statutory authorities were subject to the observance of at least a modicum of procedural decency. That a decision was against natural justice did not mean merely that it was against evidence or wrong in law; it meant that the decision was such that the person appealing had not had his case properly considered by the decision maker.
32. Article 47 of the Constitution codified every person's right to fair administrative action that was expeditious, efficient, lawful, reasonable and procedurally fair. Further, there was a right to be given reasons for any person who had been or was likely to be adversely affected by administrative action. Each of those prescriptions fit the recognized grounds for judicial review of administrative action. The Constitution recognized a duty to accord a person procedural fairness when a decision was made that affected a person’s rights, interests or legitimate expectations.
33. Procedural fairness contemplated by article 47 of the Constitution and the Fair Administrative Action Act demanded a right to be heard before a decision affecting ones right was made. Whether or not a person was given a fair hearing of his case would depend on the circumstances and the type of the decision to be made. The minimum requirement was that the person got the chance to present his case. Applying the legal principles to the facts and circumstances of the case, the impugned decision was adopted in a manner that was procedurally unfair.
34. The grant of the orders of certiorari, mandamus and prohibition was discretionary. The Court was entitled to take into account the nature of the process against which judicial review was sought and satisfy itself that there was reasonable basis to justify the orders sought. Certiorari was used to bring up into the High Court the decision of some inferior tribunal or authority in order that it could be investigated. If the decision did not pass the test, it was quashed – that was to say, it was declared invalid. The underlying policy was that all inferior courts and authorities had only limited jurisdiction or powers, and, had to be kept within their legal bounds.
35. The writ of prohibition arrested the proceedings of any tribunal, corporation, board or person, when such proceedings were without or in excess of the jurisdiction of such tribunal, corporation, board or person. A prohibiting order was similar to a quashing order in that it prevented a tribunal or authority from acting beyond the scope of its powers. The key difference was that a prohibiting order acted prospectively by telling an authority not to do something in contemplation. Applying the above tests to the facts and circumstances of the case, the ex parte applicant had satisfied the conditions for granting the orders certiorari and prohibition sought.
Compilation by The National Council for Law Reporting (Kenya Law)