Weekly Newsletter 036/2018

Weekly Newsletter 036/2018



Kenya Law

Weekly Newsletter


The vetting of heads of accounting and procurement units in public office is not unconstitutional but placing them on compulsory leave is unconstitutional.
Okiya Omtatah Okoiti v Joseph Kinyua & 2 others
Petition No 51 of 2018
Employment and Labour Relations Court at Nairobi
Byram Ongaya, J
July 20, 2018
Reported by Beryl A Ikamari
Download the Decision

Constitutional Law-institution of suits-locus standi-public interest litigation-where the Petitioner alleged that provisions of the Constitution had been contravened and that the rights of certain persons, who were not party to the petition had been violated-whether the Petitioner had the locus standi required to institute the suit-Constitution of Kenya 2010, articles 22 & 258.

Constitutional Law-commissions and independent offices-interplay of powers and functions in the office of the Head of Public Service and the Public Service Commission-whether there was a conflict wherein the powers and functions of the Head of Public Service usurped the powers and functions of the Public Service Commission-Constitution of Kenya 2010, articles 132(4)(a) & 132(3)(b); National Government Co-ordination Act, No. 1 of 2013, sections 7 & 8.
Constitutional Law-executive-the President-functions and powers of the President-implementation of national values and principles of governance-whether the President could make statements on measures to be undertaken to combat corruption-Constitution of Kenya 2010, articles 132(1) (c) & 259 (3) (a).
Statutes- interpretation of statutory provisions-definition of a statutory instrument-interpretation of the definition of a statutory instrument under section 2 of the Statutory Instruments Act-where a circular was issued without it being made under the provisions of statute or in exercise of parliamentary power to make subsidiary legislation-whether such a circular was a statutory instrument-Statutory Instruments Act, No 23 of 2013, section 2.
Constitutional Law-fundamental rights and freedoms-right to fair labour practices, right to fair administrative action and right to a fair hearing-where a circular required vetting of heads of accounting and procurement in public office and for them to be placed on compulsory leave for 30 days-where there was no applicable legal provision or contract or instrument providing for compulsory leave under those circumstances-whether the circular amounted to collective punishment & whether the imposition of compulsory leave under the circumstances was legal-Constitution of Kenya 2010, articles 41, 47 & 50.


Brief facts:
The 1st Respondent as the Head of Public Service wrote circular Ref. No. OP/CAB.39/1A of June 4, 2018 addressed to Government ministries, departments and agencies including state corporations. The gist of the circular was that heads of procurement and accounting units, in public office, would undergo vetting. They were to proceed on compulsory leave for 30 days starting from June 6, 2018. They would not be allowed to leave the country without the permission of the Head of Public Service.
By June 8, 2018, the heads of procurement and accounting units were required to submit to the Head of Public Service various details which mostly related to their financial affairs. After submission of those details in writing, the affected officers faced the possibility of being called for an oral interview. The officers who failed to comply with the directive would face disciplinary action and the information availed would be treated confidentially.
The Petitioner went to court to challenge the constitutional validity of the circular. He stated that the circular was a violation of fair trial requirements such as the right to refuse to give self-incriminating evidence and to be presumed innocent until proven guilty. He also said that the 1st Respondent had no capacity to make the circular and that presidential directives did not have the force of law. He added the circular amounted to giving directions to the Public Service Commission which was supposed to function independently as an independent office. He questioned the qualifications of the 1st Respondent as the maker of the circular and said that the 1st Respondent was beyond retirement age and he was not competitively or meritoriously recruited.
The Petitioner opined that the circular entailed a form of a statutory instrument as defined in section 2 of the Statutory Instruments Act and it was the Public Service Commission, and not the Respondent, that would have the mandate to make the circular which related to the public service. He also said that under section 42(7) of the Leadership and Integrity Act an officer could only be sent on compulsory leave for purposes of investigations and not vetting. Generally, the Petitioner stated that the circular violated articles 2(4), 10, 24, 27 41(1), 47 and 50 of the Constitution.


Issues:

  1. Whether the Petitioner had the locus standi to institute the petition and whether it was proper for the Petitioner to have instituted an ordinary action instead.
  2. Whether there was a conflict between the powers and functions of the Head of Public Service and those of the Public Service Commission.
  3. Whether it was constitutional for the President to make statements on measures to be undertaken to combat corruption during a Madaraka Day public address.
  4. Whether the circular issued, for the vetting of heads of accounting and procurement in public office, was a statutory instrument.
  5. Whether the rights of an accused person not to self-incriminate and to be presumed innocent until proven guilty were violated by a government circular which required certain public officers to provide written details on their financial affairs.
  6. Whether the circular, requiring the vetting of heads of accounting and procurement in public office, was a form of collective punishment.
Held:
  1. The petition sought to primarily enforce the mandate of the Public Service Commission and the cited constitutional provisions as against the impugned circular. Such a cause of action amounted to a public interest cause which conferred locus standi to the Petitioner. The Petition was also remotely about the enforcement of the rights of the affected heads of accounting and procurement but it was not necessary for them to be party to the proceedings. The issue of the violation of the rights of those officers was a secondary issue and not the primary or proximate basis of the cause of action.
  2. Given that constitutional violations were alleged, the Petitioner was entitled to approach the Court by way of a constitutional petition. Articles 22 and 258 allowed for the institution of the suit as a petition.
  3. The office of the Head of Public Service was duly established in accordance with article 132(4)(a) of the Constitution. The holder of the office had the responsibility of aiding the President in undertaking constitutional and statutory functions of directing and coordinating the functions of ministries and Government departments as provided in article 132(3)(b) of the Constitution and sections 7 and 8 of the National Government Co-ordination Act, 2013.
  4. The issue concerning the suitability of the 1st Respondent to hold office and the propriety of his appointment as head of Public Service, was the subject of a prior case between the parties in which a judgment had been issued and it was therefore res judicata.
  5. The duties of the Public Service Commission were constitutional and clearly distinct and separate from the powers and functions of the Head of Public Service. It was clear that the responsibilities of the Head of Public Service flowed from the President's functions, under article 132(3)(b) of the Constitution, of directing and co-ordinating the functions of ministries and departments of National Government as amplified by the provisions of sections 7 & 8 National Government Co-ordination Act, 2013. The functions and powers of the Public Service Commission were provided for in article 234 (2) of the Constitution. The Head of Public Service had responsibilities which did not override or usurp the role of Public Service Commission.
  6. The President’s statement on measures to be undertaken towards combating corruption during the Madaraka Day celebrations was constitutional and within the functions vested upon the President. Under article 132(1) (c) of the Constitution, once an year the President was required to report, in an address to the nation, on all measures taken and the progress achieved in the realisation of the national values referred to in article 10 and to publish in the Gazette the details of the measures and progress as reported in that address. It was not only then that the President could address the nation on the progress made towards the achievement of those values; he could do so at any time or occasion as the need and opportunity arose. Article 259 (3) (a) of the Constitution provided that every provision of the Constitution shall be construed according to the doctrine of interpretation that the law was always speaking and, therefore, inter alia, a function or power conferred by the Constitution on an office was capable of being performed or exercised as occasion required, by the person holding the office.
  7. Section 2 of the Statutory Instruments Act 2013 defined “statutory instrument” to mean any rule, order, regulation, direction, form, tariff of costs or fees, letters patent, commission, warrant, proclamation, by-law, resolution, guideline or other statutory instrument issued, made or established in the execution of a power conferred by or under an Act of Parliament under which that statutory instrument or subsidiary legislation was expressly authorized to be issued. In issuing the circular, the 1st Respondent did not purport to do so under a statutory provision or in exercise of parliamentary power to make subsidiary legislation. He did so in furtherance to the President's function to coordinate the functions of ministries, departments and agencies of National Government. The circular was not a statutory instrument and it did not purport to be a statutory instrument.
  8. The pronouncement of the President to the effect that all heads of procurement and accounts in Government ministries, departments, agencies and parastatals would undergo fresh vetting was not unlawful or unconstitutional. The vetting was to be done within established legal provisions and suspension would comply with the relevant procedures and regulations applicable to the affected individual officers.
  9. The circular deviated from the President's design of first vetting, then, suspending those who were unsuccessful. Instead the circular introduced compulsory leave for 30 days with full pay. To that extent, the circular deviated from the President's directive.
  10. The Public Service Commission Human Resource Policies and Procedures Manual for the Public Service, May 2016, provided for various forms of leave but it did not provide for compulsory leave. There was no constitutional or statutory or regulatory or other statutory instrument that provided for compulsory leave. If the design of the circular was implemented it would face serious challenges.
  11. The circular's provision on compulsory leave violated articles 47 & 41 of the Constitution on rights to fair administrative action and fair labour practices, respectively. It was not shown that compulsory leave was envisaged in the public officers' contracts of service, the public service regulations or policies, the statutory provisions or even constitutional provisions.
  12. While on compulsory leave, the affected officers would be on full pay, in circumstances where there was nothing to justify the application of public resources. To that extent, the circular was not in line with articles 232(1) (b) of the Constitution on the values and principles of public service including efficient, effective and economical use of resources and article 129(2) of the Constitution, which provided that executive authority shall be exercised in a manner compatible with the principle of service to the people of Kenya, and for their well-being and benefit. There was no justification for the affected officers not to continue serving while vetting was underway.
  13. Under the circumstances there were no accused persons and the rights of an accused person under article 50 of the Constitution were not violated. The affected public officers were to provide information to the 1st Respondent. The 1st Respondent would perform his co-ordinating function and the process would be taken over by the body with the respective constitutional or statutory functions and powers.
  14. Vetting was a function or power already vested in certain constitutional and statutory authorities. The circular did not propose to undermine such provisions including due process provisions in undertaking vetting. Further the vetting would not lead to a criminal process but a determination on suitability to continue being employed. Therefore, the rights of an accused person as provided for in article 50 of the Constitution were not violated.
  15. The information sought from the affected public officers was not a declaration of income, assets and liabilities as per section 26 & 28 of the Public Officer Ethics Act. Those provisions were not invoked in the circular. The information was being asked for purposes of the vetting or suitability interviews or appraisal which was a sort of ad-hoc appraisal.
  16. The information sought was similar to that which would ordinarily be provided by public officers under sections 26 & 28 of the Public Officer Ethics Act. The requirement for any offensive information, for example that which would be a violation of the right to privacy, was capable of being challenged by way of legal action. The vetting process would also comply with article 236 of the Constitution which protected a public officer from victimisation, and discrimination in the lawful performance of functions or dismissal from work, demotion or disciplinary action without due process.
  17. The circular did not impose collective punishment and it did not entail a disciplinary process or criminal trial. Collective punishment was untenable under Kenya's justice system.
  18. Section 22 of the National Government Co-ordination Act, 2013 provided that nothing done by a public officer appointed under the Act shall, if done in good faith for the purpose of executing the functions of the office, render such officer personally liable for any action, claim or demand. It was shown that at all material times the 1st Respondent acted in good faith in the execution of the responsibilities of the office he held. Accordingly, he would not be held liable to pay the Petitioner’s costs of the suit
Petition partly allowed.
Orders:-
  1. A declaration that the circular Ref. No. OP/CAB.39/1A of June 4, 2018 was illegal and unconstitutional only to the extent that by designing and prescribing imposition of a compulsory leave with full pay the circular thereby contravened articles 47(1), 41(1), 129(2), and 232(1) (b) of the Constitution of Kenya, 2010 and only to that extent, the circular was rendered null and void.
  2. The 2nd and 3rd Respondents would jointly or severally pay the Petitioner’s costs of the petition.
Kenya Law
Case Updates Issue 036/2018
Case Summaries

CRIMINAL PROCEDURE Legal requirements relating to settlement, withdrawal or termination of a criminal case through an agreement between an Accused person and a Complainant.

Kelly Kases Bunjika v Director of Public Prosecutions & another
Criminal Miscellaneous Application No 79 of 2017
High Court at Kabarnet
Edward M Muriithi, J
July 26, 2018
Reported by Beryl A Ikamari

Download the Decision

Criminal Procedure-settlement, withdrawal or termination of a criminal case-withdrawal of a criminal case through an agreement between the Complainant and an Accused person-considerations of the Court in deciding on whether to approve such a withdrawal-whether it was necessary for the Director of Public Prosecutions to concur with an agreement between parties to withdraw a criminal case-Constitution of Kenya 2010, article 157(11); Criminal Procedure Code (Cap 75) section 204.
Constitutional Law-interpretation of constitutional provisions-Director of Public Prosecutions-role of the Director of Public Prosecutions in the settlement, withdrawal or termination of a criminal case-whether the DPP had concur with a proposed withdrawal of a criminal case-Constitution of Kenya 2010, article 157(11).

Brief facts:
The Applicant was on trial for the offence of robbery with violence in Eldama Ravine Principal Magistrate’s Court Criminal Case No. 53 of 2016. The Court found that the Applicant had a case to answer and the trial was at the defence stage. The Complainant made a request for the criminal case to be withdrawn but the Court declined to grant the request. The Applicant made an application for the Court to review the decision declining to grant the request for withdrawal. The Applicant wanted the decision reviewed and orders granting the request for the withdrawal of the decision to be issued.

Issues:

  1. Under what circumstances would the Court allow an Accused person and a Complainant to withdraw or discontinue criminal proceedings?
  2. What was the role of the DPP in a situation where an Accused person and a Complainant agreed to withdraw or discontinue criminal proceedings?Read More..

Held:

  1. A criminal case would be terminated by operation of the law where an Accused person died and there was no person to be tried, convicted and sentenced and where a Complainant failed to attend under section 202 of the Criminal Procedure Code. There were other ways through which a criminal charge could be terminated by an act of the parties and they included:-
    1. By reconciliation under section 176 of the Criminal Procedure Code;
    2. Withdrawal or discontinuance of the charge by the Complainant under section 204 of the Criminal Procedure Code;
    3. By the prosecutor under article 157(6)(c) of the Constitution and section 87 of the Criminal Procedure Code;
    4. Alternative dispute resolution agreement pursuant to article 159 (2) (c) of the Constitution.
  2. Section 176 of the Criminal Procedure Code allowed the Court to promote reconciliation, encourage and facilitate amicable dispute settlement on terms of payment of compensation or terms approved by the Court, in cases of common assault or offences of a personal or private nature not amounting to a felony and not aggravated in degree.
  3. Section 204 of the Criminal Procedure Code provided for withdrawal of the complaint by the Complainant. The Complainant could withdraw the complaint before the Court made its final orders in the matter and the Court had discretion to allow or reject the withdrawal when satisfied of the existence or otherwise of sufficient grounds permitting the withdrawal.
  4. Each case depended on its own circumstances and in withdrawal or termination of criminal cases, in terms of article 157(11) of the Constitution, the DPP was obliged to consider public interest, the interests of the administration of justice and the need to prevent and avoid abuse of the legal process. The Accused or the Prosecutor who sought the withdrawal or termination of a criminal case had to demonstrate that the discontinuance (settlement, withdrawal or termination of the criminal case) was justifiable under the parameters of the considerations of public interest, interests of justice and the need to prevent abuse of the legal process.
  5. The case of Republic v PKM [2017] eKLR was distinguishable as a case which involved a matter of a personal nature arising from a matrimonial context. In that case, the court found that since there was a marriage and the offence was not so grave, the best that the court could do and that social justice demanded was to promote reconciliation for the sake of the unity of the family.
  6. Although the Court had power to allow alternative dispute resolution mechanisms, the concurrence of the DPP in addition to any agreement between the Complainant and the Accused was necessary. It was the DPP's responsibility under article 157 of the Constitution to consider public interest in making such a decision.
  7. The DPP was the constitutional custodian, enforcer and defender of public interest in criminal justice. That entailed the due administration of justice so that the offender would get punished or otherwise dealt with, as appropriate, for deterrence and rehabilitation, the victim would be assuaged and compensated as appropriate, and the society would benefit from prevention of crime.  In addition, the DPP ensured that the criminal justice system was not abused, in that, it was not used to persecute the innocent, achieve collateral civil purpose or avoid due punishment for crime.
  8. The Accused and the Complainant agreed to withdraw the charge but the DPP did not agree to that withdrawal. It was demonstrated that the Complainant was not the owner of the motor vehicle which was the subject of the robbery with violence charge and that there were other entities that could also be complainants. It was not shown that the DPP did not comply with article 157(11) of the Constitution in refusing to agree to the withdrawal of the charge.
  9. The Court did not approve the proposed withdrawal of the robbery with violence charge for the following reasons:-
    1. The offence of robbery with violence using firearms was of a serious nature and was prevalent in the area. It required a full trial and an appropriate punishment for deterrence if there was evidence to sustain the charge.
    2. Alternative dispute resolution mechanisms provided for in article 159 (2) (c) had to be supportive and not destructive of the ability of the DPP to conduct his primary role as the executor of the State’s powers of prosecution under article 157 (6) of the Constitution.
    3. The approval of the DPP who had the constitutional mandate and duty to consider under article 157 (11), the public interest, the interests of the administration of justice and the need to prevent and avoid abuse of the legal process had not been obtained.
    4. It was a public interest consideration within the meaning of article 157 (11) of the Constitution that offenders in serious crimes should be suitably prosecuted and punished if found guilty.
    5. Improper termination of serious criminal charges would demoralize police and prosecutorial agencies to the detriment of the country’s ability to combat and deter such crimes.
    6. The Complainant as the driver, and not the owner, of the motor vehicle-the property subject of the robbery was not in a fitting position to compromise a criminal charge relating to the said property. The interests of justice would require concurrence of the victim and the true owner of the property subject of the robbery charge.

Application dismissed.

CRIMINAL LAW Availability of self-defence as a defence to murder where an Accused person mistakenly believed that he faced imminent danger

Ismail Hussein Ibrahim v Republic
Criminal Case No 4 of 2016
High Court at Kajiado
R Nyakundi, J
July 30, 2018
Reported by Beryl A Ikamari

Download the Decision

Criminal Law-murder-malice aforethought-proof of malice aforethought-whether the requisite criminal intent for the offence of murder was proved where an Accused person raised the defence of self-defence-Penal Code (Cap 63), sections 203 & 206.
Criminal Law-murder-defences to the offence of murder-self-defence-elements of self-defence-honest and reasonable belief that the Accused person faced imminent danger of bodiliy injury-where the belief that there was imminent danger was actually a mistaken belief-whether the defence of self-defence was available to the Accused under the circumstances-Penal Code (Cap 63), section 17 & 203.

Brief Facts:
On the night of August 20 & 21, 2015 various persons, including the Accused person, a police driver, were at Destiny Bar, located at Elpase Ngong in Kajiado North Sub-County. A disturbance involving a lady called Ann, PW2 and PW4, arose and the management resolved to have Ann leave the bar. As Ann was escorted out, PW1 noted the presence of a person wearing rasta whom she found suspicious and she informed the customers that such a person was at the bar's entrance. When the door was opened for customers to leave, a person with a firearm was heard asking customers to lie down and the Accused shot at the direction of the bar's entrance.
It turned out that the person who was shot was a police officer. On that night, police officers approached Destiny Bar as they heard some kind of disturbance at the bar.

Issues:

  1. Whether malice aforethought was proved where the defence of self-defence was raised by an Accused person against murder charges.
  2. What was the scope of the defence of self-defence under section 17 of the Penal Code.Read More...

Held:

  1. Article 50 (2) (a) of the Constitution provided for the presumption of innocence. Unless the contrary was proved beyond reasonable doubt an Accused person had the right to be presumed to be innocent. The standard of proof was not one of certainty or even proof beyond a shadow of doubt. Evidence which was otherwise forceful but left a remote possibility in favour of an Accused person, would be sufficient to sustain a conviction as the standard of proof was proof beyond reasonable doubt.
  2. The prosecution had the duty to prove all the ingredients of the offence beyond reasonable doubt but the Accused person had no burden to prove his innocence. There were a few statutory exceptions wherein an Accused person could be asked to give an explanation in rebuttal.
  3. Section 203 of the Penal Code which defined murder as the unlawful killing of a person or persons with malice aforethought. There were three ingredients of the offence of murder which were to be proved by the prosecution beyond reasonable doubt, namely;
    1. The death of the deceased and the cause of the death;
    2. That the Accused person committed the unlawful act which caused the death of the deceased; and,
    3. That the Accused had malice aforethought.
  4. Proof of the cause of death was by way of medical and circumstantial evidence. The post mortem report stated that the deceased's death was caused by a single gunshot injury to the head. The weapon used to fire the gunshot was identified as a ceska pistol serial No. 9919. The evidence of other police officers PW11, PW13, PW18 and PW19 was that they were in the company of the deceased on patrol duties when he was shot and he died instantly.
  5. Not all killings were unlawful. Causation of death was excusable in law in circumstances of reasonable defence to self, property, as a result of accident or misadventure or in protection of life or property of a third party.
  6. Malice aforethought entailed the mens rea or the mental element required for a conviction for the offence of murder. It imported the notion of culpability or moral blameworthiness on the part of the offender. Under section 206 of the Penal Code, malice aforethought would be established if the any of the following was shown;
    1. an intention to cause death of or to do grievous harm to any person whether  that person was the person actually netted or not.
    2. Knowledge that the act or omission causing death would probably cause the death of or grievous harm to some person, whether that person was the person actually netted or not, although such knowledge was accompanied by indifference whether death or grievous bodily harm was caused or not, or by a wish that it would possibly not be caused.
    3. An intent to commit a felony.
    4. An intention by an act or omission to facilitate the fight or escape from custody of any person who had committed or attempted to commit a felony.
  7. The duty of the prosecution under section 206 of the Penal Code was to prove one or a combination of the circumstances required to prove malice aforethought. Courts inferred the existence of malice aforethought from the nature and type of weapon used and the real multiple severe bodily injuries suffered by the victim.
  8. The Accused fired the gun while exercising his legal right as a police officer to prevent the commission of a felony at Destiny Bar and he used the weapon which he had in his possession at the time. At best, he could be guilty of the offence of manslaughter contrary to section 202 of the Penal Code.
  9. Section 17 of the Penal Code provided for self-defence and defence of property. The test for self-defence was both objective and subjective. Section 17 of the Penal Code would provide a defence even to an Accused person who mistakenly thought that someone who approached him was armed with a dangerous weapon while in fact that person was not armed. However, the mistake would have to be a reasonable one. The force used in self-defence ought to be proportional to the imminent danger faced and the harm it could cause. The elements of self-defence included:-
    1. That the Accused had to have had reasonable ground to believe that there was apparent imminent or immediate danger of death or serious bodily harm from his attacker,
    2. The Accused had to have in fact a reasonable belief that his life was in danger or a third person or his property or other person’s property, 
    3. He had to not be the person who triggered the conflict or the assault,
    4. The use of force had to have been reasonable and not excessive.
  10. The evidence established that there was an opinion that there were suspicious persons outside the bar and there was no sufficient caution or warning that those persons were police officers. The Accused's belief as to what the circumstances were and what the danger was were important. If the beliefs were mistaken, the mistake would have to be a reasonable one. 
  11. In negating the defence of self-defence, the prosecution would had to show that in using force, the Accused did not honestly and reasonably believe that he was under physical threat from his attackers or that the Accused had an opportunity to retreat, or that the use of force was disproportionate to the threat faced or that force was not used in self-defence or in defence of some other person. The Prosecution did not tender evidence to negate self-defence as a defence to the murder charges.
  12. The facts indicated that any person in the Accused's position would reasonably have perceived danger to himself and a possibility of a commission of a felony and probability of bodily injury to PW1, PW2, PW3, PW4, PW5 and PW10. The conduct of the Accused person was a reasonable response to the circumstances as he perceived them.

Accused acquitted.

ELECTOTAL LAW A person would only qualify for nomination as a Member of a County Assembly in the County in which that person is a registered voter.

Victoria Cheruto Limo & another v Independent Electoral and Boundaries Commission & another
Election Petition Appeal No 5 of 2018 and No 7 of 2018 (Consolidated)
High Court at Garissa
George Dulu, J
August 30, 2018
Reported by Beryl A Ikamari

Download the Decision

Electoral Law-County Assembly elections-nomination as a Member of the County Assembly under the category of special seats (gender top-up)-qualifications applicable to the nomination-whether persons that were not registered voters in a given County were eligible for the nomination-whether a person who was a registered voter in Uasin Gishu County could be nominated as a Member of the County Assembly of Garissa under the category of special seats (gender top-up)-Constitution of Kenya 2010, article 177; Elections Act, No 24 of 2011, sections 34, 35, 36 & 37.
Civil Practice and Procedure-parties to a suit-joinder of parties-misjoinder-whether the joinder of an Interested Party in a High Court election petition appeal was valid where it seemed to favour a certain party to the proceedings.
Civil Practice and Procedure-orders of the Court-validity of orders of the Court-validity of an order which was not sought by parties to the proceedings and validity of an order made against a party which was not a party in the proceedings.
Electoral Law-Memorandum of Appeal-form and content of a Memorandum of Appeal in a High Court election petition appeal-effect of having a Memorandum of Appeal signed by the Appellant's advocate instead of the Appellant and failure to comply with the requirement that a Memorandum of Appeal should be concise, under distinct heads and without argument- Constitution of Kenya 2010, article 159(2); Elections (Parliamentary and County Elections) Petition Rules 2017, rule 8(4) & 34 (2).
Electoral Law-Memorandum of Appeal-form and content of a Memorandum of Appeal in a High Court election petition appeal-effect of having a Memorandum of Appeal make reference to questions of law while describing them as questions of fact and law-Elections Act, No 24 of 2011, section 75.

Brief facts:
Two appeals were lodged at the High Court against the decision of the Magistrates’ Court at Garissa to nullify the nomination of the 1st Appellant as Member of the County Assembly of Garissa under the category of special seats (gender top-up). The two appeals were consolidated and heard together.
The 1st Appellant's appeal entailed assertions that the 1st Appellant was validly nominated in a process that was in accordance with the applicable law. The 2nd Appellant contended that as a person from Uasin Gishu County, the 1st Appellant was not qualified to be nominated to the Garissa County Assembly. She stated that in nominations cultural, religious and ethnic considerations should not be departed from.
In her appeal, the 2nd Appellant stated that after the Magistrates’ Court made the finding that the 1st Appellant was not validly elected, it should have directed the IEBC to gazette the 2nd Appellant as the nominee, for the gender top up position in Garissa County Assembly. She contended that the order for fresh nominations was not supported by law as section 34 (10) of the Elections Act provided that the list supplied to the IEBC was a closed list which meant that upon the death, resignation or disqualification of a nominee, the second person named on the list would take the vacant spot.
The 2nd Appellant made an application for the striking out of the 1st Appellant's Memorandum of Appeal on grounds that it was incurably defective as it failed to comply with rule 34 (1) and (2) of Elections (Parliamentary and County Elections) Petition Rules 2017 (Election Petition Rules 2017) in that the Memorandum of Appeal was not signed by the Appellant, and did not set out under distinct heads the grounds of appeal.

Issues:

  1. Whether a person who not a registered voter in a given County could qualify for nomination in the County Assembly for that County, where that person was a registered voter in a different County.
  2. Whether there was a misjoinder where the joinder of an Interested Party seemed to favour a certain party.
  3. What was the effect of orders being granted against a party that was not party to the proceedings and no orders were sought against that party by the parties to the proceedings?
  4. What was the effect of having a Memorandum of Appeal in a High Court election petition appeal signed by the Appellant's advocate instead of the Appellant?
  5. What was the effect of having questions of law in a High Court election petition appeal referred to as questions of fact and law in the drafting of a Memorandum of Appeal?  Read More..

Held:

  1. Section 75(4) of the Elections Act provided that the jurisdiction of the High Court in appeals arising from the Magistrates’ Election Court, would only relate to matters of law. The appeal had to be filed within 30 days of the decision of the Magistrates’ Court and heard and determined within 6 months from the date of filing.
  2. The fact that the joinder of the National Cohesion and Integration Commission as an Interested Party seemed to favour a certain party did not disqualify the Commission from being an Interested Party. The joinder of that party was valid.
  3. In the petition filed at the Magistrates’ Court, prayer (a), (c), (d), (f) and (g) mentioned the Kenya Patriots Party but only sought orders against the 1st Appellant. Since no orders were sought against the Kenya Patriots Party, which was not a party to the proceedings, the petition was not defective on grounds relating to the orders sought.
  4. The Memorandum of Appeal filed in the 1st Appellant's appeal was signed by the advocate on record and not the 1st Appellant. Rule 8(4) of the Elections Petition Rules 2017 provided that the petition could be signed by a person authorized by the Petitioner. However, there was no document filed to show that the advocate was authorized to sign the Memorandum of Appeal. That was an advocate's mistake which was curable under article 159(2) of the Constitution.
  5. Rule 34 (2) of the Election Petition Rules 2017 required the Memorandum of Appeal to be concise, under distinct heads and without argument. Though the Memorandum of Appeal was numbered with no headings, that was a minor omission and no prejudice was occasioned to any party.
  6. The section 75 of the Elections Act provided that the appeal would be grounded on matters of law only. Paragraphs 1, 2, 3, 4, 6, 7, 8 and 9 of the Memorandum of Appeal stated that the Magistrates’ Court erred in law and in fact. Despite the use of the word "fact" in those paragraphs, the contents of the paragraphs did not require the Court to re-evaluate the evidence and reach at its own conclusions. It was a case of erroneous drafting by advocates. The 1st Appellant's Memorandum of Appeal was not fatally defective, even though most of the grounds of appeal, in the first line, started with the words “law and fact.”
  7. The definition of gender top-up in a County Assembly was provided in article 177 of the Constitution. Sections 34, 35, 36 and 37 of the Elections Act were relevant to gender top ups in County Assemblies. It was noteworthy that in the case of County Assemblies unlike the case of the National Assembly and Senate, the party lists were not required to reflect the regional and ethnic diversity of the people of Kenya.
  8. Gender top-up positions applied to both males and females, and would arise where the composition of elected members of a County Assembly, did not meet the constitutional requirement of not having more than two thirds from one gender, under article 177 (1) (b) of the Constitution. To be nominated for the position, a person would have to be a registered voter and be a member of the nominating political party on the date of nomination as provided for under section 34(8) of the Elections Act.
  9. At the time of her nomination, the 1st Appellant was a member of the Kenya Patriots Party and also a registered voter in Uasin Gishu County. She was not a registered voter in Garissa County.
  10. In Kenya, voters were registered to vote in only one polling station. Under regulation 38 of the Elections (Registration of Voters) Regulations 2012, Kenyan citizens residing outside Kenya were only allowed to vote in presidential elections or referendum. Similarly, regulation 38E of the Elections (Registration of Voters) Regulations 2012, allowed prisoners to only vote in the presidential elections or referendum. It was only those who were registered to vote in Garissa County that qualified for nomination by the party to the County Assembly of Garissa. As a registered voter in Uasin Gishu County, the 1st Appellant was not qualified or validly nominated to fill the gender top-up position in the Garissa County Assembly.
  11. There was nothing to support the 2nd Appellant's contention that the Magistrates’ Court considered irrelevant issues and failed to consider relevant issues. The High Court would not analyse the evidence as that was beyond its jurisdiction.
  12. A trial court's power to issue a certificate under section 80 of the Elections Act was discretionary and would only apply to a recount. There was no recount applicable to the circumstances of the case. 
  13. No criminal allegation was proved beyond reasonable doubt. Therefore the Magistrates’ Court could not be faulted for not making criminal findings.
  14. The Magistrates’ Court erred in making an order directed at the Kenya Patriots Party to conduct fresh nominations. Such an order could not be made as the Kenya Patriots Party was not a party to the proceedings and the Petitioner did not seek any orders against that political party.
  15. Section 34 (10) of the Elections Act provided that party lists submitted to the IEBC would not be amended during the term of Parliament. Therefore, it was appropriate to order the IEBC to re-allocate the gender top-up seat to the next female Garissa County registered voter in the list from which the Appellant was gazetted in accordance with the provisions of section 37 of the Elections Act.

Consolidated appeal partly dismissed.
Orders:-

  1. The nomination of Victoria Cheruto Limo as a Member of the County Assembly of Garissa under the category of special seats (Gender Top-up) was null and void.
  2. The Gazettement of Victoria Cheruto Limo as the nominated Member of County Assembly of Garissa under the category of special seats (Gender Top-up) vide Kenya Gazette Notice No. 8752 of September 6, 2017 was nullified.
  3. Since the party lists submitted to IEBC were required under section 34 (10) of the Elections Act not to be amended during the term of Parliament, the High Court certified and ordered the IEBC to re-allocate the gender top-up seat to the next female Garissa County registered voter in the list from which Victoria Cheruto Limo was gazetted in accordance with the provisions of section 37 of the Elections Act.
  4. Each party would bear their respective costs of appeal and the trial court proceedings.
CIVIL PRACTICE AND PROCEDURE Requirements to be met for joinder of Interested Parties to a Supreme Court petition.

Kensalt Limited v Water Resources Management Authority
Application No 8 of 2016
Supreme Court at Nairobi
M K Ibrahim, J B Ojwang, S C Wanjala, S N Ndung'u & I Lenaola, SCJJ
August 31, 2018
Reported by Beryl A Ikamari

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Civil Practice and Procedure-parties to a suit-joinder of parties-joinder of Interested Parties to a Supreme Court petition-legal requirements to be met in an application for joinder of intended Interested Parties to a Supreme Court petition-circumstances under which Applicants for such a joinder would be said to have demonstrated that they would suffer prejudice due to a non-joinder.

Brief facts:
Two parties made two different applications seeking to be joined as Interested Parties to the substantive appeal by the Petitioner. The applications for joinder were made by Krystalline Salt Limited (via an application dated June 22, 2016) and Malindi Salt Limited (via an application dated February 27, 2017.)
The matter originated from the Environment and Land Court wherein the Respondent claimed Kshs.270,295,759.90, as charges allegedly due for use of water in the course of salt manufacture from the Petitioner. An application for the striking out of the plaint was made at that court. In the application it was said that there was no basis for the levying of charges in respect of sea water and that Respondent did not have locus standi. The Petitioner stated that the Respondent was constitutionally debarred from levying tax, in the absence of express provisions under the Water Act or the Water Resources (Management) Rules, 2007. The application was allowed and the Respondent's suit was struck out.
The Respondent filed an appeal at the Court of Appeal and the Petitioner cross-appeal on one limited question. The Court of Appeal gave a judgment to the effect that the Respondent's case was to be subjected to a full hearing before a different judge. The Petitioner appealed against the Court of Appeal decision and contended that the Respondent had no lawful mandate over sea water, in view of the terms of the Constitution, the Water Act, or any other law and that the Environment and Land Court lacked jurisdiction to entertain the matter.
The Applicants stated that they had been charged for the use of sea water and they had claims against the Respondent which were similar to those of the Petitioner. They therefore made applications for joinder at the Supreme Court.

Issues:

  1. What were the principles applicable to joinder of intended Interested Parties to a Supreme Court petition?
  2. When would a party be said to have shown that he would suffer prejudice as a result of non-joinder in an application for joinder of an intended Interested Party to a Supreme Court petition? Read More..

Held:

  1. The principles related to joinder of new parties in on-going causes were settled. For one to be enjoined, the making of a formal application was necessary. Enjoinment was not as of right but was at the discretion of the Court and hence sufficient grounds had to be laid before the Court, on the basis of the following elements:-
    1. The party's personal interest or stake in the matter had to be set out in the application. The interest had to be clearly identifiable and proximate enough, to stand apart from anything that was merely peripheral.
    2. The intended Interested Party would have to demonstrate to the satisfaction of the Court, the prejudice that would be suffered in the case of non-joinder. The prejudice that would be suffered would have to be clearly outlined and not something remote.
    3. The party, in its application, would have to set out the case and/or submissions that it intended to make before the Court and demonstrate the relevance of those submissions. That party should also demonstrate that those submissions were not merely a replication of what other parties would be making before the Court. 
  2. The prejudice that the Applicants submitted that they would suffer entailed a denial of their right of access to justice under article 48 of the Constitution and that if they waited to be heard in their own causes, interest would keep accruing on the amounts demanded as payment by the Respondent. The claim on denial of access to justice was not new and it was not raised at the Environment and Land Court, at the Court of Appeal, or within the texture of the petition before the Supreme Court.
  3. There was no order of stay of proceedings and no situation to prevent the Applicants from lodging their own suits for hearing and determination and filing appeals thereafter in the event of unfavourable outcomes. Therefore, there was no basis for the claim of denial of access to justice.
  4. It was relevant that joinder was not sought at the Court of Appeal and the Environment and Land Court. The Supreme Court was not convinced that there was prejudice which the Applicants would suffer at the Supreme Court but would not have suffered at the Court of Appeal.
  5. It was of relevance that the Applicants filed suits before the Trial Court and that Court had the duty to conduct the matters judicially and duly make prescriptive findings.
  6. The Applicants failed to demonstrate that they would suffer prejudice if they were not joined in the appeal before the Supreme Court.

Orders:-

  1. The Notice of Motion of June 22, 2016 by Krystalline Salt Limited was disallowed.
  2. The Notice of Motion of February 27, 2017 by Malindi Salt Limited was disallowed.
  3. The parties had to bear their own respective costs.

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