Weekly Newsletter 033/2019



Kenya Law

Weekly Newsletter


Public officers who have been suspended over charges of corruption/economic crimes are not allowed to hold public office.
Moses Kasaine Lenolkulal v Director of Public Prosecutions
Criminal Revision 25 of 2019
High Court at Nairobi
M Ngugi, J
July 24, 2019
Reported by Ribia John
Download the Decision

Constitutional Law leadership and integrity – suspension of public officers for being charged with corruption or economic crimes – whether a holder of an office which the Constitution limited or provided for the ground upon which such holders could be removed or the office could be vacated could be suspended from office if charged with corruption or an economic crime - Anti-Corruption and Economic Crimes Act, section 62

Statutesinterpretation of statutes - constitutionality of statutes – Anti-Corruption and Economic Crimes Act section 62(6) - whether section 62(6) of the Anti-Corruption and Economic Crimes Act that exempted office holders of offices which the Constitution limited or provided for the ground upon which such holders could be removed or the office could be vacated from being suspended from office if charged with corruption or an economic crime violated the letter& spirit of the Constitution as well as Chapter Six of the Constitution on leadership and integrity – Anti-Corruption and Economic Crimes Act, section 62(6); County Governments Act section 32(2); Constitution of Kenya, 2010 article 182 & Chapter Six

Constitutional Law – leadership and integrity – devolution – suspension of a sitting governor – whether a County Governor could be suspended for being charged with corruption or an economic crime – implications of suspending a County Governor - whether suspending a sitting Governor from office was the same as removing the Governor from office - whether the Deputy Governor was to take up the roles of the Governor if the Governor was suspended for being charged with corruption or an economic crime and could not obtain authorisation to resume office from the Ethics and Anti-Corruption Commission – Anti-Corruption and Economic Crimes Act, section 62(6); Constitution of Kenya, 2010 Chapter Six
 

Brief Facts:

The applicant was the Governor of Samburu County. He had been charged with various offences under the Anti-Corruption and Economic Crimes Act. The Trial Court granted the applicant bail and also issued interim orders that prohibited the applicant from accessing Samburu County offices pending filing, hearing and determination of an application to be made by the prosecution.
Aggrieved by the interim orders the applicant filed the instant revision, in which he sought for the interim orders to be vacated on grounds that they violated section 62(6) of the Anti-Corruption and Economic Crimes Act and that the orders went against the procedures of removing a County Governor as prescribed in the Constitution.


Issues:

  1. Whether section 62(6) of the Anti-Corruption and Economic Crimes Act that exempted office holders of offices which the Constitution limited or provided for the ground upon which such holders could be removed or the office could be vacated from being suspended from office if charged with corruption or an economic crime, violated:
    1. the letter and spirit of the Constitution;
    2. Chapter Six of the Constitution on leadership and integrity.
  2. Whether a holder of an office which the Constitution limited or provided for the grounds upon which such a person could be removed or the office could be vacated could be suspended from office if charged with corruption or an economic crime.
  3. Whether suspending a County Governor from office was the same as removing the Governor from office.
  4. Whether the Deputy Governor was to take up the roles of the Governor if the Governor was suspended for being charged with corruption or an economic crime and could not obtain authorization from the Ethics and Anti-Corruption Commission.

Relevant Provisions of the Law
Constitution of Kenya, 2010
Article 182
82.     Vacancy in the office of county governor

(1)      The office of the county governor shall become vacant if the holder of the office—

(a)     dies;
(b)     resigns, in writing, addressed to the speaker of the county assembly;
(c)      ceases to be eligible to be elected county governor under Article 180(2);
(d)     is convicted of an offence punishable by imprisonment for at least twelve months; or
(e)      is removed from office under this Constitution.

(2)      If a vacancy occurs in the office of county governor, the deputy county governor shall assume office as county governor for the remainder of the term of the county governor.
(3)      If a person assumes office as county governor under clause (2), the person shall be deemed for the purposes of Article 180(7)—
(a)     to have served a full term as county governor if, at the date on which the person assumed office, more than two and a half years remain before the date of the next regularly scheduled election under Article 180(1); or
(b)     not to have served a term of office as county governor, in any other case.
(4)      If a vacancy occurs in the office of county governor and that of deputy county governor, or if the deputy county governor is unable to act, the speaker of the county assembly shall act as county governor.
(5)      If a vacancy occurs in the circumstances contemplated by clause (4), an election to the office of county governor shall be held within sixty days after the speaker assumes the office of county governor.
(6)      A person who assumes the office of county governor under this Article shall, unless otherwise removed from office under this Constitution, hold office until the newly elected county governor assumes office following the next election held under Article 180(1).

 
Anti-Corruption and Economic Crimes Act
Section 62(6)
62.     Suspension, if charged with corruption or economic crime


(6)      This section does not apply with respect to an office if the Constitution limits or provides for the grounds upon which a holder of the office may be removed or the circumstances in which the office must be vacated.

 
County Governments Act
Section 32(2)
32.     Functions of the Deputy Governor

(2)      The deputy governor shall deputize for the governor in the execution of the governor’s functions.
 

Held:
  1. The applicant was holder of a constitutional office. He was the Governor of Samburu County and would thus appear to be exempt from the provisions of section 62(1) of ACECA and protected by section 62(6) thereof as the grounds for his removal were set out in the Constitution. Further, by requiring that he seeks authorisation from the EACC and its CEO, he was, to some extent, subordinated to the EACC. There could also be some practical difficulties in the manner in which the authorisation was to be given.
  2. The question of whether the applicant should have access to his office required a perspective that looked beyond the interests of the individual holder of the constitutional office and considered the wider public interest. That perspective spoke to the question of political hygiene, and was a perspective that raised serious concerns that required judicial consideration with respect to section 62(6) of ACECA.
  3. Suspension of a public or State officer was not a violation of rights and was in accord with the constitutional provisions in Chapter Six requiring integrity from public and state officers. Where a public or state officer was charged with an offence of corruption, then the officer was required by law to be suspended with half pay, under the terms of section 62(1) of ACECA, until the conclusion of the case. If the prosecution results in an acquittal, then the public or state officer was restored to his position and paid all the monies that could have been withheld in the period of his suspension.
  4. Article 260 of the Constitution defined a public officer as a state officer or any person other than a State Officer, who held a public office. Article 260 defined a state office and a state officer to include a member of a County Assembly, Governor or Deputy Governor of a County, or other member of the executive committee of a County Government. Therefore a person in the position of the applicant, a County Governor, as well as well as members of constitutional commissions such as the Chairperson of the National Land Commission were State Officers. If some State Officers were not to be afforded different, preferential treatment, then section 62(1) of ACECA, which referred to suspension of a public officer or state officer who was charged with corruption or economic crime, should apply to them also.
  5. In considering section 62(6) of ACECA one should regard the provisions of the Constitution with regard to leadership and integrity, and the national values and principles that underpinned all actions and conduct by all public and State Officers and all State Organs.
  6. The provisions of section 62(6) of ACECA, apart from obfuscating, indeed helping to obliterate the political hygiene, were contrary to the constitutional requirements of integrity in governance, were against the national values and principles of governance and the principles of leadership and integrity in Chapter Six of the Constitution, and undermined the prosecution of officers in the position of the applicant in the instant case.In so doing, they entrenched corruption and impunity in the land.
  7. Under the provisions of the County Government Act, where the Governor was unable to act, his functions were performed by the Deputy Governor. That was provided for in section 32(2) of the County Governments Act. The Governor in the instant case was not being removed from office.He had been charged with an offence under ACECA, and a proper reading of section 62 of ACECA required that he did not continue to perform the functions of the Office of Governor while the criminal charges against him were pending. However, if section 62(6), which violated the letter and spirit of the Constitution, particularly Chapter Six on leadership and integrity, was to be given an interpretation that protected the applicant’s access to his office, then conditions had to be imposed that protected the public interest. That was what the Trial Court did in making the order requiring that the applicant obtained the authorisation of the CEO of EACC before accessing his office.In the circumstances, there hadn’t been an error of law that required that the instant Court revises the said order.
  8. Should there be difficulty in obtaining the authorisation from the EACC, there would be no vacuum in the County. The instant Court took judicial notice of the fact that there had been circumstances in the past in which County Governors had, for reasons of ill health, been out of office, and given the fact that the Constitution provided for the seat of a Deputy Governor, the Counties had continued to function. In the instant case, the applicant was charged with a criminal offence; he had been accused of being in moral ill-health. He was alleged to have exhibited moral turpitude that required that, until his prosecution was complete, his access to the County government offices were to be limited as directed by the Trial Court.
  9. [Obiter] Would it serve the public interest for him to go back to office and preside over the finances of the County that he has been charged with embezzling from? What message does it send to the citizen if their leaders are charged with serious corruption offences, and are in office the following day, overseeing the affairs of the institution? How effective will prosecution of such state officers be, when their subordinates, who are likely to be witnesses, are under the direct control of the indicted officer?
Revision application dismissed
Orders
  1. The terms set for the applicant’s access to his office would remain in force for the duration of his trial.
  2. It was in the public interest and the interest of the applicant that the case against the applicant in ACC No. 3 of 2019 be proceeded with expeditiously.
Kenya Law
Case Updates Issue 033/2019
Case Summaries

CIVIL PRACTICE AND PROCEDURE There can be no joinder of a respondent to an application for recognition and enforcement of an arbitral award that was not privy to the subject contract or the dispute before an arbitrator

Talewa Road Contractors v Kenya National Highway Authority & another [2019] eKLR
Miscellaneous Application 535 of 2018
High Court at Nairobi
M W Muigai, J
June 17, 2019
Reported by Ian Kiptoo and Kadzo Jally

Download the Decision

Civil Practice and Procedure - parties to a suit - joinder of parties - applicable guidelines for a party to be enjoined - joinder of proposed respondent in a suit- grounds considered for an applicant to be enjoined as a respondent - where a proposed respondent was not privy to the contract which gave rise to the dispute - where an applicant who was not a party to the proceedings before an Arbitral Tribunal sought to be enjoined as a respondent- what were the factors a court considered when enjoining a proposed respondent in an application for recognition and enforcement of an arbitral award
Contract Law - privity of contract - where a proposed respondent was not privy to the subject contract - where a proposed respondent who was not privy to the subject contract and who did not participate in the Arbitral Tribunal sought to be enjoined as a respondent in an application for recognition and enforcement of an arbitral award arising from the subject contract - whether a party not privy to a contract that was the subject of an arbitrary award could seek to be enjoined as an interested party in a suit seeking to recognize and enforce an arbitral award
Words and Phrases - privity of contract - definition of - Privity of contract is the relationship that exists between people as a result of their participation in some transaction or event. The legal relationship that exists between the parties to the contract is based on obligations imposed by and rights and benefits accruing from their relationship. These do not affect 3rd Parties not privy to the contract.”- Principles of Commercial Law, Page 61

Brief Facts:
The applicant brought the instant application seeking orders enjoining the applicant as a respondent in Miscellaneous Application No 535 of 2018 in the High Court at Milimani, Nairobi; and the deposit of the arbitral award amount dated March 22, 2018 to a joint account of Digital Den Limited and Talewa Road Contractors to safeguard the applicant’s equipment confiscated by the 1st respondent to date and the payment of Kshs 154,644,400/- due to the applicant.
The application was opposed by the respondent who averred that the dispute between Talewa Road Contractors Limited and the respondent, Kenya National Highways Authority (KeNHA) arose from the contract of January 12, 2012 which was for periodic maintenance of Mombasa–Miritini (A109) Road signed between Talewa and KeNHA after Talewa participated in an open tender and was consequently declared the successful tenderer leading to it being awarded the tender for construction of Mombasa-Miritini (A 109) Road; and that the proposed respondent, Digital Den Limited was not privy to the said contract.

Issues:

  1. What were the factors a court considered when enjoining a proposed respondent in an application for recognition and enforcement of an arbitral award.
  2. Whether a party not privy to a contract that was the subject of an arbitrary award could seek to be enjoined as an interested party in a suit seeking to recognize and enforce an arbitral award. Read More...

Held :

  1. Order 1 rule 10 (2) of the Civil Procedure Rules provided for a party to be enjoined in a suit as a necessary party. The guiding principles for a party to be enjoined as an interested party were:
    1. the proposed interested party had to be a necessary party and a proper party;
    2. in the case of a defendant there had to be a relief flowing from that defendant to the plaintiff;
    3. The ultimate order or decree could not be enforced without his presence in the matter; and
    4. his presence was necessary to enable the Court to effectively and completely to adjudicate upon and settle all questions involved in the suit.
  1. The dispute referred to the Arbitration Tribunal was between Talewa Road Contractors Limited and Kenya National Highways Authority (KeNHA). The proceedings culminated with the arbitral award that was housed in the applicant’s chamber summons confirming that they related to the two parties only.
  2. The resultant arbitral award was final and binding to parties to the dispute and arbitration proceedings. The intended 2nd respondent was not privy to the contract between the applicant and respondent; the intended respondent was not party to the underlying contract that gave rise to the dispute heard and determined by the Arbitration Tribunal and was not party to those proceedings. At no point during the arbitral proceedings did the intended 2nd respondent apply to the Arbitral Tribunal to be joined to the proceedings. The intended 2nd respondent admitted that it entered into lease agreements with the applicant company on December 16, 2012 and January 17, 2013 to hire equipment from them and was not privy to the contract between the applicants and respondent.
  3. The intended 2nd respondent had a separate/specific claim against the applicant in the present case. The said claim was not heard and determined and/or settled. It was the subject of HCCC 323 of 2014 Digital Den Ltd vs Talewa Road Contractors & Later KeNHA and the 2nd respondent was joined as the 3rd party. Further, the intended 2nd respondent also filed Constitutional Petition 86 of 2019 Digital Den Ltd vs Talewa Road Contractors & KeNHA with regard to its claim against the applicant. Both matters/suits related to the claim of the intended 2nd respondent against the applicant. Until and unless the claim was heard and determined, the intended 2nd respondent could not legally and successfully claim Kshs 154, 644,400/- in the instant proceedings.
  4. The intended 2nd respondent could not be joined as a respondent in those proceedings because the applicant had no claim or interest or right against the 2nd intended respondent. In fact from facts deposed by the intended 2nd respondent it was the other way round that the intended 2nd respondent had a claim against the applicant. To grant a joinder to the instant proceedings as respondent would be a misjoinder.
  5. The intended 2nd respondent was not a necessary party and a proper party to the proceedings, there was no relief flowing from the respondent to the applicant. The ultimate order or decree in the instant case was that the arbitral award could be enforced without the intended 2nd respondent as party to the instant proceedings. The intended 2nd respondent’s presence was not necessary to enable the Court to effectively and completely to adjudicate upon and settle all questions involved in the instant proceedings.

Application dismissed with costs

Orders:

  1. It was ordered that the intended 2nd respondent was to pursue a claim against the applicant in HCCC 323 of 2014 and/or Constitutional Petition 86 of 2019.
  2. It was ordered that parties to the instant proceedings were to take a mention date before DR Commercial Division to inform the Court how/when the Chamber Summons application would proceed.
CONSTITUTIONAL LAW Clause 17(iii) of the Kenya Secondary School Sports Association Constitution that bars students above the age of 19 years from participating in sports is unconstitutional

Noah Mika Angoya v Kenya Secondary Schools Sports Association (KSSSA) & 2 others [2019] eKLR
Petition 65 of 2017
High Court at Mombasa
E K Ogola, J
May 9, 2019
Reported by Kakai Toili & Flora Weru

Download the Decision

Constitutional Law - fundamental rights and freedoms – enforcement of fundamental rights and freedoms - right to equality and freedom from discrimination – where students above the age of 19 were barred from participating in games and sports that were organized by the Kenya Secondary Schools Sports Association - whether barring students above the age of 19 from participating in games and sports organized by Kenya Secondary Schools Sports Association violated the right to equality and freedom from discrimination – Constitution of Kenya 2010 article 27
Constitutional Law - fundamental rights and freedoms –limitation of fundamental rights and freedoms – freedom from discrimination - where students above the age of 19 were barred from participating in games and sports that were organized by the Kenya Secondary Schools Sports Association – factors to consider - what were the factors to consider in determining whether a secondary school student above 19 years could be discriminated against by being barred from participating in games and sports organized by the Kenya Secondary Schools Sports Association – Constitution of Kenya 2010 article 24 & 27

Brief Facts:
The petitioner brought the instant petition on his own behalf and his daughter challenging the constitutionality of clause 17 (iii) of the 1st respondents Constitution which the petitioner averred that it barred any student above the age of 19 from participating in games and/or sports organized by the 1st respondent. The petitioner averred that by imposing that age limit, the 1st respondent failed to appreciate that though in the minority, some students begun their education at an advanced age for various reason and denying students above 19 years a chance to play was unconstitutional as the same amounted to discrimination on grounds of age.

Issues:

  1. Whether clause 17 (iii) ofthe Kenya Secondary School Sports Association’s Constitution that barred students abovethe age of 19 years from participating in sports was discriminatory and thus unconstitutional
  2. What were the factors toconsider in determining whether a secondary school student above 19 yearscould be discriminated against by being barred from participating in gamesand sports organized by the Kenya Secondary Schools Sports Association? Read More..

Relevant provisions of the Law
Constitution of Kenya 2010
Article 24 (1);
A right or fundamental freedom in the Bill of Rights shall not be limited except by law, and then only to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including—

(a) the nature of the right or fundamental freedom;
(b) the importance of the purpose of the limitation;
(c) the nature and extent of the limitation;
(d) the need to ensure that the enjoyment of rights and fundamental freedoms by any individual does not prejudice the rights and fundamental freedoms of others; and
(e) the relation between the limitation and its purpose and whether there are less restrictive means to achieve the purpose.

Article 27 (1) & (4);
(1) Every person is equal before the law and has the right to equal protection and equal benefit of the law.
(4) The State shall not discriminate directly or indirectly against any person on any ground, including race, sex, pregnancy, marital status, health status, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, dress, language or birth.

Held :

  1. The Constitution laid a veryfirm ground against any acts which could appear to be against theConstitution. Where a student whowas in secondary school and who was over 19 years old, the questions toask were:
    1. Whether the student was in that school lawfully.
    2. Whether the student was entitled to secondary education.
    3. Whether the student was entitled to participate in and enjoy both local and international sports competition.
    4. Whether the student paid school fees which included sports activities.

    The student was not an alien to the Constitution such that he or she could be discriminated against by rules of the 1st respondent.

  1. Article 2(4), 10, 12, 20,21, 22(1), 23, 24, 25, 27, 47, 48, 50(1), 55, 258(1), 259 of theConstitution outlawed any discrimination in public bodies or institutions.The respondents were managers of public institutions and were inter alia mandated to promote,encourage and regulate games and sports within secondary schools in Kenya.In carrying out that mandate they were guided by the Constitution of theRepublic of Kenya. The petitionerbeing aggrieved had rightfully come to the Court under article 22 of theConstitution both to claim the novelty of that article as a citizen ofKenya, and also for his daughter, and posterity. The respondents could notabrogate to themselves the arrogance of disobeying the Constitution whichwas the factual legal foundation of all their activities.

Petition allowed; orders granted as prayed

CONSTITUTIONAL LAW Section 8(3) (c) and section 5(5) (a) of the National Land Commission Act and National Police Service Commission Act, respectively, declared unconstitutional for disqualifying former MPs, MCAs, Governors and those who contested in certain elections, for a period of five years, from being recruited as commissioners.

Fopa Association Kenya Suing through its Officials Humphrey Kimani Njuguna – Chairman & Kinoti Gatobu – Secretary v Attorney General & 3 others; County Assemblies Forum & another (Interested Parties) [2019] eKLR
Petition 116 of 2019
High Court at Nairobi
J.A Makau, J
June 20, 2019
Reported by Beryl Ikamari & Mathenge Mukundi

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Constitutional Law-principle of constitutionality-constitutionality of statutory provisions-constitutionality of section 8(3) (c) and section 5(5) (a) of the National Land Commission Act and National Police Service Commission Act, respectively, which disqualified former MPs, MCAs, Governors and those who contested in an election, for a period of five years, from being recruited as commissioners- whether section 8(3) (c) and section 5(5) (a) of the National Land Commission Act and National Police Service Commission Act, respectively, were unconstitutional- Constitution of Kenya, 2010, articles 67 & 246.
Constitutional Law-fundamental rights and freedoms- rights of equality and freedom from discrimination, human dignity, political rights, fair labour practices, and economic and social rights-claim that statutory provisions which disqualified former MPs, MCAs, Governors and those who contested in an election, for a period of five years, from being recruited as commissioners violated fundamental rights and freedoms-whether the rights of equality and freedom from discrimination, human dignity, political rights, fair labour practices, and economic and social rights were violated by the statutory provisions- Constitution of Kenya, 2010, articles 27, 28, 38, 41 & 43.

Brief Facts:
The petitioner was an association whose membership comprised former members of parliament, both Senate and National Assembly, former Governors, Speaker and members of County Assemblies. The respondents were the stakeholders, who were directly affected by the orders sought or had mandate over the subject matter of the petition.
The petitioner’s complaint was against the laws that barred former members of parliament, Governors and County Assemblies from recruitment as commissioners of the National Land Commission, National Police Service Commission or any other government agency solely on the basis of them having been elected or having stood for election in the preceding five (5) years. The petitioner contended the provision of section 8(3) (c) of the National Land Commission Act and National Police Service Commission Act section 5(5) (a) that barred its members from being recruited in the commissions violated the Constitution and were therefore null and void.
It was the contention of the respondents that the impugned section of the National Land Commission Act and the National Police Service Commission Act were necessary to maintain independence and impartiality of the commission. They added that the impugned sections advanced a compelling public interest to manage independence of the commissions free from political persuasions effectively as opposed to individual interest of persons who would be looking for an opportunity to maintain their political party allegiance and continue to serve in independent commissions. It was thus submitted by the respondents that such a scenario went against the spirit, purpose and intention of the legislation to establish fiercely independent institutions. It was said that the impugned provisions satisfied the ethos set out under article 24 of the Constitution in that the limitation was provided under the law and that the same was reasonably justifiable in a modern democratic society.

Issues:

  1. Whether section 8(3) (c) and section 5(5) (a) of the National Land Commission Act and National Police Service Commission Act, respectively, were unconstitutional on grounds of disqualifying the former MPs, MCAs, Governors and those who contested in an election, for a period of five years, from recruitment in the commissions.
  2. Whether section 8(3) (c) and section 5(5) (a) of the National Land Commission Act and National Police Service Commission Act, respectively, violated rights of equality and freedom from discrimination, human dignity, political rights, fair labour practices, and social and economic.
  3. Whether section 8(3) (c) and section 5(5) (a) of the National Land Commission Act and National Police Service Commission Act, respectively, met the constitutional threshold on limitations of fundamental rights and freedoms. Read More...

Relevant Provisions of the Law
National Land Commission Act
Section 8(3) (c)
(3) A person shall not be qualified for appointment as the chairperson or a member of the Commission if the person-

(c) Has at any time within the preceding five years, held or stood for election as a member of Parliament, a county assembly or a governor.

National Police Service Commission Act
Section 5(5) (a)
(5) A person shall not be qualified for appointment as a chairperson or member if the person-

(a) Is or has been at any time within the previous five years a Member of Parliament or a county assembly.

Held:

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

Petition allowed with no order as to costs.

JURISDICTION Section 46(1) (ii) of the Prisons Act declared unconstitutional to the extent that it denies remission to persons imprisoned for an offence of robbery under section 296(1) of the Penal Code

Brown Tunje Ndago v Commissioner-General of Prisons [2019] eKLR
Constitutional Petition 28 of 2018
High Court at Malindi
May 30, 2019
W Korir, J
Reported by Ian Kiptoo

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Jurisdiction – Jurisdiction of the High Court – supervisory jurisdiction – claim that high Court did not have jurisdiction in regards to exercise of power of remission by the Commissioner-General of Prisons - whether High Court had supervisory jurisdiction over the exercise of the power of remission by the Commissioner-General of Prisons – Prisons Act, section 46
Constitutional law – constitutionality of statutes – constitutionality of section 46(1) of the Prisons Act – remission of sentences – where section 46(1) excluded remission of sentences to convicts sentenced under section 296(1) of the Penal Code – claim that it was discriminatory – where petitioner’s sentence had been reduced from life imprisonment to a definite term - whether section 46(1) (ii) of the Prisons Act was discriminatory and thus unconstitutional to the extent that it denied remission to persons sentenced for an offence of robbery under section 296(1) of the Penal Code –- Constitution of Kenya, 2010, articles 27 and 29; Prisons Act, section 46(1); Penal Code, section 296(1)
Criminal Law – sentencing - remission of sentences – where sentence is for a definite/determinate term – where petitioner’s sentence had been reduced from life imprisonment to a definite term – claim that denying the petitioner remission of his sentence was discriminatory - whether the seriousness of an offense was a valid reason for denying convicted persons remission of their sentences - whether convicts who were sentenced to a definite/determinate term were entitled to remission of their sentences

Brief Facts:
The petitioner was tried, convicted and sentenced to death by the Chief Magistrate’s Court for the offence of robbery with violence contrary to section 296(2) of the Penal Code. His appeals to the Court and to the Court of Appeal on both conviction and sentence were unsuccessful. The petitioner later moved the Court through Malindi High Court Constitutional Petition No. 1 of 2014 for certain orders. The death sentence imposed on the petitioner was set aside and replaced with a sentence of twelve years imprisonment from the date of his conviction.
The petitioner stated that he had been denied remission of sentence by the Commissioner–General of Prisons (the Commissioner) for no apparent reason resulting in the breach of his constitutional rights; that section 46 of the Prisons Act entitled him to remission of sentence like every other prisoner; and that the actions of the Commissioner violated his right to the equal protection and equal benefit of the law as guaranteed by article 27 of the Constitution of Kenya, 2010 (Constitution).
The respondent opposed the petition through a preliminary objection on the ground that the grant or denial of remission fell within the remit of the Commissioner and challenged the jurisdiction of the Court to hear and determine the petition on the ground that the court had no authority to grant remission to a prisoner. According to the respondent, remission as provided by section 46 of the Prisons Act was not an absolute right and could be waived by the Commissioner upon whom the power to grant remission was vested.

Issues:

  1. Whether High Court had supervisory jurisdiction over the exercise of the power of remission by the Commissioner of Prisons.
  2. Whether section 46(1) (ii) of the Prisons Act was discriminatory and thus unconstitutional to the extent that it denied remission to persons sentenced for an offence of robbery under section 296(1) of the Penal Code.
  3. Whether the seriousness of an offense was a valid reason for denying convicted persons remission of their sentences.
  4. Whether convicts who were sentenced to a definite/determinate term were entitled to remission of their sentences. Read More...

Relevant Provisions of the Law
Constitution of Kenya, 2010
Article 27
27. Equality and freedom from discrimination
“(1) Every person is equal before the law and has the right to equal protection and equal benefit of the law.
(2) Equality includes the full and equal enjoyment of all rights and fundamental freedoms.”

Article 29
“Every person has the right to freedom and security of the person, which includes the right not to be-

(a) deprived of freedom arbitrarily or without just cause;
(f) treated or punished in a cruel, inhuman or degrading manner.”

Penal Code
Section 296(1)
“Any person who commits the felony of robbery is liable to imprisonment for fourteen years.”

Prisons Act
Section 46
46. Remission of sentence
“(1) Convicted criminal prisoners sentenced to imprisonment, whether by one sentence or consecutive sentences, for a period exceeding one month, may by industry and good conduct earn a remission of one-third of their sentence or sentences. Provided that in no case shall —

(i) any remission granted result in the release of a prisoner until he has served one calendar month;
(ii) any remission be granted to a prisoner sentenced to imprisonment for life or for an offence under section 296(1) of the Penal code or to be detained during the President's pleasure.

(2) For the purpose of giving effect to the provisions of subsection (1), each prisoner on admission shall be credited with the full amount for remission to which he would be entitled at the end of his sentence if he lost no remission of sentence.
(3) A prisoner may lose remission as a result of its forfeiture for an offence against prison discipline, and shall not earn any remission in respect of any period —

(a) spent in hospital through his own fault; or
(b) while undergoing confinement as a punishment in a separate cell.

(4) A prisoner may be deprived of remission —

(a) where the Commissioner considers that it is in the interests of the reformation and rehabilitation of the prisoner;
(b) where the Cabinet Secretary for the time being responsible for internal security considers that it is in the interests of public security or public order.

(5) Notwithstanding the provisions of subsection (1) of this section, the Commissioner may grant a further remission on the grounds of exceptional merit, permanent ill-health or other special ground.”

Criminal Procedure Code
Section 333(2)
“Subject to the provision of section 38 of the Penal Code every sentence shall be deemed to commence from, and to include the whole of the day of, the date on which it was pronounced, except where otherwise provided in this Code.
Provided that where the person sentenced under subsection (1) has, prior to such sentence, been held in custody, the sentence shall take account of the period spent in custody.”

Held:

  1. The Court had supervisory jurisdiction over the exercise of the power of remission by the Commissioner. The statement in the Francis Opondo v Republic [2017] eKLR case that the power to grant remission lay with the Commissioner remained correct. It was only the manner in which he exercised that power that became the concern of the court. Nowhere in the Francis Opondo case did it state that the Court had no power to exercise supervisory jurisdiction over the Commissioner. The petitioner had demonstrated that he challenged the exercise of the power of remission by the Commissioner. That was an issue that fell within the jurisdiction of the Court. Therefore, the preliminary objection of the respondent was without merit.
  2. The Francis Karioko Muruatetu & another v Republic [2017] eKLR and William Okungu Kittiny v Republic [2018] eKLR cases created a cadre of prisoners not envisaged by section 46 of the Prisons Act. Those were the death row convicts whose sentences, like that of the petitioner, had been substituted with determinate prison sentences. Although section 46(1) of the Prisons Act did not expressly bar remission for prisoners sentenced to death, it went without saying that a prisoner sentenced to suffer death could not benefit from remission. That also applied to a prisoner serving a life sentence. Not only was it difficult to calculate remission in the two instances but even if calculation was done, the remission would serve no purpose for a prisoner who was to be hanged or expected to serve the remainder of his/her natural life behind bars.
  3. Section 46 of the Prisons Act allowed the Commissioner to grant remission of sentence to any prisoner on condition that he had served one calendar month and was not sentenced to imprisonment for life or for an offence under section 296(1) of the Penal Code or was detained at the President’s pleasure. It was understandable why prisoners sentenced to life imprisonment or detained at the President’s pleasure could not benefit from remission. Their sentences were indeterminate and at the time of admission it was not possible for the Commissioner to credit the full amount for remission to which the prisoner ought to be entitled to at the end of the sentence as required by section 46(2) of the Prisons Act.
  4. The question as to whether a person convicted for committing an offence contrary to section 295 of the Penal Code as read with section 296(1) of the same Code was not before the Court. However, if the petition succeeded it would follow that a person convicted for what was commonly known as simple robbery was also entitled to remission of sentence. A reading of section 46 of the Prisons Act showed that every person convicted and sentenced to a definite term of imprisonment exceeding one month was entitled to remission. The only exemption was a prisoner convicted and sentenced to serve imprisonment for simple robbery.
  5. Denying the petitioner the benefit of remission of sentence was discriminatory and thus a violation of the law. Some provisions of section 46 of the Prisons Act had to a large extent been rendered sterile by the recent developments in law. As drafted, section 46(1) of the Prisons Act only discriminated against those sentenced for an offence under section 296(1) of the Penal Code. It could not be said that it was discriminatory against those sentenced to imprisonment for life or those detained during the President’s pleasure. For that category of prisoners their period of imprisonment was never fixed by the court.
  6. Imprisonment for life meant imprisonment for the natural life term of a convict. Nobody knew how long each human being would live. For such a sentence the prison term could not be fixed to enable the Commissioner credit remission to the convict. The same position applied to those detained at the President’s pleasure. The custodial period was not known. Detention at the President’s pleasure had been declared unconstitutional. In that regard, detention at the President’s pleasure was no longer available as a punishment in Kenya.
  7. Once a person was sentenced to suffer death, such a convict would have no use for remission. Although section 46 of the Prisons Act did not specifically state that a person given the death sentence was not entitled to remission, common sense dictated that such a convict could not have his sentence remitted. There was nothing remittable in a death sentence.
  8. There was no reason why a convict with a determinate or definite prison term should not benefit from remission. For a prisoner, remission was one of the beacons of hope of life outside prison. It was a motivating factor towards reformation. There was no reason why a person who committed murder, robbery with violence or simple robbery should be denied remission if they had been sentenced to serve fixed prison terms. It was true that those were indeed very serious offences. They were, however, not the only grave offences. The gravity of the offences could not be good reason for denying those convicts remission for those convicted of grave offences like sexual offences were entitled to remission of their sentences. Therefore, it was discriminatory and indeed unconstitutional to deny remission of sentence to a certain category of prisoners serving definite sentences.
  9. The petition succeeded to the extent that every convict, whatever offence they were convicted of, serving a determinate, definite or fixed prison term was entitled to remission. Although the petitioner urged the court to declare section 46 of the Prisons Act unconstitutional, no case had been made for declaring the entire section unconstitutional. Such a step would end up outlawing remission of sentence which, ironically, the petitioner was fighting for through the petition. The only part of section 46(1) of the Prisons Act declared unconstitutional was that which denied remission to persons sentenced to imprisonment for an offence under section 296(1) of the Penal Code.
  10. Section 333(2) of the Criminal Procedure Code was clear that the period spent in custody prior to conviction and sentence ought to have been taken into account by a trial court when imposing a custodial sentence. The petitioner did not supply the Court with the judgment in Malindi High Court Constitutional Petition No 1 of 2014 in which he was sentenced to 12 years imprisonment. The Court could not presume that a Court of coordinate jurisdiction failed to take into consideration the relevant sentencing principles before imposing sentence on the petitioner. For that reason, the 1 year and 8 months from the petitioner’s sentence could not be deducted. Therefore, the prayer by the petitioner for a re-computation of his sentence failed.

Petition partly allowed with no order as to costs
Orders:

  1. Section 46(1) of the Prisons Act was declared unconstitutional to the extent that it denied remission to persons imprisoned for an offence under section 296(1) of the Penal Code;
  2. A declaration was issued that the petitioner being a prisoner serving a fixed or definite or determinate period of imprisonment was entitled to remission of his sentence in accordance with the provisions of section 46 of the Prisons Act.
  3. The Commissioner-General of Prisons would proceed to calculate remission of sentence for the petitioner; and
  4. The Deputy Registrar of Malindi High Court was directed to transmit a certified copy of the judgement to the Commissioner-General of Prisons who would be guided accordingly in respect of all the other prisoners in the same situation with the petitioner.

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