Weekly Newsletter 031/2019



Kenya Law

Weekly Newsletter


The withdrawal of guidelines and training curriculum in the health sector without back up mechanisms violated the right to the highest attainable standard of health for women and girls
Federation of Women Lawyers (Fida – Kenya) & 3 others v Attorney General & 2 others; East Africa Center for Law & Justice & 6 others (Interested Party) & Women’s Link Worldwide & 2 others (Amicus Curiae) [2019] eKLR

Petition 266 of 2015
High Court at Nairobi
A O Muchelule, M Ngugi, G V Odunga, L A Achode & J M Mativo, JJ
June 12,   2019

Reported by Kakai Toili

Download the Decision

 

Constitutional Law fundamental rights and freedoms – enforcement of fundamental rights and freedoms - right to the highest attainable standard of health – where standards and guidelines for reducing morbidity and mortality from unsafe abortion in Kenya and the  national training curriculum for the management of unintended, risky and unplanned pregnancies were withdrawn – where no back up mechanisms were put in place of the withdrawn guidelines - whether the withdrawal of  the 2012 standards and guidelines for reducing morbidity and mortality from unsafe abortion in Kenya and the  national training curriculum for the management of unintended, risky and unplanned pregnancies without back up mechanisms violated the right to the highest attainable standard of health for women and girls – Constitution of Kenya, 2010, article 26 & 43; Health Act, 2017, section 2 & 6; International Conference on Population and Development Program of Action 1994, paragraph 7.2
Constitutional Law – interpretation of constitutional provisions – interpretation of article 26(4) of the Constitution -whether article 26(4) of the Constitution which dealt with abortion meant that abortion was legal – Constitution of Kenya, 2010, article 26; Sexual Offences Act, section 35(3); Penal Code, section 158, 159 and 160
Constitutional Law – fundamental rights and freedoms – enforcement of fundamental rights and freedoms - limitation of fundamental rights and freedoms - what were the circumstances in which fundamental rights and freedoms could be limited – what were the requirements to be met under the proportionality test for there to be a limitation of fundamental rights and freedoms - Constitution of Kenya, 2010, article 24
Statutes – doctrine of implied repeal – application of the doctrine of implied repeal - when could the doctrine of implied repeal be applied
Constitutional Law - national values and principles of governance - public participation – public participation in withdrawal of public policy documents - whether public policy documents had to be subjected to public participation before they were withdrawn - Constitution of Kenya, 2010, article 10 & 23(4)
Medical Law – medical services - Director of Medical Services – powers of – withdrawal of guidelines and training curriculums in the health sector - whether the Director of Medical services had the power to withdraw standards and guidelines on abortion and the national training curriculum for the management of unplanned pregnancies
Constitutional Law - fundamental rights and freedoms – enforcement of fundamental rights and freedoms –where there was a violation of fundamental rights and freedoms – assessment and award of damages for violation of rights - principles applicable to assessment and award of damages - what were the principles to be considered in awarding damages for violation of fundamental rights
Words and Phrases – conception – definition of conception - the fecundation of the female ovum by the male spermatozoon resulting in human life capable of survival and maturation under normal conditions – Black’s Law Dictionary
 
Brief Facts:
In September 2012, the Ministry of Medical Services, pursuant to a consultative process, issued the 2012 Standards and Guidelines for Reducing Morbidity and Mortality from Unsafe Abortion in Kenya (2012 Standards and Guidelines), and the  National Training Curriculum for the Management of Unintended, Risky and Unplanned Pregnancies (the Training Curriculum). However, by a letter dated December 3, 2013, the 3rd respondent (DMS) withdrew both the 2012 Standards and Guidelines and the Training Curriculum. Thereafter, by a memo directed to all Health Workers (Memo), the DMS directed all those to whom it was addressed not to participate in any training on safe abortion and use of medabon(medicines for inducing abortion). It stated that anybody attending the trainings or using the drug medabon would be subjected to appropriate legal and professional proceedings.
 In the year 2014 the 2nd petitioner, who was 18 years, was forced into sexual intercourse and in the process she got pregnant. She procured an abortion which led to her experiencing complications. She was later on taken to Kenyatta National Hospital where at the time of her discharge her diagnosis was that she had had a septic abortion and haemorrhagic shock and had developed chronic kidney disease. The petitioner died before the instant petition was determined. The petitioners argued that the DMS had no power to unilaterally and arbitrarily withdraw the 2012 Standards and Guidelines and the Training Curriculum; that the withdrawal left a gap and exposed the 2nd petitioner and others in her position to a denial of, inter alia, their reproductive health rights.

Issues:

  1. Whether the withdrawal of the 2012 Standards and Guidelines for Reducing Morbidity and Mortality from Unsafe Abortion in Kenya and the National Training Curriculum for the Management of Unintended, Risky and Unplanned Pregnancies without back up mechanisms violated the right to the highest attainable standard of health for women and girls.
  2. Whether article 26(4) of the Constitution which dealt with abortion meant that abortion was legal.
  3. What were the circumstances in which fundamental rights and freedoms could be limited?
  4. What were the requirements to be met under the proportionality test for there to be a limitation of fundamental rights and freedoms?
  5. When could the doctrine of implied repeal be applied?
  6. Whether public policy documents had to be subjected to public participation before they were withdrawn.
  7. Whether the Director of Medical services had the power to withdraw standards and guidelines on abortion and the national training curriculum for the management of unplanned pregnancies.
  8. What were the principles to be considered in awarding damages for violation of fundamental rights?

Relevant Provisions of the Law
Constitution of Kenya, 2010
Article 26

1. Every person has the right to life.
2. The life of a person begins at conception.
3. A person shall not be deprived of life intentionally, except to the extent authorised by this Constitution or other written law.
4.
Abortion is not permitted unless, in the opinion of a trained health professional, there is need for emergency treatment, or the life or health of the mother is in danger, or if permitted by any other written law.
 

Article 43
1)    Every person has the right—

(a)   to the highest attainable standard of health, which includes the right to health care services, including reproductive health care.

Penal Code
158. Any person who, with intent to procure miscarriage of a woman, whether she is or is not with child, unlawfully administers to her or causes her to take any poison or other noxious thing, or uses any force of any kind, or uses any other means whatever, is guilty of a felony and is liable to imprisonment for fourteen years.
159. Any woman who, being with child, with intent to procure her own miscarriage, unlawfully administers to herself any poison or other noxious thing, or uses any force of any kind, or uses any other means whatever, or permits any such thing or means to be administered or used to her, is guilty of a felony and is liable to imprisonment for seven years.
160.
Any person who unlawfully supplies to or procures for any person anything whatever, knowing that it is intended to be unlawfully used to procure the miscarriage of a woman whether she is or is not with child, is guilty of a felony and is liable to imprisonment for three years.
 

International Conference on Population and Development Program of Action 1994,
Paragraph 7.2

a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity, in all matters relating to the reproductive system and to its functions and processes. Reproductive health therefore implies that people are able to have a satisfying and safe sex life and that they have the capability to reproduce and the freedom to decide if, when and how often to do so.
 

Health Act, No. 21 of 2017,
Section 2

“emergency treatment" refers to necessary immediate health care that must be administered to prevent death or worsening of a medical situation;
“health” refers to a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity;
 

Section 6
(1)   Every person has a right to reproductive health care which includes—

(a) 
(b) 
(c)   access to treatment by a trained health professional for conditions occurring during pregnancy including abnormal pregnancy conditions, such as ectopic, abdominal and molar pregnancy, or any medical condition exacerbated by the pregnancy to such an extent that the life or health of the mother is threatened. All such cases shall be regarded as comprising notifiable conditions.

(2)   For the purposes of subsection (1)(c), the term "a trained health professional" shall refer to a health professional with formal medical training at the proficiency level of a medical officer, a nurse, midwife, or a clinical officer who has been educated and trained to proficiency in the skills needed to manage pregnancy-related complications in women, and who has a valid license from the recognized regulatory authorities to carry out that procedure.
 

Fair Administrative Action Act, 2015
Section 7

2)    A court or tribunal under subsection (1) may review an administrative action or decision, if—

(a) the person who made the decision—

(i) was not authorized to do so by the empowering provision;
(ii) acted in excess of jurisdiction or power conferred under any written law;
(iii) acted pursuant to delegated power in contravention of any law prohibiting such delegation;

Held:
  1. Article 26(4) of the Constitution was one of the articles that was flagged out as a contentious question during the deliberations leading to the Constitution. The end product that was incorporated in article 26 was a compromise of the differing views expressed by the various camps. The Constitution should be given a broad, liberal and purposive interpretation to give effect to its fundamental values and principles. That purposive approach, would take into account the agonized history attending Kenya’s constitutional reform. Therefore the Constitution had to be interpreted within the context of social and economic development keeping in mind the basic philosophy behind the particular provisions of the Constitution.
  2. As a result of the compromise, one of the fundamental changes made to the Parliamentary Select Committee on the Review of the Constitution (PSC Draft) was the substitution of the term “registered medical practitioner” with “a trained health professional.” That was due to the fact that the requirement that abortion could be performed by medical practitioners alone would mean that women in poor rural communities without such services would be unable to procure abortions with potentially serious or fatal repercussions for some poor women. In other words, the Committee appreciated that in rural areas where majority of Kenyans lived; there was a scarcity of the services of registered medical practitioners.
  3. Article 26 (1) of the Constitution applied to a natural person as opposed to a legal person. According to article 26(2), the life of such a person begun at conception. The parties in the instant case could not take issue with article 26(1) and (2) since article 2(3) of the Constitution barred any challenge being taken to the validity or legality of the Constitution.
  4. Since life begun at conception, the Constitution was clear that a person should not be deprived of life intentionally, except to the extent authorised by the Constitution or other written law. The drafters of the Constitution deemed it fit to deal with abortion under the article dealing with the right to life. That was not by inadvertence, the drafters of the Constitution considered abortion as an intentional deprivation of a life. Accordingly, abortion had to be contradistinguished from miscarriage. The word abortion as applied in article 26(4) of the Constitution did not apply to miscarriage. Interpretation of the Constitution had to be progressive.
  5. The opening statement of article 26(4) of the Constitution was that abortion was not permitted, that, was the general rule. The drafters of the Constitution had to have had a very good reason for opening the said clause in that manner as opposed to, for example, starting with the statement that abortion was permitted and then setting out the circumstances under which it was permitted. Article 26(4) did not mean that abortion was legal. Abortion was not lawful in Kenya; it stood prohibited as provided under sections 158, 159 and 160 of the Penal Code.
  6. Article 26(4) of the Constitution provided a proviso or exception to the general rule that abortion was not permitted. Article 26(4) made an exception to the general rule when it exempted situations in which a trained health professional formed the opinion that there was need for emergency treatment, or the life or health of the mother was in danger, or if permitted by any other written law. It was therefore clear that there was a window given to Parliament to legislate situations where abortion was permissible.
  7. The social context in which abortion took place was one in which there was a high incidence of sexual violence amongst the poor women and girls. The bulk of those who sought abortion in unsafe environments sought treatment in public health institutions. That was the situation of the 2nd petitioner, who ended up at the Kisii Level 5 hospital, a public referral hospital. Her ordeal presented a classic case of a failed health care system lacking in both skilled staff, facilities and a proper referral system. The 2nd petitioner’s situation illustrated the need for training to impart the requisite skills and knowledge and create an environment in which the incidence of maternal deaths as a result of unsafe abortions could be addressed.
  8. There was a need to address the challenge posed by unsafe abortion in Kenya. To do otherwise was to leave women and girls such as the 2nd petitioner without recourse to information on safe services, and was a violation of their rights under the Constitution and international instruments that protect their human rights.
  9. The right to life was guaranteed under international conventions to which Kenya was a party and which were, in accordance with article 2(5) and (6) of the Constitution part of Kenyan law. The term health was defined by the World Health Organization as That was also the definition of health contained in the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa.
  10. The inter-linkage and inter-dependence of rights was recognised, and in that regard, the right to health was an underlying determinant of the enjoyment of other rights. In addition, with respect to women and girls, the right to health under the Constitution encompassed the right to Women and girls had rights, in common with every other citizen, guaranteed to them under the Constitution. However, because of their sex, they were also guaranteed rights that were specific to them, the reproductive rights guaranteed under article 43 (1) (a) of the Constitution. Since the State had an obligation under article 21(1) of the Constitution to observe, respect, protect, promote and fulfill the rights guaranteed under the bill of rights, and to then any action that limited or diminished that right was a violation of the Constitution.
  11. The limitation of rights had to be by law, and the objective of the law had to be pressing and substantial and had to be important to society.
    1. that it be rationally connected to its objective,
    2. that it impaired the right or freedom as little as possible and
    3. that there was proportionality between its effects and its objectives.
  12. The constitutional provisions with respect to abortion in a situation in which emergency treatment was required, or where the life of the mother was in danger, were not disputable. The use of the term ‘trained health professional’ instead of ‘a medical doctor’ in the Constitution was a concession to the dearth of qualified medical doctors in many of Kenya’s health facilities. Many of the first line health facilities to which women and girls in need of reproductive health services go to were manned by nurses and clinical officers.
  13. The Penal Code prohibited abortion, however, it was an Act of Parliament that predated the Sexual Offences Act, 2006, and the Constitution.The provisions of the Sexual Offences Act which was later in time took precedence. That was based on the doctrine of implied repeal, under which, if the provisions of an Act were inconsistent with the provisions of an earlier Act. The earlier provisions could be impliedly repealed by the later legislation.
  14. The Constitution having provided a right to abortion where, in the opinion of a trained health professional there was need for emergency treatment, or that the life or health of the mother was in danger, the apparent blanket prohibition of abortion under the Penal Code could not stand. That was because, in accordance with sections 6 and 7 of the 6th Schedule to the Constitution, the provisions of the Penal Code had to be read with the necessary to bring it into conformity with the Constitution. While the said section was still valid in so far as unlawful abortions were concerned, the same had to be read taking into consideration the provisions of the Constitution as well as the Sexual Offences Act.
  15. Women and girls in Kenya who found themselves pregnant as a result of sexual violence had a right, under Kenyan law, to have an abortion performed by a trained health professional if that health professional formed the opinion that the life or health of the mother was in danger. Health, encompassed both physical and mental health. While Kenya made a reservation to article 14 (2)(c) of the Maputo Protocol, it was instructive that the words of the article mirrored in some respects the words used in the Constitution. Kenya was also a signatory to the International Covenant on the Elimination of all Forms of Discrimination against Women. In its recommendations adopted after its 11th General Session in 1992, the Committee required states to, among other things, enact and enforce laws and policies that protect women and girls from violence and abuse and provide for appropriate physical and mental health services. It also required that health-care workers should also be trained to detect and manage the health consequences of violence against women. Sexual violence exacted a major and unacceptable toll on the mental health of women and girls. Whether the violence occurred in the home or in situations of conflict, women suffered unspeakable torment as a result of such violence.
  16. The 2012 Standards and Guidelines and the Training Curriculum were public policy documents and were the product of a public participatory process as required under the Constitution. Their withdrawal however did not follow the same process, they were arbitrarily withdrawn. A decision to withdraw a public policy document had to similarly be subjected to the constitutional dictates. It was a power that could not therefore be arbitrarily exercised. Arbitrary exercise of power, even where it existed, was a ground to grant a judicial review relief which was one of the reliefs under article 23(3) of the Constitution.
  17. Article 43(1) (a) of the Constitution provided that every person had the right to the highest attainable standard of health, which included the right to health care services, including reproductive health care. Abortion in constitutionally permissible circumstances was clearly a right since article 26 of the Constitution fell under the bill of rights. The arbitrary withdrawal of the 2012 Guidelines and Training Curriculum clearly left those to whom the rights thereunder were bestowed, women and girls to the vagaries of medical quacks and backstreet services. Their withdrawal amounted to a limitation of the said right.
  18. Article 24 (1) of the Constitution permitted limitation of rights only to the extent that it was reasonable and justifiable in a democratic society. International human rights bodies had developed a detailed guidance on how the restrictions on a right could be applied and to meet the three part test described as:
    1. The restrictions had to be prescribed by law: that meant that a norm had to be formulated with sufficient precision to enable an individual to regulate his or her conduct accordingly.
    2. Restrictions had to pursue a legitimate aim, exhaustively enumerated in article 19(3) (a) and (b) of the International Covenant on Civil and Political Rights as respect of the rights or reputations of others, protection of national security, public order, public health or morals.
    3. Restrictions had to be necessary and proportionate to secure the legitimate aim: Necessity required that there had to be a pressing social need for the restriction. The party invoking the restriction had to show a direct and immediate connection between the expression/information and the protected interest. However, the premise of the memo was misguided and thus not necessary.
  19. In the instant case the limitation of the right to the highest attainable standard of health for women and girls was a negative act of arbitrary withdrawal of the facilitating instruments. No back up mechanisms was put into place to facilitate the said rights in the absence of the said 2012 Standards and Guidelines and Training Curriculum. The National Guidelines on Management of Sexual Violence in Kenya, 2014(2014 Guidelines), apart from drawing attention to the constitutional provisions did not guide the health professionals on the circumstances in which the said rights were to be attained. The 2014 Guidelines did not meet the threshold of precision required under article 24 of the Constitution.
  20. To the extent that the withdrawal of the 2012 Standards and Guidelines and Training Curriculum was by the DMS as opposed to the Medical Practitioners and Dentists Board(Board), the act itself was ultra vires and unlawful. In the instant case there was no evidence that the Board made the decision to withdraw the said documents. There was, however, no express power to delegate and such inference could not be made.
  21. The limitation of the right to the highest attainable standard of health for women and girls was not by law. The said action of the DMS neither specifically expressed the intention to limit that right or fundamental freedom, and the nature and extent of the limitation was not clear and specific about the right or freedom to be limited and the nature and extent of the limitation. In addition, considering relation between the limitation and its purpose and whether there were less restrictive means to achieve the purpose, the limitation did not meet the proportionality test. The State, which under article 24(3) of the Constitution shouldered the burden of demonstrating that the requirements of that article had been satisfied had failed to do so. If the only issue was the misuse of otherwise useful 2012 Standards and Guidelines and Training Curriculum, there were available mechanisms to stop the same otherwise than by withdrawal of the said instruments. The withdrawal of the 2012 Standards and Guideline and the Training Curriculum was unreasonable, drastic and unjustifiable in a democratic society.
  22. A holistic reading of article 43 of the Constitution with the Health Act led to the conclusion that the 2nd petitioner was entitled to emergency treatment including post-abortal care. All persons who were in need of treatment were entitled to health care and it did not matter the circumstances under which they found themselves in those situations.Post-abortal care was wanting in the facilities, which ordinarily ought to have had such care, such as Kisii Level 5 Hospital.The post-abortal care she received in the hospital was wanting, there was no doctor in the hospital to attend to her, and there were no dialysis services available. Apart from that, the 2nd petitioner was subjected to travel a long distance from Kisii Level 5 to Tenwek Hospital in a taxi due to her inability to afford ambulance services, services which ought to have been afforded as part of emergency treatment services. As a result of those deficiencies, the 2nd petitioner’s mother as the personal representative of the estate of the petitioner was entitled to comprehensive reparation including indemnification for material and emotional harm suffered as a result of the actions and omissions of the respondents.
  23. The purpose of public law was not only to civilize public power but also to assure the citizens that they lived under a legal system which aimed to protect their interests and preserve their rights. Therefore, when the court moulded the relief by granting compensation in proceedings under article 23 of the Constitution or seeking enforcement or protection of fundamental rights, it did so under the public law by way of penalizing the wrongdoer and fixing the liability for the public wrong on the State which had failed in its public duty to protect the fundamental rights of the citizen. The payment of compensation in such cases was not to be understood as it was generally understood in a civil action for damages under the private law but in the broader sense of providing relief by an order of making monetary amends under the public law for the wrong done due to breach of public duty, by not protecting the fundamental rights of the citizen or by subjecting the citizen to acts which amounted to infringement of the Constitution.
  24. An award of compensation against the State was an appropriate and effective remedy for redress of an established infringement of a fundamental right under the Constitution. The quantum of compensation would, however, depend upon the facts and circumstances of each case. In principle, constitutional damages as a relief, separate and distinct from remedies available under private law were competent. That was because a violation of a constitutional right had to of necessity find a remedy in one form or another, including a remedy in the form of compensation in monetary terms.
  25. Award of damages entailed exercise of judicial discretion which should be exercised judicially. The discretion had to be exercised upon reason and principle and not upon caprice or personal opinion. The following principles emerged from decided cases:
    1. Monetary compensation for violation of fundamental rights was an acknowledged remedy in public law for enforcement and protection of fundamental rights;
    2. such claim was distinct from, and in addition to a remedy in private law for damages for tort;
    3. that remedy would be available when it was the only practicable modeof redress available;
    4. against a claim for compensation for violation of a fundamental right under the Constitution, the defence ofsovereign immunity would be inapplicable.
  26. An award of compensation would go some distance towards vindicating the infringed constitutional right. How far it went would depend on the circumstances, but in principle it could well not suffice. The fact that the right violated was a constitutional right added an extra dimension to the wrong. An additional award, not necessarily of substantial size, could be needed to reflect the sense of public outrage, emphasise the importance of the constitutional rights and the gravity of the breach, and deter further breaches. All those elements had a place in helping the Court arrive at a reasonable award. The Court had to consider and have regard to all the circumstances of the instant case.
 
Petition partly allowed
  1. A declaration was issued that the right to the highest attainable standard of health, right to non-discrimination, right to information, consumer rights, and right to benefit from scientific progress of the 2nd, 3rd,and 4th petitioners as women of reproductive age and other women and adolescent girls of reproductive age whose interest they represented had been violated and/or threatened by the 3rdrespondent’s letter of December 3, 2013, reference number MOH/CIR/2/1/2, and Memo dated February 24, 2014, reference number MOH/ADM/1/1/2;
  2. A declaration was issued that the 3rd respondent’s Memo datedFebruary 24, 2014, reference number MOH/ADM/1/1/2 violated or threatened the rights of health care professionals to information,freedom of expression and association, consumer rights, and right to benefit from scientific progress;
  3.  An order was issued decreeing that the 3rdrespondent’s letter dated December 3, 2013, reference number MOH/CIR/2/1/2, and the Memo dated February 24, 2014, reference number MOH/ADM/1/1/2, were unlawful, illegal, arbitrary, unconstitutional, and thus null and void ab initio, and were thereby quashed;
  4.  A declaration was issued declaring that abortion was illegal in Kenya save for the exceptions provided under article 26(4) of the Constitution.
  5. A declaration was issued that pregnancy resulting from rape and defilement, if in the opinion of a trained health professional, posed a danger to the life orthe health (physical, mental and social well-being) of the mother could be terminated under the exceptions provided under article 26 (4) of the Constitution.
  6.  An order was issued directing the respondents jointly and or severally to pay PKMa sum of Ksh. 3,000,000/= being compensation for the physical, psychological,emotional and mental anguish, stress,pain, sufferingand death of JMM occasioned by respondents violation of JMM’s constitutional rights.
  7. An order was issued for all parties to bear their own costs of the suit, because the petition was brought in the public interest.
Kenya Law
Case Updates Issue 031/2019
Case Summaries

CONSTITUTIONAL LAW The High Court does not have the power to amend, repeal or issue declarations repealing provisions of existing statutes

James Gacheru Kariuki & 19 others v County Government of Mombasa & 56 others [2019] eKLR
Petition 56 of 2016
High Court at Nairobi
J A Makau, J
May 9, 2019
Reported By Kakai Toili & Flora Weru

Download the Decision

Constitutional Law – separation of powers – institutional vis a vis functional separation of powers –what was the distinction between institutional and functional separation of powers
Constitutional Law – separation of powers – powers of the Judiciary vis a vis Parliament – power to repeal statutes - where an earlier enacted statute appeared to be in conflict with a later one - whether the High Court had the power to repeal a statute where an earlier enacted statute appeared to be in conflict with a later one – Constitution of Kenya 2010 article 165 (3)
Constitutional Law – constitutional petitions – drafting of petitions – guiding factors in the drafting of petitions – where it was alleged that the petitioners rights had been infringed – where the petition did not state how the petitioner’s rights had been infringed – effect of - what was the effect of failure to indicate how a person’s rights were infringed in a constitutional petition
Statutes – doctrine of implied repeal – application of the doctrine of implied repeal - what were the circumstances in which the doctrine of implied repeal could be applied
Words and Phrases - abuse of process – definition of abuse of process - the improper and tortious use of a legitimately issued court process to obtain a result that is either unlawful or beyond the process’s scope, It includes the deliberate use of the court and court process to settle vendetta, to intimidate, to inflict fear and involves the bringing of matters to court that have no justiciable cause of action

Brief Facts:
The petitioners filed the instant petition seeking declarations to the effect that sections 72A,72B, 72C, 72D, 72E, 72F, 72G, 72H, 72I, 72J,91 and 93 of the Traffic Act Cap 403 laws of Kenya impliedly repealed by the provisions of section 4, 7, 10, 22,31,40 & 53 of the Kenya Roads Act Cap 408 laws of Kenya as read with the provision of the fourth schedule to the Kenya Roads Act Cap 408 laws of Kenya thus are null and void.
The 54th respondent subsequently filed a notice of preliminary objection challenging the Court’s jurisdiction to hear and determine the claim against the 54th respondent in the petition. The preliminary objection was based on the grounds that: the Kenya Roads Act did not repeal the impugned sections of the Traffic Act and that without the repeal the Court could not legislate and issue declarations that some provisions of the Traffic Act were repealed by the Kenya Roads Act.

Issues:

  1. What was the distinction between institutional and functional separation of powers?
  2. Whether the High Court had the power to repeal a statute where an earlier statute appeared to be in conflict with a later one.
  3. What was the effect of failure to indicate how a person’s rights were infringed in a constitutional petition?
  4. What were the circumstances in which the doctrine of implied repeal could be applied? Read More...

Relevant Provisions of the Law
Constitution of Kenya, 2010
Article 94 (1) & (5)

(1) The legislative authority of the Republic is derived from the people and, at the national level, is vested in and exercised by Parliament.
(5) No person or body, other than Parliament, has the power to make provision having the force of law in Kenya except under authority conferred by this Constitution or by legislation.

Held:

  1. The core of the Constitution was the doctrine of separation of powers. Pure separation of powers entailed both institutional separation and functional separation. Institutional separation concerned itself with the architecture and composition of the various arms of Government and functional separation being concerned with autonomy of allocation and exercise of functions. In the instant petition the petitioners were seeking to oust the legislative powers of the Parliament of Kenya which was an affront to the doctrine of separation of powers.
  2. From the reading of article 94 (1) and (5) of the Constitution, it was only Parliament which had powers to amend or repeal existing legislations. The Judiciary could not purport nor had it any powers to repeal sections of law or even issue a declaration, that some provisions of the law, especially the Traffic Act, were repealed by the Kenya Roads Act. The declaration could only be issued if the Kenya Roads Act stated it had repealed the Traffic Act.
  3. In statutory interpretation, it was a cardinal rule that when interpreting a statute, first regard had to be paid to the literal words of the legislation Courts had been concerned with overreliance on the rule of literal meaning of words to interpret statutes; but had turned to adopt a purposive approach of constitutional and statutory interpretation to guard against instances of ambiguity of the use of literal interpretation. In the instant matter the literal rule plain language meaning should be adopted in interpreting the disputed meaning and intention of the Kenya Roads Act.
  4. The doctrine of implied repeal served as a precautious measure against existence of two contrasting statutes. The general rule was that when parliaments repealed legislation, they generally made their intentions both express and clear. However sometimes Parliament could enact laws that were inconsistent with existing statutes. If the provisions of a later enactment were so inconsistent with or repugnant to the provisions of an earlier one, the two could not stand together, the earlier one was abrogated by the later one. The later statute impliedly repealed the earlier one to the extent of the inconsistency.
  5. It was necessary that there be one or more express provisions that were in contrast or in conflict with each other in different statutes for one to repeal the other. Implied repeal could not occur where one Act or statute referred to a specific issue yet the other did not. The court did not construe a later Act as repealing an earlier one unless it was impossible to make the two Acts or the two sections of the Acts stand together.
  6. Sections 72 A, 72 B, 72C, 72 D, 72 E, 72 F, 72 G, 72 H, 72 I, 91 and 93 of the Traffic Act were provisions that allowed County Governments to levy parking fees in designated areas within the counties. The Kenya Roads Act was however, silent regarding the issue of parking fees by County Governments. There was therefore no apparent inconsistency in the statutes and hence the doctrine of implied repeal did not apply in the instant case. Therefore, the Kenya Roads Act did not repeal the Traffic Act. The County Government Act allowed County Governments to come up with strategy of raising revenue that included the levying of parking fees.
  7. Article 165(3) of the Constitution created the Court and outlined the extent in which its jurisdiction extended. Article 165(3) was effected by the High Court (Organization and Administration) Act of 2015. There was nowhere in the Constitution or in the Act where the Court was empowered to repeal or order the repeal of statutes on sections of statutes that were considered illegal or contradictory. Further, article 209 of the Constitution and schedule 4 of the Constitution in providing the functions of the County Governments, allocated their revenue raising powers which included collection of parking fees and charging of relevant taxes subject to an Act of Parliament. That function could not be said to serve as a contradiction to the Kenya Roads Act and the Traffic Act.
  8. In exercising of judicial authority, the Court was obliged under article 159(2) of the Constitution to protect and promote the purposes and principles of the Constitution. The Constitution had to be given a purposive, liberal interpretation and 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.
  9. The National Council for Law Reporting Act established the National Council for Law Reporting to publish Kenya Law Reports. The 54th respondent had no statutory mandate to revise or amend laws as that was the preserve of Parliament. The role of the National Council for Law Reporting Act was specifically provided under section 3 of the Act. From the said section it was evident that the 54th respondent had no statutory mandate to revise, amend or update any law unless the publication had been authorized by the Attorney General and unless the amendment had been done by the Legislature.
  10. Since legislation was a preserve of Parliament, in the absence of any law granting the 54th respondent, any powers of revision of laws, the Court had no jurisdiction to confer the power to revise and amend law, on the 54th respondent. If a court had no jurisdiction over the subject matter of the litigation, its judgments and orders, however precisely certain and technically correct, were mere nullities and not only voidable, they were void and had no effect either as estoppel or otherwise, and could not only be set aside at any time by the court in which they were rendered, but be declared void by every court in which they could be presented. Jurisdiction could not be conferred on a court by consent of parties and any waiver on their part could not make up for the lack or defect of jurisdiction.
  11. Jurisdiction flowed from the law, and the recipient court was to apply the same, with any limitations embodied therein. Such a court could not arrogate to itself jurisdiction through the craft of interpretation, or by way of endeavors to discern or interpret the intentions of Parliament, where the wording of legislation was clear and there was no ambiguity.
  12. If courts decide only those cases that met certain justiciability requirements, they respected the spheres of their co-equal branches, and minimized the troubling aspects of counter-majoritarian judicial review, in a democratic society, by maintaining a duly limited place in Government. The Court should restrain itself and should not in any way seek to invalidate the alleged impugned provisions of the Traffic Act where Parliament had no intention of repealing through the enactment of the Kenya Roads Act. The Court lacked jurisdiction to declare that the Kenya Roads Act repealed sections of the Traffic Act. The power to legislate by amending and repealing laws was a preserve of Parliament and not the Judiciary. The 54th respondent could therefore not proceed to publish an amendment or revision that had not been sanctioned by Parliament. The Court was required to proceed to down its tools immediately and find itself not legally seized to proceed with the instant matter.
  13. A petition had to be concise and precise in showing and citing the violations committed by a respondent and how the Constitution had been violated through the cited violations and the facts setting out how those violations had been. The petitioner was required to particularize the allegations of violation of the Constitution as principal goal posts in drafting informed and well-considered petition.
  14. In the instant petition, the petitioners had failed to set out and show how the 54th respondent and other respondents had violated or infringed their rights. The procedure was meant for furtherance of justice. Every petition was required to adhere to the set out procedure without undue departure from its tenets.
  15. The petitioners sued all the County Governments and all Government parastatals dealing with infrastructure and roads. From the wording of the petition, it was seen to be gambling with the respondents in a bid to resuscitate their weak case. The Court should not be used to handle frivolous and vexatious petitions whose sole intention was to engage in a fishing expectation in the high seas of constitutional litigation.
  16. In the instant petition various articles of the Constitution had been cited, however the petitioners, had not provided particulars of the alleged violations of the Constitution. Further no evidence had been produced or attached to demonstrate the petitioners rights had been infringed or threatened. No evidence of payment of parking fees had been produced to show that the petitioners’ rights had been violated by alleged illegal collection of parking revenue by the County Governments. The petitioners had not provided the Court with any evidence showing that there were persons who had paid money to County Governments whose interest they sought to protect as a public interest litigant. The petition was imprecise and too general to warrant any positive order from the Court.
  17. The principles of drafting of constitutional petitions were in tandem with the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) practice and procedure Rule, 2013, which were in place at the time of filing the instant petition. The petition was defective for failure to state how the respondents had infringed on the rights of the petitioners.
  18. A pleading was frivolous if it lacked seriousness, if it was not serious then it would be unsustainable in court. A pleading would be vexatious if it annoyed or tended to annoy, it would annoy or tend to annoy if it was not serious or it contained a scandalous matter which was irrelevant to the action or defence. In short, a scandalous and/or frivolous pleading was ipso facto vexatious. The petitioners failed to show how the 54th respondent and other respondents had infringed on their rights and exuded a lack of seriousness and how that petition was sustainable and not annoying. That could be termed as frivolous and/or vexatious.
  19. The petitioners had failed to demonstrate that they had justiciable cause of action against the 54th respondent and others. The petition against the 54th respondent and others amounted to an abuse of the court process.

Preliminary objection allowed, petition dismissed
Orders

  1. The petitioner’s petition against the 54th respondent and others was fatally defective and incurable.
  2. The petition was filed in public interest and as such no orders as to costs.
CONSTITUTIONAL LAW County Government (Amendment) Act that introduced the County Development Board declared unconstitutional

Senate & 48 others v Council of County Governors & 54 others [2019] eKLR
Civil Appeal 200 of 2015
Court of Appeal at Nairobi
P.N Waki, P.O Kiage, S.K Gatembu, F Sichale, J.O Odek, JJA
June 7, 2019
Reported by Chelimo Eunice

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Constitutional Law-devolution-structure of devolution- levels of government –functional distinctness of the levels governments- what was the role of the county governor and the deputy county governor - whether the County Government (Amendment) Act, 2014 altered the structure of devolution by involving in its functioning and operations persons and officers from the other level of government-where senators, members of national assembly, members of county assembly, county commissioners were made members of County Development Boards- whether if a power was granted to a specific organ, body or level of government, then no other entity could lawfully exercise that power– where County Development Boards were granted both executive and legislative authority - Constitution of Kenya, 2010, articles 1, 6, 176, 179, 185, 186, 189 & 255; County Governments (Amendment) Act, section 91.
Constitutional Law - constitutional petitions-whether a constitutional petition was a civil proceeding mandatorily subject to the ordinary rules of Civil Procedure and the Government Proceedings Act-whether a constitutional petition was subject to the provisions of sections 12 and 13 A of the Government Proceedings Act, which required a 30-day notice to be given before any suit could be instituted against the government-Constitution of Kenya, 2010, article 22 (3) and (4)- Government Proceedings Act, sections 12 and 13 A.
Constitutional Law – systems of government-federal system and devolved system-whether Kenya was a federal state with a federal constitution or a constitutionally devolved state.

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.

Issue:

  1. Whether Kenya was a federal state with a federal constitution or a constitutionally devolved state.
  2. Whether the County Government (Amendment) Act, 2014 altered the structure of devolution by involving in its functioning and operations persons and officers from the other level of government.
  3. Whether if a power was granted to a specific organ, body or level of government, then no other entity could lawfully exercise that power.
  4. What was the effect of involving the senators in formulation of plans and budgets for counties in the County Government (Amendment) Act, 2014?
  5. Whether a constitutional petition was a civil proceeding mandatorily subject to the ordinary rules of Civil Procedure and the Government Proceedings Act.
  6. Whether parliament could lawfully alter the structure of devolved government through an Act of Parliament without a referendum. Read More...

Held:

  1. To claim that Kenya was a federal state with a federal constitution was a misreading and misapprehension of the Constitution. Taking a broader view of the institutional arrangements under the Constitution as a whole, an interdependence of national and county governments was provided for through a devolution-model that rested upon a unitary, rather than a federal system of government. Although Kenya was a constitutionally devolved state, it did not have a federal constitution and that the county governments were not independent but semi-autonomous and an integral part of the unitary state, exercising delegated sovereign power for purposes of governance.
  2. The trial court pointed out the articles of the Constitution that it considered to have been violated by enactment of the County Government (Amendment) Act, 2014 (the Act). The articles included, articles 1 (3) (b), 1 (4), 6 (2), 10 (2), 179 (4), 183, 185 (1), 189 (1) and 225 (1) (i). Thus, the ground of appeal that the trial court erred in not specifying the specific constitutional articles that were violated had no merit.
  3. The trial court in appraising the constitutionality of the Act considered its constitutionality under various headings while analysing the provisions of section 91A and 91B of the Act through principles of devolution, separation of powers, and oversight role of the senate as provided for in the Constitution. It applied the principles applicable in determining whether an impugned legislation or part thereof met the test of constitutionality. One of the principles it applied was the principle of constitutionality of statutes, where it held that since the petitioners had alleged a violation of the Constitution, the presumption of constitutionality. It held that the petitioners had an obligation to establish that the Act was unconstitutional. It appreciated and applied the correct principles and methodology in determining the constitutionality of a statute or statutory provision. The ground of appeal that the trial court did not apply the correct methodology or an integrated and harmonious approach to interpretation of the Constitution had no merit.
  4. Devolution was a political arrangement where political, administrative and fiscal power was distributed to semi-autonomous sub-national units. Devolution was one of the main fulcrums on which Kenya’s Constitution turned. Pursuant to article 186 (2) of the Constitution, Kenya had in effect three categories of powers and functions, one for the national government, another for the counties, and the third that were concurrent. If the national and county laws clashed, the national laws prevailed in circumstances listed in article 191 of the Constitution.
  5. 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.
  6. The trial court made a finding that the Act altered the structure of devolved government and violated the doctrine of separation of powers. To conclude that the structure of devolved government had been altered by the Act, one had to first ascertain the structure of devolved government under the Constitution. The structure of devolution in Kenya was embodied and actualized by the Constitution and various legislations. It was embodied in various articles of the Constitution, inter alia:
    1. Article 1 (3) (b): The sovereign power under the Constitution was delegated to the national executive and the executive structures in the county governments.
    2. Article 1 (4): The sovereign power of the people was exercised at (a) the national level and (b) the county level.
    3. Article 6 (2): The governments at the national and county levels were distinct and inter-dependent and had to conduct their mutual relations on the basis of consultation and cooperation.
    4. Article 176 (1): There was a county government for each county consisting of a county assembly and a county executive.
    5. Article 179 (1): The executive authority of the county was vested in and exercised by a county executive committee.
    6. Article 179 (4): The county governor and the deputy county governor were the chief executive and deputy chief executive of the county respectively.
    7. Article 179 (6): Members of the county executive committee were accountable to the county governor for the performance of their functions and exercise of their powers.
    8. Article 185 (1): The legislative authority of a county was vested in and exercised by, its county assembly.
    9. Article 189 (1) (a): Government at either level had to perform its functions and exercise its 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. Article 255 (1) (i): Amendment to the objects, principles and structure of devolved government required referendum.

    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.

  7. 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.
  8. 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.
  9. 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.
  10. 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.
  11. 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.
  12. 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.
  13. 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.
  14. 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.
  15. 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.
  16. 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.
  17. 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.
  18. 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.
  19. 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.
  20. 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.
  21. 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.
  22. 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.

Appeal dismissed. Each party was to bear own costs in the appeal and the trial court.

CRIMINAL LAW Applicable guidelines a court uses when considering an applicant’s application for re-sentencing

Isaac Kimanzi Musee and 2 others v Republic [2019] eKLR
Criminal Miscellaneous Application 22, 23 and 35 of 2018
High Court at Garissa
C Kariuki, J
May 15, 2019
Reported by Ian Kiptoo and Kadzo Jali

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Criminal law- sentencing - re-sentencing- application for - applicable guidelines used by a court – nature of the guidelines - where applicants had served a period of time- where applicants had shown remorse, rehabilitation and taken steps to be educated or trained - what were the applicable guidelines a court used when considering an applicant’s application for re-sentencing

Brief Facts:
The applicants were convicted of the charge of robbery with violence contrary to section 296 (2) of the Penal Code and consequently sentenced to death, which sentence was commuted to life imprisonment. Their respective appeals to the High Court and Court of Appeal were dismissed and the applicants filed an appeal to the Supreme Court pursuant to the Supreme Court decision in the matter of Francis Karioko Muruatetu & Another –vs- Republic [2017] eKLR seeking a re-sentencing on the basis of, inter alia, time served, remorse and the rehabilitation of the applicants.

Issues:

  1. What were the applicable guidelines a court to considered in an application for re-sentencing after all appellate mechanisms had been exhausted? Read More...

Held:

  1. The Supreme Court in Francis Karioko Muruatetu & Another v Republic [2017] eKLR gave the following guidelines to guide the Court when considering the applicants’ application for re-sentencing:
    1. age of the offender;
    2. being a first offender;
    3. whether the offender pleaded guilty;
    4. character and record of the offender;
    5. commission of the offence in response to gender-based violence;
    6. remorsefulness of the offender;
    7. the possibility of reform and social re-adaptation of the offender; and
    8. any other factor that the Court considers relevant.

    The guidelines in no way replaced judicial discretion. They were advisory and not mandatory. They were geared to promoting consistency and transparency in sentencing hearings. In addition, they were also aimed at promoting public understanding of the sentencing process.

  2. Although the Supreme Court referred to murder, the same could also be applied in other cases where the law provided for a mandatory sentence, including the instant case of robbery with violence where a mandatory death sentence was imposed. According to the Sentencing Policy Guidelines, 2016, the objectives of sentencing were retribution, deterrence, rehabilitation, restorative justice, community protection, and denunciation.
  3. The degree of gravity of the offence that the applicants committed and the mitigation of the applicants on re-sentencing established that the sentence of life imprisonment was not apt. Emerging jurisprudence suggested that when dealing with sentence re-hearing in robbery with violence cases, the starting point had to be 14 years. That was informed by the fact that the felony of robbery, which was a lesser offence than robbery with violence, attracted a term of imprisonment for 14 years. The Court would therefore consider the applicants’ mitigation in light of the circumstances that the crime was committed.
  4. In respect to the 1st applicant, the officer in charge of Kamiti Maximum Prison vide a letter dated November 20, 2017 recommended that the applicant in his 8 years in prison had been well behaved and disciplined; had acquired various qualifications and certificates; and that he had a clean prison record whose conduct was worth emulation by other prisoners.
  5. It was clear that the applicant had been rehabilitated during his incarceration. Whereas the circumstance in which the crime was committed was serious, the Court was inclined to take into account the fact that the applicant had been in custody for a period. The applicant was arrested when he was 49 years old and was at the time of the appeal aged 56 years and he seemed to have grown up to be wiser and more reformed. In the circumstances and considering the seriousness of the offence and taking into account the applicant mitigation and the emerging Jurisprudence from other courts position on the same, a sentence of 20 years minus the time already applicant had been in custody was meted out.
  6. The 2ndapplicant was remorseful and an impressionable youth at the time he committed the offence, the chance that he was influenced by others was not beyond the realm of possibility. The length of time that the applicant had been in prison was taken into account. He had paid his just debt to the society. The Court was inclined to find favor with the applicant’s plea for reduction of sentence and to issue a considerable sentence of 20 years in view of the applicant’s circumstances, considering he had already been in custody for a period.
  7. The 3rdapplicant’s circumstances seemed to be similar with that of the 1stapplicant, that the applicant had reformed having acquired various certificates upon undertaking studies in prison and that he was well behaved and disciplined. Further, the applicant was unwell, suffering from epilepsy as evidenced by a letter dated February 5, 2019 and that he also experienced some nervous breakdown affecting his left hand and the right eye.
  8. It was also considerable that the 3rd applicant since incarceration had developed himself academically. He alleged that he had sat for his KCPE exam and scored 400 marks and that he had since joined Form one. In the circumstances and considering the seriousness of the offence the applicant was equally sentenced to 20 years imprisonment minus the time he had already been in custody.

Application allowed
The sentence of death which was commuted to life imprisonment imposed on the applicants was set aside and the applicants were sentenced to 20 years imprisonment and factoring the time they had been in custody.

CONSTITUTIONAL LAW An advocate acting for the victim can actively participate in criminal proceedings to safeguard their constitutional and statutory rights.

Joseph Lendrix Waswa v Republic [2019] eKLR
Criminal Appeal 132 of 2016
Court of Appeal at Kisumu
E .M Githinji, H.M Okwengu, J. Mohammed, JJA
May 21, 2019
Reported by Beryl Ikamari & Mathenge Mukundi

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Constitutional Law-fundamental rights and freedoms-enforcement of fundamental rights and freedoms-right to a fair trial-whether an advocate acting for a victim could be permitted to actively participate during criminal proceedings to safeguard the victim’s constitutional and statutory rights-whether in allowing such an advocate to actively participate in the criminal proceedings would violate the accused’s right to a fair trial by exposing them to double prosecution-Constitution of Kenya, 2010, articles 25 (c)& 50; Victim Protection Act, 2014, sections 9(2), 12, 13 & 20.

Brief Facts:
The Trial Court permitted the counsel for the victim to actively participate in the trial of the appellant on following terms- during submission at the close of the prosecution case on whether there was a case to answer and upon application at any stage of the trial for the consideration by the Court.
The High Court’s decision was challenged on nine grounds which were argued together. The appellant contended, among other things, that the Trial Court opened the door widely for the victim to take over the trial; the terms made were not provided for in the law and they opened a Pandora’s box; that the orders were prejudicial to the appellant as he would face two prosecutors and affect the right to a speedy trial. The prosecution counsel supported the submissions of the appellant’s counsel and added that the law did not say at what stage the personal interest of the victim should be addressed and that a victim could only address the Court at the stage of plea bargaining, bail hearing and sentencing.
The counsel for the family of the deceased contended that the concerns of victims of offences had to be addressed at any stage of the proceedings and the rights were determined on a case-to-case basis. The counsel for the victim even had a right to cross-examine witnesses.

Issues:

  1. Whether an advocate acting for the victim could be permitted to actively participate in criminal proceedings to safeguard the victim’s constitutional and statutory rights.
  2. Whether allowing an advocate acting for the victim to actively participate in the criminal proceedings would violate the accused right to a fair trial by exposing them to double prosecution. Read More...

Held:

  1. The origin of the recognition of rights of victims of crime by the domestic laws was the United Nations General Assembly Resolution A/RES/40/34 of November 29, 1985 at its 96th plenary meetings which adopted the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power which was designed to assist governments and the international community in their efforts to secure justice and assistance for victims of crime and victims of abuse of power. Clause 6 of the aforementioned basic principles under the heading of Access to Justice and Fair Treatment stated in part that the responsiveness of judicial and administrative process to the needs of victims should be facilitated by allowing the views and concerns of victims to be presented and considered at appropriate stages of the proceedings where their personal interests were affected, without prejudice to the accused and consistent with the relevant national criminal justice system.
  2. Prior to the promulgation of the 2010 Constitution, the Criminal Procedure Code(Code) recognized the right of the victim in the trial process at two stages. First, at the stage of plea agreement negotiation between the prosecutor and accused under section 137A of the Code. Additionally, Section 137 D (c) of the Code which provided that a prosecutor should only enter into a plea agreement unless the circumstances did not permit, after affording the victim or his legal representative the opportunity to make representation to the prosecutor regarding the contents of the agreement. Second, before sentencing under section 329 (c) of the Code the Court had the discretion to receive a victim impact statement given by the primary victim or family victim where the offence resulted in the death of a person or actual physical bodily harm to any person.
  3. The national values in article 10 of the Constitution included social justice, equality, human rights, and non-discrimination. The protected rights included a right to access justice and the right to a fair hearing. Article 20 of the Constitution provided that every person was entitled to 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. Further, under article 21(4) the State was enjoined to enact and implement legislation to fulfil its international obligations in respect of human rights and fundamental freedoms.
  4. Article 50(9) of the Constitution which required the Parliament to enact legislation providing, inter alia, for rights of victims of offences was part of the provisions relating to the right to a fair hearing including the right of an accused person to a fair trial. The general principles underlying the Victim Protection Act as stated in section 4(1) included upholding national values and access to justice. Further, under the provision of section 9(1) (d) of the Victim Protection Act rights of victims to fair hearing during the trial process were identical to the rights provided in article 50(1) of the Constitution.
  5. Under section 13 of the Victim Protection Act, a victim who was a complainant in a criminal case had a right either in person or through an advocate and subject to the provisions of the Act to adduce evidence which had been left out and give oral evidence or written submissions.
  6. The Constitution and the Victim Protection Act gave a victim of an offence a right to access justice and a right to a fair trial which rights, as article 20(2) provided, should be enjoyed to the greatest extent consistent with the nature of the right. The right to a fair trial as provided for under the Constitution was an absolute right. Under article 50 of the Constitution, the rights of an accused person to a fair trial were enumerated and the rights of victims of offences were recognized, specifically in article 50(9) of the Constitution. The constitutional rights of an accused person to a fair trial should be balanced with the statutory rights of the victim of the offence as stipulated in Victim Protection Act and further the rights of the victim of crime should be exercised without prejudice to the enumerated rights of an accused person to a fair trial.
  7. The concept of watching brief in a criminal trial where an advocate for the victim did not play an active role in the trial process was outdated. The Constitution and the Victim Protection Act gave a victim of an offence a right to a fair trial and right to be heard in the trial process to assist the Court, and not the prosecutor, in the administration of justice so as to reach a just decision in the case having regard to the public interest. That right of the victim to be heard persisted throughout the trial process and continued to the appellate process.
  8. The constitutional and statutory role of the DPP to conduct the prosecution was not affected by the intervention of the victim in the trial process. The nature and scope of the victim’s intervention prescribed by the Victim Protection Act should be interpreted in conformity with the Constitution and implemented by the Trial Court at the appropriate stages of proceedings as the justice of each case required. It was the duty of the Trial Court to conduct a fair trial and to protect and promote the principles of the Constitution
  9. The rights granted to victims of offences just like the rights conferred by the Bill of Rights were to be liberally construed. Some rights in the trial process were stipulated in the Victim Protection Act, such as the right to submit information during plea bargaining, bail hearing and sentencing, section 20 & 12 respectively, the right to adduce evidence, which had been left out, and to give oral evidence or written submissions.
  10. The right to cross-examine witnesses was the most contentious. It was not expressly provided for by the Victim Protection Act. By section 150 of the Criminal Procedure Code, a trial court had general power suo moto to summon, examine, recall and re-examine any such person if his evidence appeared to it essential to the just determination of the case, provided that the prosecutor or the advocate for the prosecution or the defendant or his advocate had the right to cross-examine any such person, and the Court should adjourn the case for such time (if any) as it deemed necessary to enable the cross-examination to be adequately prepared if, in its opinion, either party would be prejudiced by the calling of that person as a witness.
  11. The independent and discretionary power given to the Trial Court under section 150 of the Criminal Procedure Code was intended to help the Court to search for the truth and to function as a court of justice. It was compatible with the right of a fair trial of an accused person or with the exercise of the prosecutorial powers of the DPP if a victim of an offence, either in person or through his advocate was allowed to exercise the full power of the Court in the manner provided by section 150 of the Criminal Procedure Code so long as the safeguards in the proviso thereto were observed. A victim of an offence or his advocate or representative would exercise the plenitude of the powers of the Court under section 150 of the Code with the permission and directions of the Trial Court.
  12. The issue of victim’s participation would arise in an infinite variety of factual situations and the Trial Court would be required to offer guidance to ensure a fair trial to an accused person. A rigid prescription would not only limit the exercise of rights and the judicial discretion of the Trial Court but would also impede the administration of justice and the development of the law. It was preferable that the exercise of the victim’s rights should be determined by the Trial Court as occasion arose and as the justice of each case required.
  13. The impugned rights given by the Trial Court to the victim of the offence who was the father of the deceased were in conformity with the Constitution and the Victim Protection Act. The victim’s right to participation in the trial process subsisted throughout the court process and was not passive but active within the limits set in.

Appeal dismissed.

Long'et Terer - CEO and Editor

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t: @LongetTerer

The Kenya Law Team

Where Legal Information is Public Knowledge.

The National Council for Law Reporting | P.O Box 10443 - 00100, Nairobi Kenya. | www.kenyalaw.org